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.

Anti-terrorism Act, 2015

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I want to take a moment to caution the member across the aisle for deriding my commentary. If he had been listening closely, he would have heard that many of the words I spoke in the House are the words of some of the strongest activists in this country, the words of Pam Palmeter, Clayton Thomas-Muller, the representatives of the Yinka Dene Alliance, and Ellen Gabriel. These are people who are known to first nations, Métis, and Inuit peoples. These are people who are known to Canadians. Therefore, I do not take it lightly when I share their words and beliefs.

As I have pointed out, these people have seen firsthand how far and inappropriate the reach of the government and its arms have been toward them, in some cases even personally. When they say that this bill spells nothing but trouble, he and the members of his government should know well that they know what they are talking about.

I will leave it at that, with the hope that the voices of indigenous peoples will not just be heard by the members of the government but also respected and acted on by their withdrawing this horrid bill.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I want to thank the member for Churchill for her remarks. I do not know what exactly was said on the other side, but it was something along the line that she has a great imagination. These are serious concerns of serious people that need to be addressed. I agree with the member for Churchill in that respect. I know she made a great effort to get here to make this speech. I ran into her at the door when she was coming in, huffing and puffing, but she still made her remarks to the House.

I come from of an organization that has been involved in many demonstrations, the National Farmers Union. To make a political point, it dissented, it demonstrated, it put tractors on the road, and maybe stretched the line in terms of whether or not it was sometimes lawful. That word worries me in the bill, where the latter states, “For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression”. Liberals will be asking that this word be taken out.

From the perspective of the member for Churchill, if that word were removed from the bill, would it make a difference or would she still have a lot of concern? I know there have to be a lot of amendments, but I would like her to answer on that particular point.

[Niki Ashton, NDP, Churchill, MB]

Mr. Speaker, I will begin by saying that I am proud to be part of the only recognized party in the House that is firmly against Bill C-51. I heard from indigenous activists over the last few days that they are appreciative of the kind of solidarity that New Democrats are showing with them.

This bill is deeply flawed. I will quote the leader of my party in saying that it is “...dangerously vague, and likely ineffective”. All parliamentarians should take a second look, and I especially invite my colleagues in the other two parties to stand with indigenous Canadians, farmers, environmental activists, and everyday Canadians and vote this bill down.

[The Deputy Speaker, NDP, Joe Comartin]

Order, please. It is my duty pursuant to Standing Order 38 to inform the House that the question to be raised tonight at the time of adjournment is as follows: the hon. member for Churchill, Aboriginal Affairs.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I am proud to have shared my time with the member for Churchill. I was so pleased to be in the House of Commons when she brought forth the voices of aboriginal leaders speaking out against this bill. As she pointed out, we are the only recognized party in the House that is opposing this bill, and we should oppose it with everything we have, because it is a terrible bill.

I will pick up on the discussion around “unlawful”. That will be the crux of my remarks today, and very much through the lens of how this applies to aboriginal and environmental groups.

A lot hinges on that word “unlawful” in looking at activity that may undermine the security of Canada if there is an exclusion for unlawful activity. “Unlawful” does not just mean the Criminal Code of Canada; it could mean municipal permits or a wildcat strike. Therefore, this is dangerous legislation, because if there is a wildcat strike or an occupy movement—an occupation of town property, such as the camps that we saw set up—that activity, under the eyes of CSIS or the current government, could potentially undermine the security of Canada without the right municipal permit, and it could all of a sudden be scooped up into this anti-terrorism legislation. That is really the crux of my argument here today.

This is a big bill. It does require thoughtful analysis, and I have been reading through some of the analysis that has been done. These are not just words on the back of a napkin, or so we hope. Every single word here matters, so we really do need to look at the word “unlawful” and the implications it has for environmental and aboriginal groups.

There is one particular piece of writing by Craig Forcese, an associate professor of law at the University of Ottawa. He has written a book on national security law and maintains a blog where he posts updates because, as members know, our security laws are ever-changing, especially with the current government. Therefore, he posts responses as the law is evolving and has posted a very thorough analysis of Bill C-51 and the “unlawful” issue.

The particular post I was reading is called “Bill C-51: Does it Reach Protest and Civil Disobedience?” In it he looks specifically at whether the bill would allow the government to target protest and advocacy groups, and he points out that there is nothing in the bill that brands democratic protest movements as terrorists. He says we cannot reasonably make that assertion.

