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.

Canada Labour Code

[Sheri Benson, NDP, Saskatoon West, SK]

Madam Speaker, it is my privilege to rise today to support Bill C-234—I am sure my colleagues will not be surprised about that—sponsored by my colleague, the member for Jonquière. The last debate on this valuable amendment to the Canada Labour Code was fruitful. All members who spoke raised important questions about both the bill itself and its manner of introduction in the House.

Before I speak to the bill in question, if I may, I will respond to some of the objections we have heard. The Parliamentary Secretary to the Leader of the Government in the House of Commons expressed his distrust of New Democrats' motives. This was based on his experience in provincial politics and the NDP's own history of labour-related legislation. He claimed indirectly that this piece of legislation is part of “games that are played between the Conservatives and the NDP with respect to labour”.

I would like to remind him of the distinction between federal and provincial parties and agendas. I do not hold the federal Liberals responsible for the policies and decisions of their provincial counterparts. This attitude of suspicion really is not helpful for healthy debate and is corrosive, I think, to Canadian politics.

While I might not agree with them, I respect all of my elected colleagues' opinions and I equally hold all of my colleagues to their word. This is part of good-faith discussions and negotiations, without which any bargaining process crumbles, whether in the House or over employment conditions.

My colleague from Louis-Saint-Laurent took a principled position in opposing the NDP's amendment, and while I respect his commitment, I am saddened by his party's continued insistence upon outdated economic theory that sacrifices actual and practical considerations. He said, “Let us not forget that striking workers can always go work somewhere else”.

Individuals are not, at their core, economic beings or economic robots that just uproot and abandon their communities, friends, places, and memories for only financial considerations; and the government should not treat them as such. This brand of economic thought is blind to the realities faced by many working Canadians and, insensitive to the demands of everyday life, was really at the heart of some the previous government's destructive economic policies.

In addition, I would call into question various statistics and citations used by the member for Louis-Saint-Laurent. First, we must all remember that correlation is not causality. The numbers are not, as the member stated, speaking for themselves, but rather, the member is speaking for the numbers.

Second, while he rightly pointed to the recommendations of the 1996 Sims commission, my colleague neglected to mention that the commission found that Quebec has managed without major difficulty since the general prohibition of replacement workers. He equally neglected to mention the minority opinion of commission member Rodrigue Blouin, who noted that there was neither consensus nor conclusive evidence for the recommendations. Blouin recognized that replacement workers undermine the fundamental principles of bargaining integrity. The member for Louis-Saint-Laurent did not acknowledge this. Nevertheless, I respect the member's position, his honesty, and his valuable respect for the equality of all members.

All members spoke to the balance that exists between employer and employee, thanks to the Canada Labour Code, and the threat of upending that balance. I commend my colleague from Regina—Lewvan for his excellent response to this criticism, which was not addressed in the subsequent debate, and I wish to return to this point later.

First, however, was the member for Cape Breton—Canso's argument for the need for a wide tripartite consultation process, instead of piecemeal changes through private members' bills. This process, through deliberation and study, would preserve the employer-employee balance.

My colleague's comparison of our amendment to labour law changes under the previous government is disingenuous. Bills C-377 and C-525, two bills given as examples, were introduced and shepherded through Parliament by the previous government, which held consultations in contempt and proactively stifled consensus-building discussion. Bill C-234 has been introduced the only way we know how.

The Canada Labour Code requires modernization. If the current government is willing to initiate this consultation process, I say, let us do it. The Liberals, however, will not do this.

We are nearing one year since the election. The government promised Canadians real change, and they have done better than the previous government, it is true. Of course, transparency and wide and thoughtful consultations are necessary to open government. The current government, however, is employing these consultations with partisan judiciousness, putting us in an awkward position.

Where was the broad discussion on arms sales to Saudi Arabia? Where are the consultations on Bill C-51, legislation that blatantly infringes upon charter rights and against which experts from coast to coast have been unified? In fact, where is any whisper that Bill C-51 is being put back on the table? How many more experts must speak out against Bill C-51 before the government acts?

