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.

[Scott Newark, Policy Analyst, As an Individual]

Thank you very much, Mr. Chair. It's good to see you again.

I'd like to thank the committee for the invitation to appear before you with respect to this very important Bill C-59. I've had the opportunity to follow some of the proceedings and to read some of the transcripts, and it's very encouraging to see the depth and substance of the questions asked of the individual witnesses who are appearing, including with different perspectives.

I've had a long history, and I was thinking about it before I came here today. It's been almost 30 years, I guess, since I first testified before a parliamentary committee. I was a crown prosecutor from Alberta, and as I put it, I got tired of tripping over the mistakes of the parole system in my courtroom, and realized that the only way to try to change it was to change the laws. That meant coming to Ottawa, because we were dealing with federal correctional legislation. I was appearing before parliamentary committees where I exposed what had happened in a couple of cases.

The important work of the legislative branch struck me then, and it has remained with me throughout. That sometimes gets overlooked, and depending on how things are being handled at the executive branch of government, the really important and critical analysis that committees can do is quite significant. A bill like this is a very good example of that, because you can have different opinions about things on different subjects, but you have the ability to ask questions and to try to elicit information to analyze whether or not the intended results are going to be achieved by the legislation in the way that it's drafted or if other things need to be done. That is particularly true, I think, in relation to legislation like Bill C-59, which is obviously pretty complex legislation and deals with a whole lot of subjects.

In fairness, the discussion itself has raised issues that are not contained in Bill C-59. I think a very encouraging sign was the way that the government sent the bill here in advance of second reading so that you could have input and suggestions on other subjects. I have some suggestions to make on things like that. I must admit, though, that I would suggest that it probably is a better idea, simply from a procedural perspective, to confine your recommendations to the specifics of the bill, and perhaps, in an ancillary report, make suggestions on other subjects rather than adding huge new amendments to sections and opening up different issues that are not specifically contained in Bill C-59. There's so much of value in Bill C-59 that it's a good idea to move it forward.

My presentation today will touch on essentially three aspects. The first is just to take some examples of things that I think are notable and quite important in Bill C-59. I also have a couple of comments on things, and one in particular I have a problem with, but I suppose, to put it in a larger sense, they're just ones where I would suggest you may want to ask some questions and make sure you understand that what you are anticipating is the case is, in fact, the case. Then, because the minister has invited suggestions on other issues, if we have time—and probably not in the opening statement, but during questions and answers—I have some suggestions on other issues that I think might be of interest.

Let me just give you a little bit of background as well on my personal experience in this, because it impacts on the insights. As I mentioned, I was a crown prosecutor in Alberta. Ultimately, because of one of the cases I was involved in, in 1992 I became the executive officer of the Canadian Police Association. This is the rank-and-file police officers, the unions. We were involved very heavily from 1992 to 1998 in criminal justice reform, policy advocacy. It was from that, in particular, and my work as a crown prosecutor, that I got the sense of the importance of learning from front-line operational insights how you can then shape legislative or policy tools so as to achieve desired outcomes.

Also, not everything needs to be done by legislation. There are frequently instances—and I was struck by this as I was watching some of the evidence from some of the witnesses that you've had—where we don't necessarily need new laws. We need to enforce the ones we already have, and we need to make sure that the tools are in place to use them appropriately. There are some examples of that, I think, in Bill C-59 specifically.

I ended up working with the Ontario government in 1998 as an order in council appointment. That government had intended to achieve some criminal justice reforms, and they weren't getting it done, so they wanted some people with some understanding of the justice system.

After 9/11, I was appointed as the special security adviser on counterterrorism because of some work I had previously been involved in. I had significant interactions with Americans in relation to that. In the old days, it was the Combined Forces Special Enforcement Unit, which became INSET. I had a role, essentially, in being the provincial representative in some of the discussions, and I saw the inter-agency interactions, or lack thereof, and the impact that potentially had.

Since then, I'm actually one of the guys who did the review that led to the arming of the border officers. I still do work with the union on policy stuff. I also do some stuff with security technology committees. The value of that is that you get an understanding of some of the operational insights and what is necessary to achieve the intended outcomes.

I should add, I suppose, the final thing. Last year, I accepted a position at Simon Fraser University as an adjunct professor. I know you'll be shocked to hear that. It's for a course they offer, a master's program, the Terrorism, Risk, and Security Studies program. The course I teach is balancing civil liberties and public safety and security. To go on from a point that the general made, I think the case is that these are not either-or situations. We are fully capable of doing both, and there is a balance involved in this. As a general principle, it is a very good idea, when you're looking at what is proposed in legislation, especially in legislation like this which has national security implications, to keep in mind the general principles of protecting civil rights.

