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

[Bev Shipley, Conservative, Lambton—Kent—Middlesex, ON]

Mr. Speaker, I found it interesting that yesterday all the newscasts reported that al Shabaab members had come out and threatened areas of our great country of Canada where a great deal of innocent people gather every day. They hate the freedoms we have in our great country every day.

I know my colleague wants to sit down with those people and talk to them about not doing that. These threats are coming through on the Internet and social media from other parts of the world.

The member talked about the need to put resources on the ground. In fact, we have increased our resources for security. We may have stopped some from the top, but we have increased the numbers. The unfortunate part is that NDP members talk about that, but they never stand and support giving them any money or adding people to our security forces.

My question is about our freedoms and at the same time protecting our security. Does the member see any way that they can run in parallel?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, I believe that it is entirely possible to protect people under threat, such as those in Edmonton, where a shopping centre has been targeted, not by changing existing laws but by truly increasing resources.

People in Muslim communities, for example, regularly talk to their imams to find out who currently holds extremist views. We must be able to target people who pose a risk. We will never have enough resources to spy on everyone all the time.

We have to be able to target people who are particularly at risk and that means having a presence in the community. We should not be adding new laws; we should be adding people on the ground who know exactly who poses a risk.

We will never be able to monitor everyone at the same time. It can easily take 12 police officers to keep an individual under surveillance around the clock. There will never be enough police officers in Edmonton to keep tabs on 1,000 people all at once.

That is why we need to know exactly who poses a risk. To do that we have to be in the community.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, as the Liberal Party has pointed out, some aspects of the legislation are beneficial for the security of Canadians. The bill would build upon the powers of preventive arrest. It would make better use of no-fly lists. It would allow for a more coordinated information approach with different departments and agencies.

However, we have also expressed great concern with regard to other issues, one of which I focused on this morning, which is the need for additional oversight. It is a major issue for the Liberal Party. We need to have parliamentary oversight, which is something other countries in the world already have.

Would the member provide some comment on the need for parliamentary oversight and whether she sees any value or positive things within the legislation?

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, of course we must provide parliamentary oversight. I already raised this issue with the Standing Committee on National Defence when I was a member of that committee.

However, the Liberals support this bill and are saying that they will propose amendments to correct its major flaws, even though they know full well that the government will reject all their amendments without even reading them. Since the beginning of this Parliament, the government has accepted roughly six opposition amendments to its bills. I wish the Liberals luck in getting their amendments adopted.

It is extremely hypocritical of the Liberal Party to support the bill despite its major flaws and even though the government rejects all its amendments. I do not know whether the Liberal Party is doing so because it did more than just spy on people when it was in office, especially during the October crisis and the referendum period in Quebec. Nonetheless, this is very hypocritical of the Liberals and I am sorry that they are not taking a stand on this bill.

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, I am pleased to add my voice to the debate on Bill C-51, the anti-terrorism act, 2015.

The international jihadist movement has declared war on Canada. We have tabled this important legislation to stop terrorists dead in their tracks before they can harm law-abiding Canadians. The legislation before us contains a number of provisions that work toward a common goal, which is to protect Canada and Canadians. It is a broad approach to a global program that has reached our doorsteps.

I will focus my remarks today on important amendments to the Immigration and Refugee Protection Act, commonly known as IRPA, and specifically to Division 9 of the act.

As members of the House know, IRPA sets out the legal framework for Canada's immigration and refugee programs. Our immigration programs serve a number of purposes, including enriching the social and cultural fabric of Canada, reuniting families, and strengthening our economy.

However, the immigration program also plays a fundamental role in maintaining the integrity of our borders and safeguarding our national security. In this respect, the government must sometimes turn to Division 9 of IRPA, which contains mechanisms that allow the government to use and protect classified information when deciding whether a non-citizen can enter or remain in Canada.

Indeed, Division 9 mechanisms and their predecessors have been used for more than three decades. These include security certificates before the Federal Court and applications for non-disclosure before the Immigration and Refugee Board and the Federal Court.

