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.

[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.

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

I want to say how deeply grateful I am to see this amendment. This was one of the weakest parts—well, there's another part that I'll get to in my amendments—of Bill C-51, in trying to remedy the damage. We could call this the “Maher Arar act”.

I'm deeply grateful to see this amendment and I hope it passes.

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

I appreciate that, Chair. I hear the roaring train coming my way.

Once again, these are just consequential amendments related to the full repeal of all the information-sharing provisions in Bill C-59, which are just cosmetic changes to what was in Conservative Bill C-51.

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

Thank you, Chair.

As you know, one of the most controversial aspects of former Bill C-51 was the information-sharing regime that was put in place, known as SCISA, and Bill C-59 brings essentially a cosmetic change alone to that regime. As far as we're concerned, this remains a problematic system to have in place. NDP-9.1 and the consequential amendments seek to fully repeal the elements of the bill that allow for this information sharing to take place.

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

Once again, when I hear words like “likely” and things like that, I would say this amendment is not exhaustive. It prescribes certain things that should be published but certainly leaves discretion for the agency to publish more. Once again, I don't see why we continue to reject things by saying they will “likely” happen, the “odds are”, etc., when we should be codifying these things as much as possible.

Moreover, as I said, this will be debated in later amendments, but at the end of the day, as far as we're concerned, threat reduction powers should not be part of CSIS's mandate. That's been an ongoing debate since former Bill C-51. In the meantime, in the same way that there would be accountability for other forms of law enforcement if these powers are going to exist, I do think it's appropriate that they be reported on, as the Canadian Civil Liberties Association said in its testimony to this committee.

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

I can assure you that when it comes to the actions that are taken by our government, we are given the appropriate authorities. This gives the Canadian Armed Forces and CSE the authority to act.

The other aspect of what our government has done is to make sure that we have fully funded our Canadian Armed Forces to be able to meet those needs.

More importantly, it gives CSE, within Bill C-59, the legislation to now be able to actively protect Canadians, whereas it couldn't before. Your previous government, at the time of Bill C-51, neglected to do that.

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

I'm sorry. My policing experience of listening to how people talk and question is coming in here.

I see where you're trying to go with this, and I can assure you, when it comes to the Minister of Foreign Affairs and me, we have a very good relationship when it comes to looking at threats. That's what Bill C-59 is focused on, making sure that we keep Canadians safe but at the same time give Canadians the confidence that their privacy is going to be looked after. More importantly, finally we have CSE being given the ability to leverage their expertise. That wasn't there before, especially when it came to Bill C-51.

Access to Information

[Rachel Blaney, NDP, North Island—Powell River, BC]

Mr. Speaker, I am here today to talk about a question I asked last year on Bill C-58.

Just so the citizens of North Island—Powell River, who I am proud to represent, know what we are talking about, I am going to repeat the question. The minister keeps repeating that his government is the first in 30 years to make improvements to access to information. However, the Information Commissioner was very clear when she said that the Liberals' Bill C-58 is regressive and that the status quo would be better than what they are proposing, meaning that Stephen Harper's government was more open and accountable than the current government. Canadians were promised more accountability and transparency. Will the government work with us to help it actually keep that election promise?

This is a very important question. The constituents I talked to across my riding spoke passionately about their concerns around Bill C-51 from the last government, and about wanting to make sure things were transparent. The President of the Treasury Board said that we are reaching a new bar, and this is absolutely not the truth. It is important we remember who the expert is in this, and that is the Information Commissioner, who said, “I would much prefer to keep the status quo.”

This is incredibly important to my constituents. This is about the transparency of government. It is about making sure information is accessible. We know so many issues have come to light because Canadians, journalists, and NGOs use access to information to ask important questions that deserve answers. I do not understand why the government created a bill that really just blocks this.

Let us look at the facts. Residential school survivors fighting the government for decades for acknowledgement of the terrible and horrific abuse they faced, the reality that type 1 diabetes in Canada is now being rejected, the under-reporting of sexual assaults in Canada, Afghan detainees and those horrendous stories we heard, these were all discovered by the access to information that this bill totally erases. That is horrendous in this day and age.