There are two points about that. You'll notice that in “civil rights”, “rights” is modified by “civil”. In other words, they are rights that exist in the context of a civil society. That has ramifications in the sense, I think, of what citizens are entitled to expect of their government. I don't want government intruding on my privacy, but, at the same time, if government has the capability of accessing relevant information and acting on someone who is a threat to me and my family, I expect, under my civil right, that, in fact, government will do what it needs to do to extend that protection.

The other side of that—and I know, Monsieur Dubé asked many questions about this, as did other members of the committee—is the importance of looking at it generally, at what is proposed, to see that there is, in effect, oversight initially and, as well, appropriate review so that the balancing can take place. In my opinion, and more accurately in my experience, having the executive branch reporting to itself for authorization is something that should raise a red flag. There are provisions within the act that ultimately address that, although there are some that raise some questions about it.

In the very brief time left, let me just say that I think that among the important things in the legislation are the extensive use of preambles and definitions about the importance of privacy and what we would generally call civil rights in consideration of why we're doing things. That, I think, was a deficiency in Bill C-51. I can tell you that it is critically important in today's charter world to make sure that is included so that the courts can consider whether or not what was being done by legislative authority in fact took into account the charter issues. A rule of statutory interpretation is “thou shalt consider the preamble in a statute when actually drafting it”.

With one minute left, I think probably the most important operational aspect of this bill is the proactive cyber-activity authorized to CSE. That is a reality of the world in which we live. We are totally cyber-dependent, which also means we have enormous cyber-vulnerabilities. Cybersecurity, in effect, has been an afterthought. This is a step; it is not the complete answer. I do some work in the cyber field as well, and that is something that I think is extremely important.

The one issue I would raise, in closing, which I have a concern about specifically, is in relation to the change in what I think is the evidentiary threshold in the terrorism propaganda offence. I can get into that in more detail, but my concern is, essentially, that it may be making it, for no good reason, no justifiable reason that I can see, harder to use that section, which has extreme relevance now in the changing domestic terrorism environment in which we are living.

I look forward to answering any questions and, hopefully, touching on the other subjects.

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

Yes. It's in a different form in Bill C-59 than it was in C-51, if I am correct.

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

Thank you very much to both of you for that.

I want to pick up on something that was mentioned toward the end of your comments. That's the critique of the change in Bill C-51, the speech crime provision, and the change to a counselling offence. It's interesting, because one of the criticisms of Bill C-51 was that under the speech crime provision as written, it was conceivable, for example, for a Canadian journalist to be convicted under that bill for writing in favour of some of the actions taken by anti-apartheid activists against the infrastructure of the racist South African state in the 1980s. That's if Bill C-51 had been in place, obviously, during that time.

With the counselling offence, this is much more common in existing criminal law. It still would allow for individuals who are involved in encouraging terrorism to face legal consequences. I wonder if you could comment from this perspective. I mean, do you see that point about the dangers of Bill C-51 and how that might impact upon freedom of expression?

[Michael Mostyn, Chief Executive Officer, National Office, B'nai Brith Canada]

Thank you. I will be sharing my time with Mr. Matas.

We thank the committee for inviting us to appear. I will provide some introductory remarks. My colleague David Matas, our senior legal counsel, will elaborate on some of our key points on the proposed legislation.

B'nai Brith Canada is this country's oldest national Jewish organization, founded in 1875, with a long history of defending the human rights of Canadian Jewry and others across the country. We advocate for the interests of the grassroots Jewish community in Canada and for their rights such as freedom of conscience and religion.

B'nai Brith Canada testified before this committee in 2015 and, most recently, in February 2017, on what was then Bill C-51. Our testimony today will develop the same points we had previously expressed, and we will focus on specific areas that touch on our work, particularly part 7.

Our latest audit of anti-Semitic incidents in Canada contains a key truth: Jews are consistently targeted by hate and bias-related crimes in Canada at a rate higher than that of any other identifiable group. Statistics Canada recently released its report on 2016 police-reported hate crimes, and once again Jews were targeted more than any other group in the country. But police-reported hate crimes are only the tip of the iceberg. We require better tools—data and analysis—to gain greater insights into all hate crimes and to do a better job of countering them.

Bill C-59 includes proposals to change the Criminal Code aimed at improving the efficiency and effectiveness of the terrorist entity listing regime. We endorse those proposals providing for a staggered ministerial review of listed entities and granting the minister the authority to amend the names, including aliases, of listed entities.

