An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act

Sponsor

Status

In committee (House), as of June 15, 2017

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill C-51.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to amend, remove or repeal passages and provisions that have been ruled unconstitutional or that raise risks with regard to the Canadian Charter of Rights and Freedoms, as well as passages and provisions that are obsolete, redundant or that no longer have a place in criminal law. It also modifies certain provisions of the Code relating to sexual assault in order to clarify their application and to provide a procedure applicable to the admissibility and use of the complainant’s or a witness’s record when in the possession of the accused.

This enactment also amends the Department of Justice Act to require that the Minister of Justice cause to be tabled, for every government Bill introduced in either House of Parliament, a statement of the Bill’s potential effects on the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms.

Finally, it makes consequential amendments to the Criminal Records Act.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

October 5th, 2017 / 9:30 a.m.
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Director, Privacy, Technology and Surveillance Project, Canadian Civil Liberties Association

Brenda McPhail

I'm not sure. I share your question in relation to that.

I would note that under the Security of Canada Information Sharing Act, information sharing was vastly expanded, and the scope of agencies that were identified as having potentially something to do with national security was extremely broad. That's something we criticized in relation to Bill C-51, and it seems reasonable to continue to criticize it here.

October 5th, 2017 / 9:15 a.m.
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NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Thank you, Mr. Chair.

Ms. McPhail, when it comes to information sharing, I think I understood the minister's answer correctly when I asked him this question on Tuesday, but is one of the concerns the fact that, with what was formerly Bill C-51, we already have the information sharing regime in place between government agencies, so this information being collected can be shared pretty broadly throughout different agencies that don't necessarily have the same accountability mechanisms in place as, for example, some of the national security agencies might have?

October 2nd, 2017 / 5:25 p.m.
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Barrister & Solicitor, Canadian Muslim Lawyers Association

Yavar Hameed

I have a couple of recommendations. One is, I'm not speaking to the national strategy but certainly taking that information and bringing it back to policies that exist. I would flag Bill C-59, things that were not touched under Bill C-51, so using that information to inform existing state policy.

Number two is to create a repository of complaints. If complaint mechanisms already exist within departments, I think perhaps there should be an overarching way to collect that information, to gather that information, so we have a sense of the kinds of discrimination that Muslims are facing across the board, so coalescing that in some way.

The last one I would say is to improve oversight. There's a lot of discussion. We can get into this as well. Oversight we know post-Arar is deficient. We need to enhance those methods, but the only way we can do that is to understand the problem.

September 27th, 2017 / 4:40 p.m.
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Dr. Michael Geist Canada Research Chair in Internet and E-commerce Law, Faculty of Law, University of Ottawa, As an Individual

Thanks very much. Good afternoon.

My name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law. I have appeared many times before this committee on privacy issues, although not always in such a nice room. As always, I appear in a personal capacity representing only my own views.

I'm grateful to the committee for its commitment to privacy and its efforts to highlight the privacy issues associated with our airports and border crossings. The media has regularly covered these issues, as you know. There are fears of device searches at borders, stories of information sharing that goes beyond most reasonable expectations, and mounting concerns about the approach of U.S. law and border officials with respect to the privacy rights of non-citizens and non-permanent residents.

These stories hit home, as we saw just a few minutes ago with Mr. Long in the last panel. Everyone seems to have their own story. Recent incidents include one involving a Quebec resident who didn't want to provide his cellphone password. It was searched at the Canadian border in Halifax. He was ultimately arrested for not giving a passcode when asked. The argument was that he was hindering an investigation. In another incident, a Canadian man was denied entry into the U.S. after customs and border patrol officers demanded that he open his phone and provide access to his apps. There was yet another incident involving a Canadian photojournalist who was inspected on his way to Standing Rock. Officials photocopied pages of his personal journal and asked for three mobile phone passwords, which he said he could not disclose because of his ethical obligation to protect his sources. The phones were taken and returned hours later with tamper tape covering the SIM cards, suggesting the cards had been removed and copied.

The privacy associated with border crossings now seemingly captures everyone's attention. I think it's worth asking why. I think there are at least three sources of concern that help point to potential policy solutions.

First, there is the feeling amongst many that border crossings represent no-privacy zones in which it feels as if officials are entitled to demand whatever information they wish and can use whatever means to acquire it. I know of technical experts who regularly wipe their phones or establish border crossing social media accounts in order to counter fears of invasive searches, both physical and digital, when crossing the border.

Second, as these stories suggest, the search itself—and we've heard about this now from a number of people—has changed dramatically in recent years with the legal safeguards failing to keep pace. It's one thing to know that your belongings may be searched. Yet today, we all know that our devices and the information on them can tell a far more personal story, our social graph, our location history, our reading habits, our contacts, and our purchasing history. In searching this information, officials may literally be accessing just about everything about us. Doing so, potentially without appropriate safeguards, understandably leaves many feeling vulnerable. The data indicates, as we heard on the last panel, that at least in the United States, these forms of searches are increasing rapidly. In fact, in the United States, there have been some policies that have posited that such searches can occur with or without reasonable suspicion.

