Bill C-44 (Historical)

Protection of Canada from Terrorists Act

An Act to amend the Canadian Security Intelligence Service Act and other Acts

This enactment amends the Canadian Security Intelligence Service Act to give greater protection to the Canadian Security Intelligence Service’s human sources. Also, so as to enable the Service to more effectively investigate threats to the security of Canada, the enactment clarifies the scope of the Service’s mandate and confirms the jurisdiction of the Federal Court to issue warrants that have effect outside Canada. In addition, it makes a consequential amendment to the Access to Information Act.
The enactment also amends the Strengthening Canadian Citizenship Act to allow for the coming into force of provisions relating to the revocation of Canadian citizenship on a different day than the day on which certain other provisions of that Act come into force.

[Gérard Normand]

Mr. Picard, I would add that Parliament gives itself the legislation that it wants to give itself.

Bill C-44, which clarified the mandate of CSIS to act externally, also gave federal court judges the power to authorize activities abroad. This is something we would not have seen before, but which is now inserted in the Canadian Security Intelligence Service Act. These are the same reasons for the proposed new powers of the CSE. If accepted, they will become part of the legal system, even though, in the process, charter issues will need to be addressed.

[Prof. Craig Forcese]

I'll start, and then Kent can jump in.

The Wakeling case involved information shared by the RCMP to American authorities under what's known as part VI of the Criminal Code, which is the wiretapping provision. It was a lawfully gathered wiretap that complied with the charter, and that information was then transmitted to the United States. The Supreme Court concluded that even though the information was lawfully collected, it was still subject to charter privacy protections that had to govern the manner of information sharing.

In that case the RCMP, under part VI of the Criminal Code, was successful in defending the constitutionality of that information sharing, because there was enough architecture in part VI that defined who was going to receive the information and it imposed safeguards on how that information would be transmitted. The court along the way, incidentally, made a point of noting the Arar case as an example of where things can go awry in information sharing.

Now transpose the holding in that case to the context for CSIS under the CSIS Act and for the Communications Security Establishment under the National Defence Act. There is none of the architecture that rendered the Criminal Code constitutional. None of that architecture is found in the CSIS Act or the National Defence Act, and yet those two agencies, CSIS and CSE, are elemental bodies in information sharing for the purposes of supporting Five Eyes activities and others.

I think Professor Roach and I were surprised that the government didn't take the opportunity in either Bill C-51, or before that in Bill C-44, to introduce that architecture to put this vital information sharing on sounder constitutional footing.

[Daniel Therrien]

That's an interesting question. Obviously there should be rigour before legislation is amended. I will say that obviously national security legislation needs to be up to date in terms of the threat faced by Canada, and the arguments for Bill C-44 had to do with updating the legislation to be in line with the current threat environment, the fact that it's international in nature, etc., so there was some foundation for the objective.

In terms of how to ensure the protection of rights in an environment where CSIS is given more powers, absolutely this deserves more scrutiny, and perhaps Bill C-44 should be looked at at the same time as BillC-51. That might be a possibility. All of these laws deal with what should be the legal architecture in Canada to deal with the terrorist threat. Apparently the government wants to have some form of review, particularly of Bill C-51. There would be some merit to extending that more broadly.

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

So my point, Mr. Chair, is that it seems as though it was carefully crafted. That leads me to the Bill C-44 CSIS matter, which you want to review, because it seems to have some gaps in it, such as, obviously, sharing information with other jurisdictions that may not have the same level of scrutiny that we would have, or protections rights built in, therefore leading to some sad results for the people involved.

Maybe this isn't a fair question, but would the same level of scrutiny and care have been taken to frame Bill C-44? Theoretically even though we're dealing with a 30-year-old act, it worked pretty well until there were substantive changes in the way we collect and disseminate information. It seems to me, though, after a year or two, that the bill should have stood on stronger foundations than it appears to have.

I would come back again to the decision-making process and ask you whether you feel that we have to have that level in our review of everything you bring forward, but particularly of Bill C-44.

[Daniel Therrien]

Bill C-51, whose short title is the Anti-terrorism Act, 2015, had a number of parts. The first part pertained to the sharing of information between federal institutions, including personal information held by federal institutions. Such information can now be shared between government departments and 17 agencies that have specific responsibilities for suppressing or detecting terrorism. What Bill C-51 does is allow all federal departments to disclose personal information to these 17 agencies if it is relevant to detecting or suppressing terrorism.