In many cases, we have seen deliberate delay masquerading as thorough bipartisan concern. The government is willing to listen, it seems, only when it knows it will like what it hears. I should add that unlike my colleague from Winnipeg North, I am judging the government on its own track record.

I want now to return to the carefully crafted balance that my Liberal colleague spoke of previously. The phrase “sunny ways” we know was popularized by prime minister Laurier, a famous compromiser, yet we also know that Laurier's downfall was ushered in through some of the same compromises.

I strongly believe in compromises, in listening, negotiating, and thoughtfully coming to consensus, but on some issues, talk of balance is misleading. We cannot, for example, support aboriginal land claims and propose nation-to-nation dialogue, yet at the same time green-light pipeline development without consultation.

To say that we worked toward balance in this case is meaningless. We do not need to balance news coverage of climate change with deniers who ignore the science. Likewise, there is the idea that the current iteration of the Canada Labour Code balances, as the member for Cape Breton—Canso put it, “the union's right to strike with the employer's right to attempt to continue operating during a work stoppage”.

Management always has the upper hand in the current scenario, and Bill C-234 is merely trying to balance the playing field.

The carefully crafted balance the government claims exists at the moment between workers and employers under the Canada Labour Code appears to be the same as what exists between the opposition and the government here today. Management and the government will always have more resources at their disposal.

Furthermore, it is undeniable that the use of scab labour makes strikes more bitter, and sometimes violent. They also prolong the conflict. That does not really serve anyone.

As the eight-month-long strike at The Chronicle Herald newspaper in Halifax drags on, the Herald is losing subscribers and advertisers it may never get back. Workers are losing their regular paycheques and the work they so clearly love to do. Any readers that are left will have lost the quality paper of old.

Anti-scab legislation would help reduce days lost to work stoppages and would facilitate a quicker resolution to workplace disputes.

In Quebec, where anti-scab legislation has been in place since 1977, and in British Columbia, where a similar law has existed since 1993, days lost to strikes have actually decreased since these laws were enacted. These laws must be working, or subsequent governments would have moved to repeal them.

The bottom line is that nobody ever wants to go on strike, says Ingrid Bulmer, president of the Halifax Typographical Union, whose members are still on strike.

“When we went out, it wasn't because we want more, it was because management wants to take away so much. We are striking in self defense”.

She went on to say, “Strike pay is much less than what you are used to getting. If you live paycheck to paycheck it becomes a problem, and the company is using that as a weapon to bully us into surrendering. They have much deeper pockets than we do.... The balance is altogether tipped in the employer's favour”.

Bill C-234 will extend a ray of sunshine to Canadian workers under the Canada Labour Code. This legislation will restore good faith negotiations at the bargaining table, as both parties, employers and employees alike, will have something to lose by not coming to an agreement. This is not naive theory. This is a simple fact.

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

First, if I have more time at the end, I'll share it with Mr. Erskine-Smith.

Thank you all for being here. My question is for Madam McPhail and Mr. Israel.

In the Privacy Act there is a general prohibition on information sharing, but then in subsection 8(2), there is a whole list of exceptions, such as, for instance, information shared in accordance with federal legislation or regulation. Then along comes a bill such as Bill C-51, which allows for information sharing among, I think, 17 government institutions or agencies, maybe more or less.

How should we approach the exceptions to information sharing, and do you have any recommendations?

[Tamir Israel, Staff Lawyer, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic]

Mr. Chair and members of the committee, good morning. My name is Tamir Israel, and I am staff lawyer with CIPPIC, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa's Centre for Law, Technology and Society and the Faculty of Law. CIPPIC is a public interest legal clinic that works to advance the public interest in policy debates arising at the intersection of law and technology.

I wanted at the outset to thank you for inviting us to testify before you today, as well as for undertaking this important review of the federal Privacy Act, a central component of Canada's privacy, transparency, and accountability framework.

Since the introduction of the Privacy Act in the late 1970s, the policy landscape surrounding data protection has evolved dramatically, driven by tectonic shifts in the technical capability and general practices surrounding the collection and use of personal information. The federal Privacy Act has simply not kept pace with these dramatic changes, a reality that hinders its ability to continue to achieve its objectives, in light of heightened incentives and technical capacities to collect and keep personal information at unprecedented scales. The nature of the objectives incentivizing state data practices has rapidly evolved over the years since the adoption of the act, which initially focused primarily on regulating data practices animated by administrative purposes.

