Chapter 4: The CANCIT Functional Directive
Special Report on the Collection, Use, Retention and Dissemination of Information on Canadians in the context of the Department of National Defence and the Canadian Armed Forces Defence Intelligence Activities
Objectives and application of the CANCIT Functional Directive
80. The CANCIT Functional Directive is an order for all officers and non-commissioned members of the CAF, and a directive for all employees of DND. The stated purpose of the CANCIT Functional Directive is to:
- ensure clarity on the legal and policy constraints for the collection of Canadian citizen information when conducting defence intelligence activities;
- provide guidance for instances where Canadian citizen information is inadvertently collected by DND/CAF when conducting defence intelligence activities; and
- establish general parameters for the collection of Canadian citizen information for defence intelligence purposes in operational and training environments. Footnote 98
81. DND/CAF stated that the CANCIT Functional Directive is intended to apply to both the intentional and inadvertent collection of information about Canadians, occurring in the context of all DND/CAF intelligence operations and activities (inside and outside Canada), except those activities already governed by existing directives regarding the collection of information about Canadians. Footnote 99 Prior to the CANCIT Functional Directive, directions for handling information about Canadians were addressed in individual policies and directives related to specific intelligence activities, including signals intelligence, human intelligence and counter-intelligence, which are still in force (see Chapter 3). Accordingly, DND/CAF stated that the CANCIT Functional Directive does not apply to those specific activities. DND/CAF also stated that "the Directive is very clear. DND/CAF personnel may only deliberately collect information on Canadian citizens for intelligence purposes under two circumstances: one, in support of a mandated defence operation or activity - and currently this [authorization for deliberate collection] only applies to counter-intelligence operations; [and two], in support of another government department or agency, pursuant to an authorized request for assistance under section 273.6 of the National Defence Act." Footnote 100 Notwithstanding these statements, the CANCIT Functional Directive does not qualify or limit its application in reference to any directives for other intelligence activities, nor does it state that it applies only to those defence intelligence activities that do not have pre-existing guidance regarding the collection of CANCIT information.
Legal authority
82. The CANCIT Functional Directive states that the authority to conduct defence intelligence activities is implicit when DND/CAF is legally mandated to conduct military operations and other defence activities, pursuant to legislation or an exercise of the Crown prerogative, and where a clear nexus has been established between the nature and scope of the defence intelligence activity and the mandated mission. This is subject to the caveat that any means used in the conduct of defence intelligence activities remain subject to applicable Canadian and international laws, and government policies and ministerial directives.
83. The CANCIT Functional Directive states that DND/CAF operations and activities shall not involve the collection of information about Canadians for defence intelligence purposes. This is subject to two exceptions:
- the collection occurs in support of mandated defence operations and activities; Footnote 101 or
- the collection occurs in support of another department or agency, subject to the authority, mandate and requirements, as prescribed by law, of the supported Canadian department or agency to collect the information.
84. DND/CAF explained that the CANCIT Functional Directive does not provide any new authority to collect information about Canadians in support of its mandated operations and activities. That authority comes from the lawful mandate or mission that is approved at the ministerial, Cabinet or prime ministerial level, which is normally the result of the exercise of prerogative powers. DND/CAF further stated that, at the same time, the CANCIT Functional Directive does not impede or limit the ability of DND/CAF to conduct defence intelligence activities. DND/CAF cited section 273.6 of the National Defence Act as the source of authority for providing assistance to other departments and agencies. Footnote 102
85. [*** Paragraphs 85, 86 and 87 were revised to remove injurious or privileged information. They describe information provided to DND/CAF. ***] *** Footnote 103
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86. ***
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87. *** Footnote 105
Policy Direction
88. The Policy Direction section of the CANCIT Functional Directive provides direction on the various general and specific conditions with respect to information about Canadians that must be met while conducting defence intelligence activities. Generally, operational commanders authorizing defence intelligence activities must coordinate with the Chief of Defence Intelligence to assess the risk of encountering Canadians, or information about Canadians, as part of the activity or mission being supported. In all cases, information about Canadians must have a direct and immediate relationship with, and be demonstrably necessary to, an authorized operation or activity.
89. Although intended to apply to both intentional and inadvertent collection of information about Canadians, Footnote 106 the CANCIT Functional Directive does not contain any provision dealing specifically with intentional collection. It is, however, very specific on what is expected to be done with inadvertently collected information:
- the chain of command and the Canadian Forces Intelligence Command Release and Disclosure Coordination Office must be notified of the collection, unless reporting protocols specific to the collection activity apply;
- the information must be deleted from DND/CAF databases once it is confirmed that it cannot be held for defence intelligence purposes to support mandated defence operations and activities, or lawfully passed to another Canadian government department or agency;
- all instances of collection must be logged; and
- training exercises involving defence intelligence components must include mitigation plans for the inadvertent collection of information about Canadians.
90. Finally, the CANCIT Functional Directive states that information about Canadians may be shared with other Canadian government departments and agencies if the disclosure is authorized by law, including the Privacy Act, the Security of Canada Information Sharing Act, as the case may be, and the Charter. Although the directive does not explicitly permit sharing with foreign entities, it does require that logs documenting the sharing of information about Canadians with both domestic and foreign entities be maintained and that shared information be deleted from DND/CAF databases.
91. DND/CAF explained that before the CANCIT Functional Directive was issued in August 2018, there was no requirement to document and provide logs detailing the instances of sharing information about Canadians with other domestic government departments and foreign entities. Under the current directive, any proposed sharing would undergo consultation with legal advisors and strategic policy advisors. All DND/CAF release and disclosure authorities and officers undergo formal training and accreditation on information sharing policies and procedures. Only those DND/CAF personnel who complete this training and have been accredited in the DND/CAF training system database are authorized to share intelligence and information with domestic departments and foreign entities. Handling information about Canadians is covered in that training. In general, all defence intelligence information contains clear and relevant security classifications, control markings and special use, as well as handling caveats. Any restrictions and sharing controls are clearly marked on documents. Footnote 107