Third, it may not be comfortable to say, but part of the concern stems from the fact that the U.S. border is by order of magnitude the most significant one for Canadians. This is not solely a comment about the current U.S. administration. Rather, it reflects long-standing concerns about the U.S. approach to privacy and fears that U.S. privacy protections may be weaker than those found in Canada. For example, the enactment of the USA Patriot Act after 9/11 opened the door to extensive access to personal information without traditional safeguards. Over 10 years later, the Snowden revelations reinforced the massive data gathering efforts of signals intelligence and law enforcement agencies. Most recently, the Trump administration's executive order aimed at reversing efforts to establish privacy protections for non-U.S. citizens and residents again placed the issue in the spotlight.

What is there to do about it? I thought the Privacy Commissioner of Canada, who raised issues such as information sharing across borders, the U.S. executive order, and CBSA searches provided excellent context and advice.

I'd like to briefly provide additional comments on four issues.

First, I think this committee and several of these committees have done excellent work on Privacy Act reform. As you know, it has been an issue that has regularly come up before this committee. There are few areas within Canadian privacy that are more overdue for updating. Indeed, there have been consistent and persistent calls for reforms for decades.

One of the methods of addressing some of the airport privacy concerns in Canada may be through the Privacy Act. Your proposed reforms to provide the Office of the Privacy Commissioner of Canada with greater powers would empower that office to examine border issues in a more comprehensive manner and open the door to more careful reviews of cross-border sharing arrangements. You recommended the reforms; now we need action.

Second, information sharing within government—we just heard about it from Mr. Fraser—remains a source of concern. Indeed, some of the most notable anecdotal stories involving abuses or questionable conduct at the border arise due to information sharing between governments or government departments. The Privacy Act and the OPC are supposed to create safeguards against misuse of personal information, or the use of information for purposes for which it was not collected. However, we have witnessed mounting pressure in recent years for more information sharing between governments and government departments.

Bill C-51, which we all know garnered widespread criticism, featured a significant expansion of government sharing of information, undermining, I would argue, the effectiveness of the Privacy Act. Unfortunately, the information-sharing provisions as they were amended in that bill were only modestly changed. Information sharing was considered a feature, not a bug, and I should note that included the Liberal Party when it was in opposition.

Bill C-59, which seeks to amend Bill C-51, leaves many of the information-sharing provisions intact. There are two needs here that must be reconciled. One, I think we all recognize that government needs to be able to use the information it collects in a reasonable and efficient manner. Two, the public needs confidence that its information will not be misused. That confidence comes from legislative safeguards and effective oversight. There is reason to believe we do not yet have the right balance.

Third, as the Privacy Commissioner of Canada has discussed, Canadian law must apply on Canadian soil when it comes to these issues, particularly the charter. Reducing so-called friction at the border is a laudable goal. No traveller wants long lines or lengthy delays, and that of course applies in a commercial context as well. However, expediency has a price, and sacrificing the Canadian Charter of Rights on Canadian soil is, in my view, a bad bargain. The Supreme Court of Canada has upheld unauthorized searches of devices, and those principles should apply on Canadian soil in a like manner at the border.

Fourth, with the NAFTA negotiations ongoing this week in Ottawa, I think it is important to link those trade talks with this issue. While there is no airport privacy chapter in the agreement, at least that I'm aware of, NAFTA touches on many of these related issues. There will be pressure—we know there is pressure—to speed up border crossings in the name of increased trade. Further, the digital trade chapter, formerly the e-commerce chapter, is likely to include provisions on data localization, prohibiting some of the data localization, and restrictions on data transfers. NAFTA, of course, is not a privacy deal, but the reverberations from the agreement will be felt in the privacy world.

The European Union has regularly linked privacy and data protection with trade. We ought to do the same, recognizing that these issues are linked and that the policy recommendations that come out of this committee on this issue need to make their way into the negotiations. In fact, I'd go even further by noting that the U.S. now seeks to accord the Europeans with privacy protections under the privacy shield. Other countries, such as Australia during the TPP negotiations, sought to ensure that Australians enjoyed the same level of protection. Surely, Canada can use the NAFTA discussions to ensure that the same kind of protection afforded to citizens of other countries outside the United States is afforded, as well, to Canadians.

I look forward to your questions.

Religious FreedomPetitionsRoutine Proceedings

September 27th, 2017 / 3:25 p.m.
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Conservative

Diane Finley Conservative Haldimand—Norfolk, ON

Mr. Speaker, I am pleased to present a petition on behalf of people in my riding of Haldimand—Norfolk who are deeply concerned with clause 14 of Bill C-51. As it stands, clause 14 will remove the only provision in the Criminal Code that directly protects the rights of individuals to freely practise their religion, whatever that religion may be.

