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.

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

We have the peace bonds, but the other aspect now of Bill C-59 is the preventative arrests. We understand the language in the new legislation limits it to an arrest that “is necessary” to prevent a terrorist activity. Under the old Bill C-51, the threshold was “is likely to prevent”, which was the language that was used. In fact, the committee heard from the justice department earlier in this study, and they confirmed that the threshold to make a preventative arrest was being raised. They said that, “It would require the police to present evidence of a greater link between the conditions to be imposed on the person or the arrest of the person and the prevention of terrorist activity.”

Again, similar to peace bonds, do you believe that this higher threshold will make it more difficult for law enforcement to make preventative terrorism-related arrests?

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

Thank you, Chair.

Thank you both for being here. It's interesting, given the comment that was just made about incidental information, because there's incidental information, there's the publicly available information, and there's this notion that there's clearly an intent in the legislation to expand the powers for this new threat that's being described, but when we ask the chief of CSE to explain why those powers would be used, there's no example that's able to be provided.

This question is for you, Ms. Vonn. I want to understand, because there's a link here. One of the answers that was given to me when these officials were before the committee was, “Don't worry. If you look at part 3 of the bill, in proposed section 25, they have to ensure measures are in place to protect the privacy of Canadians", but that's a very vague notion, because it then goes on to say, “of Canadians and persons in Canada in the use, analysis, retention and disclosure of...” and then goes on to describe the information.

The use of the word “disclosure” is particularly troubling, because that's how the government has rebranded the information sharing that was created under former Bill C-51. I'm wondering if there's some concern about that information. It's seemingly for research and other innocuous purposes by CSE, but it can nonetheless be shared, and I'm wondering if there's some concern about what consequences there might be, in particular if it's being shared with Five Eyes allies, when we see examples like what was reported in La Presse at the end of last week about the RCMP acquiring information on Canadians from the DEA without the proper judicial oversight that would normally be involved if they were doing it here in Canada.

With that very broad portrait I've painted, I just want to understand, because I think a lot of people don't quite understand how maintaining, even with a cosmetic change, information sharing as was brought in by the former Bill C-51has an impact on how these new powers of CSE are going to potentially play out.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

The current government had some critical comments to make about Bill C-51. We then proposed Bill C-59 to change certain things. We are often reminded that we must not violate the rights and freedoms of Canadians; we all agree on that. However, in a defensive context, we have to have the means to protect ourselves.

In your opinion, will Bill C-59 excessively constrain or weaken the government's safeguards?

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

Thank you.

I have about a minute left, and Mr. Boisvert, I don't want to leave you out, so this will be a fairly quick question.

Some of the testimony we heard earlier about Bill C-51 was that the new offence of advocating or promoting the commission of terrorism offences in general was so general that it was impossible to prosecute under. When the minister was here, he talked about changes to it so that charges actually could be laid. I'm wondering if, in probably 30 seconds, you can give some brief comments on that.

[Prof. Kent Roach]

I think the important thing is to get rid of terrorism offences in general, which was a very problematic part of C-51. I think Mr. Fogel may have a point that perhaps it should read, “every person who counsels any terrorism offence is guilty of an indictable offence”.

I also think we should make clear that “terrorism offence” meets the definition in section 2 of the Criminal Code in order to avoid the problem that we have in C-51 of undefined offences. Again, the benefit of “counselling” is that there's literally 100 years of experience in the jurisprudence about what counselling is. I think that traditional criminal law has a lot of resources for us to reach for in dealing with these new and real threats of terrorism.

[Prof. Kent Roach]

I agree with my colleague that I would favour putting that in legislation.

I would just add that part of our concerns about Bill C-51 is that there is a need not only to be fair but to be seen to be fair so that very important and legitimate national security activities are not delegitimized by, perhaps, erroneous claims of involvement with complicity of torture.

I think the transparency with the new ministerial directive, if that was taken as the next step into legislation, would actually be good. With the review agency here and measures like that, Canada can start becoming an international leader on these issues.

I think we, frankly, have to realize that perceptions—rightly or wrongly—of unfairness, of profiling, of false positives, are some of the things that seem to be motivating people who are regrettably turning to violence.

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

Great, thank you.