However, there is a lot in this bill that could wrap up democratic protest movements into the orbit of security concerns. He writes:

...under C-51, the government will be able to share internally (and potentially externally) a lot more information about things that “undermine the security of Canada”. That concept is defined extremely broadly -- more broadly than any other national security concept in Canadian law. Yes, it can reach the subject matter of many democratic protest movements.

That is the end of the quote by Professor Forcese.

He talks about this exclusion stipulating that the concept of undermining the security of Canada does not apply to “lawful” advocacy, protest, or artistic expression. As I said, this exclusion for lawful activity is really important. We can understand this exclusion a bit better when we look at our legislative history on anti-terrorism legislation and look at previous anti-terrorism pieces of legislation, because “lawful” means to be fully compliant with the law. We are not talking simply about compliance with criminal law; we are talking about full compliance with municipal and regulatory rules and labour laws, including those relating to strikes and protests.

Professor Forcese continues:

I am not making this up. This is exactly the same debate we had in 2001, with the original Antiterrorism Act. That Act introduced a definition of “terrorist activity”. For one aspect of that definition (serious interference with an essential service), there was an exclusion for “lawful” protest. Concern was expressed (widely) that this reference to “lawful” meant that wildcat strikes or protests without permits that implicated “essential services” might be branded “terrorist activity”.

And so the government dropped “lawful” as the precondition to protests.

That is the end of the quote.

That is important. The government actually took out the word “lawful” because of this concern. It might sound strange on its face, because one would think things should be lawful, but we go back to labour laws and municipal laws. It does not have to be criminal law.

In the old Anti-Terrorism Act in 2001, the word “lawful” was dropped because there is no real prospect that democratic protest movements would be terrorist activity and we could argue that the lawfulness distinction is not useful when looking at terrorist activity. However, what about when looking at actions that potentially undermine the security of Canada?

I am going to continue with something that Professor Forcese wrote:

Violating regulatory or municipal rules is bad. People should be fined, and possibly prosecuted. That's why we have police, and open, transparent courts, with due process and appeal rights.

But the question before Parliament now is whether peaceful democratic protest movements should be a security issue, handled covertly, when, e.g., they don't have the right municipal permits for their protests. And specifically, should such a movement fall within the ambit of the new “undermine” definition, or the expanded CSIS powers under the existing “threat” definition.

Given the experience in 2001 and the legal views expressed by the government of the day, we have to conclude that if the government continues to include the qualifier “lawful” in its exceptions, it does so with its eyes wide open. It really does mean to include, e.g., “illegal strike[s] that take as part of its form a demonstration on the streets—and this is an example that has been used by some in the trade union movement” within its “undermine the security of Canada” concept in the information sharing rules.

And it is comfortable with the idea that, if other elements of the “threat” definition are met...democratic protest movements with tactics that do not square in every way with even municipal law may properly be the subject of CSIS investigation and possibly even disruption.

I take no view on whether CSIS would ever have the resources or the complete lack of internal governance checks and balances to actually proceed in this manner. That is not my point. My point is this: when we craft national security law, we craft it to deter bad judgment. We do not craft it to be so sweeping and ambiguous that it must depend for its proper exercise in a democracy on perfect government judgment. Very few governments are perfect. And even if you think this one is, what about the next one?

What about the next government? More importantly, what about this one?

I read an article by journalist Shawn McCarthy in The Globe and Mail, who talked about the potential for this law to be used against legitimate peaceful dissenters, such as aboriginal groups and environmental groups. He quoted a public safety spokeswoman who said that Bill C-51 doesn't change the definition of what constitutes a threat to Canadian security and added that CSIS does not investigate lawful dissent.

Why is it, then, that we know through access to information requests obtained by Greenpeace that the RCMP has characterized environmental groups as the “anti-petroleum movement” and that the RCMP has labelled this movement as “a growing and violent threat to Canada's security”? It identifies a “highly organized and well-financed anti-Canada petroleum movement that consists of peaceful activists, militants and violent extremists who are opposed to society's reliance on fossil fuels”.

We go back to the overarching purpose of the bill, which is to turn our security intelligence agency essentially into a law enforcement body. We are taking the powers of the RCMP and giving them to our intelligence security agency. That is not why it was created, and if we think that the government of this day has the good judgment not to exercise or abuse this power, then we are very sorely mistaken.

