Bill C-51 (Historical)

Anti-terrorism Act, 2015

An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts

Part 1 enacts the Security of Canada Information Sharing Act, which authorizes Government of Canada institutions to disclose information to Government of Canada institutions that have jurisdiction or responsibilities in respect of activities that undermine the security of Canada. It also makes related amendments to other Acts.
Part 2 enacts the Secure Air Travel Act in order to provide a new legislative framework for identifying and responding to persons who may engage in an act that poses a threat to transportation security or who may travel by air for the purpose of committing a terrorism offence. That Act authorizes the Minister of Public Safety and Emergency Preparedness to establish a list of such persons and to direct air carriers to take a specific action to prevent the commission of such acts. In addition, that Act establishes powers and prohibitions governing the collection, use and disclosure of information in support of its administration and enforcement. That Act includes an administrative recourse process for listed persons who have been denied transportation in accordance with a direction from the Minister of Public Safety and Emergency Preparedness and provides appeal procedures for persons affected by any decision or action taken under that Act. That Act also specifies punishment for contraventions of listed provisions and authorizes the Minister of Transport to conduct inspections and issue compliance orders. Finally, this Part makes consequential amendments to the Aeronautics Act and the Canada Evidence Act.
Part 3 amends the Criminal Code to, with respect to recognizances to keep the peace relating to a terrorist activity or a terrorism offence, extend their duration, provide for new thresholds, authorize a judge to impose sureties and require a judge to consider whether it is desirable to include in a recognizance conditions regarding passports and specified geographic areas. With respect to all recognizances to keep the peace, the amendments also allow hearings to be conducted by video conference and orders to be transferred to a judge in a territorial division other than the one in which the order was made and increase the maximum sentences for breach of those recognizances.
It further amends the Criminal Code to provide for an offence of knowingly advocating or promoting the commission of terrorism offences in general. It also provides a judge with the power to order the seizure of terrorist propaganda or, if the propaganda is in electronic form, to order the deletion of the propaganda from a computer system.
Finally, it amends the Criminal Code to provide for the increased protection of witnesses, in particular of persons who play a role in respect of proceedings involving security information or criminal intelligence information, and makes consequential amendments to other Acts.
Part 4 amends the Canadian Security Intelligence Service Act to permit the Canadian Security Intelligence Service to take, within and outside Canada, measures to reduce threats to the security of Canada, including measures that are authorized by the Federal Court. It authorizes the Federal Court to make an assistance order to give effect to a warrant issued under that Act. It also creates new reporting requirements for the Service and requires the Security Intelligence Review Committee to review the Service’s performance in taking measures to reduce threats to the security of Canada.
Part 5 amends Divisions 8 and 9 of Part 1 of the Immigration and Refugee Protection Act to, among other things,
(a) define obligations related to the provision of information in proceedings under that Division 9;
(b) authorize the judge, on the request of the Minister, to exempt the Minister from providing the special advocate with certain relevant information that has not been filed with the Federal Court, if the judge is satisfied that the information does not enable the person named in a certificate to be reasonably informed of the case made by the Minister, and authorize the judge to ask the special advocate to make submissions with respect to the exemption; and
(c) allow the Minister to appeal, or to apply for judicial review of, any decision requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to national security or endanger the safety of any person.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

This moves to a completely different area. This is to repeal the changes that were brought in by the previous government in Bill C-51, which removed protections for named persons in security certificate proceedings. This was adopted following a 2007 ruling by the Supreme Court of Canada in Charkaoui v. Canada.

The framework in place at the time allowed for non-disclosure of evidence in certificate hearings, and the court found that this did not impair the rights of people named in certificates. The legislative move by Bill C-51 was to reduce those protections for named persons in security certificate hearings. You'll recall that there was evidence for this from Alex Neve of Amnesty International and from Professor Kent Roach of the Canadian Civil Liberties Association.

The effect of my amendment—and I'm certainly not going to read it because it is quite long and extends over several sections—is to repeal the entirety of the changes made to the Immigration and Refugee Protection Act in Bill C-51 of the previous Parliament, and to restore important protections to people who are affected by security certification proceedings.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Mr. Chair, I do believe that the evidence from many witnesses, as Mr. Dubé said, was that the disclosure requirements with the low threshold of “will contribute to the exercise of the recipient institution's jurisdiction” is far too low a threshold. For this kind of provision, the information sharing should be required to be necessary for the exercise of the recipient institution's jurisdiction. The testimony is very clear on this point, and this was one of the worst sections—although it's hard to pick the worst section of Bill C-51, but this is one of the least improved in C-59. I would hope that this amendment would meet with approval at this point.

