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.

[Sukanya Pillay]

I suppose that I would have to provide the same answer that I gave a bit earlier, which is that we asked the question when Bill C-51 came out: why was this necessary? We had existing laws in place already. We have never received an appropriate answer, and I don't know why.

I do know that it is not a mere aspiration to say that we have to ensure that we have our constitutional safeguards in place and in mind. I would urge this committee to remember that it is not a choice necessarily between security and civil liberties; to the contrary, I think that we can only have effective security when we ensure that our civil liberties are there.

Civil liberties do not prevent, in the context of SCISA, for example, relevant, necessary, and proportional information from being shared; rather, they ensure that only relevant, necessary, and proportional information is being shared.

We have a wealth of information provided from three federal commissions of inquiry that speak directly to these issues of information. I would very much urge this honourable committee to consider that and to implement it in any recommendations that you make.

[Prof. Craig Forcese]

I'm going to duck the first question, about why it happened, because that would require me to make a political judgment, and I'm no more qualified than anyone on the street to make that political judgment. The honest answer is that I don't know why it happened. There are probably a number of reasons.

Your second question is an important one. These are real issues. National security is an acute issue. How we grapple with it is an acute issue, both legally and operationally. One of the difficulties we have in Canada is that we're not sufficiently discursive on it; that is, the expertise in the area tends to be monopolized within government. Government tends to be close-lipped on national security issues. There is no diffusion of expertise, because we don't have a conversation, or at least up until this point we haven't had a conversation.

One of the things both Professor Roach and I said in the aftermath of Bill C-51 was that aside from whatever you think about the merits of Bill C-51, we can't have a process like this again. We need to have a more premeditated policy discussion. I think the idea of a consultation process in national security, which we've never had before, is a very valuable one.

Professor Roach and I have said that we have concerns about aspects of the green paper, and we do. We do not, however, have concerns about the existence of the green paper. We welcome the consultations that are under way across the country, which you mentioned. As private individuals trying to keep up, we welcome them, but we're finding them somewhat exhausting. That will help then encourage insight and expertise in this area and cultivate expertise outside of government.

[Rémi Massé, Liberal, Avignon—La Mitis—Matane—Matapédia, QC]

First of all, thank you for being here as a witness to participate in the work of our committee. I know that there is a lot of work needed to prepare for being here as a witness.

I'm not a lawyer; I'm just a new MP who used to run different organizations in the past. I'm not a specialist on the question either, but you used strong words throughout your presentation about Bill C-51. You said it was carelessly drafted, poorly drafted. You used an expression like trying to use wallpaper to cover a wall that is cracked.

It raises the question of why this happened. Was it a reaction to something that happened? Did we try to react quickly? Was it drafted quickly? Did the previous government provide poor direction?

The second question would be about what lessons we learned. If you tried to identify two or three lessons learned, could you say what those would be, so that we could avoid such situations?

[Prof. Craig Forcese]

I understand the government's view, which was taken during the Bill C-51 debates, that the new act doesn't authorize new collection, but it depends how you measure collection. Sufficiently broad information sharing allows for the pooling of information within the hands of one agency. The information that would not legally have been able to accrue in one agency is now available to it. Technically that's not collection in the sense that it's not been extracted from outside of government from an individual, but rather it's the amalgamation of information in a database in the hands of an agency.

Then the question becomes what the agency can do with that new amalgamated database. Are there controls on the searches it can run through that mother of all databases? Are there provisions that guard how it can then be combined with public-source information to paint an intimate portrait of an individual?

In the world of big data, the boundaries between collection and use are beginning to blur because of the amount of information that is currently in circulation and easily extractable from the public domain. In the absence of safeguards on how information is amalgamated by an agency and then what it can do with that information, I think that we run the risk that the net result is that the government knows more about people than it would otherwise know.

[Sukanya Pillay]

I think having a parliamentary committee would be a welcome move in Canada, but it is not a substitute for an independent reviewer of national security issues, so the two have to work together. Second, I think that Bill C-22 has ineffectual review, because at the end of the day there's discretion in terms of what can be withheld from the committee. That effectively undermines the whole objective, so that's problematic.

If I may add one thing, when I responded to Bill C-51, I stuck to the CSIS Act, but there are many other things with respect to CSIS, such as the references to the IRPA and the no-fly list, that I think need to be done, and they would also be very quick fixes.

