Canada’s National Security Surveillance Regimes
November 15, 2023
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Executive Summary
- Introduction. Relative to most of its Five Eyes partners, Canada has a small and decentralized intelligence community. Nevertheless, Canada has substantial capacity for electronic surveillance, both domestically and internationally.
- Canada’s national-security surveillance and intelligence-gathering activities are characterized by a powerful executive, neglect from its legislature, and complex rules.
- Agencies that conduct national-security surveillance. Intelligence, police, and military agencies conduct electronic surveillance for national-security purposes:
- The Canadian Security Intelligence Service (CSIS) is Canada’s domestic security intelligence service. It is authorized to collect information “within or outside Canada” directly related to its mandate to investigate threats to the security of Canada.
- Canada does not have a civilian agency empowered to clandestinely collect human intelligence overseas or conduct covert actions.
- The Communications Security Establishment (CSE) is Canada’s national cryptologic agency, comparable to America’s NSA or Britain’s GCHQ.
- CSE collects foreign intelligence from the global information infrastructure and conducts both defensive and offensive cyber activities.
- The Royal Canadian Mounted Police is Canada’s federal police force. It uses surveillance to gather evidence in criminal investigations, including investigations of terrorism, espionage, cyber-crime, and other crimes related to national security.
- The Department of National Defence and Canadian Armed Forces (DND/CAF) collect both human and signals intelligence with a nexus to military operations.
- The Canadian Security Intelligence Service (CSIS) is Canada’s domestic security intelligence service. It is authorized to collect information “within or outside Canada” directly related to its mandate to investigate threats to the security of Canada.
- Collection against domestic targets is primarily conducted by two agencies: CSIS and the RCMP.
- Process for conducting surveillance in national-security criminal investigations. The RCMP uses communications intercepts, metadata, malware, and third-party production orders to collect evidence in investigations of national-security crimes.
- The Criminal Code governs the RCMP’s interception of any “private communication” with either sender or recipient in Canada.
- There are separate regimes for real-time interception, which requires a warrant, and stored data, which require the RCMP to obtain a “production order.”
- Warrants for interception are approved ex parte by judges at the provincial level.
- The warrant application must provide “reasonable and probable grounds” supporting the interception, describe how the surveillance will be implemented (including privacy safeguards), and persuade the judge that other investigative methods have not succeeded or would be impracticable.
- This “last resort” requirement does not apply in terrorism cases.
- Production orders are also issued by a judge and enable police to compel a third-party to produce information about a target.
- This can include stored content, subscriber information, and “transmission, tracking, and trace” data such as communications metadata and location. The standard varies depending on the level of intrusiveness.
- Targets generally must be informed after the fact, but notification can be delayed for up to three years and is not required at all in terrorism cases.
- Process for surveillance in intelligence investigations. CSIS is authorized to surveil for intelligence purposes people or organizations suspected of constituting a threat to the security of Canada.
- CSIS’s electronic surveillance is governed by the CSIS Act rather than the criminal code.
- When CSIS believes that an individual or organization is engaged in threat-related activities, it can seek a warrant from the Federal Court to engage in collection activities that would otherwise breach a reasonable expectation of privacy.
- Applications are lengthy and officials typically must testify to the facts.
- There is no obligation to notify the target of CSIS surveillance.
- A separate part of the CSIS Act regulates CSIS’s use of large datasets.
- The law does not authorize CSIS to compel the production of datasets; instead, it regulates CSIS’s handling and retention of datasets it obtains.
- After evaluating a Canadian dataset, CSIS must apply to the Federal Court for permission to retain it. Foreign datasets can be retained upon approval from the Minister of Public Safety and the Intelligence Commissioner.
- The law also regulates queries, which must be “strictly necessary,” and “exploitation” of the dataset using data-science techniques.
- Process for SIGINT collection. CSE, the cryptographic agency, is authorized to collect foreign intelligence from the global communications infrastructure. It is not authorized to collect information on Canadians.
- Before initiating a surveillance activity, CSE must apply to the Minister of Defense for a “foreign intelligence authorization.”
- The application must demonstrate that the collection is necessary, reasonable, and proportionate, that the information cannot be obtained by less intrusive means, and that information that relates to Canadians will be minimized.
- The foreign intelligence authorization is then reviewed by the Intelligence Commissioner, a quasi-judicial role held by a retired federal judge.
- Oversight (or “review”). There are two principal agencies responsible for post-hoc oversight, which in the Canadian system is known as “review.”
- The National Security and Intelligence Committee of Parliamentarians is a body within the executive branch whose members are sitting members of Parliament.
- The Committee can review legislative, regulatory, policy, administrative, and financial frameworks for national security and intelligence, as well as the activities of any relevant government department or agency.
- It has reviewed broad topics such as Canada’s defense intelligence activities and specific public controversies involving intelligence.
- Its reports are provided to and ultimately released by the Prime Minister.
- The National Security and Intelligence Review Agency (NSIRA) is an independent body with seven part-time members. It is tasked with assessing the national-security intelligence community’s compliance with the laws of Canada.
- NSIRA issues an annual report and conducts agency-specific reviews and investigations into issues of concern, such as the handling of Canadian-identifying information by the CSE.
- Despite some recent improvement, Canada’s national-security culture remains opaque.
- Agencies’ powers and obligations are now codified, but implementing policies, internal procedures, ministerial directives, and interagency memoranda of understanding are rarely made public.
- The RCMP does not report separately on its national-security activities.
- In general, there is little statistical transparency about how often production orders, subscriber requests, or different kinds of electronic collection (such as IMSI catchers, malware, etc.) are used.
- The National Security and Intelligence Committee of Parliamentarians is a body within the executive branch whose members are sitting members of Parliament.