In the past, B'nai Brith has been supportive of measures to empower security officials to criminalize advocacy and promotion of terrorism, and seize terrorist propaganda. We supported these measures to deny those intent on inspiring, radicalizing, or recruiting Canadians to commit acts of terror and who exploit the legal leeway to be clever but dangerous with their words. Bill C-59 seeks to change the law's articulation of this offence from “advocates or promotes” to “counselling” the commission of a terrorism offence. This is a weakening of the law that we believe is unhelpful. We have noted the assurances provided by the Minister of Public Safety and Emergency Preparedness, but we are still uncertain that such a change, which in our view weakens the law, is needed.

The change of advocacy and promotion to “counselling” also impacts on the definition of “terrorism propaganda”. Bill C-59 would remove the advocacy and promotion of terrorism offences in general from the definition. This is also a weakening of the law.

We accept that the right to freedom of expression is an important consideration, but the right of potential victims to be free from terrorism and the threat of terrorism must be a greater priority.

The importance of a clear articulation of the penalties for advocacy and promotion of terrorism should include the glorification of terrorism, something that should be of concern to all of us.

These are specific points I wanted to raise. There are others that, while not specifically part of the proposed amendments to Bill C-59, are intimately associated and are of interest and concern to B'nai Brith Canada. There are further points here. I'd like to highlight some.

The continuing manifestation of anti-Semitism, hate crimes, and hate speech in Canada affects not only the Jewish community. B'nai Brith Canada sees these worrying trends as national security issues. Organizations such as ours working with law enforcement agencies at the federal, provincial, and municipal levels must address these issues collaboratively.

The government's framework to counter youth radicalization is also extremely important. We endorse the work of the Canada Centre for Community Engagement and Prevention of Violence. We look forward to a stronger dialogue with them.

How can we collaborate in the more effective monitoring of groups engaged in hate speech or incitement directed at children, including those using coded messages that are nonetheless threatening, even where these might fall short of actual crimes? This is very much the focus in countering radicalization at an early stage, where civil society can have better dialogue with law enforcement.

How can we ensure that government agencies shun questionable organizations and groups, particularly those that receive government grants and nonetheless are operating in ways inimical to the fundamental rights and freedoms of Canadian society? We would welcome a channel of dialogue for this purpose.

Lastly, how can we better engage in dialogue with the Canada Revenue Agency to ensure diligent follow-up to complaints regarding organizations engaged in or supporting those expressing hate speech at odds with their charitable status?

There are other points, as I mentioned, in our paper. I'm sure we can answer those in questions.

I'd like to cede the floor to my colleague David Matas.

[Laura Tribe]

We definitely have big concerns about the Security of Canada Information Sharing Act that was enabled by Bill C-51 not really being revised or overhauled in the way we had hoped. One of the big changes that we would look for is limiting the information requested to those who request it, and not allowing it to continue being shared between departments after the fact. Another change we would look for is limiting who can access information within other government agencies.

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

Thank you very much.

When it comes to information sharing, how concerned should be about what are essentially cosmetic changes in this bill from what was brought in by the former Bill C-51? You mentioned it in your comments, and I don't really have time to get into some of the details I was going to ask about, but perhaps you could reiterate those concerns in the 30 seconds that are probably left.

[Timothy McSorley, National Coordinator, International Civil Liberties Monitoring Group]

Thank you. I'm very glad to be able to present today on behalf of the International Civil Liberties Monitoring Group and our 45 member organizations. I'd like to thank OpenMedia for inviting us to join them today.

I'd like to touch on three main points: first, review and oversight; second, some of the changes to the Canadian Security Intelligence Service Act; and third, the no-fly list.

Regarding oversight and review, the ICLMG greatly welcomes the creation of the national security and intelligence review agency, as well as the intelligence commissioner. However, we believe there are important ways in which both bodies could be strengthened. We hope the committee and government take this opportunity to ensure that both the NSIRA and the intelligence commissioner have the powers and resources they need to carry out their important work. Others have given feedback, which we largely support, regarding the intelligence commissioner, so I will focus on the NSIRA.

The ICLMG has long supported an overarching review mechanism as a way to ensure Canadians' rights are not violated, and to monitor the effectiveness of Canada's national security activities. Bill C-59 does away with the silos that have restricted the various review agencies' work, which alone is a major improvement.