[Prof. Craig Forcese]

I would be more surgical in terms of the analogy to blowing up Bill C-51.

I think there are aspects of Bill C-51 that don't stand either a constitutional or a reasonableness test. The new speech crime of promotion and advocacy “of terrorism offences in general” is so sweeping that it encompasses speech that is potentially quite far removed from actual violence. There's no justification for it. Also, I think it underappreciates the extent to which speech that is closely affiliated with violence is already a terrorism crime under 15 or 14 existing terrorism crimes that existed before Bill C-51.

There are other aspects that are more complex, though. Take, for example, the CSIS threat reduction powers. You'll have different views on this. I am of the view that a case can be made that CSIS should have the capacity to act kinetically in limited circumstances—that is, to do more than be a watcher. How you craft that, though, is very different from the way it's been crafted in Bill C-51.

The other limit presently in Bill C-51 in terms of the circumstances in which CSIS can act is quite extreme. The prospect that CSIS, with a Federal Court warrant, could violate the charter is anathema to our constitutional tradition. More than that, it isn't actually responsive to the sorts of practices that one sees in other jurisdictions where they have deployed threat reduction successfully.

In the U.K. context, threat reduction by MI5 is generally spearheaded in a manner that facilitates criminal trials. Disruption in a U.K. context, based on what's in the public record, typically is that they make sure this person is arrested for not paying their local taxes. They may have a terrorism fear, but they can't act on it, so the police will bring a bona fide prosecution on some other grounds. Therefore, that's disruption. The criminal justice system is closely twinned there.

We haven't forced that twinning in the way that Bill C-51 has been crafted. The fear that Professor Roach and I have is that it could actually prove counterproductive. CSIS threat reduction could be counterproductive to a criminal law solution to terrorism.

[Sukanya Pillay]

I have an idealistic and a practical response to that. My idealistic response would be yes, that would have been great, and that's what we argued for when we had hearings on Bill C-51. My concern, though, is that we have an act in place now that's been operational for over a year, so how can we practically remove it?

I certainly do agree with the underpinning philosophy of Mr. Cavalluzzo, but I don't know where we are today. I think what we need to start with today are the serious problems that have been identified in our conversation this morning, including such things as a consolidated definition, such things as intelligence and evidence, and, very particularly, what I said in my opening statement with regard to the specific concerns in SCISA, where we have a definition that's overbroad, nothing in that act that ensures we have reliable information, no legally enforceable caveats, and two open potential charter land mines with respect to sections 7 and 8. If you're looking for practical fixes on this particular piece of legislation, I would say to please start there if you can't get rid of it altogether.

[Wayne Long, Liberal, Saint John—Rothesay, NB]

Thank you, Mr. Chair.

Thank you to our guests for coming in today.

Obviously, as Canadians, I think we do want to find that balance between security and civil liberties. We are in a new era in which we have to wait longer at airports and so on and so forth, and I think we're all prepared to do that.

I've done a lot of reading on this over the last couple of days. A constitutional lawyer, Paul Cavalluzzo, said in an article that Bill C-51 is so flawed that it should just basically be blown up or should have many, many amendments. Do you agree with the statement that Bill C-51 should just be blown up and we should start from scratch?

[Sukanya Pillay]

Thank you.

CCLA has always taken the position that we didn't know why Bill C-51 was needed. We knew that we had had these tragic events. We all agreed that they were tragic, but we did not know what the gaps were in the October 2014 existing laws that Bill C-51 was remedying. What we do know is that Bill C-51 introduced a whole new set of problems, and very serious problems, and that's what we're concerned about.

I guess my summation would be that the open-wound problems we see in Bill C-51 need to be addressed. I would also completely agree with Professors Forcese and Roach, as they've said at other times, that the problems we have with respect to intelligence and evidence have to be addressed. It comes full circle, in a way, to the question you asked two questions ago and to what I referred to in my opening statement, which is that nothing in SCISA ensures that we have reliable information. If our goal is to keep Canadians safe and to protect against threats of terrorism and terrorist activity, we must have reliable information, and we don't have that.