The petitioners call on the government to remove clause 14 from the proposed legislation and to protect the religious freedom of all Canadians.

Customs ActGovernment Orders

September 26th, 2017 / 4:45 p.m.
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NDP

Anne Minh-Thu Quach NDP Salaberry—Suroît, QC

Mr. Speaker, Bill C-21 is being introduced at a rather interesting time and pertains to a very sensitive subject, specifically, privacy. The bill proposes amendments to the Customs Act to allow the collection and sharing of exit information on anyone who leaves Canada, including Canadian citizens, with American authorities.

We in the NDP have to question the legality of this sharing of personal information on Canadians with American authorities, and we believe that Canadian officials should not be collecting this information for the United States or any other country. This should be the responsibility of the American border officials, who already collect data on travellers who enter the United States.

I agree that security imperatives must be taken into account and we must ensure the strength and effectiveness of the the Canada-U.S. border, but this cannot be done at the expense of the rights and freedoms of Canadians.

Data gathered by the Canada Border Services Agency should never be disclosed to foreign agencies, except in exceptional circumstances. In such cases, police forces, such as the RCMP and CSIS, already have measures and practices in place that they can use.

In recent years, whistleblower Edward Snowden spoke to us about U.S. surveillance programs, in particular NASA's program. U.S. President Donald Trump is a populist politician who is lawless, racist, unstable, and, unfortunately, the leader of the most powerful nation in the world. He wants to increase electronic surveillance and the collection of information about foreigners, whether they are tourists or U.S. residents.

Bill C-21 would increase the exchange of information between Canada and the United States. There has been a system to collect and subsequently share exit and entry information at the Canada-U.S. land border since 2011. In 2013, it was established that this only applied to third-country nationals and permanent residents. Since then, the information exchanged by our two countries has not decreased. Americans are always looking for more information.

After hearing this, should Canadians be concerned about their privacy? We believe that the answer is yes. The giant next door influences our policies. After assuring the international community that Canada is back, our Prime Minister is making our country bend once again to what the U.S. wants.

Are we going to again allow our neighbours to dictate their demands without worrying about the consequences for our lives, our freedoms, and our privacy?

Not content with invading the privacy of its own citizens, the United States now wants to invade the privacy of Canadians crossing the border. Bill C-21 would authorize officials to collect data about every individual leaving Canada, including Canadian citizens, and share it with U.S. authorities.

Why does the government think it has the right to decide that it will collect private information about its own citizens and share that information with foreign governments?

I do not have a problem with Canada sharing information with the United States. These days, we need to strengthen our international bonds. However, authorized law enforcement agencies, such as the RCMP and CSIS, can already exchange information in exceptional cases.

With this bill, the government will make information exchange routine regardless of the consequences and how U.S. authorities will use that information. We do not know how our information will be used or who will get it. I cannot fathom why this government wants to collect and exchange even more personal information absent adequate independent oversight by our national security agencies.

Canadians recently lost the protection that was previously afforded to them under the Privacy Act. In January, President Trump signed an order allowing the U.S. to access information on any individual, including Canadians, to verify their identity.

In other words, anyone crossing the border at Saint-Bernard-de-Lacolle, which we are hearing a lot about these days, or at Stanstead can be asked by American customs agents to turn on their phone and give the agents their password for Twitter, Facebook, or any other social network. That is a complete invasion of our privacy. Our own Privacy Commissioner, Daniel Therrien, warned us about this initiative.

He said, and I quote:

The issue is that if you allow greater information-sharing, the legal standards authorizing this activity should be such that law-abiding Canadians, ordinary Canadians who should have nothing to fear from surveillance activities of the state, are not caught by the information-sharing regime.

The bill that is currently before us does exactly the opposite. Although we need to take into account security interests and ensure our safety and the smooth exchange of information at the Canada-U.S. border, as I was saying, we need to be careful and protect our rights and freedoms within Canada. The information that is collected by the Canada Border Services Agency must not be disclosed and shared with foreign authorities.

In addition to all that, it is important to keep in mind the Trump administration's disturbing actions. In light of the discriminatory immigration orders, which, as my colleague from Beloeil—Chambly mentioned, led to the racial profiling of Canadian citizens travelling to the U.S., it comes as no surprise that the right to privacy of non-Americans has been suspended. That is very worrisome. Now, more than ever, this bill poses a threat to the fundamental rights of Canadian travellers.

When will the Liberal government keep its promises and protect its constituents? If it does not set clear limits on the exchange of information and if it does not enhance protections, we will clearly end up in a position of weakness. This affects privacy, but also other areas. The other worrisome thing is how this data will be used. According to The Economist, information is worth more than oil. That says it all. I need not remind the House that many information giants are American, including Google, Facebook, and Microsoft, and that our Canadian and Quebec companies are competing in this environment.

