Order Amending Schedule 3 to the Security of Canada Information Disclosure Act: SOR/2023-256
Canada Gazette, Part II, Volume 157, Number 26
Registration
SOR/2023-256 December 4, 2023
SECURITY OF CANADA INFORMATION DISCLOSURE ACT
P.C. 2023-1186 December 1, 2023
Whereas, under subsection 10(3)footnote a of the Security of Canada Information Disclosure Act footnote b, the institution listed in the annexed Order has jurisdiction or responsibilities under an Act of Parliament or another lawful authority in respect of activities that undermine the security of Canada;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, makes the annexed Order Amending Schedule 3 to the Security of Canada Information Disclosure Act under subsection 10(3)footnote a of the Security of Canada Information Disclosure Act footnote b.
Order Amending Schedule 3 to the Security of Canada Information Disclosure Act
Amendment
| Column 1 Recipient Institution |
Column 2 Head |
|---|---|
Department of Industry Ministère de l’Industrie |
Minister of Industry |
Coming into Force
2 This Order comes into force on the day on which it is registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Order.)
Issues
Innovation, Science and Economic Development Canada (ISED) is currently unable to lawfully receive certain relevant information from federal partners under the Security of Canada Information Disclosure Act (SCIDA or the Act) to support the fulfillment of their jurisdiction or responsibilities in respect of activities that undermine the security of Canada, particularly as they relate to the Department’s responsibilities as part of national security reviews of proposed foreign investments under the Investment Canada Act (ICA). To address this issue, an order making an amendment to Schedule 3 of the SCIDA is required.
Background
The SCIDA came into force in June 2019 as part of the National Security Act, 2017 (former Bill C-59). The Act encourages and facilitates the responsible and effective disclosure of information between Government of Canada institutions in order to protect Canada against activities that undermine its sovereignty, security or territorial integrity. When former Bill C-59 was introduced in 2017, it recognized that the national security threat environment continuously evolves, along with technology, and that Canada’s national security framework had fallen behind. The proposed solutions were intended to support Canada’s efforts to respond to new national security threats while protecting Canadians and respecting their rights and freedoms.
The SCIDA replaced the Security of Canada Information Sharing Act and included several modifications, including a higher threshold to disclose information. The new threshold requires that disclosures “contribute” to the exercise of the recipient institution’s jurisdiction, or the carrying out of its responsibilities in respect of activities that undermine the security of Canada, rather than simply being “relevant” to the institution’s jurisdiction or responsibilities. Federal institutions must also ensure that disclosures will not affect any person’s privacy interest more than is reasonably necessary in the circumstances. The SCIDA also put in place additional requirements that institutions maintain records of disclosures and report on them annually to the National Security and Intelligence Review Agency (NSIRA). Finally, the SCIDA requires that disclosing institutions provide a statement on the accuracy and reliability of the manner in which the information was obtained at the time of disclosure. These and other safeguarding requirements are set out in section 5 of the Act.
Currently, the SCIDA permits the 17 federal government institutions listed in Schedule 3 to receive information under the Act. However, any federal institution is able to disclose information to a recipient institution listed in Schedule 3 so long as it complies with the requirements under the Act, including the specific requirements for disclosures under section 5 mentioned above. However, since the Act entered into force, almost half of the 17 designated institutions currently listed under Schedule 3 of the SCIDA have either never used the SCIDA to receive/disclose information (Canadian Food Inspection Agency, Canadian Nuclear Safety Commission, Department of Finance, Department of Health and Public Health Agency of Canada) or used it only once since 2019 (Public Safety Canada and Financial Transactions and Reports Analysis Centre of Canada).
NSIRA’s most recent SCIDA report for disclosures, made in 2021, shows that of the 17 designated institutions that can receive information under the Act, only five actually did: the Canadian Security Intelligence Service (CSIS), the Communications Security Establishment (CSE), the Royal Canadian Mounted Police (RCMP), Immigration, Refugees and Citizenship Canada (IRCC), and Global Affairs Canada (GAC). Two departments, GAC and IRCC, accounted for the overwhelming majority of disclosures under the Act. Only one other department made a disclosure in 2021. NSIRA’s report for the year prior highlighted a similar disclosure pattern, with the same two main disclosing institutions and three of the same primary recipients: CSIS, CSE and the RCMP.