I would highlight three issues, though, that we think the committee should examine regarding strengthening the NSIRA. First, to ensure independence we suggest that the NSIRA members be appointed via vote in Parliament and not through Governor in Council. Second, the complaints mechanism in the NSIRA act should apply not just to the RCMP, CSIS, the CSE, and security clearances, but be expanded to include, at a minimum, the national security activities of the CBSA as well as Global Affairs Canada, although ideally the complaints mechanism would actually include all federal national security related activities.

Third, SIRC has faced important criticism over the lack of transparency in its complaints system. There is, in fact, an ongoing lawsuit over this issue. We have also raised concerns about SIRC's inability to make binding recommendations. The NSIRA act would transpose these problems onto the new agency. We urge the committee to take this opportunity to improve on the SIRC model and ensure we have a strong, effective, overarching review body.

Next, regarding changes to the Canadian Security Intelligence Service Act, CSIS's threat-reduction powers were introduced with Bill C-51 and were heavily criticized at the time. Bill C-59 attempts to solve some of these issues by restricting the powers to a set list of activities. However, we must reiterate in the strongest possible terms our opposition to granting an intelligence agency, which operates in secret, powers akin to those of law enforcement.

My time does not allow me to go into all our specific concerns, but at the heart of this is that CSIS's creation was meant to separate intelligence activities from law enforcement, and today we continue to have the same concerns we had at that time. Even in cases that require a warrant, we believe that a non-adversarial system will not ensure the protection of a target's civil liberties. We do not believe that this is an issue of “if” the system will violate an individual's rights, but “when”.

We are also concerned about new powers granting CSIS agents immunity for acts or omissions that would otherwise constitute an offence. The Canadian Bar Association, among others, raised serious concerns when these powers were granted to law enforcement officers, calling it antithetical to the rule of law. We believe this even more so when such powers are granted to intelligence agents operating in secret, and we think this section should be removed from Bill C-59.

Finally, regarding the Secure Air Travel Act and the no-fly list, we support the tremendous efforts by the No Fly List Kids and other groups to bring about a redress system. However, we believe the government must go further and address the more fundamental problems with the no-fly list regime. Bill C-59 does not address the due process issues that have been raised since 2007. We cannot condone a system that is used to restrict individuals' travel and to place them on what amounts to a terrorist watch list but does not allow them full access to the information against them, in order to mount a full and adequate defence. We have also yet to be shown that it improves upon Criminal Code provisions already in place that can be used to restrict the activities of an individual suspected of planning a crime. While we appreciate potential solutions put forward by others, such as introducing a special advocate system into the appeals process, we do not believe it is sufficient to restore due process. We maintain our fundamental opposition and call for the repeal of the no-fly list regime.

For more on our positions, we sent a brief to the committee, which I believe was circulated yesterday. I'd also be happy to take any questions, or follow up with any members, following the meeting.

Thank you.

[Laura Tribe, Executive Director, OpenMedia]

Good morning. My name is Laura Tribe, and I am the executive director of OpenMedia, a community-based organization committed to keeping the Internet open, affordable, and surveillance-free.

I'm here today with Tim McSorley of the International Civil Liberties Monitoring Group, who were unfortunately not invited by the committee to testify in these proceedings, but whose contributions OpenMedia believes to be critical for an informed discussion of Bill C-59.

OpenMedia's work on privacy and digital security dates back to Bills C-13 and C-30, but has focused more recently on the serious security violations introduced by the previous government's Bill C-51. The OpenMedia community's lengthy efforts on these issues include producing “Canada's Privacy Plan”, a positive vision for the future of privacy in Canada that was crowdsourced from over 125,000 contributors; over 300,000 people speaking up against Bill C-51; two national days of action against Bill C-51, organized in partnership with organizations across the country; over 15,000 citizen comments submitted to the government's national security consultation; and over 6,000 submissions to this committee's written consultation on Bill C-59.

Public Safety Canada's report summarizing the national security consultation results showed that Canadians are overwhelmingly in favour of increased protections for personal privacy. More than four in five responses indicated that their expectation of privacy in the digital world is the same as or higher than in the physical world.

As a result, when Bill C-59 was introduced, we were relieved; it was a sign that change was coming. However, the more we analyzed the bill, the more our worries returned. The changes are less substantive than we had hoped, and invasive new powers were even introduced.

Bill C-59 fails to adequately address the information disclosure provisions and terrorist speech offences brought in by Bill C-51, but also brings in new data collection, cybersecurity, and information-sharing powers that further threaten our privacy and security.