Can we believe for a moment that the information shared with the Americans will remain in the hands of the Department of Homeland Security? There is nothing in this bill or in the government's interventions to indicate that the information that will be disclosed will be used for security purposes only. Economic intelligence gathering is nothing new; the practice is used by both our adversaries and our allies. We get the impression that the Liberal government is hoping that the Trump administration will keep its word.

Trump will swear to us, as he often spontaneously does, hand on heart, that his American administration will never allow that information to be misused for economic purposes. If anyone believes that, that would be the very definition of naivety or gullibility. This is something of a recurring theme. The Liberals promised to be more transparent, and yet it is becoming increasingly difficult to access information. These days, there is a lot of talk about access to information regarding the NAFTA negotiations. We have no information about that. Confidentiality agreements have been signed for a four-year period. These negotiations will have repercussions on all Canadian workers.

The Liberals promised to remove from Bill C-51 any excessive transfers of power to security agencies. That has not yet happened. There was a very modest reform that did not correct all the problems in Bill C-51.

The Liberals also promised to respect official languages. We still do not have an official languages commissioner to investigate complaints and ensure that bilingualism in the House of Commons improves. That still has not happened. A number of promises like that have been broken. I could name several more.

In this case, promises were made about accountability and transparency, but Bill C-21 falls short of keeping them. We want to protect Canadians and the bill on the collection and exchange of exit data does not specify how this information will be used or who it will be exchanged with.

How can we trust our legislators if they cannot get their facts straight on the issue of privacy and how this bill will ultimately work?

In conclusion, we will be opposing this bill. The Liberals are going to have to start over.

Religious FreedomPetitionsRoutine Proceedings

September 25th, 2017 / 3:10 p.m.
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Conservative

Tom Kmiec Conservative Calgary Shepard, AB

Mr. Speaker, the next petition is on Bill C-51, regarding religious freedoms. There are 43 signatures on it.

The petitioners ask that the government not remove section 176 of the Criminal Code, which would eliminate protection for members of the clergy and faith assemblies.

The third petition I am tabling today is on behalf of 36 petitioners. The petitioners have grave concerns about Motion No. 103 that was passed in the last session.

September 18th, 2017 / 6 p.m.
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Conservative

David Anderson Conservative Cypress Hills—Grasslands, SK

Okay, well, I can see what you're doing here, because this is actually something the government has said they're going to be removing from the Criminal Code. Bill C-51 takes out those four provisions. Do you see any reason at this time why we would be removing those protections from faith communities?

Customs ActGovernment Orders

September 18th, 2017 / 5:55 p.m.
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NDP

Cheryl Hardcastle NDP Windsor—Tecumseh, ON

Mr. Speaker, I will be splitting my time with the member for Sherbrooke.

I appreciate this opportunity to speak to the concerns that have come to the fore with Bill C-21, an act to amend the Customs Act. My riding of Windsor—Tecumseh is strategically located for astute observation on this bill, and is located a stone's throw from the United States border. As a cross-border community, many of us regularly cross the border to Detroit, for a multitude of reasons. We have family ties, and business and employment ties, as befits our trading-nation relationship, and we enjoy taking in games from professional league sports, with the Tigers, Red Wings, Lions, and Pistons about a half-hour away, more or less, depending on the venue.

I am greatly concerned about the potential consequences of this legislation. With Bill C-21, Canadians would have more of their personal information collected, not by U.S. border agents but by Canadian authorities, and shared with U.S. border agents. This bill would allow Canadian and U.S. authorities to electronically exchange biographic information on people departing and arriving in each other's country. Indeed, it seems that Bill C-21's primary purpose is to introduce the legislative requirement to collect biometric data for all persons exiting Canada. Yes, that is right. Canada would be doing to each and every one of its citizens what the United States presently does to its non-citizens.

Information collected would be the same as the information that the Canada Border Services Agency already collects for Canadians returning to Canada. It would be gathered by the CBSA at every border crossing, including land, sea, and air. However, the thing is that the Canada Border Services Agency was never required to collect information on those exiting Canada, as that is the responsibility of border authorities of the country being entered into. There is the very real concern that Canadian authorities are being asked by a foreign government to hand over personal information of Canadians. Frankly, that is not something that should be the responsibility of the Canada Border Services Agency. Our border agency's sole purpose is to protect Canada, not to hand over Canadian information to foreign authorities.

The United States is a large and powerful and, I should add, well-resourced nation. Americans can take care of their own responsibilities on their side of the border, and we should let them. New Democrats take the personal information and privacy concerns of Canadians very seriously. We only wish that the governing party of this country did so. The Liberals must not ignore recommendations of a wide variety of experts and the very real concerns of Canadians. Acting on security concerns and ensuring a strong and effective Canada–U.S. border must not infringe on the preservation of Canadians' rights and freedoms. Information gathered by the CBSA should not be shared with agencies outside of Canada unless under extenuating circumstances. In such circumstances where information must be shared, existing mechanisms are already in place between Canadian law enforcement agencies and their counterparts in other countries.