Thank you, Mr. Chair.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Chair, there are several amendments, NDP-9.8 and so forth, which I believe, since they seek to repeal the SCIDA, will be ruled inadmissible. However, it was important for me to move these amendments to make the point that this is probably the most unchanged element of former Bill C-51. These are cosmetic changes at best.

I won't speak to and move all of them, but I want that on the record as the reason for presenting these amendments today. That is a key point for New Democrats with regard to Bill C-59.

[John Davies, Director General, National Security Policy, Department of Public Safety and Emergency Preparedness]

Sure. Just to echo that comment, the “threats to the security of Canada” are already defined in the CSIS Act, as was said. It's very clear in the CSIS Act.

The Security of Canada Information Sharing Act is not just about CSIS. It's about the entire national security community as already scheduled in the act and includes 16 other departments and agencies, including defence, border control, law enforcement, and so on. The issue with the SCISA definition in the concept of undermining threats to security is both that you would not want confusion with the CSIS Act and that it also needs to be broad enough to include the entire national security community.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Chair.

This is an amendment that seeks to change the definition of “activities that undermine the security of Canada” to “threats to the security of Canada”. This is a recommendation that came from the B.C. Civil Liberties Association, among others, and from Professor Roach as well. It's obviously something that's been at the core of this debate for a long time, and with regard to former Bill C-51 as well.

We believe this definition still gives the service the ability to do its work but will do more to protect rights and certain types of activities such as protests and things like that. There are a few consequential amendments to that as well.

It is so moved.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

I propose—and the clerk can check if I've got this right—to deal with amendments PV-10, PV-11, PV-12, PV-13, PV-14, PV-15, PV-22 et PV-25.

I think those are all the amendments in this regard.

These amendments all speak to the same point, and I think those are all the ones that remain extant after the slaughter of Mr. Dubé's amendments. Sorry. It's a ritualized slaughter. We appreciate the effort.

I think those are the ones I could speak to all at once and, with the chair's permission, speak to the fundamental point these amendments are trying to achieve. I hope, because of the unusual nature of this process before second reading, that some of my words might reach ministers' offices as well, and that members of the committee might consider whether it isn't wise to actually have a fundamental rethink of the structure of our security intelligence legislation.

This is an important moment, as we all know. This is the most fundamental review we have had in years. It's really good legislation insofar as it sets up the national security intelligence and review agency. Having NSIRA is a big change, but in my view, Mr. Chair, it doesn't take away from the fundamental mistake that was made in Bill C-51.

Forgive me, but having been through the hearings at Bill C-51, I know there were witnesses this committee didn't hear talking about the risks of CSIS having kinetic powers at all. That's what I want to speak to. I will be brief.

This legislation reduces the wrongs that could be done by CSIS agents having these new powers to disrupt plots, but it doesn't deal with something quite fundamental that we grappled with in committee on Bill C-51. It was certainly raised by witnesses and experts like Craig Forcese and John Major, former Supreme Court justice, and also in the Senate. Actually one of the most important witnesses on Bill C-51 was heard on the Senate side. His name's Joe Fogarty. He was the U.K. security liaison with Canada. He was an MI5 agent from the U.K. What he pointed to was the big risk of the RCMP and CSIS not talking to each other, and when you then give CSIS powers to actually disrupt plots, you have an accident waiting to happen, basically.

In his evidence, he referred the committee only to those things that are publicly known, but he assured the committee that, from his work as a U.K. security liaison in the Five Eyes system with Canada, there were more examples of which he could not speak. He directed us to the 2009 case of R. vs. Ahmad where, on the evidence, CSIS discovered the location of a suspected terrorist training camp within Canada and decided not to tell the RCMP.

There's another example, which was in the Canadian Press, to which Joe Fogarty also referred. In the case of Jeffrey Delisle, which we all know—the navy officer who sold secrets—apparently CSIS knew of the spying operations of Delisle for a very long time and decided not to tell the RCMP. Delisle was arrested when the RCMP was tipped off by the FBI.