Today this committee has a chance to make this right. Over 6,000 Canadians submitted their concerns about Bill C-59 via OpenMedia's written submission to this consultation. Since then, in the past two weeks, we've had almost 10,000 more Canadians sign a new petition concerning the expanded cyber-operations powers proposed in the CSE act included within Bill C-59. It's addressed to the Standing Committee on Public Safety and National Security and reads:

“As a concerned Canadian, I am urging you to address the dangerous new powers being proposed for CSE in Bill C-59. Throughout the process of reforming Bill C-51, Canadians have been very clear on the need to scale back the drastic and invasive national security measures in the bill.

“Public Safety Canada's own 'What We Learned' report, which formed the basis of Bill C-59, confirmed that a majority of stakeholders and experts called for existing measures to be scaled back or repealed completely, and that most participants in the consultations 'opted to err on the side of protecting individual rights and freedoms rather than granting additional powers to national security agencies and law enforcement...'.

“The new active and defensive cyber-operations powers proposed in Bill C-59 for CSE are directly opposed to the wishes of the majority of Canadians. We asked for privacy, but instead we got an out-of-control spy agency with even more extreme powers than before.

“Security and privacy experts throughout Canada have expressed in great detail the issues with the proposed bill and the changes that need to be made to protect the privacy and security of Canadians. Experts have warned of the consequences of granting powers like these, powers that will be all the more dangerous given the lack of adequate oversight included in the bill.

“I would like to point you to the 'Analysis of the Communications Security Establishment Act and Related Provisions in Bill C-59' report, produced by the Citizen Lab and the Canadian Internet Policy and Public Interest Clinic, CIPPIC. The recommendations laid out in this report should be adopted by the SECU committee.

“In a world and time where digital technologies are being used by so many to threaten our digital safety, we need our government to be helping make the world better, not actively undermining our security.”

As of this morning, our petition has been signed by 9,633 Canadians. On behalf of these signatories, plus the over 300,000 against Conservative Bill C-51, and the other concerned civil society groups who have been unable to join these proceedings themselves, we respectfully ask that you make things right. We are asking you, our elected representatives, to stand up for our privacy and continue the work of repealing Bill C-51. Digital security is critical to Canada's infrastructure, economy, and future. Please do not compromise this in the name of fear or following other countries' bad practices to lead us in a race to the bottom. We need to be stronger than that.

Thank you.

Opposition Motion—Conflict of Interest

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Madam Speaker, that speech had such passion and conviction, and that is what the people from St. Catharines would expect.

The member started his comments by talking about the fact that the opposition was using this as its first opposition motion for 2018. It is another opportunity, like it continually does, to keep smearing the Prime Minister, throwing it against the wall, hoping it will stick. When the Liberal Party was in opposition, it talked about the bad policy the Conservatives brought forward, such as Bill C-51 and its attack on scientists.

Could the member expand a little more on why he thinks the Conservative Party continually hammers away at the Prime Minister instead of talking about some of the policies that can help the people they so often purport to represent?

[Peter Edelmann]

What I would suggest is that there be one clear definition of national security and threats to national security. The definition in the CSIS Act has been used for a long time, and it's only with Bill C-51 that we ended up with another definition that created a lack of clarity with the Security of Canada Information Sharing Act. If the information sharing act is going to be that broad, there's no question that there does need to be oversight, and so it may be that the broader definition from the information sharing act is the one that ought to be used with respect to NSIRA.

Our view is that definition is overly broad and vague.

[Dr. Christina Szurlej, Endowed Chair, Atlantic Human Rights Centre, St. Thomas University, As an Individual]

Mr. Chair, Mr. Clerk, and honourable committee members, thank you for the opportunity to testify before you regarding Canada's national security framework.

Following a set of national consultations regarding the Anti-terrorism Act, formerly Bill C-51, the Liberal government drafted Bill C-59, An Act respecting national security matters to replace the Anti-terrorism Act.

I have reviewed the bill and will comment on it through a human rights lens. Securing the safety of its populace is a fundamental function of government. It is without question that government and its agencies must be equipped with the means necessary to prevent, counter, and address evolving threats in the digital age. In that same vein, a balance must be struck between securing public safety and respecting rights, ensuring any limitations placed on rights are necessary, proportionate, and reasonable.

As a human rights professor, I am pleased to see language recognizing the need to maintain respect for the Canadian Charter of Rights and Freedoms, the rule of law, accountability, and transparency within Bill C-59. The establishment of a national security and intelligence review agency with a mandate to review national security activities, consider complaints, and advance investigations is arguably the most significant advancement.

The bill also establishes an intelligence commissioner to review the reasonableness of Canadian Security Intelligence Service and Canadian Security Establishment authorizations regarding, inter alia, intelligence gathering and cybersecurity. Though Bill C-59 has addressed some shortcomings found in the Anti-terrorism Act of 2015, concerns remain regarding its impact on human rights, particularly the rights to privacy, freedom of assembly and association, freedom of expression, liberty and security, democratic rights, due process rights, and anti-discrimination protections.

