Chapter 1: Legal Framework
Special Report on the National Security and Intelligence Activities of Global Affairs Canada

15. The Department's duties and functions are outlined in the Department of Foreign Affairs, Trade and Development Act (DFATD Act). The Department derives its authority to perform these duties and functions, including those involving national security and intelligence, from a combination of the broad Crown prerogative and a number of specific statutes. The following section describes the authority structure for GAC's national security and intelligence activities.

16. The Department's enabling legislation has expanded the organization's mandate and operations since its founding in 1909. In its initial iteration under the 1909 External Affairs Act, the Department's mandate consisted primarily of managing the country's communications with foreign states. ^{Footnote 22} Its international footprint and operations evolved over subsequent decades, as Canada's foreign policy and relations grew increasingly independent of the United Kingdom's. In 1983, the Department of External Affairs merged with the Canadian Trade Commissioner Service to become External Affairs and International Trade Canada, a change codified first through the Government Organization Act and then the 1995 Department of Foreign Affairs and International Trade Act. ^{Footnote 23} In 2013, the Department's mandate was further expanded by its amalgamation with the Canadian International Development Agency, which was reflected in the Department of Foreign Affairs, Trade and Development Act (DFATD Act). ^{Footnote 24}

17. The DFATD Act lays out the mandate, duties and functions of the Minister of Foreign Affairs. ^{Footnote 25} Under subsection 10(1), the Minister of Foreign Affairs' mandate extends to and includes "all matters over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada, relating to the conduct of the external affairs of Canada." Subsection 10(2) of the Act lays out additional specifics of the Minister's broad mandate, which includes the responsibility to conduct all diplomatic and consular relations, lead international negotiations, coordinate international economic relations, and manage Canada's diplomatic and consular missions. In pursuit of this broad mandate, subsection 10(3) of the Act allows the Minister to develop and implement programs for the promotion of Canada's interests abroad.

Crown prerogative

18. The DFATD Act does not confer specific lawful authority on the Minister of Foreign Affairs. Rather, the Minister's authority derives primarily from the Crown prerogative. ^{Footnote 26} The Crown prerogative is a source of discretionary executive power of the Crown. ^{Footnote 27} British constitutional theorist A. V. Dicey describes the Crown prerogative as "the residue of discretionary or arbitrary authority, which at any time is left in the hands of the Crown." ^{Footnote 28} The Crown prerogative over foreign affairs is one of a few remaining areas of government, alongside powers relating to the armed forces, in which the Crown prerogative is an important source of authority. This reliance on the Crown prerogative as the source of the Minister's authority is long-standing, dating back to when Canada first began conducting its own foreign affairs independently from the United Kingdom. ^{Footnote 29}

19. The Committee previously examined the government's exercise of a Crown prerogative, and the limits on its powers, in its 2018 review of defence intelligence. The Committee described the Crown prerogative as "the authority exercised by the government to make decisions in areas where the prerogative has not been displaced, or otherwise limited, by Parliament through the enactment of statute or by the courts." ^{Footnote 30} It noted that the Crown prerogative has some limits. Over time, Parliament has narrowed the government's exercise of the Crown prerogative by subjecting it to statutory authority. ^{Footnote 31} Even where the prerogative has not been displaced by statute, the Crown may not conduct an activity under the Crown prerogative if the activity would violate Canadian law.

20. Subsection 10(1) of the DFATD Act reflects Parliament's intention to limit the Minister's remit under the Crown prerogative by stipulating that the Minister's powers extend to matters "over which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada." ^{Footnote 32} [emphasis added]

21. The Minister of Foreign Affairs exercises their Crown prerogative authority in the development and pursuit of Canada's foreign policy, the management of relations with foreign countries, and the support for Canadians and Canadian interests abroad. The Minister's activities in relation to the management of bilateral relations ranges from routine diplomatic engagement to the negotiation of trade agreements. The management of the country's membership in multilateral organizations includes the promotion of Canadian interests and values in international forums, and the domestic application of international obligations. The support for Canadians and Canadian interests abroad ranges from the provision of consular services to ensuring the safety and security of government employees, and their dependants, working at missions abroad.

