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.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

—provided that it's regulated or it's authorized by another regulation. It's authorized by Bill C-51. Then Bill C-51 says, “We respect the Privacy Act”, but then the Privacy Act says it's authorized if any other regulation authorizes it.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

That's convenient.

Bill C-51 says the sharing of information must comply with the Privacy Act. Everything that's under it must comply with the Privacy Act, but when you look at paragraph 8(2)(b) in the Privacy Act, it says that information sharing is authorized—

[Michael Karanicolas]

I need to defer to my colleague on this aspect because my presentation on Bill C-51 is tomorrow and I haven't prepped that yet.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

I have another question for you.

I'd like you to talk to us about the exceptions that allow institutions to share information with one another.

The exception in section 8(2)(b) permits a government institution to disclose information under its control “for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure”.

For instance, Bill C-51 states that the sharing of information must comply with the Privacy Act. The Privacy Act, however, authorizes the sharing of information provided that it complies with another act or other regulations. It's a bit like trying to fit a square peg in a round hole.

I'd like to hear your thoughts on that exception, which, in my view, basically renders the Privacy Act inferior to other regulations and acts.

Mr. Karanicolas, you can go first.

[Vincent Gogolek]

Okay, thank you for that.

In any event, I'll just deal with the points that I think need amplification. There are many of the commissioner's recommendations that we're in agreement with, and you'll see that in the submission when it finally emerges.

Generally I think that in the testimony you've heard so far, it's common ground among the witnesses that the Privacy Act is outdated, antiquated, and in need of complete overhaul to ensure that Canadians' privacy rights are properly protected. This should also be done to bring the act into closer harmony with not just the more modern and more protective privacy laws, but also with its federal private sector equivalent, PIPEDA, which is administered by the very same commissioner.

Of course there are differences between the public and private sector, obviously. However, for Canadians who are going to the Privacy Commissioner to seek remedies or to figure out what their rights are or what the Privacy Commissioner can do for them, I'm sure it's very confusing as to why the remedies in terms of the public sector are so very different, and the procedures so very different, from what they would have in terms of PIPEDA. We urge you to make the changes required to end this disparity and confusion.

I'll now proceed to quickly go through the recommendations of the commissioner.

First is the requirement to put in an explicit necessity requirement for data collection. This is the standard set out in B.C.'s Freedom of Information and Protection of Privacy Act, as well as a number of other laws. The concept has received considerable interpretation, judicially and quasi-judicially, so its operation is well understood. We recommend that this be explicitly included in the act. We agree with the commissioner.

We'd also like to point out that one of the many criticisms of last year's Security of Canada Information Sharing Act, which was part of Bill C-51, is that it allows information on the lowest possible standard—that is, that the information is relevant to a receiving organization's jurisdiction or responsibilities in relation to activities that undermine the security of Canada in relation to detection, identification, analysis, prevention, investigation, or disruption of those activities.

We're of the view that this law is actually subordinate to the Privacy Act. However, the government's own background paper to the green paper, which is now currently also the subject of consultations, is actually contradictory on this point. In one place it says yes, it does override, and in another place it says no, it doesn't, that it's subject to other legislation, including the Privacy Act. It seems that the government itself is not entirely clear on this point. Given the weaknesses in terms of the lack of an explicit necessity clause in the Privacy Act, we think this would go some way toward helping resolve this ambiguity.

I'd also like to point out that the CSIS act uses the standard of necessity as well.

In terms of expanding judicial recourse and remedies under section 41, we support this recommendation. We would note that the B.C. legislative committee that recently reviewed our province's act has recommended that penalties be increased in order to focus the minds of those who may either not be paying proper attention to privacy rights or would ride roughshod over them.

One example of why this is necessary is the case of Sean Bruyea, a veterans advocate who had his personal information, which was held by Veterans Affairs, accessed hundreds of times by hundreds of individuals, including his financial, medical, and psychiatric records. Some of those records actually ended up in not one but two different ministerial briefing notes.

Mr. Bruyea was eventually compensated, but that was because he had already brought an action for damages for violation of his charter rights. That's an exceptional action, and we agree with the commissioner that there should be a broader scope and a broader availability of sanctions, including damages, under the Privacy Act.

In terms of the ombudsman versus order-making power versus hybrid, we see that the Privacy Commissioner himself, last month, has come around to the view that order-making power would be preferable. This is the view we have long held and the view we have also put forward in terms of the Information Commissioner. Both of these officers of Parliament should have order-making powers.

With regard to the discretion to discontinue or decline complaints in specified circumstances, this is understandable and necessary for the economy of public resources in cases where there is a request or a demand for review that is frivolous, vexatious, or done in bad faith. However, it should be restricted to those narrow points.