Today's privacy challenges are driven by a far more diverse set of incentives. The era of data-driven decision-making, colloquially referred to as “big data”, increasingly pushes state agencies to cast wide nets in their data collection efforts. Additionally, more often than not, the act is applied in review of activities motivated by law enforcement and security considerations that are far removed from the administrative activities that animated its initial introduction.

Finally, data sharing between domestic and foreign state agencies now occurs on a more informal, and often technologically integrated, basis than could have been envisioned in the late 1970s.

The Privacy Act is in drastic need of modernization, and to that effect, CIPPIC has reviewed and largely endorses the recommendations made by the Office of the Privacy Commissioner of Canada to this committee with respect to changes necessary to ensure today's data protection challenges are met. We will elaborate on a few of these, as well as on some additional recommendations that we have developed in our comments today. In addition, in our written comments, which will eventually make their way to the committee, we provide some legislative language suggestions, which we hope will help guide your review of this act.

The remainder of our opening comments focus primarily on discussing and highlighting specific recommendations designed to enhance proportionality, transparency, and accountability, as well as address shortcomings that have arisen from specific technological developments.

Before turning to these broader themes, however, our first recommendation addresses the Privacy Act's purpose clause, which we believe should be updated to explicitly recognize the objectives of the act: to protect the right to privacy of individuals, and to enhance transparency and accountability in the state's use of personal information. Express recognition of these purposes, as is done in provincial counterparts to the Privacy Act, will assist in properly orienting the legislation around its important quasi-constitutional objectives, and will help to secure its proper and effective application if ambiguities arise in the future, as they surely will.

Necessity and proportionality are animating principles that have become central to data protection regimes around the world, but are absent from the aging Privacy Act. It's important to explicitly recognize these principles in the act, and to adopt additional specific measures that are absent from its current purview, but are nonetheless essential to ensuring private data is collected in a proportionate manner.

As a starting point, first, the Privacy Commissioner's recommendation for explicit recognition of necessity as the standard governing data collection practices should be implemented. Necessity is a formative data protection concept and provides important context for assessing when data should or should not be collected, used, or disclosed. The existing standard, which requires only that data practices relate directly to an operating program or activity, is simply too imprecise in the age of big data, where organizations are increasingly encouraged to collect data that has minimal clear, immediate connection to current objectives.

Second, the Privacy Act imposes no explicit limitations on how long data can be retained once it is legitimately collected. The lack of any explicit obligation to adopt reasonable retention limitations can mean that that data is kept well beyond the point where its utility has expired, exponentially increasing the risk of data breach and of inappropriate uses. The lack of an explicit retention limitation requirement can even lead to the indefinite retention of data that has only a very short window of utility, greatly undermining the proportionality of a particular activity.

As an example, our clinic, along with Citizen Lab at the Munk School of Global Affairs, recently issued a report examining the use of a surveillance tool called a cell site simulator. These devices operate by impersonating cellphone towers in order to induce all mobile devices within range to transmit certain information that is then used to identify or track individuals or devices. The devices operate in a coarse manner. For each individual target the devices are deployed against, the data of hundreds or thousands of individuals within range will be collected. Non-target data collected is only immediately useful for identifying which datasets belong to the individual, the legitimate target of the search, and which do not, an objective that could be accomplished within 24 to 48 hours of collection. However, as the underlying collection of these thousands of non-targeted datasets is legitimate, these datasets might be kept indefinitely. These large datasets can then be reused at any point in the future and, subject to ancillary statutory regimes such as the Security of Canada Information Sharing Act, which was recently adopted via former Bill C-51, can be shared across a wide range of other agencies.

Including an explicit retention limitation provision would not only mandate state agencies to adopt clear retention policies, but would also allow the commissioner to address unreasonable retention in a principled manner. This, in turn, will reduce the risk of data breach and generally increase the proportionality of data collection practices.