We had concerns about the lack of comprehensive oversight mechanisms and the evidence threshold for sharing information, among other things.

I understand that the government plans to introduce a bill or conduct a study to review Bill C-51. We think that is an excellent idea.

The purpose of Bill C-44 was to give the Canadian Security Intelligence Service, CSIS, explicit authority to operate outside Canada. Before this bill was introduced, CSIS exercised its powers in Canada. Bill C-44 enabled CSIS to extend its activities outside the country. CSIS and the government were of the opinion that this was already provided for implicitly. Bill C-44 authorized it explicitly. The bill more explicitly authorizes information sharing between CSIS and similar agencies in other countries.

The concern we raised had to do with the risk of human rights violations, depending on the countries to which this information would be disclosed. We recommended that steps be taken to control this information sharing in order to avoid torture, for example, in the worst-case scenario.

Bill C-13 had to do with online crime in general, but amended the other law that my office administers, the Competition Act, to allow private companies to give information to police in investigations where electronic documents or personal information could be relevant. That applies in the case of online crime, but also more generally.

We had some concerns about that as well. We felt that the scope of the bill was too broad and that some provisions might not comply with a recent Supreme Court decision in Spencer, which provides for protection of some metadata when people use the Internet to share personal information.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Thank you.

I have a second question.

Regarding the disclosure of personal information, you said in your 2014-15 report that Bills C-13, C-51, and C-44, if I'm not mistaken, which now have the force of law, had a serious impact on the disclosure of personal information without people's consent.

Can you elaborate on Bill C-51? We have heard a great deal about information sharing between institutions. I am less familiar with Bills C-13 and C-44. I'd like you to talk a bit more about these three bills and the changes they made when it comes to disclosure.

[Charmaine Borg, NDP, Terrebonne—Blainville, QC]

Thank you.

I will switch departments and ask you a few questions, Mr. Therrien.

During this session of Parliament, the committee considered several bills directly related to protecting the privacy of Canadians, including Bills C-44 and C-51. Unfortunately, you were not invited to testify. I think that those bills may negatively affect your ability to ensure that the privacy of Canadians is respected. What do you think?

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you, Mr. Chair.

Thanks to you, Minister, as well as the representatives from each of the agencies, for appearing today.

First of all, Minister, in your opening remarks, you mentioned Bill C-44 receiving royal assent. As well, congratulations on having Bill C-51 pass through the House last night on the vote. I'm very pleased to see that as well.

I'm a bit concerned that there are still people—maybe members of Parliament, even some of those who are on this committee—who cannot come to terms with the fact that terrorism is a real threat to Canada. During Bill C-51 testimony, we heard from many credible witnesses from our security agencies, including some who are here sitting beside you, who talked about the fact that the threat of terrorism is real, that it has evolved, and that it is a growing problem here in Canada and around the world.

Add to this the fact that during debate in the House on Bill C-51, one member of the NDP referred to the attacks of October 22 that left one member of the Canadian Armed Forces dead—and of course one was an attack here in Parliament—as merely “an unfortunate incident”. As we talk about terrorism, I want to get your opinion on why you feel that Bill C-51 is so important and on the fact that Canadians should be listening to the credible witnesses who deal in areas of intelligence gathering and law enforcement, and to those who have studied terrorism, as opposed to the opposition party.

[Steven Blaney, Conservative, Minister of Public Safety and Emergency Preparedness]

Thank you very much, Chair Kramp, and I also want to thank you for recognizing the members of the Canadian safety community who are accompanying me this morning.

Of course, there is one simple reason why I am here today. It's to seek your support for allowing the resources necessary for this safety community to pursue its mission throughout the year.

In a more administrative sense, I am here to seek your support in the context of your study of the main estimates 2015-16 and of the Public Safety portfolio, as well as to answer your questions in the first hour. Experts will answer your questions in the second half of this meeting.

First things first, Mr. Chair. I want to thank all the members of this important committee for their important work over the course of the last week and the last month in their study of three major and significant pieces of legislation, the first one being the protection from terrorists act. Next is the anti-terrorism act, and I am thankful for the support we got in the House of Commons yesterday. The common sense firearms licensing act should also be on the floor very soon.

The Protection of Canada from Terrorists Act received royal assent on April 23 and represents the first major changes in three decades to the Canadian Security Intelligence Service Act. Basically, its purpose was to clarify the powers of the Canadian Security Intelligence—

Anti-terrorism Act, 2015

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

Mr. Speaker, I thank my colleague from Laurentides—Labelle for once again pointing out that the Conservatives and the Liberals are united on Bill C-51.