In terms of exceptions, the commissioner's recommendation 16, we agree with the Information Commissioner on this point. We have for a long time been in favour of exceptions to release under the ATIA being harms-based, and that would include personal information. We are also not in favour of this being discretionary.

I have three additional points that I would like to raise. First, I'd like to point out that in British Columbia our public sector act has a domestic data storage requirement, something that does not exist at the federal level. Again, this requirement was recently supported by the committee reviewing our act earlier this year, and also by the Government of British Columbia. We would commend this to you as something you may want to look at, in terms of B.C.'s experience.

Second, in 2008 the commissioner made a recommendation to eliminate the stipulation that the act apply only to recorded information. We think that was a good idea in 2008, and we still think it's a good idea. Although the commissioner hasn't mentioned it this time, we think it's an important change.

Third, something that we're seeing increasingly in the public and private sector in terms of decision-making is the use of data mining, and especially the use of algorithms to either supplement or entirely replace decision-making by human beings. Data is run through a program, and a recommendation, which humans may be reluctant to overrule, comes out. These rulings oftentimes have very serious effects on individuals, especially in terms of social services or benefits or things like that.

Something we have found over the years is that there is a great deal of resistance by private sector and public sector bodies that are using these algorithms and technologies to provide any kind of access to their workings, or even the basis on which these things work.

This really contradicts what happens when you have a human decision-maker. They normally have to provide reasons. There's something you can look at to figure out how they got to their decision. If this approach is replaced by a black box that has unknown data coming in from an unknown variety of sources and a recommendation coming out at the end, the person whose livelihood, finances, business, and other interests may be affected should have a right to see that. I think that has to be in the act.

I now look forward to your questions.

[Dimitre Popov]

Okay. Is it a way to get rid of me? I'll make another argument.

The government isn't willing to legislate a law allowing the law enforcement authorities to conduct Breathalyzer checks because of a concern about a charter infringement, which is sacrificing the lives of 1,000 Canadians every year. The question would be, on what grounds have you created and enacted Bill C-51 when there is only one victim and that, not to mention that the number of people, as a consequence of how Bill C-51 is enforced, sacrificed is much bigger?

I would like to mention as well whether you're aware of how many people die every year as a result of hospital errors. You don't know, or probably you won't tell me, but it's about 24,000 people. What is the government doing if the government is concerned for public safety?

[Dimitre Popov, As an Individual]

Thank you for this opportunity. Maybe I should say thank you to Mr. Trudeau, who sent you to hear us.

Isn't it true that Bill C-51 was enacted to ensure public safety? That's a question.

[Professor Faisal Bhabha, As an Individual]

Good afternoon, and thank you.

My name is Faisal Bhabha. I'm an associate professor of law at Osgoode Hall Law School. I'm here in my capacity as the occasional counsel to the National Council of Canadian Muslims, the NCCM. It's an organization that's been actively advocating on issues related to national security for at least 15 years. It has appeared before parliamentary, Senate, and other committees, as well as the Supreme Court of Canada , on relevant issues.

Not surprisingly, I'm here to echo a lot of what you've already heard. I don't want to repeat the specific reasons why you should repeal Bill C-51, the Anti-terrorism Act, 2015. There are general or contextual reasons that I want to talk to you a bit about. This relates to the experience of Canadian Muslims specifically in living under the current threat that is posed to them as a result of the very existence of the powers under this law.

On the one hand, Canadian Muslims face the exact same risks of death or injury as a result of a terrorist attack. Globally, Muslims have been the overwhelming victims of Islamic terrorism. That's the unfortunate irony of the thing. At the same time, here in Canada, we also face the risk of mistaken identify and wrongful suspicion, which can bring on an entire world of pain. We know a lot about that.

The green paper cites the reports that adduce plentiful facts that show us how badly things can go wrong when the RCMP and CSIS operate without effective oversight. Just ask Arar, Almalki, Nureddin, El Maatii, Benatta, and others.

The Honourable Dennis O'Connor, specifically in the Arar case, warned about the discriminatory impact on Canadian Muslims as a result of the simple fact that intelligence and security enforcement appears to be obsessed with Islamic terrorism, and they don't seem to be looking at other sources of terrorism that may pose greater risks. We're asking for rationality in security and not overreaction, which is what Bill C-51 represents.

We firmly believe that the criminal law as it exists is sufficient to protect Canadians, and we warn you against the dangers that come from the excessive powers, the excessive information sharing, and all the things you've heard about tonight.

[Eric Mills, As an Individual]

Thank you. I speak as an individual.

In the 1960s, the RCMP burned down a barn to prevent a political meeting. They broke into an office to steal the membership list of an electoral political party. They spread false rumours of an individual's psychiatric history in a political group, and they did other things. These and other revelations created a scandal that led, of course, to the McDonald commission, which we know well, and to I think the Keable commission in Quebec.