Third, we would recommend the adoption of an overarching proportionality obligation that would apply to all collection, retention, use and disclosure of personal information by government agencies into the Privacy Act. This would be comparable to its counterpart that is currently found in subsection 5(3) of PIPEDA. As you have heard from other witnesses, the Privacy Act increasingly provides an important avenue for ensuring charter principles for the protection of fundamental privacy rights are fully realized. An overarching proportionality or reasonableness obligation modelled on subsection 5(3) of PIPEDA would provide an avenue for assessing charter considerations across all data practices. It will also provide the Privacy Act with a measure of flexibility, allowing it to keep pace with technological change by providing a general principle by which unanticipated future developments can be measured.

In addition to these proportionality measures, there are clear gaps in the Privacy Act's current transparency framework and further opportunities to enhance the openness of state practices, which in turn will encourage accountability and public confidence.

At the outset, we encourage the adoption of the Privacy Commissioner's recommendation for a public policy override to the act's confidentiality obligations. This would allow important information regarding anticipated privacy activities to enter the public record in a timely manner.

Second, the Privacy Act should be amended to include statistical reporting obligations attached to various electronic surveillance powers in the Criminal Code. As Mr. Rubin mentioned, statistical reporting obligations were once a hallmark of electronic surveillance regimes and are attached to certain electronic surveillance activities, such as wiretapping, but these activities have largely been superseded by other electronic surveillance activities that have no comparable statistical reporting obligations attached to them.

One investigation conducted by the Privacy Commissioner's office recently found that law enforcement agencies themselves did not have a clear picture of the scope of their own practices in relation to the collection of subscriber information from telecommunication companies. Understanding the nature and scope of state surveillance practices is all the more important in light of the tendency for rapid change in practices in this sphere. Imposing a statistical reporting obligation in the Privacy Act that applies across the spectrum of electronic surveillance powers would therefore provide an important transparency mechanism.

Finally, the adoption of a general obligation on state agencies to explain their data practices would greatly enhance transparency. While the act currently obligates government agencies to explain to individuals the purposes for which their personal information is collected and used, it lacks a general obligation to explain agency practices.

One modelled on PIPEDA's openness principle would be beneficial. If this concept is adopted, it should address the challenges raised by algorithmic non-transparency, which would entail an obligation to explain the logic of any automated decision-making mechanisms adopted by the state.

We have some suggestions on accountability and compliance measures that I will submit in writing and you folks can review at a later time.

I did want to very quickly touch on a couple of recommendations we have that address very specific technological developments that have led to gaps in the Privacy Act.

We would recommend updating the definition of “personal information” so that it is aligned with the comparable definition under PIPEDA. The current definition only applies to personal information that is recorded, whereas many modern data collection and use practices never actively record any personal information, but can still have a very salient privacy impact.

In addition, we would endorse the Privacy Commissioner of Canada's recommendation to adopt an explicit obligation to adopt reasonable technological safeguards, as well as individual breach notification obligations.

Finally, and very briefly, we would also endorse the Privacy Commissioner's recommendation to formalize the privacy impact assessment requirement, as well as recommend an avenue for facilitating public input into the process so that discussions of privacy-invasive programs can occur with public input at the formative stages.

Thank you. Those are my comments for today.

[Lisa Austin]

One of the big problems is thinking that with Bill C-51, privacy is going to be protected because the Privacy Act applies. The broad authorization for information sharing in SCISA itself seems to capture a lot of what section 8 does. I don't have the act in front of me, but any analysis of this issue has to start from the proposition that compliance with section 8 does not mean compliance with the charter. All sorts of information sharing could be consistent with those disclosure provisions or the use provisions in section 7 or section 8 of the Privacy Act, as it currently stands, yet still violate the charter.

I'm not sure, as a matter of legislative drafting, if you want to change those provisions or just indicate somewhere that in some circumstances this is going to raise charter issues, because it won't necessarily or in all circumstances. The Privacy Act regulates collection, usage, and disclosure of personal information. Not all of that is going to meet a constitutional threshold for the reasonable expectation of privacy. That's the tricky part. When you're contemplating information sharing, particularly in those contexts where the individual is in that coercive relationship with the state, you have to be incredibly mindful that there are charter issues at stake. How can that be built in?