As I have mentioned, as a local cross-border community, we see issues in the local news every night regarding such sharing of information. In light of the Trump administration's recent troubling actions, such as issuing discriminatory immigration executive orders and suspending the privacy rights of non-Americans, this initiative more than ever threatens the basic rights of Canadian travellers.

New Democrats understand the importance of maintaining a fluid land border crossing with the United States, our number one trading partner. Without providing additional security for Canadians, this bill could mean longer delays at the borders.

Another point of concern in this bill is its potential to penalize business people who travel regularly across borders. Those who may spend a reasonable period of time outside of Canada could potentially be snagged in various legal issues, limiting benefits to them.

As this bill would amend the Customs Act, I would like to make due note on some of the matters that affect goods crossing the border. In subsection 95(1), Bill C-21 would change practices on the reporting of goods travelling across the border so that all exported goods would be reported at any time without a specific need to prescribe such reporting. Goods already on conveyance leave and then re-enter Canadian jurisdiction while proceeding directly from one location within Canada to another location within Canada. That means an officer could order the goods covered by exemptions to be subjected to reporting.

This bill also sets out the reasons for the detention of imported and exported goods that have been reported under section 95, as well as the ability for the minister to direct any detained goods imported or exported under section 95 to be sold upon 30 days' written notice. It is important for us to take heed here.

The new section 94 has already been mentioned. That section 94 of the Customs Act would create an obligation on persons leaving Canada to potentially answer questions by the CBSA officer:

Every person who is leaving Canada shall, if requested to do so by an officer, present themselves to an officer and answer truthfully any questions asked by an officer in the performance of their duties under this or any other Act of Parliament.

This new requirement is likely to be fraught with legal peril. It would seemingly provide the CBSA with the ability to make a determination as to whether an individual is telling the truth. This may mean continuing questioning that could be construed as relevant or irrelevant, also known as a fishing expedition.

A determination of something other than the truth could ensnare the traveller with potential offences under the Customs Act. For example, CBSA officers may assume that individuals have provided false answers, even when responses are the result of simple mistakes. While we can all expect persons to provide truthful answers to our agents, the fact of the matter is that the CBSA would be able to take the position that a person has provided false answers and pursue the individual for committing an offence under the Customs Act. The potential for a Canadian citizen to get caught up in legal proceedings on the basis of an honest mistake increases dramatically.

In the case of extenuating circumstances where such information needs to be shared, for example in a criminal case, as I have already mentioned, the relevant police agencies such as the RCMP and CSIS, as well as law enforcement agencies locally, are already in contact with their international counterparts. In these cases, existing legislation and practices are already applicable.

Canadians are wary of their personal information being shared among government agencies and Canada's foreign partners because of previous acts passed, such as the Harper government's bill, Bill C-51. The current government's plans to collect and share even more personal information without proper independent oversight of our national security agency is of great concern to New Democrats. The authorities given to the CBSA under subsection 92(1) are not mandatory. The CBSA would be given discretionary authority in that it may collect this information if it wishes to do so. This would create the very serious risk of racial and/or religious profiling, when the CBSA decides whether information on a traveller leaving Canada would be collected and shared. With racial profiling already on the increase in the United States, with everyone from rock bands and celebrities being turned away at its border, this is one fire that we in Canada have no business stoking.

It is the responsibility of the government to protect public safety and defend civil liberties—

Customs ActGovernment Orders

September 18th, 2017 / 12:15 p.m.
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NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, I appreciate the member's words about her late colleague. Certainly he will be missed by all of us. On that we can certainly agree.

On a lighter note, and with the member being from Hamilton, I would like to thank her city for the warm welcome we received there this weekend when the NDP caucus was in town.

On a more serious note, and to my colleague's question, as I said in my remarks, the fact is that this bill does not exist in a vacuum. It is part of a larger agreement between the Canadian government and the U.S. government to start sharing more information. It is only a first step in a larger program that is going to be rolled out over the next few years.

More specifically, proposed subsection 93(1) of the bill, “Information given to the Agency”, states:

(a) in relation to the conveyance or its travel route, the last place inside Canada from which it departed, regardless of whether the persons boarded the conveyance at that place, the date and time of that departure and any prescribed information

It goes on to talk about “the type of travel document that identifies the person,” and “the name of the country or organization that issued the travel document”.

Let us think about things like that. Say we have a Canadian citizen who is a dual citizen. This is a hypothetical example. Hypotheses are never very safe in politics, but for the sake of debate, let us use one. It is someone from a country that is a target of Mr. Trump's travel ban who uses his or her passport from that country to travel. Now we are sharing information with the U.S., telling it where that document is from and things like that. We are going down that rabbit hole, down that slippery slope. With all this profiling we are seeing based on religious beliefs or country of origin, that is where we start opening Pandora's box.