That led to the creation of CSIS, in order to remove political analysis from the RCMP and turn them into just a police force, but that didn't stop the RCMP from, as we have heard, bombing an oil well in Alberta and from entrapping two rather confused individuals in B.C., as we saw in the court case that came down recently. Bill C-51, rather than reining in the security forces from these behaviours, seems to encourage more of it by CSIS, and probably by other security forces as well as by the RCMP.

The Harper government used rhetoric linking environmentalists to terrorism. Under Bill C-51, would the committee think that a community organizing to protect clean drinking water could be surveilled and disrupted?

Bill C-51, as I understand it, even authorizes security forces to request a warrant to explicitly violate the Charter of Rights and Freedoms in order to disrupt a political movement. I presume that asking a judge to override the charter would be found unconstitutional eventually. If it isn't, we might as well go to Texas. How likely is it that a case could even get to court, how long would it take to get a judgment, and even if the judgment found the warrant unconstitutional, how long would the law remain on the books for security agencies to cite?

This is just one example of Bill C-51's outrageous and flagrant abuses. It's shameful that the party that became the government voted for this bill, and it would be just as shameful if this committee didn't recommend the outright repeal of Bill C-51 or a complete overhaul that amounts to repeal. I think you should go on to redress the abuses by the security agencies that went on before Bill C-51 and that undoubtedly are continuing to go on.

Thank you.

[Mohamed Shukby, As an Individual]

Thank you very much for the opportunity. Before I begin, I would like to join my fellow citizens out here. I strongly disagree with Bill C-51 and there's no question about it.

What I want to talk about is the GSP, the government security policy, especially regarding the security clearances on different levels. I was going through this document. When you want a security clearance, what you do is voluntarily give up all your information to the government to investigate and get back to you. This talks about how they're going to do a background investigation, and you are voluntarily giving up your information for them to check.

It doesn't talk about how they are going to do this investigation. It talks about out-of-country checks. It never talks about how they are going to do them, who they are going to consult, and what kind of information is going to be shared with a foreign country. I think that a person who is voluntarily signing up for that has the right to know what kind of information is going to be shared with a foreign country.

Thank you.

[Miguel Avila, As an Individual]

Thank you very much for this opportunity to share my thoughts and ideas on Bill C-51.

I want to congratulate a number of Canadians here tonight who are brave enough to come and speak on this important item.

Tonight I feel offended that I had to come into the reception desk and submit my ID, my phone number, and my address. I think it's scary for someone who is not a political activist I am to be engaged in these kinds of conversations. People will be afraid.

My name is Miguel Avila. I'm an activist in Toronto. Originally, I am from Peru. I escaped a tyrannical government and, 29 years later, I'm here now fighting an oppressive bill that wants to shut out my voice. It will not let me express my opinions.

The reasons have been explained already by the community. They have been already detailed and explained to you. Every member here has a copy of all those deputations and submissions. It's going to be a wonderful report.

As for the promises that Prime Minister Trudeau mentioned, he said was going to repeal it, but he's cherry-picking things that he likes because he wants to make the companies happy. We are against that.

For instance, there's Enbridge. This is throwing away the environment, but you know what? He is going to be heavily lobbied by the corporations to ensure that this bill is in the favour of the corporations, not in the favour of us, the people. We want to ensure that our children have a better future. I'm sure you all have families, and I'm sure you all want to have a good environment where your children can grow in freedom. We want to remind you that the Constitution gives us the freedom to speak and not to be silenced.

I appreciate this opportunity. Thank you so much.

[Ben Silver, As an Individual]

Members of the committee, thank you.

Like many Canadians under 30, I have never spoken at a political gathering before, but Bill C-51 makes me quite angry, so here I am.

First, I'd like to square the round peg you mentioned earlier about how the Liberals got a majority government and yet it seems that a lot of people want to repeal Bill C-51. It's good that the Liberals don't do omnibus bills, but for the average voter, election time presents us with a choice among five of the biggest omnibuses ever. We have to pick the parties as a whole. While we may like the Liberals more than the Conservatives, that does not mean there is broad support for Bill C-51.

The first issue I have with Bill C-51 is the broadening of CSIS's powers to include police powers. Previous speakers have enunciated better why that's a problem, so I'll move on. In June 2015, Mr. Trudeau gave an interview to Maclean's magazine where he listed why he supports the bill. Some of his reasons for supporting it are exactly my reasons for not supporting it.

The first is preventive detention. I consider it a sacred principle of our society that the government cannot put you in a cage until they have proof beyond a reasonable doubt that you have done something very wrong. The idea that you can be locked up because they think you may do something wrong in the future is abhorrent and has no place in a liberal society.

Number two is the no-fly list. It's a page taken from the flawed American playbook. If Mr. Trudeau starts adding Canadians to a secret no-fly list based on secret evidence, I will add him to my very public no-vote list.