Mr. Fogel, we were talking about the rise in hate crimes and anti-Semitism in particular, which top some of these sad lists and rankings. When we look at the issue of radicalization, which while not necessarily part of the bill in a substantive way is a related issue in terms of how we tackle some of these issues, it was part of the debate on Bill C-51 as well.

Given that radicalization is not just one group, it's obviously many hate groups, and many of these groups are sadly targeting your community and others, I want to get your thoughts on the direction in which the government is going with its counter-radicalization efforts and just hear more generally your thoughts on that issue.

[Shimon Fogel]

I'm not entirely familiar with that particular aspect of the case. It is good practice, and I believe, frankly, that Canada already undertakes consultation with all its like-minded allies on a routine and regular basis looking for best practices, those that we can share with others, and those where we can benefit from the experience of other nation-states.

I'm encouraged when I look at the process of Bills C-51 and C-59 and the commitment to periodically review, both to refine on the basis of experience but also to be able to be responsive to changing circumstances on the ground. That's exactly the right approach that we should be taking. I'm encouraged that we do consult with our allies in order to benefit from their experience in areas where we have less.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair, and thank you to the panel members for being here today.

Mr. Fogel, I found it interesting that you should mention that the Jewish community has been the major focus of terrorists or actions against your group. I believe, if I'm not mistaken, perhaps the Catholic Church was fairly high in that whole hierarchy.

In terms of one of the ironies, I was here for the introduction of Bill C-51, and both the Conservatives and the Liberals supported that bill. It was a first step, obviously, and I see this as perhaps being the next step of a living document. There are good suggestions that we should review this document before too many years pass. However, what I did note too, and my colleague mentioned the apologies and the compensation paid to four individuals, is that it all occurred way before Bill C-51 was brought in, so maybe it did have some things in there that brought the intelligence agencies and the security agencies a bit to heel, although much later in the whole process. Those were incidents that all occurred before 2004, so I see this as the next step.

When we talk about the no-fly list, for instance, and we look at the American list as being a far better system, would you also say that we should look at some of the other American rules with respect to terrorism and anti-terrorism? Particularly, I noticed yesterday in the incident in the New York City subway, the commentators talked about not allowing him his Miranda rights. That seems foreign to Canadians, but the Americans obviously have some view on that.

Mr. Fogel, do you have any comments on that?

[Professor Kent Roach, Professor, Faculty of Law, University of Toronto, As an Individual]

Thank you very much for inviting me to appear before the committee.

My colleague Craig Forcese has already addressed you and has focused on parts 2, 3, and 4 of the bill. I will focus on the other parts of Bill C-59.

Part 1 providing for a government-wide super-SIRC has been widely praised. In my view, it implements the important principle, if not the precise details, that animated the Arar commission's report; namely, that review should expand with the state's national security activities and that review strengthens rather than weakens security.

Improvements can still be made. I recommend that the new and very much welcome super-SIRC be somewhat supersized. In my view, it should contain a minimum of five members and up to eight members. Amnesty International has endorsed this recommendation, and you've heard some very interesting proposals about strengthening the new super-SIRC both from Professor Wark and Mr. Fogel.

We should think about having more diversity in appointments and not simply focusing on the consultation with leaders of political parties, which is very much a holdover from the original 1984 Cold War era CSIS Act. We could also include people with expertise in privacy, as you heard from the Privacy Commissioner. I think it is also important that there be representation where possible from communities that may be disproportionately affected by national security activities.

The mandate of the new review agency needs to be better defined. On my reading, the reference to “department” or “corporation”, which is incorporated in the new act, does not include the RCMP. This should be very clearly spelled out. It should be clear that the new committee can review the national security activities of the RCMP, hear complaints about the national security activities of the RCMP, and have full access to classified information that the RCMP has on the same basis that it will have access to classified information that CSIS, CSE, and other agencies involved in national security have.

Moving to part 5, I remain of the view that the SCISA part of Bill C-59 remains the weakest part of the bill. I would advocate that the definition of threats to national security in section 2 of the CSIS Act be the default trigger for information sharing, subject to carefully tailored and justified additions in cases where that may be inadequate. The novel Bill C-51 definition of activities that undermine the security of Canada was grossly overbroad. Even after the amendments in this bill, it would remain overbroad.