There's a fundamental problem here, which John Major at the time referred to in this committee and its predecessor in the 41st Parliament. It's human nature not to want to share information, so what have we done now? I think we've compounded the problem because CSIS now has the powers to take action, but we haven't dealt with the fundamentals that it still may not want to tell the RCMP.

The situation is much improved because NSIRA can supervise what's going on. If it sees a problem, it can maybe intervene, but there still has never been a public policy rationale put forward by anyone, ever, for why CSIS needs the power to disrupt plots. CSIS was created, as Mr. Dubé referred to moments ago, in order to create a security and intelligence gathering, to give that information to the RCMP. That's the purpose. It was to separate it out, so that you wouldn't have the RCMP burning down barns and so on.

I don't see to this day why we want CSIS agents to have the capacity to disrupt plots within Canada.

The RCMP and CSIS need to work together and NSIRA needs to supervise them. All my amendments take out of our legislation the right of CSIS agents to have kinetic powers. Again, Bill C-59 improves on Bill C-51 in important ways, reducing and better balancing what CSIS agents are likely to do. I know we don't have anyone here from the RCMP on our witness roster but the RCMP job of disrupting plots will be complicated by the fact that CSIS doesn't share information with the RCMP. That's a pattern. That's our history. Things are improved in what CSIS agents can do. Thanks to Liberal amendment 16, we won't be worrying about torture, but there's still no public policy rationale for CSIS agents having these new powers to take kinetic action to disrupt plots.

I'm raising a different issue. The issue of whether we are undermining our own security intelligence operations by having different intelligence agencies tripping over each other, not talking to each other, when they're taking active steps to disrupt a plot. I'd rather have CSIS continue to do what it's always done since its creation, which is to collect the information and give it to the RCMP in a timely manner, which is what they haven't always done, so that the RCMP can arrest the Jeffrey Delisles of this world, not wait to be tipped off by the FBI or trip over CSIS agents who are trying to do the same thing.

Thank you.

[John Davies]

Just talking about NDP-47, which is just one component in the broader threat reduction and elimination in the mandate, at least the warranted reduction, what NDP-47 does is take out the reporting that was already in Bill C-51. In subsection 6(5) of the CSIS Act, there already is threat reduction reporting required in law on pretty detailed things, in addressing issues or concerns that you've raised in terms of the number of warrants and so on. That's already in the act. That's traditional. It exists on the collection-side warrants as well, so I don't think there's a big issue here.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Yes, I'm okay with that, Chair. They do all deal with the same topic. At the end of the day, as much as people think that people in our profession like to hear ourselves talk, I'm okay making the point once.

Obviously, this amendment and the others you mention deal with the threat reduction powers that were given to CSIS by Bill C-51 in the previous Parliament. This is obviously one of the most controversial elements, in particular because the raison d'être of CSIS was initially to separate intelligence gathering and law enforcement from the RCMP after a number of scandals and problematic situations, which have been debated quite extensively in the different commissions that followed. This is one of the key points—which is why I'll ask for a recorded vote—on which the bill fails to correct the problems that were brought forward by the former bill, Bill C-51.

As to the powers of interference, while the purpose is clearly to protect national security through a wide range of existing mechanisms, including security certificates and police resources—or lack thereof, if I may say so—, there is a role for the police to play in that.

That is what we said in the last Parliament during debate on Bill C-51. We said that we must give the RCMP more support so it can do its work, and increase our capacity to fight radicalization. There is a whole range of national security measures available without having to turn back the clock and give CSIS powers that go against the agency's purpose. It is an intelligence service and, with all due respect, it should not be engaged in work that, as a result of these powers, gradually becomes police work.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Chair.

It's unfortunate not to hear the rationale of the government members—not technically government members, in the committee context, but Liberal members—for voting against some of these amendments.

At any rate, amendment 30 seeks to remove the word “disclosing”. As I mentioned yesterday in another context of the debate, disclosure is the new wording that's used as part of the information-sharing regime that was brought in during the last Parliament under Bill C-51.