Due to time constraints, this testimony focuses on concerns with amendments to the Canadian Security Intelligence Service Act regarding the collection, querying, exploitation, and retention of datasets. The act defines a “dataset” as the collection of information stored as an electronic record and characterized by common subject matter. A dataset could thus encompass any thematic electronic documentation, provided it is a publicly available dataset, relates primarily to non-Canadians living outside of Canada, or constitutes an approved class.

Though it is reassuring that a newly established intelligence commissioner would review classes of datasets to safeguard against abuse, the remainder of section 11.05(2) is read with caution. Use of the term “publicly available dataset” is misleading, as it can include information that is considered private under the Privacy Act, but is available in the public arena, potentially without the consent or knowledge of the person concerned. In other words, publicly available data can extend to private information made public on request, by subscription or by purchase. Rather than exploit this vulnerability by legitimizing and encouraging the commodification and exploitation of the public's data, the Government of Canada has a positive obligation to protect its populace against infringements by third parties that may compromise individual privacy in exchange for profit.

Granting government authority to collect publicly available data appears innocuous, but can reveal highly personal information in violation of the right to privacy. I also caution Canadians against blindly accepting mass government surveillance of foreigners. Though targeted surveillance may be necessary to thwart legitimate threats to peace and security, mass surveillance opens the door for foreign nations not accountable to Canadian voters to collect information about Canadians and share it with our governments, other nations, or corporations.

Under these circumstances, the Government of Canada could also place foreigners in danger by revealing compromising information to governments with poor human rights records. Differential respect for the privacy of Canadians versus non-Canadians outside the country also constitutes a violation of non-discrimination under the international covenant on civil and political rights.

The United Nations special rapporteur on the right to privacy has maintained that the distinction between one's own citizens and foreigners is not in compliance with the principles of the universal right to privacy.

Failing to properly restrain invasions of privacy could prompt charter violations of section 8 protecting against reasonable search or seizure or the promotion of presumption of innocence under section 11(d). In order to satisfy that such limitations are “demonstrably justifiable in a free and democratic society”, the onus is on the Government of Canada to prove these limitations are of sufficient importance, rationally connected to the objective, minimally impair rights, and produce an outcome that outweighs the gravity of the problem it seeks to address.

Though protecting public safety and national security is of sufficient importance to warrant a well-defined, targeted invasion of privacy, the mass collection of data that could lead to results that are relevant to the performance of CSIS's duties and functions is not sufficiently important to encroach on constitutionally protected rights.

Similarly, blanket collection of datasets merely “relevant” to the duties and functions of the service fails to demonstrate a direct rational connection to protecting public safety. If there is no direct connection to maintaining public safety and national security, why does the Government of Canada consider these proposed powers to be a necessary component of the national security framework?

The United Nations special rapporteur on the promotion and protection of human rights while countering terrorism has warned that “restrictions falling short of being necessary...constitute 'arbitrary' interference” with the right to privacy. The special rapporteur further stressed that, “for a restriction to be permissible, it is not enough that it serves one of the enumerated legislative aims; it must also be necessary for reaching the legislative aim.” Given that the aim of Bill C-59 is to protect national security, the blanket collection of any data relevant to the work of CSIS does not satisfy this test.

Information respecting the protection of public safety and national security in Canada should be narrowly defined and collected only “to the extent that is strictly necessary” and when there are reasonable grounds to suspect a threat to the security of Canada. If we allow the bulk collection and storage of personal data without a person's knowledge, consent, or ability to challenge the nature and authenticity of information collected, the next step could be to misuse, alter, deliberately conceal, or manipulate information.

Indeed, the Canadian Security Intelligence Agency Act allows a CSIS director to authorize designated employees to commit direct “acts or omissions that would otherwise constitute offences” in carrying out their duties and responsibilities. Theoretically, the minister could authorize the collection of datasets intended to assist CSIS employees with carrying out otherwise criminal activity. Are these powers consistent with the preamble of Bill C-59, which claims to respect the Canadian Charter of Rights and Freedoms, the rule of law, as well as accountability and transparency, while championing national security?

Amendments to the act do advance safeguards, but the nature of these safeguards raises concerns. The bill includes provisions calling for this service to delete information and datasets regarding the physical or mental health of an individual, information subject to solicitor-client privilege, and material in foreign datasets regarding Canadian citizens. This suggests some datasets will encapsulate information that should be accorded the highest degree of privacy.