When I talk about overbreadth, and I know that some members of this committee have read the Air India commission report, I refer to overbreadth not only from a civil liberties perspective but frankly from a security perspective. If everything is a security threat, effectively nothing is a security threat. I think we really should tighten the definition with respect to information sharing.

On the subject of Air India—and here I'm going just a touch beyond Bill C-59—I must again reiterate my objections to the CSIS human source privilege that was enacted in the Protection of Canada from Terrorists Act. If it is not repealed, at least I would recommend that, as an urgent matter, there be a study of whether CSIS's practice of granting anonymity to witnesses is hindering terrorism prosecutions.

The Privacy Commissioner has made a strong case to you that the standard for receiving agencies under SCISA should be raised to “necessity”. I agree. I would also not be troubled by having that same standard with respect to sending agencies. The Privacy Commissioner raised the issue that sending agencies may not have experience with security, but they also maybe don't have the same incentive that receiving agencies may have to keep, perhaps unnecessarily, the information that they receive.

In this regard, a critical feature of the new review agency is that it will be able to examine the legally privileged material that is the basis on which receiving agencies will make decisions, perhaps wrongly, to retain any information.

Moving to part 6, the committee is well aware of the problems of a no-fly list. The reforms in C-59 strike me as minimal. Four months is a long time to be a wrongfully listed person, even if the default has been changed. Special advocates should have a role in appeals, and Bill C-51's restriction on the information that these security-cleared advocates can see in security certificate cases should also be repealed. More fundamentally, however, perhaps the new committee that has access to classified information should review whether the costs of the no-fly list, both financial and human—in terms of false positives—are actually worth its benefits.

Moving to part 7 of the bill, I note that the CCLA submitted to you that the reference to terrorism offences in the counselling offence is not defined. That's not my reading. I would read the reference to terrorism offences as referring to the definition of terrorism offences contained in section 2 of the Criminal Code, but this is a matter that needs to be clarified.

The changes to the preventive arrest provisions are difficult to evaluate, but I would favour further amendments to clarify limits on questioning of people who may be detained for up to seven days. I would also advocate that there be some response to the Driver case in Manitoba, which held that at least one part of the peace bond provisions relating to treatment programs violated the charter. I would also recommend that we look at something like section 10 of the U.K. Terrorism Act, 2000, which would allow people to challenge listing as terrorist groups without that very act of challenge being the basis for a terrorism offence.

I applaud the government for repealing investigative hearings, a technique that has never been successfully used and, if used, could hinder terrorism prosecutions.

Finally, this is important and complex legislation that was made necessary by Bill C-51. I would propose that given the comprehensive, if not radical, nature of C-51 and the important proactives of this bill, that the review of this bill be commenced within the fourth year of its enactment, not the sixth year as contemplated in part 9. I would also propose that the review be undertaken by a special joint committee of the Commons and the Senate, which could include one to two members of the new National Security and Intelligence Committee of Parliamentarians.

In addition to my previously submitted brief, which I hope you have and has been translated, those are my submissions.

Thank you very much. I look forward to your questions.

[Shimon Fogel, Chief Executive Officer, Centre for Israel and Jewish Affairs]

Thank you, Chair, for the opportunity to present to the members of this committee on behalf of the Centre for Israel and Jewish Affairs, the advocacy agent for the Jewish Federations of Canada.

We are a national, non-partisan, non-profit organization representing more than 150,000 Jewish Canadians affiliated through local federations across the country. We believe in Canada's foundational values of freedom, democracy, and equality, and are committed to working with government, Parliament, and all like-minded groups to ensure that Canada remains a country where we all enjoy equal protections and opportunities.

In March 2015, I appeared as a witness before the Standing Committee on Public Safety and National Security as it studied Bill C-51. Our testimony began with a statement of fact, “Jews are consistently targeted by hate and bias-related crimes in Canada at a rate higher than any other identifiable group.” Those words are, unfortunately, as true today as they were then.

Statistics Canada recently released its report on 2016 hate crimes, and once again Jews were targeted more than any other religious minority, with 221 incidents. We must, however, keep this in perspective. Canada is a very safe place for identifiable groups and one of the greatest places in the world in which to live as a minority. However, we must also remain vigilant. A single hate crime is one too many.