I have said a few times in my remarks that if we want to go down this path with these agreements with other countries, all the mechanisms that require the accountability of these agencies have to catch up, and they have not, whether it was Bill C-51 or the bills tabled by the government. We are not going in the right direction at all with regard to protecting Canadians' rights and privacy.

Customs ActGovernment Orders

September 18th, 2017 / 11:50 a.m.
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NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, first, I would like to join the minister in expressing my condolences to the family of our esteemed colleague Arnold Chan. His death was a great loss to everyone in the House, regardless of their party. We stand in solidarity with the Liberal caucus and Mr. Chan's constituents, family, and friends at this difficult time.

We are here today to talk about Bill C-21, which the government introduced in June 2016. The government is very enthusiastic about this bill. It is now September, and we are finally talking about it, so we can see how enthusiastic the government is about this bill. Perhaps the purpose of the bill is to pander to the Americans during the NAFTA negotiations. Who knows.

It is important to understand the context here. The minister, in answer to my question, and the member for Laurentides—Labelle in his comments talked about the bill as though it was a piece of stand-alone legislation, when in actual fact it is part of an information-sharing agreement between the Canadian and American governments. We can look at the measures set out in the bill, but they are part of a broader agreement and broader operational practices that are beginning to be implemented for our services at the border.

Things are very different now, and if we take a big-picture view of border issues, Canadians are clearly concerned. The same issues come up over and over. Take cellphones, for example. There is a glaring lack of protection when it comes to cellphone searches and what we call the briefcase law. People surrender a certain degree of privacy at the border. That interpretation of the law is fine if we are talking about someone seeing our unmentionables in a suitcase, but a cellphone that contains vast amounts of information about an individual is something else entirely. That is just one of the concerns we have about the border.

Things have changed now that Donald Trump is in office. In recent months, there has been discrimination at the border. Everyone knows that. The minister says that, statistically, fewer Canadians are being turned away at the border than in previous years. That is not an acceptable answer when people are being subjected to degrading treatment by U.S. border officers who ask them questions about their religious beliefs, their country of origin, and the colour of their skin.

This context is extremely important for understanding where our concerns for this bill are coming from. The minister tells us not to worry, that it is basic information that will be shared, information that is found on page 2 of one's passport. In reality, subclause 92(1) of the bill states that:

the Agency may collect, from a prescribed source, in the prescribed circumstances, within the prescribed time and in the prescribed manner...

It goes on to describe what the Agency is authorized to do. The key phrase I want to draw to the attention of the House is “the Agency may”. It is left to the discretion of border services whether to keep the information or not. At a place like customs, where discrimination is on the rise because people are judged by their destination and their origins, this is quite problematic. This could lead to increased profiling. God knows that there is too much of that already at the border.

Let me go back to the agreement that led to this bill.

The entry/exit program is only just beginning and will grow. Despite the enthusiasm that Liberals and Conservatives might have for it, we are going down a very slippery slope here. Before we continue, someone needs to put on the brakes because what we are seeing here is further integration at the border. That might seem great if all that we are considering is efficiencies, but we want to consider people's rights at the border, but that is lacking in the conversations that are happening.

Where does it end? When we talk about the context that I described with regard to cellphones and the lack of legislation as to what people's rights are when they are asked to unlock their cellphones and provide that information, and when it comes to the profiling that is happening at the border, that also applies to what new tools we have brought into place. The current U.S. President has floated the idea of using biometrics at the border. Will that end up becoming part of this kind of entry/exit agreement on top of the biographical information that would be provided? We do not have answers to these questions.

The fact of the matter is that any information that is being collected and shared will lead us down a path that we have seen before, because, quite frankly, as I said in my question to the minister, some of the most egregious human rights violations that Canada has been a part of, even if by proxy, have happened because of the sharing of information. That is something we are doing more and more in a post-Bill C-51 world, which, by the way, was a bill that the Liberals supported. That is the reality that we have to take into account when we consider increasing the amount of information we are sharing. It is not only biographical information, but also about where people are going to and coming from. While that might seem fine for someone who is not being profiled at the border, there are certainly many law-abiding Canadians who know what the experience is like, who because of where they are going to or where they are originally from; because they might be dual citizens and because of the country from where other citizenship is from; because of the colour of their skin and their religious beliefs, suddenly that basic biographical information being collected and shared with the U.S. government takes on a whole different context despite the fact they are law-abiding Canadians. That is very troubling, and even more so when I hear the minister talk about the fight against radicalization.

Certainly it goes without saying that we all agree that radicalization is an issue that needs to be tackled. Here, I would add that we are still waiting to hear more about what the government is going to do with its grassroots approach to taking on the fight against radicalization. We have not heard much about that in a little while, but that is a sidebar.

