ANNEX 15: THE LAW OF THE FIVE EYES
foreign laws (and thus violated foreign sovereignty). As a practical result, the power to
covertly collect information (pursuant to a s21 warrant) relating to foreign affairs is
restricted to the right to take steps within Canada itself. The effects of that decision
were reversed by PCFOC 2014 which provided that CSIS may perform its duties and
functions outside of Canada. It expressly authorises a judge to issue a warrant for
overseas investigations, even if those investigations may be violation of foreign or other
laws.
49.
Sections 34 and onwards of the Act establish the SIRC, composed of members of the
Canadian Privy Council. Those who sit on SIRC are not ordinarily members of the
Senate or House of Commons. The Governor in Council (in practice, the Canadian
federal cabinet) appoints the members of the Committee in consultation with the Prime
Minister, Leader of the Opposition and the leader of each party with at least 12
Members of the House of Commons. The individuals appointed play an important but
comparatively limited role in the operations of SIRC. They retain other obligations and
ordinarily only meet a small number of times per year. The day-to-day operations of
SIRC are carried out by its full time staff of 18 individuals.
50.
The Committee is required to review the Service in general, although the statute does
not specify that it should review the warrantry process. However, in practice SIRC
reviews a random sample of all warrant applications in any given year (around 5%).
That review involves an examination of the underlying documents that led to the
warrant application, that were not provided to the court in the application. Their reports
are provided to the Minister and the Director of the Service. SIRC also prepares an
annual report recounting its operations and summarising its findings and
recommendations.
51.
Any individual may complain of the Service’s activities to the Committee, which is
entitled to investigate and make recommendations. .62 SIRC has no powers to enforce
its holdings. It is competent only to make recommendations.
52.
The National Defence Act 1985 [NDA 1985] recognised the existence of what is now
the CSE, a signals intelligence agency and the Canadian equivalent of GCHQ. NDA
1985 defined CSE’s mandate as:
“(a) to acquire and use information from the global information infrastructure for
the purpose of providing foreign intelligence, in accordance with Government of
Canada intelligence priorities;
(b) to provide advice, guidance and services to help ensure the protection of
electronic information and of information infrastructures of importance to the
Government of Canada; and
(c) to provide technical and operational assistance to federal law enforcement
and security agencies in the performance of their lawful duties.”63
62
63
Section 37.
273.64(1).
358