Certificates commonly known as “security certificates” are perhaps the most well-known proceeding under Division 9. They are used in exceptional circumstances when classified information is required to establish that a non-citizen is inadmissible to Canada for serious grounds of security, human or international rights violations, or serious or organized criminality.

The information involved in these cases, which we commonly refer to as “classified information”, cannot be disclosed publicly because doing so would injure national security or endanger the safety of a person. The certificate is signed by the Minister of Public Safety and Emergency Preparedness and by the Minister of Citizenship and Immigration. It is then referred to the Federal Court. If the Federal Court determines the certificate is reasonable, it becomes a removal order that is in force.

The system includes strong safeguards. There is broad judicial discretion to ensure the overall fairness of the proceedings. Furthermore, since 2008, special advocates who are non-governmental lawyers with the required security clearance to handle classified information protect the interests of non-citizens during the closed portions of the proceedings.

In 2014 the Supreme Court of Canada found that the security certificate regime provides for a fair and constitutional process. Today we see that the recent phenomenon of individuals travelling abroad to engage in terrorist-related activities reinforces the need for Division 9 proceedings. In some of these cases, Division 9 may be the only mechanism available to pursue immigration proceedings against non-citizens so that they are unable to obtain or retain an immigration status, such as a permanent residency, and pursue their removal from Canada.

Given the nature of the global threat environment, it is critical that the government be able to rely on effective and fair mechanisms to protect classified information in immigration proceedings before the courts and the Immigration and Refugee Board. Therefore, we believe that it is important to make limited and targeted changes to Division 9.

Recent Division 9 cases have shown that there are times when classified information has become part of a case, even when it was irrelevant, repetitive, or not used by the government to prove its allegations. It also did not allow the persons subject to the proceedings to be reasonably informed of the case against them. The lack of clarity in Division 9 with respect to what information needs to form part of a case has increased the length of time needed to complete these proceedings. This is inconsistent with the legislative obligation to ensure expediency in these cases.

Classified information must always be handled according to specific procedures distinct from those used to handle unclassified information. These procedures are meant to protect the classified information and reduce the risk of its being compromised. The current lack of clarity in Division 9 has also resulted in classified information becoming part of the court proceedings even though it was not used or needed. This is inconsistent with the need to reduce the risk of information being compromised.

Furthermore, as it stands now, an appeal or judicial review of an order to publicly disclose classified information can only take place at the end of the proceedings. By the time this appeal could take place, it would be too late, as the information could have already been disclosed publicly. This disclosed information then could result in injuring national security or endangering people.

To avoid releasing information, the government may elect to withdraw from the proceedings the classified information that has been ordered to be publicly disclosed, which could potentially weaken the case. The government could also withdraw the allegations against the person, but this is inconsistent with the need to ensure that we pursue all avenues to deny entry and status to individuals who are inadmissible to Canada, especially for serious reasons such as treason.

That brings me to the amendments found within Bill C-51, which are designed to address these challenges.

First, we intend to amend Division 9 to clarify what classified information forms part of a security certificate before the federal courts in cases involving classified information before the Immigration and Refugee Board.

This would include information that is relevant to the case, that forms the basis of the case—in other words, information upon which the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration rely—and that allows the person to be reasonably informed of the case against them.

Relevant information that is not relied upon would also be provided to specific advocates, but this information would not automatically be included as evidence in the case. To ensure fairness, special advocates would have discretion to review this information and determine if some of it should also be included as evidence.

This would codify a practice that has evolved over time in Division 9 cases since the Supreme Court's decision on security certificates in 2008. It would help provide more certainty as to how these cases are being conducted, thus reducing the amount of time needed for these cases and making the process more expedient and fair for the person.

The regime would also be amended to allow the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration to ask a judge to be exempted from providing some relevant classified information to the special advocates that is now relied on and which does not reasonably inform the person of the ministers' case.

To be clear, a judge would make this decision and would have broad discretion to communicate with special advocates as required. Special advocates could also make submissions to the court as to whether the exemption should be granted. The judge would only grant the exemption if he or she were satisfied that the information did not enable the person to be reasonably informed of the ministers' case.