That's why we were arguing that you need an interpretive principle saying that this was meant to be consistent with the charter and build in charter review. Perhaps something could be written into section 8 that this must also be consistent with the charter. You want to build up expertise somewhere of people who understand what the jurisprudence is saying about uses and disclosures of information. When they trigger charter violations, what does that mean? Do you need prior authorization? Is it an issue of safeguards? What do those safeguards mean? Make sure those information processes are compliant from the start so that some person doesn't luck out and find out about this process and then have to go to court 10 years later. You build in charter compliance from the start.

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

I want to hear you on another topic. Madam Austin, you've mentioned quite accurately the dangers of information sharing, especially when we think of the Maher Arar saga. Currently Bill C-51 states that the information sharing must be in accordance with current legislation in Canada. In the Privacy Act, we have a general prohibition against the sharing of information in section 8, which is tempered by a lot of exceptions in subsection 8(2), and it goes on and on. For instance, paragraph 8(2)(b) says that it can be done if it's in accordance with another regulation or law, which is a catch-22, so to speak.

I would like to hear your thoughts on section 8 and hear whether you have any ideas on how we could further narrow the information sharing within the Privacy Act.

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

My next question is for all three.

Ms. Austin, you made reference to the Security of Canada Information Sharing Act, which now permits 17 government institutions to disclose information among one another, and this can be extended by cabinet to other individuals and organizations and departments. As we look to changing the Privacy Act to require, for example, written agreements for information sharing, would that get at the problem under the Security of Canada Information Sharing Act? If not, what other substantive changes should we make to the Privacy Act in particular that would get at Canadians' concerns about overly broad information sharing under what was BillC-51?

[Lisa Austin, Associate Professor, University of Toronto, Faculty of Law, David Asper Centre for Constitutional Rights, As an Individual]

Thank you.

I thank you for inviting me to appear before you today. I appreciate the opportunity. I have prepared a written submission for your committee. It's currently being translated and will be distributed to you. My comments will be a summary of that submission. I welcome your further questions.

The basic point I want to stress to you today is that Privacy Act reform must take account of the Canadian Charter of Rights and Freedoms and its protections for privacy. We should not think that compliance with the Privacy Act means compliance with the charter, and we should not think that strengthening the Privacy Act's adherence to fair information principles means that it's thereby consistent with the charter's protection for privacy.

It's crucial that we understand this, for we're now in an era when the government collects large amounts of information about individuals and shares this both within government and with other governments, including foreign governments. This is not just for the provision of social services but for law enforcement and national security purposes, as both the prior witnesses stressed as well. Indeed, when the former government introduced Bill C-51 and the new Security of Canada Information Sharing Act, Canadians were told that because the Privacy Act applied and the Privacy Commissioner would provide review, there would be an appropriate balance between protecting the privacy of citizens and ensuring national security. This is an illusion, and it's a dangerous one.

The Privacy Act is quasi-constitutional legislation, that's true. The Supreme Court has said that multiple times. However, it should not be equated with the constitutional protection of privacy rights. The Privacy Act is based on what have come to be known internationally as “fair information principles”. Its basic model is a response to the growth of the administrative state and its accompanying information practices. An individual seeking government services in a social welfare state context has an interest in receiving those services. The administration of those services requires personal information to be collected and processed, so the individual interest in relation to this personal information is not about preventing its collection, use, or disclosure, but in preventing the overcollection of personal information or its subsequent uses or disclosures for different purposes, as well as in ensuring that the information is accurate. The central individual entitlement is to have access to the information the state holds about oneself, and to correct it for inaccuracies. This law was never really meant to apply to the context of law enforcement and national security in any robust way, and many of its exceptions capture those uses.

In contrast, the constitutional protection of privacy in Canada has developed largely in relation to section 8 of the charter, although privacy has also been protected through section 7. Its central paradigm is its search and seizure context, where the state seeks information in relation to law enforcement investigations. Here the individual interest lies completely in opposition to the state interest. It is a coercive relationship. The central individual entitlement is to have state access protected through the warrant requirement and the reasonable and probable grounds standard. These are two different frameworks, but they need to be integrated if we think the Privacy Act has anything to say to the increasing information practices the government employs in the context of law enforcement and national security. Charter review should be built into a strengthened Privacy Act review, particularly in this context.