22. Several of the Department's activities in the pursuit of foreign policy objectives and support for Canadians abroad contribute to national security and the management of bilateral relations. For example, the Department promotes peace and stability abroad through programming designed to build states' capacity to address national security threats, like terrorism or weapons of mass destruction, before they reach Canada's shores. ^{Footnote 33} The Department's responsibility to conduct consular affairs places it at the forefront of the government's response to hostage-takings of Canadians by terrorist entities abroad. ^{Footnote 34} Finally, the Department's responsibility for managing bilateral relations makes it responsible for many of the measures to address important domestic security issues, from responding to foreign interference by hostile states through sanctions or demarches, to public attribution of state sponsored cyber attacks against Canadian institutions. ^{Footnote 35}

23. The Department's responsibility to manage the country's membership in multilateral organizations can also carry important national security implications. GAC advances Canada's foreign policy objectives at the United Nations (UN), the Group of 7 (G7), the North Atlantic Treaty Organization, and the Global Counterterrorism Forum among others. ^{Footnote 36} While GAC's participation in and of itself might not have direct national security implications, the resolutions or agreements struck at these forums can generate important domestic national security outcomes. Illustrative examples include the domestic application of UN Security Council resolutions relating to terrorist listings in Canada, and the imposition of domestic controls on the export of certain goods to certain countries, deriving from Canada's multilateral non-proliferation commitments. ^{Footnote 37}

24. The Minister also exercises their prerogative authority in the use of intelligence and the collection of privileged diplomatic reporting. The Department is among the largest consumers of intelligence in the government. The Department uses intelligence to inform a wide range of its activities, from the development of foreign policy and the management of bilateral relations, to the negotiation of trade agreements, assessments of threats to Canadian missions and responses to international crises. ^{Footnote 38} The Department in turn leverages its global network to collect privileged and specialized diplomatic reporting on economic, political, human rights and security issues of strategic interest, in accordance with the Vienna Convention on Diplomatic Relations. ^{Footnote 39}

Statutory authority

25. Distinct from their Crown prerogative, the Minister of Foreign Affairs derives specific authorities from several statutes linked to national security and intelligence. The Minister's statutory authorities in this regard allow the Department to:

• control the trade or use of certain materials or equipment that could be injurious to national security;
• impose penalties on foreign states or individuals in pursuit of foreign policy or national security objectives;
• contribute to the activities of security and intelligence partners with a foreign policy component; and
• share information with partners in the security and intelligence community.

26. Each of these functions, and the associated legislation, are discussed below.

Control of the trade or use of certain materials

27. The Department administers three acts regulating the export, import, trade and use of certain goods, materials and technology that could threaten Canada's national security. All three acts derive from broader bilateral or multilateral obligations relating to the control of certain goods or the regulation of certain activities.

Export and Import Permits Act

28. The Export and Import Permits Act and its associated regulations establish the regime for controlling the export and import of specific goods and technologies, including those that could be detrimental to national security. The Minister of Foreign Affairs is responsible for administering the Act and developing the associated regulations. The Minister has two main roles in the administration of the Act. First, the Minister may recommend to the Governor in Council to establish control lists for the export, import and brokering of certain goods, including dual-use items and missile technology, and the export of goods to certain countries (e.g., North Korea). ^{Footnote 40} The items included on the export control list derive primarily from Canada's obligations under multilateral export control regimes. ^{Footnote 41} Second, the Minister can iss ue permits for items listed on the control lists and subject them to certain terms and conditions. ^{Footnote 42} The Canada Border Services Agency (CBSA) and the Royal Canadian Mounted Police (RCMP) are responsible for enforcing the Act. ^{Footnote 43}

29. The Department's Export Controls Division reviews export applications and issues permits on the Minister's behalf. ^{Footnote 44} Permit officers assess applications for consistency with applicable laws, regulations, international obligations, and foreign, defence and national security policies. ^{Footnote 45} High-risk applications undergo additional review from experts in partner departments and senior-level committees prior to the issuance of a permit. ^{Footnote 46} In 2019, Parliament passed An Act to amend the Export and Import Permits Act and the Criminal Code (amendments permitting the accession to the Arms Trade Treaty and other amendments), which added the Arms Trade Treaty criteria to the assessment of export and brokering permit applications. ^{Footnote 47} These criteria include whether the export would undermine peace and security or if it could be used to commit or facilitate a serious violation of international humanitarian or human rights law. Section 27 of the Act requires the Minister to table an annual report in Parliament on the export of military goods and technology from Canada. ^{Footnote 48}