The final measure we are taking is to allow the government to appeal or to seek judicial review of orders to publicly disclose information that it considers injurious to national security or the safety of any person during Division 9 proceedings rather than at the end of those proceedings. This will provide another opportunity to argue before the court that this information should not be made public.

The changes we are making to protect Canadians are important. I encourage all members of the House to support Bill C-51.

[Carol Hughes, NDP, Algoma—Manitoulin—Kapuskasing, ON]

Mr. Speaker, we need to reiterate that Canadians do not have to sacrifice security over their rights. It has to be both. I am wondering if the member is aware that there is already legislation in place under the Criminal Code, in section 46, that takes on all of the concerns the Conservatives are indicating are their reasons for bringing the bill forward.

The Minister of Public Safety and Emergency Preparedness says Canada will not be intimidated. Why is it, then, that today we are debating a bill that actually says, yes, we are being intimidated? I think that is atrocious.

The government says it is investing all of this money. All the Conservatives are talking about is how much they have invested. They are not talking about how much they spent, because if we look at how much they spent, we see that it certainly is not the appropriate amount of money that they have actually invested.

On that note, it is about security and about the proper tools. Those tools are currently in place and can be used. Could the member tell me how many times since 2001 the government has resorted to the recognizance with condition provisions that allow police to make preventive arrests?

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, I want to thank the member for her question, but obviously it has been vetted by her party, which unfortunately opposes protecting Canada and Canadians.

It is currently not a criminal offence to advocate or promote terrorism. The New Democrats want that to stay. The ability to arrest someone who is in general terms advocating and promoting the activity of terrorism does not exist. The New Democrats want that to stay.

The threshold for arrest in the Criminal Code is specific to someone who knowingly instructs, directly or indirectly, any person to carry out terrorist activities. The anti-terrorism act, 2015, would make it an offence to advocate or promote terrorism in broader terms:

Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general—other than an offence under this section—while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

We are trying to protect Canada and Canadians. We are at war with terrorism and need to act accordingly. To do nothing, as the New Democrats suggest, is irresponsible. It is not what Canadians want nor what Canada needs.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, the security of Canadians and the protection of their rights and freedoms is important to the Liberal Party. It is something that we have been advocating for since the government brought forward this legislation. One of the ways in which the government can best address the concerns of the Liberal Party and what Canadians as a whole expect of the government is to provide clear oversight.

We are calling on the government to recognize the importance of parliamentary oversight. This is something that the U.S.A., England, and Australia have already done. The question for the member is this. Why not Canada? Why not have parliamentary oversight here in Canada to ensure the rights and freedoms of all Canadians?

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, I do acknowledge that the Liberal member is consistent in believing that national security will work out, that everything will work out, that the economy will manage itself and everyone will live in harmony and love. However, that is not reality.

War has been declared against Canada and we are taking appropriate action. Creating a carbon tax and hiring more bureaucracy to manage this would be irresponsible. It would not protect Canadians. What we would do as a result of this this legislation, Bill C-51, needs to be supported by every member of the House.

[Ryan Leef, Conservative, Yukon, YT]

Mr. Speaker, we heard the opposition members talking about resources. In my intervention, I mentioned that our government has already increased the resources available for national security by one-third. Of course, the New Democrats voted against that increase.

Would the member comment on this? It is not only about resources but about the fact that this legislation would also allow for tools that would enable us to do more with the resources we have so that we would not be asking our law enforcement agencies and security intelligence services to deal with this threat with one hand tied behind their backs.

[Mark Warawa, Conservative, Langley, BC]

Mr. Speaker, the member is quite right. I want to thank him for serving Canada over the years, not only as a police officer formerly but also here as a member of Parliament.

We have increased the resources available, but every time the New Democrats and the Liberals have opposed this. We want to have a strong and safe Canada, and Bill C-51 would give our police and security forces and CSIS the tools they need.

The House resumed consideration of the motion that Bill C-51, 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, be read the second time and referred to a committee, and of the amendment.

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I rise to join in this critical debate on Bill C-51 as we, like parliamentarians around the world, continue to seek ways of safeguarding our country's security in the face of terrorism, while securing also our rights and freedoms, as we have been grappling with for so many years.