We've referred in our submissions elsewhere to William Binney, who was a whistle-blower in the U.S. You've all heard this analogy before, but it's worth repeating today: if you're looking for a needle in a haystack, don't create more hay. I'm afraid that's what we've done, but it's not as benign as just more hay. There are also other problems.

[Prof. Craig Forcese]

I'll take a stab at that, because I know that Ms. Pillay is going to have a view as well.

I think Prof. Roach and I would be in the camp of those saying that Bill C-51 was trying to address real problems but, as I've suggested, overreacted in some respects and underreacted in others.

In terms of what should be done, we have prepared a 37-page paper responsive to the government's consultation document and proposing some very concrete measures that have the effect of doing their best to renovate what's in Bill C-51 but also push the agenda on things like intelligence to evidence, which again we see as an undergirding conundrum for Canadian law.

We say fix the regime, because it was trying to address some real problems. That's not the universal view, though.

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

We have a very high level of consultation right now on Bill C-51. What I am hearing is that there were already measures within the previous legislation that addressed issues of concern, so what should we do?

I'll ask you, if you were the king, how would you approach this? Can we set Bill C-51 aside and just work on filling the gaps, repairing the inappropriate definitions, and so on? What do you feel would be a good recommendation for us?

[Prof. Craig Forcese]

The honest answer to that is that we don't know. We have never had an accounting of the events of that day, other than some redacted reports from the police as to the security situation on the Hill. That can be juxtaposed with the Australian response to a similar incident in December 2014 and the British response to the murder of fusilier Lee Rigby in 2013, in which comprehensive reports were issued that looked at the landscape of security service actions and described where there were operational failures how they could improve.

In other words, we haven't done a “lessons learned”. That means it's next to impossible to look at the events of October 2014 and say definitively that if we had had this act at that time, things would have turned out differently.

My suspicion, based on what is on the public record, which is mostly journalistic accounts, is that the provisions of Bill C-51 were not responsive in any real way to the events of October 2014. I can't deny that in some of our work I've discussed how Bill C-51 not only overreacts in some of the ways we've discussed in terms of overbreadth, but also underreacts by not actually addressing the points that were raised in our last exchange about what caused the Air India disaster.

That is the awkward relationship between CSIS and the police, which means that we don't bring our A game to terrorism investigations. I like to call it “the tail wagging the national security dog in Canada”. The inability to reconcile those two agencies in terms of their information-sharing practices, I think, undergirds a lot of the workarounds that you see in various places in Canadian law, including Bill C-51.

The recommendation I would make to the current government is to fix that conundrum, much as the British have done between MI5 and the British police, which they did after the disasters of 7/7. Once we have fixed that, let's look and see whether there is a need for all these other measures that, on their face, seem so extreme.

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

Thank you very much.

I've been going over the Chilcot report recently on the war in Iraq. In relation to information, it seems as if the old garbage-in, garbage-out regime existed and probably continues to exist. Is there anything in all the laws that we have, or in Bill C-51, that addresses the integrity of the information?

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Professor Forcese, in response to Mr. Dusseault's question about the necessity of the provisions of Bill C-51, were these necessary, or were existing laws in effect that were sufficient and allowed for sufficient sharing?

You mentioned the general override under privacy law, yet when a catastrophic crime such as Air India took place—and this was 30 years ago now—after the subsequent inquiries identified the failure in sharing between institutions, there was substantial outcry. In the event of a future crime of that scale, if it were discovered that law enforcement agencies had information in their possession but were unable or unwilling to share it, or feared to share it, I can only imagine the public outcry.

Sure, the public values privacy. We know that. We've heard that at this committee, and rightly so, yet the thought of law enforcement possessing information and failing to act on it would also be very upsetting to Canadians. If the override were good enough, I am not sure Canadians would agree with that. That act existed even 30 years ago.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

With regard to reviewing information sharing—all witnesses mentioned this—we don't have a particularly adequate review body to review information sharing between agencies.

Mr. Forcese, you mentioned the siloed nature of the three existing review bodies that we have.

In the previous Bill C-51 debate, my understanding is that an amendment had been put forward that would allow all information sharing to be submitted to the Privacy Commissioner for review. The Privacy Commissioner would issue an annual report to Parliament as to whether the information sharing was acceptable. I wonder if you'd comment on whether that proposal is adequate.