In light of this, I have four recommendation I want to offer to you. Again, those are outlined in the written submission.

First is an interpretive principle. We recommend that the Privacy Act should include a reference to privacy rights protected by the Canadian Charter of Rights and Freedoms. Put a reference to it in the purpose section to allow for arguments to be made in reference to the Charter of Rights and Freedoms.

Our second recommendation is that government information practices should be reviewed for compliance with charter rights. The necessity standard that the Office of the Privacy Commissioner of Canada is advocating is not adequate. It's better than what we have, and it's good in many contexts, but it's not adequate.

Why do I say that? Charter rights can be at issue with the collection, use, or disclosure of personal information. The charter is engaged when there's a reasonable expectation of privacy; it's not simply when personal information is collected, used, or disclosed, but where there's a reasonable expectation of privacy. The Supreme Court of Canada has repeatedly held that information that has been collected by the state for one purpose can retain a residual reasonable expectation of privacy in relation to other purposes, including disclosure to foreign states.

Engaging in something like a necessity test modelled after the Oakes test for section 1, which is what the Privacy Commissioner advocates, is not going to be adequate in this context. Why? The section 8 reasonable and probable grounds test, which is the basic standard, is not a test that says the state gets access to information if it is necessary for a law enforcement purpose; it's a test that says that “...law enforcement goals hold sway only at the point marked by the probable effectiveness of reaching that goal.” This idea of probable effectiveness is not part of the the section 1 jurisprudence to date.

It's actually quite unclear when a breach of either section 7 or section 8 of the charter can be upheld under section 1 of the charter. That's because there's an internal balancing in section 1 as well as as one in section 7, and courts are loath to uphold them under section 1, so we should not be quick to regularize some kind of section 1 analysis until we actually import the charter privacy protections, particularly in the context of state use of this information for law enforcement and national security purposes.

Therefore, we recommend that the use or disclosure of personal information for law enforcement investigative or national security purposes should be subject to a review that reflects the protection of an individual's charter rights under sections 7 and 8, and not simply be reviewed on a necessity standard.

Our third recommendation is that the Office of the Privacy Commissioner be empowered to undertake charter review of government information practices. Charter review of these information practices should not be a burden placed on ordinary Canadians to both discover information practices that are difficult for them to see and understand—to come to know what those practices are—and to challenge them in court. It should not be a burden on the individuals to initially challenge these things in court in a context where we have an access to justice crisis in this country. Instead, we should build it into the Office of the Privacy Commissioner's function.

However, it's also important that this be reviewed on a standard of correctness in the courts. It should not be built into an administrative process such that the courts are then reviewing charter complaints on a reasonableness standard. It should be correctness.

Therefore, we recommend that the exemptions, particularly those under sections 7 and 8 of the Privacy Act for uses and disclosures of personal information without consent, should be subject to charter review conducted by the Privacy Commissioner, subject to judicial review on a standard of correctness.

Our fourth recommendation is that you strengthen the obligation of accuracy under the Privacy Act.

Inaccurate information can have grave consequences on fundamental rights and freedoms. This is one of the tragic lessons from the Arar commission. Currently the obligation of accuracy is in subsection 6(2) of the act. It applies to uses of personal information, but it should apply to uses and disclosures of information, not just uses. It's currently confined to administrative purposes, and it should be broadened to all the purposes that it's used for.

I think that the act should also be modernized to recognize what academics are increasingly terming “algorithmic responsibility”—that is, the idea that the issue is not just the accuracy of the information that's collected, used, or disclosed, but the accuracy of information processing methods used by the government.

In an era of big data, an era when vast amounts of information are being collected and analyzed in different ways, we need to be concerned about the accuracy of those methods of analysis. We need to be concerned that they're not building in biases, for example, or other forms of inaccuracy. Therefore, we recommend that subsection 6(2) of the act be amended to impose an obligation to ensure the accuracy of any personal information that is used or disclosed by the institution for all purposes. The obligation of accuracy should also apply to methods of information processing.

I'll end my comments there.

Thank you.