This is a suggestion that the Citizen Lab made to ensure that the information that CSE is collecting in the context of any research it's doing under proposed section 24.... By removing “disclosing” we're limiting the risk that the information that's been collected in that context can be shared with other agencies. If the stated goal is to really be studying the information infrastructure in Canada and to be conducting that type of research, then this way we'll be limiting the potential sharing of information where profiles might have been created, even if inadvertently, of Canadians.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you.

I'm required under the terms of your motion to be here to speak to my amendments, but since Pam has opened the door on the fact that these three are similar, we could talk about them as a cluster. I appreciate the chance to speak to that.

I'm really pleased—and I've seen this over and over in this committee—with the extent to which Liberal members have been listening to experts. With all due respect, I would never describe Professor Forcese as a stakeholder, but as one of the pre-eminent security and anti-terrorism law experts in Canada, he certainly played a very important role when the 41st Parliament was going through Bill C-51. He and Kent Roach both were involved in the Air India inquiry and have a lot of legal expertise. You've captured it quite well, Pam, but I want to go back to his evidence.

With all due respect to our experts here from the department, as he describes it, there's a technical problem, “the inevitability of incidental acquisition of Canadian information.” That's what we're looking at. We know that in CSE's access, it's only supposed to be looking at collecting foreign information. It's not supposed to be looking at Canadians at all, but when you're collecting metadata you just don't know. It's inevitable, as Professor Forcese says, that you will incidentally end up with Canadian information, so how do we protect Canadians from significant violations of our right to privacy and of section 8 of the charter?

I'm pleased with the language in LIB-30. I know the language in Matthew Dubé's and my amendments is stronger and covers off more of the possibilities, but certainly the legislation is stronger once any one of these three motions is accepted by the committee. That's my only comment on it. When we went through it with the drafters, we looked at the testimony from Craig Forcese and from Amnesty International and Alex Neve, and tried to satisfy the drafters and draft as closely as possible to the recommendation we had from those experts.

That's all I have at this point, Mr. Chair. Thank you for the time.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I think it's important. Mr. Spengemann spoke of the purpose of Bill C-59. As I said, this stems from a discussion that was long overdue about fixing the most egregious elements of the former Bill C-51, and in none of the consultations were we engaged properly on the cybersecurity aspect.

To Mr. Motz's point, that's exactly why I'm not seeking to remove the defensive capabilities with any amendment. This is the notion of active cyber operations.

The committee will recall that I asked several questions, including to the Minister of National Defence, related to this notion of what, in this digital age, represents an attack on a foreign actor or sovereignty. How will the capability sharing in this bill between the armed forces and CSE, a civilian organization, be taking place?

It's even more problematic to me in the context that we have a budget that's announced a creation of a cybersecurity centre. The minister has promised legislation to that effect in the fall. In that context, I think it's even more important to have a proper study of these elements that are far from leading to unanimity. I believe more studies are required.

As I said, with this amendment, I am not discounting the urgency of having measures in place to protect our cybersecurity to address these threats, nor am I inclined to say that we should never have any active capabilities. Given the way in which the committee and the ministry were engaged in the public consultations and the way the debate has evolved on this particular issue, starting in the last Parliament with Bill C-51, I don't believe we're properly equipped as parliamentarians to be offering this kind of new power with so many unanswered questions.

As I said, the amendment goes along with the statement that I believe it should have been a separate piece of legislation to begin with.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Chair.

NDP-27 seeks to remove any and all references to “active cyber operations”. I'm going to explain my motivation and reasoning for this.

Obviously, Bill C-59 is a response to a Liberal campaign promise, and something that the Liberals made hay of in the last Parliament, about supporting the then Conservative Bill C-51 in exchange for the promise that the most egregious elements would be fixed.

Now—and we'll get to some of those elements later—I don't believe the bill achieves that objective. That being said, in the consultations that both this committee and the minister did, and the debate on Bill C-51 in the previous Parliament, CSE was obviously never part of it, being enacted by the National Defence Act, which is something not normally dealt with by this committee. I understand that with the new cybersecurity reality and the different issues that we face on a day-to-day basis, that's become something that's necessary.

However, given that it hasn't really been part of the consultations, and as you know, Chair, you acknowledged that CSE took on a life of its own as part of this study. With all due respect to our colleagues here from CSE, that is very new. The committee didn't necessarily, as far as I'm concerned, have the institutional memory to appropriately address all those elements in this omnibus legislation. Several witnesses even made the comment saying that the remarks would have to be limited to one part of the bill given its size and scope.