Indeed, after the attacks of September 11, 2001, it was said then that the whole world had changed. Anti-terrorism law and policy became principle and priority not only for our government but for governments everywhere. It was, in fact, mandated by the UN Security Council Resolution 1377, adopted in the months following 9/11, which called upon states to unequivocally condemn “all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed”.

I must state, parenthetically for reasons of time but not unimportantly, that the notion of a parliamentary debate when time allocation has been imposed on this comprehensive and crucial legislation is, to put it mildly, a misnomer.

First, Bill C-51 is not simply one act. It is omnibus anti-terrorist legislation composed of five different acts. It is not just one bill but five bills bundled together into one omnibus legislation of compelling character. Each bill, whether it deals with cross-government information sharing and coordination and enhanced powers for that purpose; or the securing of air travel, or Criminal Code amendments, including lowering thresholds for terrorism-related peace bonds; or expanded powers of detention; or a new offence of knowingly advocating or promoting terrorism or being reckless in that advocacy; or legislation to expand the powers of CSIS, what is referred as “threat disruption activities”; all impact on national security agencies and on those national security powers. There is also, which has almost not been discussed at all, amending the security certificate procedural regime for government appeals of court ordered disclosures.

Underpinning all of this, and tucked away in the information sharing act and provisions, but only there, is an effective reframing of a terrorist threat as a threat to national security, a selective redoing not only of our anti-terrorism law but our national security law, and where a terrorist threat is conflated with a national security threat, which can include also threats to economic and fiscal stability or a threat to the infrastructure and the like. In other words, it is a reframing that is being carried out without the necessary debate on this crucial legislation.

Admittedly, over a decade after 9/11, the world may well have changed again, and we must continue to ensure that the enhanced powers are to be found in our law and vested in our national security agency for purposes of protecting Canadians from terrorist threats with the tools needed to counter those threats. However, what has not changed are the fundamental principles that must underpin our approach to combatting terrorism.

I outlined those principles when I appeared both before the House and Senate justice and public safety committees respectively as minister of justice a decade ago, and I will recall them now in the context of this present parliamentary debate on a new bill, Bill C-51, but reflecting and representing a long-standing global challenge.

Let me summarize the foundational principles.

The first fundamental principle is that there is no inherent contradiction between the protection of our security and the protection of human rights. As I wrote in the wake of October's assault on our parliamentary precinct and of the murders of Corporal Nathan Cirillo and Warrant Officer Patrice Vincent, while we often hear about the need to strike a balance between protecting Canadians from attack and protecting individual freedoms, we must remember that these are not mutually exclusive objectives or opposite ends of the spectrum, but rather an appropriate and effective strategy that must view security and rights, not as concepts in conflict, but as values that are inextricably linked.

In other words, terrorism constitutes an assault on the security of our democracy and an assault on our fundamental rights to life, liberty, and security of the person. In this sense, therefore, anti-terrorism law and policy are intended to protect the security of a democracy like Canada and to protect our fundamental rights to life, liberty, and security of the person.

However, the reverse is also true and must be read together as part of this foundational principle, namely, that anti-terrorism law and policy must always adhere to the rule of law and must always comport to the Charter of Rights and Freedoms. Torture must, everywhere and always, be prohibited. Minorities must never be singled out for differential or discriminatory treatment. Also, as we emphasized 10 years ago when tabling legislation to that effect and as I emphasize again, such anti-terrorism law and policy must also be subject to a comprehensive oversight review and accountability mechanisms.

This leads me to the next principle, which might be called the “contextual principle”. By this, I refer to the approach taken by the Supreme Court, according to which charter rights and any limits imposed on them must be analyzed not in the abstract but in the factual context that gives rise to them. As such, the debate we are having today must be anchored in the reality of the increasingly lethal, if not barbaric, and international nature of terrorism; the proliferation of transnational terrorist entities that invoke Islam at the same time as they subvert it for their purpose; the increasing potential for cyberterrorism; the sophistication of transnational communications, transportation, and financial networks, including the explosive use of social media, which ISIS alone is said to be using 100,000 times a day; the increasing radicalization of those exposed, for example, to these social media, including our Canadian youth; and the potential for what in our recent experiences have been characterized as “lone-wolf terrorists”.

