Chain Reaction: Bill C-59’s Complicated Coming Into Force Rules
6 June 2019 (revised 6 June)
By Craig Forcese
Bill C-59, the National Security Act 2017, is now back before the Commons to consider the (relatively minor) amendments proposed by the Senate. Baring a catastrophe, it should make it past this final Commons-Senate ping-pong and become law. “Becoming law” means “coming into force”. There are rules about coming into force, and I review how they apply to C-59 because: it’s complicated.
As a default expectation, a bill comes into force when it receives “royal assent” – a ceremonial final stage in the enactment process carried out by the Governor General or her delegate. In modern Canadian constitutional convention, the Governor General has no discretion to refuse assent – this is an entirely pro forma stage in the enactment process.
However, statutes often include coming into force sections prescribing bespoke rules for all or some of the statute. Sometimes these rules establish a coming into force clock – the named provisions come into force at a particular time. More often, they delegate the power to bring provisions into force to the Governor-in-Council (GiC) – effectively, the federal Cabinet. The reason for this delegation is usually to enable the creation of the regulatory or institutional platforms required to operationalize the relevant statutory powers, prior to those sections becoming law.
What are the rules in C-59? The short answer: it’s a mixed bag.
· First, once the bill receives royal assent, one power will have retroactive effect to August 1, 2015: the power of the Minister of Public Safety to create a no fly list. (My guess is that this retroactivity permits the preservation of the list created when the original 2007 no fly list process was carried over under the Secure Air Travel Act which came into force on August 1, 2015.)
· Second, some important parts of the Act will automatically become law upon royal assent. These include:
o The renovated CSIS threat reduction powers and the accompanying warrant process;
o Most of the revamped Security of Canada Information Sharing Act (renamed the Security of Information Disclosure Act);
o Amendments to the Criminal Code which create a revised terrorism counselling offence, and modestly change the terrorist group listing process and the preventive detention and peace bond powers; and,
o Amendments to the Youth Criminal Justice Act regulating preventive detention and peace bond powers involving youths.
· Third, many parts of the statute will only come into force by order of the GiC. These are:
o The Avoiding Complicity in Mistreatment by Foreign Entities Act, requiring (or, depending on the agency, authorizing) ministerial directions on foreign information sharing where that sharing might be the product or cause of mistreatment;
o Almost all the National Security and Intelligence Review Agency (NSIRA) Act;
o Almost all the Intelligence Commissioner (IC) Act;
o Almost all the Communications Security Establishment Act;
o The CSIS dataset regime;
o The CSIS immunity or justification regime for CSIS employees or sources who, with authorization, engage in illegality during intelligence collection; and,
o Most (although not all) of the amendments to the Secure Air Travel Act, including the key provision permitting a redress system for “false positives” flagged by the no fly list.
Many powers for which coming into force is delayed pending GiC order will require sophisticated internal procedures – for example, CSIS datasets and the regulatory framework for the Secure Air Travel Act redress system. Many of the new powers are also intertwined in a way that first requires the creation of the new NSIRA and IC. For example, the CSE will not be able to conduct its foreign intelligence or cybersecurity mandates without oversight by the IC. The IC is also required for CSIS’s new dataset and immunity/justification powers. Likewise, the NSIRA has a legislative role in reviewing things like CSIS datasets. A dataset regime without a NSIRA would include provisions that cannot operate in its absence – an ugly possibility. (There are several other examples where NSIRA has an obligatory review role in relation to new powers.)
To avoid bottlenecks on the coming into force of many of the security services’ new powers, I suspect there will be urgency in creating the NSIRA and IC and bringing into force their statutes.
[This post has been revised to reflect my mistake in failing to list the Avoiding Complicity in Mistreatment by Foreign Entities Act among those coming in force by GiC order in council. Mea culpa.]