Finally, exchanging freedoms for security is a fool's errand that won't work. Terrorism can be one disturbed person with a kitchen knife. No matter how many securities we surrender, you will never stop the possibility of that happening. We could better fund our mental health services and we could work on education to stop the radicalization of previously healthy members of society.

For perspective, 80 people are killed every year on Highway 401. If the government wants us to give up our freedoms, they need a scarier boogeyman than we accept when we're driving to work every morning.

Thank you.

[Semret Seyoum, As an Individual]

Thank you very much for giving me this opportunity.

I would like to start by talking about my appreciation to the Canadian government for inviting UN world expertise, as yesterday I was participating in a meeting about African dissenters. It is always terrible to hear very terrible stories about African dissenters here in Canada. I'm hopeful for the near future in terms of that one.

By the way, my name is Semret Seyoum, and I'm an editor and journalist. I came from Eritrea.

Regarding terrorist laws and Eritrea, there were two organizations, the EPLF and the ELF. The laws of the Canadian government say that both organizations are terrorist organizations. According to this law, every member of these organizations is considered a terrorist. When we talk about these organizations, we are talking about 200,000 people who were young people in the seventies and eighties. From these 200,000 young people, around 65,000 were already sacrificed for Eritrean independence. I would like to talk about this law. It is not constitutional. This law is not based on fundamental human rights. These young people fought for Eritrean independence. Many Eritreans who are at this time in Canada are considered terrorists.

As a child, I was there also. I went to the EPLF school in the eighties. This is a bit of a problem for the Canadian government. I would like the Canadian government to respect the Canadian constitution. This immigration law is unconstitutional. If we respect the Canadian Constitution and the Charter of Rights and Freedoms, maybe everything is going to go in the right direction.

Regarding Bill C-51, also, if we look very closely at the laws, the target is not directly the terrorists. The target is directly the journalists, the authors and writers. Journalists in every country are victims of the different laws and whims of the government.

[Paul Dutton, As an Individual]

I understand this committee to be consulting Canadians on what to do about Bill C-51, regardless of who won the election and how.

I have these things to say about the shaky structure. If the shaky structure won't stand and is going to fall down on you, then get rid of it and build something that's stable.

Here's where it shakes. First of all, there are three areas of concern: the new no-fly regime in the Secure Air Travel Act; terrorism speech offences; and the new CSIS, which is a de facto secret police.

Concerning the new no-fly regime, under the new law it is illegal to tell an individual if they are on the no-fly list or not. You go to the airport, you're on the no-fly list, you're told you can't fly, and you're not told why. It's illegal for them to tell you why you can't fly. That should be illegal in itself. That's unfair and undemocratic. It's a gross offence to human rights.

While it is next to impossible for citizens to gain access to their own listing, the act allows the listings to be shared with foreign governments, with no statutory limits on how that information can be used. Canada should repeal the Secure Air Travel Act and keep suspected terrorists away from airplanes by using the existing tools under the Criminal Code. The government should repeal the Secure Air Travel Act and Bill C-51. That's what this member of the public has to say in consulting about it.

As for terrorism speech offences, the new offence of advocating or promoting the commission of terrorism offences in general should be repealed. There is no security interest in further criminalizing expression beyond what was already an offence prior to the new law. Imagine trying to work within communities to support individuals at risk for radicalization of violence when even a discussion to understand their views puts them in a position of potentially committing a crime. This is the situation that currently exists in Canada.

The new CSIS is a de facto secret police. It folds the functions of police into the functions of an intelligence organization. This is a factor of a police state.

[Sharon Howarth, As an Individual]

Thank you.

Sharon Howarth is my name. When my daughters were younger, I had to look to see what was the most important thing they needed me to be working on. My research concluded that it was solutions to climate change.

One of the groups, Climate Action Now, has just put up this chart which shows that if we do not curb emissions and keep them below the two degrees, boy, are we in trouble.

First of all, if we go beyond the two degrees, that's horrendous, not only for the planet—it doesn't matter about the planet—but for humanity to be able to survive. It shows desertification of the southern part of the U.S. That's the direction that we're heading in, and those people are not just going to sit there. They're going to walk into Canada. The Pentagon, years and years ago in their report, said that the greatest issue that affects national security is climate change.

When I heard about Bill C-51, I became paralyzed that I could be targeted because I was speaking on a topic that I knew about and either participating in rallies or protests or just speaking up, as paralyzed as I am now. I still can't.... Look at this. This is unbelievable, yet I could be targeted, and also my neighbours and on and on we go. For me, my ability to have free speech in Canada—we have to be a role model here—superseded any perceived threat of terrorism. I really want you to take this free speech and constitutional.... That has to be the most important.

Thank you.