The threats that Canadians now face continue to evolve. These threats, such as foreign interference, require much closer cooperation and collaboration among traditional and non-traditional government departments and agencies with national security responsibilities than what was originally envisioned when former Bill C-59 was tabled. Prior to this Order, ISED did not have a clear singular authority to receive information from all federal partners related to the national security elements of their mandates, as it was not included in Schedule 3 when the Act was passed.
Objective
- Strengthen Canada’s capacity to respond to national security threats in a timely manner, including new and evolving threats.
- Increase responsible and effective information sharing between federal government institutions with national security responsibilities, subject to existing reporting, review and oversight mechanisms.
Description
The Order Amending Schedule 3 to the Security to Canada Information Disclosure Act (the Order) adds ISED to Schedule 3 of the Act. Schedule 3 lists Government of Canada institutions that are authorized to receive information that will contribute to the exercise of their national security mandates. Prior to this Order, Schedule 3 listed 17 federal departments and agencies. This Order adds one more, meaning that ISED is one of the designated recipients authorized under the Act to lawfully receive information, subject to meeting the Act’s requirements as described above.
This Order does not alter the Act in any other way. It does not amend the information-sharing framework laid out in the Act, alter the rights or freedoms of Canadians, nor grant additional collection authorities to the federal government. As a newly designated recipient institution, ISED is subject to the existing reporting, review and oversight mechanisms, including review by NSIRA. In addition, ISED is now required to maintain records and report annually to NSIRA on all disclosures received under the SCIDA in the future. The Order closes an information-sharing gap among federal institutions.
Regulatory development
Consultation
Public Safety Canada engages with relevant stakeholders, including civil society organizations, academics, provinces and territories, and other government departments on the Government of Canada’s information-sharing practices (including under the Act) to raise public awareness and confidence. The department also engages stakeholders through the National Security Transparency Advisory Group, which advises the Government on how to best implement its National Security Transparency Commitment across the Government of Canada’s national security and intelligence departments and agencies.
Public Safety Canada has not engaged externally on this Order as there are no expected impacts to provinces or territories, businesses, the environment, gender, or others. The Order only impacts the information-sharing relationships between ISED and other federal government departments and agencies. All disclosures must continue to comply with Canadian law, including the SCIDA, the Privacy Act, and the Canadian Charter of Rights and Freedoms.
Public Safety Canada consulted across the federal government to learn of existing information sharing challenges among federal national security partners. Department officials held bilateral meetings with departments and agencies, including ISED, to learn about their national security jurisdiction and responsibilities. ISED was already able to disclose information to other eligible recipients under the Act, but had not previously been able to lawfully receive information under the SCIDA.
Prepublication
An exemption was granted from the regulatory policy requirement to officially publish this Order in the Canada Gazette, Part I, as it impacts the Government’s capacity to protect the national security and economic well-being of Canadians and pertains to internal government processes.
Modern treaty obligations and Indigenous engagement and consultation
After an initial assessment, this Order is not expected to impact modern treaty obligations.
Instrument choice
While the Act could be amended through legislation, an order by the Governor in Council was chosen as it aligns with subsection 10(3) of the SCIDA, which stipulates that Schedule 3 may be amended by an order made by the Governor in Council.
Regulatory analysis
Benefits and costs
ISED’s eligibility to receive information for national security purposes enhances the Government’s overall ability to protect Canada against national security threats to our economic prosperity, such as foreign interference in the context of proposed foreign investments, by improving the responsible, effective, and timely flow of information between ISED and other federal government institutions. This Order also provides more transparency to Canadians, as disclosures made under the SCIDA would be reviewed by NSIRA through its annual review process and made known publicly through the review bodies’ annual report tabled in Parliament.
While SCIDA will support ISED with the fulfillment of its responsibilities with respect to activities that undermine the security of Canada, Public Safety Canada expects that ISED will be involved in a small number of disclosures under the SCIDA once it becomes a designated institution. The 2021–2022 Annual Report on the ICA indicates that the number of national security reviews is increasing but small, as only 24 investments were reviewed for this purpose out of a total of 1 255 investment applications and filings made that year. As a result, Public Safety Canada only expects minor costs resulting from this Order and no additional staff requirements.
ISED is required to maintain records of any disclosures received under the SCIDA and report them annually to the NSIRA. Prior to this Order, ISED already had this obligation for disclosures it makes to other designated recipient institutions under the Act. ISED will be able to implement a standard record-keeping system for both disclosures and receipts. Existing ISED staff will be trained by Public Safety Canada on responsible information sharing under the SCIDA and will have access to guidance documents outlining best practices under the Act.