[Roxanne James, Conservative, Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness]

Mr. Speaker, I would like to correct a couple of things. I am not sure if members opposite were able to read through the entire bill. I know that the Leader of the Opposition was referring to issues concerning groups that may dissent against the government or issues with protesting and so forth. That is factually incorrect.

It is very clear in the bill on page 3. There has been some confusion between the CSIS amendments and amendments made to information sharing, but right on page 3, with regard to information sharing, it states: “For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression”.

When it comes to the activities that CSIS can investigate, that definition of what constitutes a threat to national security is actually in the CSIS act itself. It is not in the amendments that the hon. member might be referring to.

I have asked this question before. I would like to know exactly where in the bill the member thinks we are targeting people who may protest or have dissent. Clearly, it is indicated that such is not the case. The bill targets terrorism and—

[The Deputy Speaker, NDP, Joe Comartin]

Order, please. We are asking that questions be kept to one minute if at all possible.

The hon. member for Halifax.

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I just stood here and gave a 10-minute speech that was the answer to that question. My entire 10 minutes were about the word “unlawful” and that exclusion, drawing on the records of the debate from 2001 when we debated this point in the House of Commons under the Anti-terrorism Act.

It is as if the question comes after the answer. Had she listened and not just been reading from talking points, my entire 10 minutes answered that question.

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, my colleague spoke extremely well and certainly enunciated an area that I am very concerned about when it comes to the issue of lawful demonstrations.

I have been part of and have viewed hundreds, if not thousands, of demonstrations on a variety of issues. Did they have permits? No, they did not, meaning that they were unlawful under the current understanding, which is why we very much, in our amendments, want the word “lawful” restricted and taken out of there.

However, does the member not recognize that there are some good things in the bill? There are the changes to the no-fly list and improvements on the powers of preventative arrests.

There are issues, and we continue to have some significant issues with the bill. We are hoping to change that with our amendments, but does the member not see any of the positives that are in the bill when it comes to protecting Canadians?

[Megan Leslie, NDP, Halifax, NS]

Mr. Speaker, I appreciate the question, and it is a fair question. However, my answer is no. I do not actually see any benefits in the bill, because it is not actually a choice between our security and our rights. I think that is a false choice. The two are married hand in hand.

I look at the fact that CSIS was created out of problems with the RCMP's engagement in intelligence gathering. That intelligence gathering function was pulled out specifically so that the RCMP could do law enforcement and CSIS could do intelligence gathering.

Now we have the crossover effect happening backward. CSIS is actually getting powers that really do liken it to a law enforcement body. I do not think that is appropriate in the least.

[Corneliu Chisu, Conservative, Pickering—Scarborough East, ON]

Mr. Speaker, before I start, I would like to inform you that I will be splitting my time with the member for Etobicoke Centre.

It is my distinct pleasure to stand in the House today to speak in favour of the anti-terrorism act, 2015.

There is a real and present terrorist threat to Canada and her allies. We saw this on our own soil in late October, and we have seen it countless times around the globe in recent months. Copenhagen, Paris and Sydney were all hit by radical jihadists who had declared war on western civilization. Again and again, we see that individuals radicalized to violence can carry out deadly acts anywhere and at any time, whether it be in the heart of our busy cities or on the streets of our small communities.

The challenge facing Canada and our global allies is how to address this evolving threat in a manner that respects the rule of law, as well as the rights of freedom upon which democratic nations are built. On this, we cannot and will not compromise. There can be no freedom without security. While each nation must ultimately decide what is best for its own citizens, we must also ensure that we coordinate our efforts on the international scale.

This same rule of thumb applies to our domestic activities. We must create a seamless and robust national security system that will be both proactive and reactive, overt in some situations and covert in others. It must be a system in which all federal agencies and departments are working from the same playbook, ensuring that we close critical gaps in information sharing and that we are confronting a threat like terrorist travel from every angle possible, using every tool at our disposal.

This is the direction toward which our government has been moving for many years. As it is laid out in Canada's counterterrorist strategy, we have a comprehensive approach to countering the terrorist threat to Canada and Canadian interests, one that rests firmly on partnership and coordination with communities.

In particular, on the domestic side, we have a developed a wide array of policies regulations, and legislation to help build a seamless national security system.

The bill before us is another step in this direction. The sheer breadth of this legislation and the number of departments and agencies that it would impact speak to the complex nature of national security and the need to engage partners. Although each element of the bill is distinct, when we step back and look at the overarching goal, we see how the pieces fit together to achieve one goal, which is to address the threat posed to Canada by violent extremists and terrorist travellers.