The reality is that when I hear things like that and the Conservative member who just spoke, and this bogeyman that is raised of how we are going to go after terrorism, there is a code there and we know what that leads to at the border and the treatment that people go through afterward. That is not something we want to see happen. Sure, we can have faith in our CBSA officers, the men and women who do extraordinary work despite limited resources because of successive Liberal and Conservative governments, but we are also looking at what the U.S. is going to do with that information. That is where the danger lies.

President Trump has signed an executive order explicitly stating that persons who are not U.S. citizens are now excluded from the protections offered by United States privacy legislation.

That is extremely dangerous, considering that the Canadian government is rushing to partner with the U.S. government to increase the amount of information it shares with the Americans.

Given that the President of the United States says he may consider torture acceptable and given that Canada has a ministerial directive in place allowing for information to be shared with countries that engage in torture, we are facing a big problem. I am not saying that this is exactly what the bill says, but the upshot of this bill is that we will be sharing more and more information.

It is a very slippery slope, since we keep sharing more and more information with other countries, including the United States. Even though the U.S. is an ally, the statements coming from the current administration are cause for concern and make the idea of sharing information about public safety and national security extremely troubling.

In a post-C-51 world, the accountability procedures are wholly inadequate. Let us look at the facts. An article published by the Toronto Star in August said the following:

CBSA has quietly started receiving and sharing some information with the U.S. government.

That means some information sharing was already allowed even without this bill being passed. The bill will just settle things for good.

The risk is that this may be done more covertly, without proactive transparency. At the end of the article, it says that Canada Border Services Agency plans to update the privacy assessment once the bill comes into force.

It is far from reassuring that we are talking about doing another privacy impact assessment after the bill is adopted. In that spirit, the role we have as parliamentarians is to protect Canadian safety, but also their rights, and their right to privacy more specifically. As far as this bill is concerned, we should look at how much is left up to regulation in the bill. For example, under “Regulations”, the bill states:

The Governor in Council may make regulations for the purposes of this section, including regulations

(a) prescribing the information that must be given under paragraph (1)(a);

(b) respecting the conveyances in relation to which information must be given under subsection (1);

(c) prescribing the persons or classes of persons who must give the information under subsection (1);

(d) respecting the circumstances in which the information must be given under subsection (1); and

(e) respecting the time within which and the manner in which the information must be given under subsection (1).

Those are all things that the Governor in Council can do through regulations. That essentially means, for the people listening at home, that those are things that the minister can decide to do all on his own, without a proper vote in the House of Commons on a piece of legislation. That is extremely troubling. If we go back to the debate on Bill C-23, which is the sister legislation in the context of this more integrated border with the U.S., in committee, I asked public safety officials which regulations would be changed, as that bill also opened the door to all of the regulatory changes that could potentially change the scope of the bill. That certainly concerned New Democrats. I will give the Liberals credit. They got back to us and provided a list of regulations that may change, but the list was not exhaustive.

As parliamentarians voting on a bill and trying to protect Canadians' rights in the context of sharing more of their information with the American government, especially under the current circumstances or regime, if I can use that term, it is extremely troubling that there is so much latitude allowed for regulatory changes. We certainly understand that there is a place for regulatory changes in the way that our government functions, but when it comes time to prescribe what information is shared, who is sharing it, and how they are sharing it, which is the core of the issue with this bill, that cannot be left out of the accountability process, which obviously includes debate in the House and study at committee.

When I was in Washington with the Standing Committee on Public Safety and National Security, I learned about some new tools, such as digital fingerprinting and facial recognition, that the U.S. may begin using at its border. Those things are still in development, but they are getting to the point that the U.S. government will be looking to deploy them.

The minister is trying to reassure us by saying that he is in constant contact with his American counterpart, but people at Homeland Security envision using exactly those kinds of tools in the context of this information sharing agreement. We could very well see a higher level of integration. In the statement on greater integration of border operations that came out of the meeting between the Prime Minister and President Trump in Washington, they talked about the possibility of our border officials hosting American border officials.

Forget about all of the problems that co-locating two agencies from two different countries could cause, if only in terms of collective agreements and working conditions. Let us just talk about training. The minister took the time to point out that officials would be trained to protect Canadians' privacy and would always act in accordance with the law. I am not questioning the work that is going to be done, but when we debated Bill C-23, which would allow American officials on Canadian soil, we asked Public Safety and Emergency Preparedness officials what the plan was for delivering that training while ensuring respect for the Canadian Charter of Rights and Freedoms, privacy laws, and even Bill C-23 itself, and we were not remotely satisfied with the answers.

The minister can be as reassuring as he wants, but it takes more than that. We need something tangible that truly outlines the process that will be put in place for protecting people's privacy. Even if the process is clearly spelled out to us, in an agreement like this with a bill like this, given the way in which Canadians' information will be shared with the U.S. government the minister must admit that the information will not enjoy the same protection in American hands, even if we have the best men and women working as Canadian border officers and the best legislation in place and if we are making every effort to protect people's privacy.