For that reason, notwithstanding a position I may or may not take in the future on active cyber operations, we have just not had adequate reassurance as to the purpose of this nor have we had the chance to properly study it. I would welcome it as a stand-alone piece of legislation. In the meantime, while it's important to have the defensive capabilities, the active capabilities are a slippery slope that I don't believe this committee or parliamentarians are yet ready to be engaged on.

I move this amendment to remove that aspect from the bill.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

I'm just wondering what those types of unintended consequences could be.

CSIS, in the legislation under Bill C-51 in the last Parliament, obtained the power to, through a warrant, infringe on the charter. If not, it was understood that they couldn't. I'm just making sure. Is there a situation where you wouldn't want to have this kind of safeguard in place?

Again, I feel we're in a situation where if these things are being done and the spirit is there, then why oppose it? The section that's being amended is related to the activities. I think there is a distinction that Canadians' rights and freedoms and directing at a Canadian or a person in Canada.... Your rights and freedoms can be violated even if CSE is conducting activities related to something or someone else who's not a Canadian or a person in Canada.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Perhaps just for the record as we debate the subamendment and the amendment, there are a few points that I again remain unconvinced on.

Proposed subsection 24(1) says that despite the subsections which lead to the prohibitions on obtaining Canadians' information.... Then, obviously we go to proposed paragraph 24(1)(a), which says “acquiring, using, analysing, retaining or disclosing”. The word “disclosing” is important, because the information-sharing regime, which has changed names from C-51 in the last Parliament, but which still remains in place, uses the word “disclosing”. When the minister appeared before our committee, he specifically said that disclosing was meant to narrow the amount of information that would be shared, under the previous wording, between departments.

I'm wondering, if you say “acquiring, using, analysing, retaining, or disclosing publicly available information”.... We've been down this rabbit hole a few times with this committee, and I'm understanding that I will no doubt lose my fight—I apologize for my cynicism—to fix that part of the bill.

In the meantime, I think the least we can do to protect Canadians' privacy is to have the most robust definition possible. I know, at least in my experience as part of this committee process—and I of course say that with all due respect to officials who come—the tendency is to be averse to change and robust definitions. Again, I say that with all due respect.

I want to perhaps go back to officials, because we're talking about the charter statement. I don't think the charter statement, or even the charter itself I dare say, would take into account some of the new realities that we're dealing with as parliamentarians, in particular the information such as the information obtained by firms like Cambridge Analytica.

I'm wondering if I can direct my question to Mr. Millar. It's the same question that I asked you last time in committee. Would that type of information from Facebook fall under the current definition, unamended, as was drafted in the bill and be obtainable as publicly available information?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Yes, and that's because those were the terms of the motion passed by this committee. Otherwise, I'd be able to bring this amendment forward before the House at report stage. That's just to clarify things for people who might have forgotten the terms of the motion.

I just want to briefly say I'm very pleased with the creation of a commissioner. It's my belief, and I hope the government will consider, as my amendment would do, giving the option of the person's being full-time.

In the course of Bill C-51 being examined in the 41st Parliament, we had the advantage of hearing from former Supreme Court justice Mr. Justice John Major, who chaired the Air India inquiry. His advice wasn't taken by the committee at that time, but I believe that a lot of what he said before the committee on Bill C-51 is reflected in the creation of an intelligence commissioner. Mr. Justice John Major, testifying then—and I participated as actively as I was allowed in those committee hearings—said that Bill C-51 was fatally flawed because there was no “pinnacle review”, that was his term, that you needed to have someone like an intelligence czar, someone in a security position, for direct oversight of all the disparate intelligence agencies that we have within Canada so that they do not trip over each other.

He spoke to an issue that Glen Motz mentioned earlier. He said it was human nature to keep information from other agencies. He said that his experience in the Air India inquiry was that the RCMP didn't want to share their information with CSIS, and that CSIS didn't want to share their information with the RCMP. He was very clear on that.

Given the importance of this position—and I certainly support its creation in Bill C-59—I would urge the government, given the extraordinary position of studying this now, before second reading, to seriously consider bringing forward a motion before the bill reaches third reading to allow the intelligence commissioner to be full-time as well, or part-time, at the option of the government.