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

My final question is with respect to the language that I think is unfortunate. Certainly academics have accused the legislation, Bill C-51, of allowing for judicial authorization of acts that would violate charter rights.

You've spoken to this previously. Could you, for the sake of Canadians, be as clear as possible as to whether this government would allow that to occur?

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

I appreciate that we are currently taking action, or you are currently taking action with respect to the no-fly list. The working group has been struck.

First, one, when can we expect to see changes?

Second, there are going to be certain changes that are being proposed. Included in those proposed changes, might we see fixing the appeal mechanism, changing the legal standards of review that academics have questioned, and perhaps including special advocates, where the Immigration Protection and Refugee Act has been changed properly to include them and Bill C-51 was missing them?

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

Certainly one important promise was the inclusion of sunset clause provisions so that we can assess down the road whether the provisions in Bill C-51 were ultimately necessary at the end of the day. Do you remain committed to having sunset clause provisions?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

There was a moment after the tragedies in October of 2014 when Canadians were looking forward to a good discussion, analysis, and debate about our national security architecture. I think people recognized at that time, in the light of those tragedies, that things needed to be improved, strengthened, and changed. At the same time, they wanted to make sure that their rights and freedoms were being properly respected and safeguarded, along with the open, generous nature of the country.

Unfortunately, that consultation did not happen at the time. I think the legislation that was presented, which turned out to be Bill C-51, could have been much improved had an opportunity been given to Canadians of all different views and perspectives to contribute to the process. We're going to provide that opportunity through this consultation, which will begin almost immediately and continue through the balance of this year.

The pieces of it would involve the cross-border relationship with the United States, which we have discussed, and the legislation that will be coming forward to strengthen our border arrangements, both to make those arrangements more secure and more efficient from an economic point of view.

The architecture will include the new committee of parliamentarians, which will provide a new level of review and scrutiny that has never been there before. Every other country in the western world has a vehicle of that kind. We don't. We're going to add that to make sure of two things, that we are being effective in keeping Canadians safe, and that we are safeguarding their rights and values.

We will have a new national office on community outreach to try to identify potentially vulnerable and risky situations in advance and to have the means and the wherewithal to intervene before tragedies occur. That's the new office on outreach and counter radicalization.

We will be beginning an initiative on cybersecurity. Canada's cyber policy was first established in 2010, but a lot has changed since then, and we need to bring that up to date.

Then we will make the specific amendments to Bill C-51 that I referred to, and we will ask Canadians this key question—that's the minimum we will do to make sure that rights and freedoms are properly respected—what else in the architecture do Canadians want to see changed?

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

I note that funding for SIRC has been increased by $4 million due to the expanded operations of CSIS, in part. I also note that CSIS is receiving increased funding from the previous year, and a $60 million increase from 2014-2015. This reflects the importance of security, but to pick up on my friend's question from before, we have to strike a balance. I previously volunteered for the Canadian Civil Liberties Association. Certainly, Beaches-East York, which is my riding, cares a lot about changing and fixing Bill C-51. I'd like you to speak a bit more about how we can best strike that balance and if there are other changes that you see us making and, more ,importantly how we intend to engage Canadians in this process. What will that engagement process look like?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

We will correct the defects in the law. You understand that C-51 no longer exists. It's embedded in five or six other different pieces of legislation. Rather than using the defective bill as the reference point, we need to have a fresh look at the entire security architecture of the Government of Canada to make sure that we get it right, without being wedged into an old form that was obviously defective.

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

After that consultation, if you you realize that the best course of action is to repeal Bill C-51, would you be open to doing that?

[Ralph Goodale, Liberal, Regina—Wascana, SK]

—laid out specifically where we would begin in correcting the defects in Bill C-51 by, for example, ensuring its compliance with the Charter of Rights and Freedoms, protecting advocacy and protest, dealing with certain defects in the procedures around the no-fly list, providing a better and more precise definition of terrorist propaganda, and providing for a full review of the legislation after three years. Those items were expressly enumerated in the platform. The consultation I'm about to begin with Canadians is to determine what else Canadians would want to see included in the changes to our security legislation. What's in the platform is the minimum of what we will do. The consultation will determine what what other things beyond that Canadians want to see fixed.