The question is, why would the minister and intelligence commissioner approve a dataset that could potentially reveal this type of information about someone who has done nothing wrong? Further, the amendments should expressly state that accidental collection of such data will result in its total destruction, which clarifies the desired outcome more precisely than using the term “delete”.

The Supreme Court of Canada has emphasized that “the protection of privacy is a prerequisite to individual security, self-fulfilment and autonomy as well as the maintenance of a thriving democratic society.” Though not constitutionally protected itself, the right to privacy is essential for the maximum expression of most rights found under the charter, including freedom of expression; freedom of peaceful assembly; freedom of association; the right to vote; the right to life, liberty, and security; fair trial rights, including prevention of unreasonable search and seizure, protecting the presumption of innocence, and maintaining solicitor-client privilege as part of satisfying the right to a fair trial, particularly, the provision against self-incrimination.

Acknowledging the impact on constitutionally protected rights, any limitation of privacy rights should be justified under section 1 of the charter by applying the Oakes test. If the courts identify—

[Peter Edelmann, Member-at-Large, Immigration Law Section, Canadian Bar Association]

Thank you very much for inviting me to appear before you today.

Bill C-59 proposes complex and major updates to national security law. It would address several decisions of the Federal Court of Canada, and widespread concerns expressed about Bill C-51 in 2015.

The Canadian Bar Association generally supports the goals and structure of Bill C-59 as a positive change, modernizing the legal framework for Canada’s national security infrastructure and increasing transparency, oversight and review, features that have previously been lacking. Our comments and analysis of the proposals in Bill C-59 are offered in hopes of further improving the bill.

Our written submissions provide a number of specific recommendations and I would refer you to those for the more technical amendments we propose. I will use my time today to focus on two or three areas of broader concern.

First of all, we support the creation of the national security and intelligence review agency, the NSIRA. I just have a couple of comments with respect to it but in particular with respect to the mandate. While we commend the decision to avoid language that would unnecessarily restrict the agency's mandate, an overly broad mandate could hinder the agency's ability to focus and assess its performance against its mandate.

In the way that it's drafted now, the NSIRA has responsibility for broad review of any activity of “a department that relates to national security or intelligence”. “Intelligence” is a very broad term. It could include things that are done by anything from the Canada Revenue Agency to Fisheries and Oceans, police departments, etc.

“National security” is also problematic given the multiple definitions that we see in different pieces of legislation. In particular, we remain concerned about the SCISA, the Security of Canada Information Sharing Act, or with the amendments that we have today. The breadth of the definition of an “activity that undermines the security of Canada” in section 2 is still very broad and notably it's different from the definition in the CSIS Act of “threats to the security of Canada”. Having two definitions is not helpful. It's confusing and it doesn't provide a clear mandate for national security agencies and in particular for an oversight or review agency.

I would also note in passing that the amendment to the exception in section 2(2) of the SCISA is troubling as it actually substantially reduces the protection under the current version. Several legitimate political activities might be seen on their face as undermining the sovereignty or territorial integrity of Canada.

In the past, we've recommended that there be one coherent, clear definition of “national security” and we continue to be of that view. It's also unclear whether certain other activities fall under the definition of “national security” at all. For example, the Secure Air Travel Act, SATA, does not refer to national security and it's unclear whether the review of SATA activities would fall under the NSIRA or not. In other words, is this national security legislation? Does it fall under NSIRA?

The coordination of the work of the NSIRA with other review agencies is obviously key although we would note that there remain significant gaps in the review framework. The problem is particularly stark with the Canada Border Services Agency, and we've expressed concerns about this lack of independent review of the CBSA in several past submissions.

CBSA remains one of the largest law enforcement agencies in the country and has no independent oversight or review at all. This is not a role that NSIRA should take on although it does highlight the problem of having a vague definition of “national security” because arguably everything that Canada Border Services Agency does could fall into a broad understanding of national security in a vague sense.

Everyday complaints about problems at the border should not be burdening NSIRA and its resources. A specialized review agency is required.

We also have concerns, in particular, with respect to NSIRA's access to information, and in particular that NSIRA would have access to any information other than a cabinet confidence that it deems necessary to conduct its work. This would extend explicitly to information subject to solicitor-client privilege, professional secrecy of advocates and notaries, or litigation privilege, creating an open-ended mechanism to review legal advice given to the government. This is of significant concern to the CBA.

The role of solicitor-client privilege is fundamental to the functioning of our justice system and this is as true for government actors as it is for private actors. It has been argued that privileged information must be made available because the practices of security agencies often depend on the legal advice they receive.