Small business lens
Analysis under the small business lens concluded that this Order will not impact Canadian small businesses. The Order pertains to the disclosure of information between Canadian government departments and agencies. It does not impose a new burden, financial or otherwise, on small businesses.
One-for-one rule
The one-for-one rule does not apply, as the Order has no impact on business.
Regulatory cooperation and alignment
The Order is not related to a work plan or commitment under a formal regulatory cooperation forum as it pertains to the disclosure of information between Canadian federal departments and agencies and not with international partners.
Strategic environmental assessment
The Order is unlikely to result in important environmental effects. In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
A preliminary scan did not identify gender-based analysis plus (GBA+) impacts resulting from this Order.
Rationale
This Order strengthens Canada’s ability to respond to national security threats and ensures that information can be disclosed more effectively to ISED from other Government of Canada institutions in the national security context.
Canada’s economic security is an area requiring heightened vigilance and more information sharing among a broader range of partners to combat economic-based national security threats. The Government of Canada has issued several public statements indicating enhanced scrutiny of certain foreign investments due to the elevated risk environment, such as its April 18, 2020, Policy Statement on Foreign Investment Review and COVID-19 and its March 8, 2022, Policy Statement on Foreign Investment Review and the Ukraine Crisis. More recently, on December 7, 2022, the Government announced its intention to modernize the ICA to further address national security concerns.
While the ICA is designed to encourage investment, economic growth and employment, it includes national security review provisions for the prevention of foreign investments that would harm Canada’s national security. The Minister of Industry is responsible for the administration of the national security process under Part IV.1 of the ICA, while the conduct of the reviews themselves are led by Public Safety Canada through a multi-step process in coordination with ISED, relevant investigative bodies, Canada’s national security agencies, and allies. Based on a recommendation from the Minister of Industry, following consultation with the Minister of Public Safety and Emergency Preparedness, the Governor in Council has the authority to take any measure necessary with respect to an investment to protect national security, including directing an investor not to implement an investment, authorizing an investment on condition that the investor gives certain written undertakings or on terms and conditions that the GIC considers necessary under the circumstances, or requiring the investor to divest control of its investment. These reviews occur in accordance with the National Security Review of Investments Regulations and the Guidelines on the National Security Review of Investments.
The Order enhances ISED’s ability to make assessments and recommendations in the context of these national security reviews. For example, GAC could now disclose information to ISED that it collected under the Export and Import Permits Act and other legislative authorities, such as information on whether and why an export permit was denied, including information on end-users in foreign jurisdictions. Before this Order, ISED often relied on other non-governmental sources, such as investors or other private parties, to obtain information in certain contexts, which resulted in information gaps and caused frequent delays to its reviews that are subject to legislative timelines. Although under the ICA other departments and security and intelligence agencies are listed as “investigative bodies,” there are certain limitations in their specific acts, such as the Export and Import Permits Act, to sharing information with ISED — which this Order will assist with by providing a lawful information sharing authority through the SCIDA.
Implementation, compliance and enforcement, and service standards
The Order comes into force on the day it is registered.
Public Safety Canada will update its Information Sharing for National Security web page to reflect this Order.
Public Safety Canada will support ISED in implementing this Order by providing it with training and guidance to effectively administer the legislation. ISED officials will be offered and have continuous access to these training resources in order to ensure that they have appropriate policies and procedures in place to comply with the Act. ISED will also receive ongoing support from Public Safety Canada in maintaining and submitting annual records of disclosures to NSIRA.
Every year, the Minister of Public Safety and Emergency Preparedness must table NSIRA’s annual SCIDA report in each House of Parliament. NSIRA typically publishes these reports on its website. NSIRA also has the ability to conduct investigations, require departmental studies, and write special reports that must be tabled by the appropriate Minister in each House of Parliament. This mechanism, in addition to being reviewed by the National Security and Intelligence Committee of Parliamentarians, helps to ensure that disclosures continue to respect and comply with the SCIDA, the Privacy Act, and the Canadian Charter of Rights and Freedoms.
Contact
Strategic Coordination Centre on Information Sharing
Public Safety Canada
269 Laurier Avenue West
Ottawa, Ontario
K1A 0P8
Email: scci-ccsi@ps-sp.gc.ca