When it comes to rights and freedoms, there is a less obvious problem that comes to mind. I did not get much of a chance to talk about it in my speech. I am talking about the Security Intelligence Review Committee. Although the members of this committee are good at what they do, their powers are not broad enough. This has to do with our rights and freedoms. Bill C-51 gives a lot of powers to the Canadian Security Intelligence Service, as was the case with Bill C-44 a few months ago. The problem is that the additional powers given to CSIS do not come with a proper oversight mechanism. In its current form, the Security Intelligence Review Committee only conducts a review after the fact. From the beginning we have been asking for ongoing oversight to ensure that our rights and freedoms are protected at all times.

[Rosane Doré Lefebvre, NDP, Alfred-Pellan, QC]

We are talking a lot about sunset clauses with revision, but this really has to do with the new powers being granted to the Canadian Security Intelligence Service. It is doubly important to adopt a sunset clause in that regard. The recent Bill C-44 gives CSIS a lot of powers. Bill C-51 gives CSIS additional new powers. It is important that we do our job here and review the legislation to see whether everything is working.

Thank you.

[Michael Duffy]

The provision, Mr. Chair, is in fact the same wording that appears in Bill C-44, and so it's tracked in this particular piece of legislation.

As the member indicated, if the threat diminishment power is to be of use when it is done outside Canada, it would really negate the power if that were subject to the laws of the foreign jurisdiction allowing the service to do what it is they propose to do. So the issue wouldn't only arise in relation to Five Eyes partners. It could arise in relation to other jurisdictions that may actually have a hand in the very activity that the service is seeking to diminish as a threat to the security of Canada, and that is seen as an illogical result that you would have to basically get the consent or do something in accordance with the laws of that jurisdiction.

Whether or not other countries have that type of provision in their legislation, that really reflects the nature of the legislation they have. It is a rather—if I can describe it this way—indelicate thing to say in legislation, and that may be precisely why it doesn't appear in legislation. States do not like to say that on the face of a statute, but because the issue was raised in other litigation involving Federal Court warrants, and it was addressed in Bill C-44, it would have been an anomaly if, in this particular power to take threat diminishment measures, it was restricted to doing what was permissible according to foreign law, quite apart from the fact that, as was indicated, it would be extremely difficult for CSIS as well as the Federal Court judge to know fully what the foreign law on a point was.

[Wayne Easter, Liberal, Malpeque, PE]

I'll turn to the officials again on this one. We had this under Bill C-44, I believe.

The part in the bill that Ms. May would take out with her amendment states:

(4) Without regard to any other law, including that of any foreign state

That was in a previous bill. It's now in this one. It is something that we do not see, that I'm aware of, with any of our Five Eyes partners. It certainly is giving the impression to those who we consider allies that we have no regard for their law. How do you explain that, and why is that necessary there?

That's for whoever wants to answer. Don't fight over it.

[Roxanne James, Conservative, Scarborough Centre, ON]

Thank you.

I think the biggest concern with this is that it would somehow make CSIS' ability to take threat diminishment measures dependent upon the laws of other countries. I just think back to when we did our previous Bill C-44. We heard testimony, and we've heard testimony again here, about how absolutely ridiculous that would be considering some of the countries' laws and how backwards they are to what we believe is right in a democratic society and under the umbrella of the charter.

I think that's the biggest concern with this amendment, that we would be relying on other countries' laws to dictate how CSIS could carry out their work. Considering some of those countries, I think that's completely over the top and outrageous.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

I'd like to add as well, Madam Vincent, that I think some of your analyses of the bill is in the spirit of exactly what this kind of committee should be doing, and I hope that continues at the amendments phase.

I want to double-check a couple of things quickly with Professor Leuprecht.

You brought up oversight and review issues towards the end. In your testimony in November on Bill C-44, which is a bill that goes much less further than this bill does in terms of new powers, you said it committed “one sin of omission”. That was your language. “Many more expansive powers for security intelligence should be balanced with robust parliamentary accountability...”.

I was there in that committee with you. Certain questions were asked about the Belgian model. I just want to make sure so that everybody is clear that you're as concerned about the need for the balancing of expansive powers with robust parliamentary accountability for this bill as you were for Bill C-44. It's more or less a yes or a no.