General Legislation Applying to National Security Institutions

This section examines the extent to which non-agency specific legislation directs national security institutions to consider or report on human rights. The applicable statutes are divided into two types: national security related legislation and legislation of general application.

a. National Security Legislation:

There are a number of statutes that do not apply to any one specific national security agency. The following statutes and their corresponding regulations address national security, some in a general way and others in a more peripheral manner:

• Emergencies Act
• Anti-Terrorism Act
• Immigration and Refugee Protection Act
• Charities Registration (Security Information) Act
• Proceeds of Crime (Money Laundering) and Terrorist Financing Act
• Security Offences Act;
• Canada Evidence Act;
• Criminal Code sections amended by the Anti-Terrorism Act; and
• Income Tax Act sections amended by the Anti-Terrorism Act.

The extent to which each piece of legislation is applicable depends on the activity and the affected agency. Each statute grants powers, extends jurisdiction, enables programs and generates a series of obligations. Depending on the statute, it may govern all national security institutions or only some of them. Responsiveness to human rights considerations, including reporting obligations, also varies.

Emergencies Act

The Emergencies Act, under which no regulations exist, allows the Governor in Council to declare a national emergency where special powers are necessary to deal with the emergency.

The Act makes broad reference in its Preamble to the respect of rights under the Charter.⁴ The Act’s Preamble states:

AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency.

The Emergencies Act does not create any reporting obligations on national security institutions. However, the Act requires that the exercise of powers under it be reviewed by a Parliamentary committee. It reads:

62. (1) The exercise of powers and the performance of duties and functions pursuant to a declaration of emergency shall be reviewed by a committee of both Houses of Parliament designated or established for that purpose.

(6) The Parliamentary Review Committee shall report or cause to be reported the results of its review under subsection (1) to each House of Parliament at least once every sixty days while the declaration of emergency is in effect and, in any case,

a) within three sitting days after a motion for revocation of the declaration is filed under subsection 59(1);

b) within seven sitting days after a proclamation continuing the declaration is issued; and

(c) within seven sitting days after the expiration of the declaration or the revocation of the declaration by the Governor in Council.

As the Emergencies Act

was not invoked during the last 10 years, there were no committee appearances by representatives of national security agencies under this section.

Anti-terrorism Act:

The Anti-terrorism Act (ATA) of 2001 is omnibus legislation that amended other statutes, and it is therefore considered a part of those statutes rather than a statute in its own right.⁵ A portion of the legislation that is not an amendment to other legislation is the Preamble, which includes a general reference to the Charter:

WHEREAS the Parliament of Canada, recognizing that terrorism is a matter of national concern that affects the security of the nation, is committed to taking comprehensive measures to protect Canadians against terrorist activity, while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms…

The Preamble and the requirement that Parliament review the legislation again within three years are the only portions of the ATA that are not amendments to other legislation. They do not create any reporting obligations on national security institutions in respect of human rights issues.

Immigration and Refugee Protection Act

The Immigration and Refugee Protection Act ("IRPA") includes sections that prohibit admission to Canada by individuals who may pose a threat to Canada’s national security.⁶ The IRPA makes a general reference in its interpretive clause to human rights:

3.(3) This Act is to be construed and applied in a manner that …

(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;…

(f) complies with international human rights instruments to which Canada is signatory.

Neither the IRPA nor its regulations create a reporting obligation on national security agencies in respect of human rights issues.

Charities Registration (Security Information) Act

The Charities Registration (Security Information) Act prevents charitable fundraising for terrorist organizations.⁷ It makes no reference to human rights, but does require that decisions made pursuant to it be fair. The Act reads:

2.(2) This Act shall be carried out in recognition of, and in accordance with, the following principles: … the process for relying on the information referred to in paragraph (a) in determining eligibility to become or remain a registered charity must be as fair and transparent as possible having regard to national security and the safety of persons.

The statute creates no reporting requirements.

Other National Security Statutes

The Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Security Offences Act, the Canada Evidence Act, the Criminal Code, and the Income Tax Act make no relevant reference to human rights or the Charter and create no relevant reporting obligations.

b. Legislation of General Application that Governs National Security Institutions:

Financial accountability reporting and human rights legislation are two other types of statutes that govern the general operations of national security institutions.

Financial Accountability Reporting

The reporting obligations contained in the Financial Administration Act (FAA) were reviewed for any reference to human rights.⁸ The FAA sets out the basis on which government spending may be approved, expenditures can be made, revenues obtained, and funds borrowed.

There are general reporting requirements imposed on departments and agencies identified in the schedules to the FAA. In particular, annual reports, which cover the most recently completed fiscal year, are tabled in Parliament by the President of the Treasury Board on behalf of the ministers who preside over the departments and agencies identified in Schedules I, I.1 and II of the FAA.

The schedules list the following agencies under review: the RCMP, CSIS, the CSE Commissioner, SIRC, the Complaints Commission, and the Auditor General. However, even though they are listed, CSIS and the CSE Commissioner do not report publicly on their finances pursuant to the FAA.⁹ The CSE and the Inspector General of CSIS are not listed in the schedules.

The FAA reports are divided into Reports on Plans and Priorities and Departmental Performance Reports. Reports on Plans and Priorities are individual expenditure plans and Departmental Performance Reports are accounts of accomplishments achieved against planned performance expectations as set out in respective Reports on Plans and Priorities. Both Reports on Plans and Priorities and Departmental Performance Reports are tabled in Parliament.

Despite these general reporting obligations, there are no obligations contained in the FAA on national security institutions to report on human rights issues.

Human Rights Legislation

Two statutory documents govern human rights in the activities of all federal government institutions: the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act.¹⁰

The rights contained in the Charter are constitutionally entrenched and all government bodies are required to respect these rights.

As the Supreme Court of Canada has recognized, the CHRA is quasi-constitutional legislation and therefore is implicitly incorporated into all other federal legislation.¹¹

Neither the Charter nor the CHRA create any direct obligations on federal institutions to report on human rights issues.