Whether considering the attack on a synagogue in Jerusalem, a gay nightclub in Orlando, an African American church in Charleston, or a mosque in Quebec City, extreme hate continues to precipitate extreme violence. Jews are often primary targets for terrorist attacks throughout the world: Belgium, Argentina, France, India, Bulgaria, Israel, Denmark, the United States. Understandably, Jewish Canadians are not just concerned about what threats might meet them abroad, but what could happen here at home.

Public Safety Canada's “2016 Public Report on the Terrorist Threat to Canada” notes that Hezbollah, the listed terrorist entity widely believed to have carried out the bombing of a Jewish community centre in Buenos Aires, has networks operating here in Canada. The notorious 2004 firebombing of a Jewish school in Montreal still looms large in our collective memory.

Our community, therefore, takes a keen interest in the government's approach to counterterrorism. We appreciate the opportunity we were afforded to engage in the consultations on Canada's national security framework, both before this committee and with the Department of Public Safety and Emergency Preparedness. I hope that our recommendations will prove helpful and constructive for the committee.

We'll speak on the expanded oversight for CSIS, but before going there let me just address a couple of considerations with respect to advocacy or promotion of terrorism offences in general.

In the context of the former Bill C-51, CIJA was supportive of measures to empower security officials to criminalize the advocacy and promotion of terrorism and seize terrorist propaganda. CIJA supported these measures as a means of denying those intent on inspiring, radicalizing, or recruiting Canadians to commit acts of terror 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 “advocating or promoting” to “counselling” a terrorism offence. This doesn't necessarily undermine the intended function of the provision. Justice Canada's background information on the advocacy and promotion offence states, “The offence is modelled on existing offences of counselling and the relevant jurisprudence. It extended the concept of counselling to cases where no specific terrorism offence is being counselled, but it is evident nonetheless that terrorism offences are being counselled.”

The same intended outcome seems to be achieved in Bill C-59, which adds the caveat that the counselling offence “may be committed...whether or not...the person counsels the commission of a specific terrorism offence.” If, as Minister Goodale indicated in his recent testimony before this committee, this change empowers authorities to enforce the law with greater impact, it would seem a reasonable shift. However, we believe there is an oversight in the proposed new language that could narrow the scope of the provision, weakening it substantially.

The existing offence applies to “Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general”. Swapping out the advocacy and promotion language, this should become something like “Every person who counsels the commission of a terrorism offence”, but it doesn't. Instead, Bill C-59 reads, “Every person who counsels another person to commit a terrorism offence”. With this wording, it appears that the offence could apply only to a specific individual counselling another specific individual.

When it comes to the offence of instructing a terrorist activity, the Criminal Code is explicit. The offence is committed whether or not the accused instructs a particular person to carry out the activity or even knows the identity of the person instructed to carry out the activity. The same standard should apply to the counselling offence. The change of “advocacy and promotion” to “counselling” also impacts on the definition of terrorism propaganda.

Bill C-59 would remove “advocacy and promotion of terrorism offences in general” from the definition, consistent with the change proposed for the counselling offence I've just discussed. However, the all-important caveat that a specific terrorism offence need not be counselled, which is included in the new counselling offence, is lacking here. This should be adjusted for the sake of consistency.

I'll turn to expanded oversight for CSIS.

In our testimony on Bill C-51, CIJA supported the expansion of CSIS's role and responsibilities to include disruption of potential terrorist attacks. While we believed the new mandate was justified, we maintained that enhanced oversight was required to prevent abuse. Just as Canadians stand to benefit from a more robust approach to counterterrorism that emphasizes prevention, we argued that a concurrent increase in the review of CSIS's activities would be beneficial.

Measures to enhance SIRC's ability to provide adequate review are long overdue and are all the more imperative with CSIS's expanded mandate. We supported the refinements to CSIS's expanded mandate that Bill C-59 would put in place and the establishment of a national security and intelligence review agency. Both should help to ensure greater balance in protecting the security and civil rights of Canadians.

In the context of Bill C-51, we proposed several concrete reforms to enhance oversight and accountability for CSIS. The new oversight agency will fulfill our first and perhaps most important recommendation's objective of enabling a review of security and intelligence activities across all government agencies and departments. However, we believe the following three recommendations regarding the structure and composition of the new agency would help ensure it is set up to be as impactful as possible.