Remote Space Sensing Systems Act

30. The Remote Space Sensing Systems Act and its associated regulations establish the framework for regulating the operation of remote sensing satellite systems by Canadians or foreign operators in Canada and the dist ribution of data collected by those systems. ^{Footnote 49} The Act originates from a 2002 bilateral agreement with the United States seeking to ensure state control over private remote sensing activities in the interest of protecting the two countries' shared national security and foreign policy interests. ^{Footnote 50} The Minister of Foreign Affairs administers the Act and its associated regulations, and issues licences for satellite systems operating from Canada or by Canadians around the world. ^{Footnote 51} GAC's Space Section reviews applications to ensure remote sensing activities are not injurious to national security, defence or international affairs, and that they are consistent with Canada's international obligations. Through the licensing process, GAC officials consult with officials from the Department of National Defence and the Canadian Armed Forces (DND/CAF), Public Safety Canada, Innovation, Science and Economic Development Canada, and the Canadian Space Agency. ^{Footnote 52}

31. The Department's administration of the Act is governed by an internal advisory committee and is subject to regular review. In 2019, the Department established the Ad Hoc Review Advisory Committee comprising experts from government, academia and industry to provide external expert information, advice and recommendations on the Act, its regulations and its implementation. ^{Footnote 53} The Act requires an independent review of the Act every five years. ^{Footnote 54} The Institute of Air and Space Law at McGill University conducted the two most recent reviews of the Act, in 2012 and 2017, with the latter focusing primarily on the Act's impact on technological developments and the implementation of international agreements. ^{Footnote 55}

Chemical Weapons Convention Implementation Act

32. The Chemical Weapons Convention Implementation Act establishes the legal regime for the implementation of Canada's obligations under the Chemical Weapons Convention. ^{Footnote 56} The Minister of Foreign Affairs administers the Act and its associated regulations, which includes the designation of a National Authority. ^{Footnote 57} The National Authority to the Chemical Weapons Convention is housed at GAC. Its role is to advise domestic stakeholders on declaration and licensing regulations, collect declaration data from Canadian entities subject to the Chemical Weapons Convention, forward declarations to the Organization for the Prohibition of Chemical Weapons (OPCW), and support Canada's permanent representation in the OPCW. ^{Footnote 58}

Imposition of penalties

33. The Department administers four acts related to the imposition of penalties, including asset freezes, arms embargoes, export restrictions or financial prohibitions, in accordance with its international obligations or in response to a domestic or international security threat.

United Nations Act

34. The United Nations Act (UN Act) allows for the domestic implementation of UN Security Council resolutions. The Minister of Foreign Affairs is responsible for the administration of this Act and its associated regulations. By virtue of this authority, the Minister oversees two terrorist listing regimes: the United Nations Al-Qaida and Taliban Regulations and the Regulations Implementing the United Nations Resolution on the Suppression of Terrorism. ^{Footnote 59} Both resolutions require federally regulated financial institutions to freeze the assets of individuals and organizations listed in the regulations. The Minister's authority under the UN Act also allows for the imposition of economic sanctions or arms embargoes against countries the Security Council has determined committed an act of aggression or a breach of peace. ^{Footnote 60} Once regulations are in place, CBSA and the RCMP share responsibility for the enforcement of sanctions.

Special Economic Measures Act

35. The Special Economic Measures Act allows the Minister of Foreign Affairs to recommend that the government impose sanctions outside of the UN Security Council resolution process. ^{Footnote 61} Under the Act, the Minister is responsible for enforcing any sanctions imposed by the Governor in Council, including arms embargoes, asset freezes and financial prohibitions, and export and import restrictions, if one of four thresholds has been met: ^{Footnote 62}

• an international organization of which Canada is a member calls on its member states to take economic measures against a foreign state;
• a grave breach of international peace and security has occurred and is likely to trigger a serious international crisis;
• gross and systemic human rights violations have been committed in a foreign state; or
• a national of a foreign state is responsible for or complicit in acts of significant corruption.

In this context, GAC officials advise the Minister on the establishment of sanctions and develop associated regulations, in consultation with the Department of Justice. ^{Footnote 63} Once regulations are in place, CBSA and the RCMP share responsibility for their enforcement. The Act requires that the Governor in Council report to Parliament when the government decides to lift sanctions. ^{Footnote 64}

Justice for Victims of Foreign Corrupt Officials Act (Sergei Magnitsky Law)

36. The Justice for Victims of Foreign Corrupt Officials Act (Sergei Magnitsky Law) is the government's third tool for the imposition of sanctions. Under this Act, the Minister of Foreign Affairs may recommend that the government freeze assets and impose financial prohibitions against foreign nationals responsible for, or complicit in, gross violations of human rights or significant corruption. ^{Footnote 65} The Act requires that designated Senate and House of Commons committees conduct a comprehensive review of the Act every five years. ^{Footnote 66}

