Vol. 147, No. 11 — May 22, 2013

Registration

SOR/2013-94 May 9, 2013

EMPLOYMENT EQUITY ACT

Regulations Amending the Regulations Adapting the Employment Equity Act in respect of the Canadian Security Intelligence Service (Miscellaneous Program)

P.C. 2013-544 May 9, 2013

Whereas the Governor in Council, taking into account the operational effectiveness of the Canadian Security Intelligence Service, considers it necessary to adapt the Employment Equity Act (see footnote a) to accommodate the Service;

And whereas, pursuant to subsection 41(6) (see footnote b) of that Act, the Minister of Public Safety and Emergency Preparedness has been consulted on the annexed Regulations;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Treasury Board and the Minister of Labour, pursuant to subsection 41(5) of the Employment Equity Act (see footnote c), makes the annexed Regulations Amending the Regulations Adapting the Employment Equity Act in respect of the Canadian Security Intelligence Service (Miscellaneous Program).

REGULATIONS AMENDING THE REGULATIONS ADAPTING THE EMPLOYMENT EQUITY ACT IN RESPECT OF THE CANADIAN SECURITY INTELLIGENCE SERVICE (MISCELLANEOUS PROGRAM)

AMENDMENTS

1. Section 2 of the Regulations Adapting the Employment Equity Act in respect of the Canadian Security Intelligence Service (see footnote 1) is amended by replacing the definitions “secure room” and “security container” in the section 21.1 that it enacts with the following:

“secure room” has the meaning assigned by section 7.6.7 of the Operational Security Standard on Physical Security, as amended from time to time, published by the Treasury Board of Canada Secretariat. (pièce sécuritaire)

“security container” has the same meaning as in Appendix A of the Operational Security Standard on Physical Security, as amended from time to time, published by the Treasury Board of Canada Secretariat. (coffre de sécurité)

2. Section 3 of the Regulations is amended by replacing the subsection 23(7) that it enacts with the following:

(7) If the Director makes a declaration with respect to information contained in a document examined under subsection (5), the portion of the public service or public sector that was provided with the document shall ensure that the national security information is removed forthwith from the document.

3. Section 7 of the Regulations is amended by replacing the subsections 34.2(1) and (2) that it enacts with the following:

34.2 (1) A Tribunal shall surrender to the Service, within 30 days after the day on which an order of a Tribunal in respect of special proceedings is made, all documents that form part of the public record of the proceedings and the Service shall retain the documents for two years.

(2) The Tribunal shall place all other documents of the special proceedings in a sealed envelope bearing the appropriate security classification and shall, within the period referred to in subsection (1), surrender the envelope to the Service for destruction.

(2.1) Subsections (1) and (2) apply when there is no application for judicial review.

4. The English version of the Regulations is amended by replacing “secure container” with “security container” in the following sections:

  • (a) section 3, in the subsection 23(2.2) that it enacts; and
  • (b) section 5, in the section 28.6 that it enacts.

5. The Regulations are amended by replacing “conclusive proof” with “evidence” in the following sections:

  • (a) section 3, in the subsections 23(2.4) and (6) that it enacts;
  • (b) section 4, in the subsection 24.2(3) that it enacts;
  • (c) section 5, in the section 28.2 that it enacts; and
  • (d) section 6, in the section 29.2 that it enacts.

COMING INTO FORCE

6. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

The Standing Joint Committee for the Scrutiny of Regulations (SJCSR) has identified issues with the Regulations Adapting the Employment Equity Act in respect of the Canadian Security Intelligence Service (the Regulations) that require the attention of Human Resources and Skills Development Canada (HRSDC) — Labour. These include discrepancies between the French and English versions of some provisions, outdated references within the Regulations, and the lack of clarity of certain provisions. Also, the SJCSR asked that the authority of the Director of the Canadian Security Intelligence Service (CSIS) to declare when information involves national security be clarified to ensure that it is within the intended scope of the Employment Equity Act (the Act). These regulatory amendments correct the inconsistencies and follow up on the concerns expressed by the SJCSR.

Objectives

The objectives of this regulatory amendment are to ensure that all language in the Regulations is consistent in both official languages and in line with current definitions and nomenclature, and to follow up on the concerns expressed by the SJCSR.

Description

The changes include the following:

  • In section 21.1, the definition of “security container” now references the current “Operations Security Standard on Physical Security” rather than the outdated “Security Policy.”
  • In subsection 23(2.2) and section 28.6, the term “secure container” in the English version has been changed to “security container,” which is consistent with the French “coffre de sécurité.”
  • Previously, the Regulations stated that a declaration of the Director that proceedings are likely to involve national security information or that information is national security information or that a decision of Tribunal contains national security information “is conclusive proof of the fact.” The SJCSR asserted that the effect of these provisions is to exclude the jurisdiction of the courts by removing their ability to make findings of fact and that express statutory authority is required to exclude the jurisdiction of the courts in these matters, and the Act does not contain such authority. The SJCSR therefore found these provisions to be ultra vires.
  • The amended Regulations replace the term “is conclusive proof of the fact” with “is evidence of the fact,” to follow up on the concerns expressed by the SJCSR.

This amendment will have no legal or policy impact because

  • In subsection 23(7), the word “forthwith” has been addedto the duty of the compliance officer to remove the information with respect to a portion of the federal public service or public sector under subsection 23(7).

This amendment will ensure the consistency of the Regulations:

  • Paragraph 34.1(c) requires the surrender of documents by a compliance officer 30 days “after the making of an order of the Tribunal,” while subsections 34.2(1) and (2) require surrender of documents by a Tribunal 30 days “after the end of special proceedings.” To alleviate any confusion, section 34.2 will be amended so that it also refers to an order of the Tribunal in respect of special proceedings.
  • Section 34.2 contains three subsections and deals with retaining documents of special proceedings. Section 34.2 is amended to clarify that subsections (1) and (2) apply when there is no judicial review and that subsection (3) applies when there is a judicial review.

Consultation

The Canadian Security Intelligence Service has been consulted and concurs with the amendments to the Regulations.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these amendments as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to these amendments, as there are no costs on small business.

Rationale

The amendments will reduce legal and compliance risk by reducing ambiguity about the authority of the Director of CSIS to declare when information involves national security. It also will ensure clarity of language by replacing outdated terms, removing discrepancies between the English and French and improving the consistency of the Regulations.

Contact

Gert Zagler
Director
Federal Programs, Compliance Operations and Program Development Branch
Labour Program
Human Resources and Skills Development Canada
165 De l'Hôtel-de-Ville Street, Phase II
Gatineau, Quebec
K1A 0J2
Telephone: 819-997-9270
Fax: 819-953-8883
Email: gert.zagler@labour-travail.gc.ca