However, without assurances of privilege, legal advice will be sought less often, based on less candid disclosure by client agencies, or worse, sought and received but not documented.

The other problem with respect to the disclosure of solicitor-client privileged information is how the NSIRA then deals with it in its reports. It's not helpful for the NSIRA to have solicitor-client privileged information. What they need is information about how this is actually deployed in the agency, not the advice that was given behind those decisions.

Concerning the intelligence commissioner, the CBA supports the creation of an independent specialized office for the oversight and authorization of activities by the CSE and CSIS. We have generally called for judicial oversight, but we recognize the advantages of a dedicated commissioner with staff and resources to allow effective ongoing oversight.

The nature of the review mandated by sections 14 to 21 of the proposed intelligence commissioner act does create some concerns for us because there's a system of nested reasonableness findings. Instead of the normal process in front of a judge for a warrant where a judge would find whether there are reasonable grounds to issue a warrant, what the legislation currently foresees is that the minister would make a finding on reasonable grounds, and then the intelligence commissioner would review that on a reasonableness standard.

This creates two problems from our perspective. First, it's unclear how much deference that implies. There's an extensive debate in the courts right now around the application of the reasonableness standard at all and how that plays out in terms of deference.

There's no need to bring that confusion into this area, and there is not that confusion around the reasonable grounds standard, so there's no reason for this nested reasonableness finding other than creating a level of confusion as to how much oversight is actually being provided, in particular because it's going to be provided behind closed doors. It's important for Canadians to understand what the intelligence commissioner is doing and that it be clear.

With respect to the CSE, the CBA generally supports the more detailed mandate of the CSE, and we support the structure as it's being proposed. There are several elements of the proposed mandates that are in tension with one another, in particular, the offence and defence in cyber-operations.

We would recommend that there be an explicit vulnerabilities equities process as part of the mandate of the CSE, so that the balancing can happen in a transparent way. The U.S. has a process in place that might work as a model, or at least give ideas with respect to that.

With respect to CSIS, we continue to have concerns around the disruption powers. In particular, giving kinetic powers to CSIS comes away from the mandate of creating CSIS in the first place, after the McDonald Commission.

I'll refer you to our written submissions with respect to our concerns around section 12.1(3.2). We continue to have concerns similar to those we've had in the past with respect to these warrants limiting charter rights in that context.

Finally, I would note with respect to the Criminal Code provision of counselling of terrorism offence, in my view, following the jurisprudence of the Supreme Court in Hamilton, the counselling offences in the Criminal Code already cover everything this offence covers. There is no need to further complicate the Criminal Code. It's already too complex. It ought to be simplified, and the counselling offence covers everything you're hoping to cover here.

Thank you very much for your time, and I apologize if I went a little bit over.

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

A higher threshold was indeed put in place in Bill C-59. That responded to a long-standing concern among civil rights advocates who were of the view, and I think it's a reasonable position to hold, that to detain someone without a warrant for up to seven days, without applying a criminal charge, as the preventative arrest measure allows for, is questionable. In a democracy, you can at least have that debate.

The government has looked at Bill C-51 and introduced a change. Under Bill C-51, as we heard, an arrest could happen when it was “likely to prevent” a terrorist act. Now, in Bill C-59, an arrest can be made when, on reasonable grounds, there is suspicion to believe a terrorist act might be taking place. You still have that ability to lay an arrest, and in emergency situations it's there. This isn't preventing you from acting as police, correct?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Turning to the legislation itself, we have had testimony on this, as well as an open letter that was talking about the new offence that was in Bill C-51 on advocating or promoting the commission of terrorism offences in general and the broad definition of “terrorist propaganda”. When we had the minister here, he talked about how, in Bill C-59, we've amended that wording because it was actually too vague and no charges had been laid because they weren't enforceable in court.

Do you feel these changes will assist you in actually being able to lay charges that can be enforced in court?

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

Thank you, Chair, and thank you both for being here today.

When we debated C-51 in the previous parliament, one of the issues that came up was that a lot of talk is given to legislation for keeping Canadians safe, but often one of the pieces that's forgotten is actually providing proper resources for police. One of the things that comes to mind is the police officer recruitment fund from the federal government that existed to help provinces and municipalities, as you obviously well know, and provide additional funding. This is a fund that was cut that's never been brought back that we wish would be there and be permanent. How important is it to actually have resources, beyond all the talk of legislation and all the procedures, so you know that you have the ability to properly equip and train those men and women on the front lines in order to keep Canadians safe?