State Immunity Act

37. Another of the Minister's tools in pursuit of national security or foreign policy objectives is the State Immunity Act. The Act allows the Governor in Council, on the recommendation of the Minister of Foreign Affairs, to establish a list of foreign state supporters of terrorism. ^{Footnote 67} The Minister of Foreign Affairs must review the list every two years, in consultation with the Minister of Public Safety. ^{Footnote 68} Under the Justice for Victims of Terrorism Act, a person may initiate legal proceedings in Canada against a state listed as a supporter of terrorism. ^{Footnote 69}

Contributions to security and intelligence activities

38. Three acts confer authorities on the Minister of Foreign Affairs to request or consult on the intelligence activities and operations of security and intelligence partners.

Canadian Security Intelligence Service Act

39. The Minister of Foreign Affairs has a formal role under two sections of the Canadian Security Intelligence Service Act. Section 16 of the Act allows the Minister of Foreign Affairs to request assistance from the Canadian Security Intelligence Service (CSIS) in the collection of foreign intelligence within Canada. ^{Footnote 70} Section 17 of the Act requires that the Minister of Public Safety consult the Minister of Foreign Affairs prior to allowing CSIS to enter into arrangements with foreign states and institutions or international organizations. ^{Footnote 71} The Committee examines GAC's role in these areas later in this report.

Communications Security Establishment Act

40. The Minister of Foreign Affairs has a formal role under three sections of the Communications Security Establishment Act. ^{Footnote 72} Under subsection 29(2), the Minister of National Defence is required to consult the Minister of Foreign Affairs prior to issuing authorizations for defensive cyber operations . Under subsection 30(2), the Minister of Foreign Affairs must request or consent to the Minister of National Defence's issuance of authorizations for active cyber operations. Under subsection 54(2), the Minister of National Defence must consult the Minister of Foreign Affairs prior to allowing the Communications Security Establishment to enter into arrangements with foreign states, institutions or organizations. The Committee examines GAC's role in these areas later in this report.

Investment Canada Act

41. The Investment Canada Act allows for the review of investments in Canada by non-Canadians that could be injurious to national security. ^{Footnote 73} GAC is listed as an investigative body under the Act's regulations governing the national security review process. ^{Footnote 74} Under this process, the Department provides a consolidated trade and security perspective by identifying potential implications for Canada's foreign and commercial relations and potential national security risks related to the proliferation of certain goods and materials. ^{Footnote 75} The Committee examines GAC's role in this process later in this report.

Information sharing

42. The Security of Canada In formation Disclosure Act (SCIDA) provides GAC with the authority to disclose and receive information from other federal institutions in the interest of national security. ^{Footnote 76} Pursuant to the Act, the Department may disclose information on its own initiative or at the request of a designated government institution if it is satisfied that this disclosure would assist the institution in carrying out its mandate related to activities that undermine the security of Canada. ^{Footnote 77} GAC is listed under the Act as a recipient organization of those disclosures. A number of principles guide the sharing of information under the Act, including the importance of effective and responsible disclosure and the respect for caveats and originator control. ^{Footnote 78} The Act further allows organizations to enter into information sharing arrangements where appropriate. GAC entered into such an arrangement with CSIS in 2016. ^{Footnote 79} The National Security and Intelligence Review Agency Act (NSIRA Act) requires that the National Security and Intelligence Review Agency (NSIRA) report annually on activities under SCIDA. ^{Footnote 80}

43. The Department's ability to disclose certain information to foreign partners is also subject to statutory limits. The Avoiding Complicity in Mistreatment by Foreign Entities Act seeks to prevent the mistreatment of individuals resulting from the sharing of information between a government department and a foreign entity. ^{Footnote 81} In July 2019, the Governor in Council issued the Order in Council Directions for Avoiding Complicity in Mistreatment by Foreign Entities to the Deputy Minister of Foreign Affairs. The direction prohibits the disclosure of information that would result in the substantial risk of mistreatment by a foreign entity; the making of requests for information that would result in a substantial risk of mistreatment; and certain uses of information that was likely obtained through mistreatment by a foreign entity. ^{Footnote 82} In accordance with the Act, the Department reports annually to the Minister of Foreign Affairs on the implementation of those directions, a copy of which is provided to this Committee and NSIRA. In addition, the NSIRA Act requires that NSIRA review annually the implementation of all directions issued under the Avoiding Complicity in Mistreatment by Foreign Entities Act. ^{Footnote 83}