First, the chair of the new agency should be someone with experience in intelligence and national security, and should occupy the position on a full-time basis to ensure consistent, professional leadership.

Unfortunately, Bill C-59 states, “The Chair and Vice-chair may be designated to hold office on a full-time or part-time basis”. The bill also states, “Every member of the Review Agency who is not designated as the Chair or Vice-chair holds office on a part-time basis”.

We suggest this be changed to provide the option of other members being brought on full time without requiring a legislative amendment. Given that the workload of the new agency is likely to be significantly greater than that of SIRC, this could conceivably require full-time engagement from all members.

Second, we recommend that the chair of the new agency be designated an officer of Parliament required to provide regular reports directly to Parliament. This mirrors the recommendation we made in the context of Bill C-51 with regard to the chair of SIRC.

The requirement enshrined in Bill C-59 that public reports from the new agency be tabled in Parliament is beneficial, but this reporting is still mediated through the Prime Minister and other ministers. Designating the chair of SIRC an officer of Parliament with a mandate for regular reporting directly to Parliament would send a clear signal that the work of the new agency is independent from the government of the day.

Third, we believe Parliament should have a greater voice in the appointment of members of the new agency.

We welcome the consultation provisions included in Bill C-59 but believe the appointments should also be subject to approval by resolution of the Senate and the House of Commons. This small addition, which is already standard practice in the appointment of officers of Parliament, would further enhance the credibility of the appointments process.

Although this may be more appropriate for your colleagues at the finance committee, it's also important to stress that the national security and intelligence review agency will require the allocation of significant resources, both professional and financial, if it is to be given a chance to succeed in fulfilling its important mandate.

CIJA's testimony in 2015 concluded with a plea for committee members to support a private member's bill that sought to extend hate crime penalties beyond houses of worship to schools and community centres. That initiative failed but was revived in this Parliament in Bill C-305, which passed third reading in the Senate in October.

I am pleased to conclude my remarks today, Mr. Chair, with sincere thanks to each of you for coming together in unanimous support for Bill C-305, a clear example of how elected officials can work together and make a practical difference to protect Canadians.

I hope committee members will consider my remarks today in that same constructive spirit, and I'm grateful for the opportunity to join with you.

Thank you.

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

Thank you, Mr. Chair, and thank you to the witnesses for being here today.

I appreciate the comments that were made earlier, with respect to the concern that you have about all forms of violent extremism. Given the attack that happened in New York, I'm sure your organization has already or will be condemning the actions that occurred in that circumstance.

You indicate that there has been an historical lack of accountability within CSIS. It goes back many years. In 2015, Bill C-51 was brought in to address this and now Bill C-59 takes that review and accountability even further. However, from your testimony today, I'm hearing that there remains a lack of confidence in addressing the concerns within CSIS.

What do you propose is the solution?

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

Thank you, Mr. Chair.

Mr. Gardee and Professor Bhabha, I think this is what my colleague was getting at concerning what was said with regard to Bill C-51, and we heard this during the national security framework review that this committee undertook.

One of the concerns that were raised with the changes to the Criminal Code, the offences related to the promotion of terrorism.... Some families, for example, in terms of reporting to the proper authorities certain actions in hopes of rehabilitating a member of their family or their community, because those offences were so wide and general and vague, remained silent in order to not implicate a member of their family or their community.

Are the changes proposed to the Criminal Code in Bill C-59 related to that specific issue sufficient as far as you and your organization are concerned?

[Ihsaan Gardee]

In terms of our testimony on Bill C-51, obviously there is a concern regarding the stigma that is associated with being identified as somebody who has been connected in any way to violent extremism or the ideology that supports and underpins it. There is a concern that exists there in terms of that stigma being applied to not just the individual but more broadly to the community at large when looking at national security and ensuring our shared security.

To be clear, Canadian Muslims are as concerned about violent extremism and the ideologies that underpin it, and we are equally concerned about all forms of violent extremism.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

That answers my question, thank you. As I do not have a lot of time, I would like to continue with my questions to you.

When you testified about Bill C-51, you mentioned that members of the community want to help with deradicalization, but they are afraid of being accused of being extremists.

Do you think that Bill C-59 solves that problem?