Allow me to briefly address the different elements of the bill and how they would work together to keep Canadians safe.

First, we would improve information sharing across federal departments and agencies as it relates to the issue of national security. As we have heard, there are a number of legal restrictions and ambiguities woven into the authorities of government departments and agencies which prevent or delay the sharing of information.

As an example, Citizenship and Immigration Canada currently collects immigration information and may share that information, but only as it relates specifically to immigration purposes. However, in today's environment of terrorist travelling and violent extremists, this type of information could also prove valuable for broader national security efforts.

This legislation would create a government-wide authority to share national security information with designated institutions that have a mandate or responsibilities as it relates to national security. Of course, this would be subject to robust safeguards to ensure accountability about how information is being shared.

The anti-terrorism act, 2015 also includes changes that would strengthen our passenger protect program, which was created to protect our aviation system by identifying threats to air passengers, crew, aircraft or aviation facilities. The proposed changes, among other things, will expand the scope of the program to address terrorist travellers, those individuals who do not pose a threat to a flight but who may be travelling to another country to take part in terrorist activities abroad.

The next element that I will speak about is the threat disruption. In this part of the legislation, we will build on CSIS' current work by providing it with the authority to proactively address threats at an early stage.

The fact is that CSIS is already working at home and abroad to collect intelligence, which it then analyzes and shares with the government. This change will add to CSIS' s mandate to allow it to capitalize on its expertise and knowledge to disrupt threats.

In carrying out its new mandate, CSIS would follow the same legal framework as it does for its current work. This means obtaining judicial or ministerial authorization before proceeding with much of these activities.

There are also proposed changes to the Division 9 of the Immigration and Refugee Protection Act. While Division 9 proceedings are fairly rare, they are a critical tool to allow the government to use classified information to deny entry or status to non-citizens who pose a threat to our national security.

Bill C-51 would strengthen this tool in two ways. It would allow the government to appeal or seek judicial review of orders to disclose classified information during a proceeding, rather than afterwards as is presently the case. It would also clearly define in law which information would form part of a case before the court or the Immigration and Refugee Board. This includes information that is relevant to the case and that allows the non-citizen to be reasonably informed. This would enable the government to better protect classified information in immigration proceedings.

Additionally, the legislation includes elements that make changes to the Criminal Code, including making it easier for police to obtain peace bonds and recognisances; creating a new criminal offence for using the Internet to advocate or promote terrorist activity; giving courts the authority to seize terrorist propaganda materials, including removing these materials from the Internet; and ensuring that witnesses from law enforcement, security and intelligence agencies are better protected during national security proceedings and prosecutions.

As members can see, the bill contains a number of measures that have specific elements for our national security posture. Together they work to further protect Canada from violent extremists as well as strengthen our borders to ensure individuals are not leaving or entering Canada to perform acts of terror.

While we know the opposition has a spotty record on terrorism, it is not too late for the Leader of the NDP to abandon his conspiracy theorist position that the President of the United States lied about killing Osama bin Laden. It is not too late for the Liberal public safety critic, the member for Malpeque, to own up for initially refusing to list Hezbollah as a terrorist entity.

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, I rise on a point of order. As solicitor general, I named Hezbollah and Hamas as terrorist entities. This kind of misinformation cannot continue. Call the member to order for that misinformation. That is absolute—

[The Deputy Speaker, NDP, Joe Comartin]

Order, please. That is not a point of order; it is a matter of debate. The member will have his turn to debate it in a few minutes.

The hon. member for Pickering—Scarborough East.

[Corneliu Chisu, Conservative, Pickering—Scarborough East, ON]

Mr. Speaker, if those members can support this legislation, perhaps Canadians will forget about their respective party's previous soft on terrorism stances.

I ask all members to join me in supporting this important legislation.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I have a lot of respect for my colleague.

There is one thing I do not understand, and I hope he will be able to clarify it for me. We have already discussed anti-terrorism measures. I gave a speech on that topic shortly after I was elected, when we were reviewing the provisions of part II.1 of the Criminal Code, which deals with preventive arrests and all of the measures concerning the Combating Terrorism Act.

At the time, if the government thought that the measures it had passed were not working, why did it not, in 2013, give the agencies the resources necessary to do their job?

There are existing laws in place, and the government is giving them more powers when it has not promised any funding. How can the organizations on the ground and the law enforcement agencies use the powers that already exist without resources? What good will it do them?