One of the most concerning things for me is the fact that the bill talks about people who may be vexatious. What may appear to the government as vexatious may be of the utmost interest for Canadians. Who gets to decide what that is? How do Canadians appeal the decision by a department? This is really important. I know the people of North Island—Powell River are very concerned. They want to know we have information and have access to it, and that journalists have access to it, so that we can learn what is happening in this country. This completely bars the way. We really need to take a moment to reflect on that.

At this point, the bill has passed through the House, but this is leading to something that will be an ever-growing concern. When the government talks about increased transparency and when it says that the PM's office can be talked to now and people can ask for information, that is simply not true. When the Information Commissioner is saying that what we have now, which was in much need of change, is better than what is being proposed, all Canadians need to stand up and take notice of what is happening.

That is why I am here today, and I think we all must focus on this. Whoever is in government has tremendous power. It must be held in check. That is what democracy is all about.

[Joanne Gibb]

We don't have any public complaints of that nature, but I'll add that our ongoing national security review into Justice O'Connor's recommendations is looking at domestic information sharing as it is currently done by the RCMP.

When that's complete, we should have a better answer for you on whether or not Bill C-51 affected how they share information, but I'm not aware of any public complaints regarding information sharing in that regard.

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

I'm sorry, perhaps my question was not clear.

Let's say you receive a complaint related to an action by the RCMP involving the sharing of information as set out in the former Bill C-51 and as amended, in a sense, by the current bill.

What do you do if you follow the trail from the complaint and arrive at the information forwarded by CSIS, for instance, and you find that it is the actions by CSIS that are the object of the complaint?

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Mr. Newark, just to reiterate what you said earlier about the current provisions that Bill C-51 put in place where it is an offence to broadly counsel someone to propagate terrorist propaganda. This means that in a particular case somebody who is propagating terrorist propaganda could unknowingly influence somebody to commit a terrorist act without that person who is propagating the propaganda even knowing that somebody was going to commit the offence.

Let me get to my point. Bill C-59 is proposing that somebody would only be charged if they had counselled somebody, which means that somebody would have to commit the act, and we would have to trace that back to whoever counselled them, whereas the legislation as it currently exists could stop the person from propagating the terrorist activity in the first place, thereby preventing the activity from happening.

Is that a fair assessment?

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Thank you, Mr. Chair, and thank you to both our guests for being here.

CBSA is not mentioned a lot in this particular bill, and as mentioned, there's nothing at all of substance about our borders in Bill C-51.

We know we've had issues with illegal border crossers, significantly, over the last year. These individuals who cross the border are given hearing dates. The processing time has been cut by 80%. They disappear, and many of them don't show up for their secondary hearings. When you put all these things together, it leaves the impression that our borders are porous and that there are national security issues that exist.

In the context of our border and CBSA, can you offer us any insights on what amendments we should be looking at within this legislation, keeping in mind Mr. Day's comments about a practicality component as well?

[Peter Fragiskatos, Liberal, London North Centre, ON]

I don't mean to cut you off.

You alluded in your remarks to your concern about the speech crime provision in Bill C-51 being modified under Bill C-59. I was reading a piece that you wrote—it might have been for iPolitics as a matter of fact, back in the fall—where you pointed to your opposition to this.

Just for the record, under Bill C-51, it was a crime for one to “knowingly advocate or promote the commission of terrorism offences in general”. Under Bill C-59, this has been replaced with something much more common in criminal law: “counselling another person to commit a terrorism” act.

I have read your criticism, so I want to jump immediately to ask you a question about how the offence was phrased in Bill C-51. Take the example of a journalist or a group of protestors who were supporting a group—now the times don't align here but I think you'll appreciate the example—of anti-apartheid activists, under the ANC and under Mandela. You know very well that, particularly in the early history of their activism against apartheid, they advocated for non-lethal attacks on public infrastructure.

Now if a journalist here in Canada were writing in favour of that kind of an approach—again, the anti-apartheid movement was one of the most important struggles of the 20th century—it's entirely conceivable, and I'm not the only one to use this example, that they could have been charged under the wording in Bill C-51.

To shift now, to pivot to a counselling offence, doesn't this clarify and bring greater understanding to what is permissible and what is not permissible?