This brings me to the third principle. The third principle is that the threat posed by terrorism, which is increasingly transnational in character, must be part of a global response. Indeed, previous Canadian anti-terrorist measures have implemented international conventions and undertakings mandated by the UN Security Council, which I referred to earlier, and we must continue, therefore, not only to mobilize our domestic legal arsenal against terrorism but also to participate in strengthening international mechanisms to confront this international threat.

Let there be no mistake about it: when we deal with such terrorists, we are dealing with Nuremberg crimes and Nuremberg criminals, with hostis humani generis, with enemies of humankind. Our domestic criminal-law, due-process model standing alone is insufficient. It must be joined with the overall international legal arsenal, and much of our anti-terrorism law and policies in fact must be anchored in the 14 anti-terrorism international treaties for that purpose.

The fourth principle flows from the third one. It is that nonetheless there still is a need for due-process safeguards in the application and implementation of our domestic criminal law. This remains of vital importance and must be included in any foundational underpinnings for this and other anti-terrorism legislation.

The fifth principle is that of proportionality. As the Supreme Court has ruled, there must be a proportionality between the effects of the measures for limiting charter or other rights under this legislation and the objective that has been identified as sufficient importance.

There can be no doubt that the threat of transnational terrorism comports with the first requirement of a proportionality test, namely, that there be a substantial and compelling objective for the limitation of charter and other rights. However, we must still ensure that the measures we enact respect this principle in other ways: they must be tailored specifically to their objective and not be over-broad or vague; they must intrude as little as possible upon our charter rights and other rights, and not undercut any of them; and their impact on civil liberties must not outweigh their remedial character.

This leads me to the sixth principle. We must consider and learn from anti-terrorism measures proposed and enacted in other jurisdictions similar to our own, and indeed from our own previous experiences in this regard. All free and democratic societies are grappling with the same issues we are grappling with today, and their efforts to remain both secure and free must be considered as part of our deliberations.

The seventh principle is the need for counterterrorism measures to focus on prevention. Admittedly, we must seek to disable and dismantle terrorist networks and disrupt terrorist plots before they result in injury and death, and that accounts for the enhanced approach to giving increased power to CSIS. However, it also means that those powers that are invested in CSIS must obey principles of proportionality. It also means intervening to prevent or undo radicalization and supporting local and community initiatives in this regard.

To conclude, we must emphasize the importance of oversight, of an accountability mechanism, and of a parliamentary review mechanism, all of which are missing in the present legislation.

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

Mr. Speaker, the Liberals are fundamentally opposed to taking away passports from those who would travel overseas and engage in terrorist activities. In fact, the leader of the Liberal Party went as far as saying it was against Canadian values.

However, with respect to the passenger protect program, we are actually expanding the legislation so that we could issue a no-board order for someone who is suspected of travelling overseas to engage in terrorist activities. As well, there would be certain provisions with regard to terrorism, such as peace bonds. Also, judges could impose conditions, such as surrender of a passport.

My question for the member of the Liberal Party is this: does he agree with his leader that it is against Canadian values, or has he somehow come to the realization that these provisions in the bill are needed and the Liberal Party has decided to support it, or is this a section of the bill that the Liberal Party is actually against?

[Irwin Cotler, Liberal, Mount Royal, QC]

Mr. Speaker, I set forth some foundational principles that would apply to this specific issue as well as others. When I said that we need to invest certain powers, I was referring in particular to those that relate to parts of part 3 and to part 4 of the bill. The hon. member has referred to part 2.

This brings me exactly to the point I was saying. The bill has five major pieces of legislation bundled together in omnibus anti-terrorism legislation. I would be delighted if the hon. member, since we cannot do it here in debate, would allow us in committee to address the whole issue of securing air travel, which she mentioned in particular, as well as each of the other facets of this omnibus anti-terrorism legislation, which time does not permit us to address here. I suspect, if precedent be our guide, that we will not be able to do so in committee either.