The minister can reassure us all he wants, but, as he so often says, the Americans can do what they want. That is reason alone to not only oppose the bill, but, as I said, to also rethink the agreement.

As I have said time and again, we are seeing a troubling tendency with the new information related to the public safety file globally, whether it is the Justice Noël decision related to illegal collection of metadata by CSIS; the Privacy Commissioner reporting last week that the RCMP has illegally obtained information from cellular phones six times in the last year; racial profiling at the Canada-U.S. border; people being asked to unlock their cell phones and provide social media passwords at the border, without clear legislation in that sense; or whether it is the fact that two years in we still have not seen any changes to Bill C-51. We finally tabled a bill in the dying days of the last sitting of the House, which does not go nearly far enough.

It is a troubling tendency we are seeing that is undermining the confidence and trust that Canadians have in their national security agencies and in the approach that successive Conservative/Liberal governments have had. There is a lack of understanding that rights and security are not a zero-sum game, and that the word “balance” implies that there is sacrificing of part of one or the other. We need to do both. Unfortunately, that is not the report card that the government can have.

We look at a bill like this, at these kinds of agreements more broadly, as we decide to share more and more information with a U.S. government that is being led by a president who has opened the door to the use of torture, and has removed privacy protections on information, not only for his own citizens but even more importantly for non-Americans. For Canadians, in that specific context the government cannot ignore it. Whether it is trying to fast-track this bill that was tabled in the House in June 2016, maybe to make nice for NAFTA negotiations, the fact is, it is about time that the government started to hit the brakes on this willy-nilly sharing of information.

I want to end on one piece. If the government is so proud of this agreement, if it really thinks it is doing the right thing, I have one question to ask. Unfortunately, I will not get to ask it, so I will ask it rhetorically. Why is it that on the first day back in the House of Commons, after a great summer of work that we all spent in our constituencies, that we are hardly going to hear any Liberal speakers? The minister has spoken, and there will maybe be a handful more speakers. However, it is mostly New Democrats and Conservatives who will be carrying the debate.

Maybe my Conservative friends can tell me what is so great about this bill, because, sadly, I do not think I am going to hear about it from the Liberals. They have certainly not made the case for it. The “just trust me” approach by the minister is not good enough when it comes to protecting Canadians' rights and privacy.

Customs ActGovernment Orders

September 18th, 2017 / 11:45 a.m.
See context

NDP

Matthew Dubé NDP Beloeil—Chambly, QC

Mr. Speaker, during the Conservative government's last term in office, 1,200 border services jobs were eliminated. What is more, from 2013 to 2015, border services received incomplete information regarding passengers on over 3,000 flights. We will come back to those cuts and the impact that they have had on national security, given the Conservatives' hypocrisy on this issue.

I want to talk about Bill C-21, which is now before us. Obviously, the Conservatives' track record on privacy leaves much to be desired, particularly considering the passage of Bill C-51 and all of the resulting privacy breaches that occurred as a result of information sharing.

I would like to know how my colleague can support an initiative that will make it possible to share more information with the United States government, when the current President has signed an order under which American privacy laws no longer apply to non-U.S. citizens. It will be difficult to move forward with this bill given Canadians' current lack of confidence in the information-sharing system established by the Conservative government and the fact that the proper safeguards are not in place.

Public SafetyOral Questions

June 20th, 2017 / 2:40 p.m.
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Regina—Wascana Saskatchewan

Liberal

Ralph Goodale LiberalMinister of Public Safety and Emergency Preparedness

Mr. Speaker, in the election we laid out a very detailed program for how we would deal with Bill C-51, and today we have implemented exactly that. It is contained in Bill C-59, before the House, which is in addition to the committee of parliamentarians, which is in addition to the funding for counter-radicalization, which is in addition to the most extensive consultations in Canadian history. We have listened carefully to Canadians and we have implemented their advice.

Changes to the Standing OrdersGovernment Orders

June 19th, 2017 / 12:30 p.m.
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Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

Mr. Speaker, I have two brief questions for the government House leader.

First, Bill C-49 is a wide-ranging transportation modernization act, so called. Bill C-51 is a very wide-ranging Criminal Code change. I wonder if the government House leader thinks either, or both, of these constitutes improper uses of omnibus legislation.

Second, I want to ask about the powers given to parliamentary secretaries because now, the way the Standing Order change is set up, a committee could theoretically bar members of Parliament who are not members of the committee from attending in camera meetings. That would mean they would have additional members of the government who are parliamentary secretaries who are able to remain in the room, but they would have other members of Parliament who might be interested in the discussion who cannot be in the room. Does the government House leader see a problem with that? Would the government House leader agree that any member of Parliament who wants to listen in to an in camera discussion if he or she is an elected member of Parliament, regardless of whether the member is a parliamentary secretary, should be able to do so?

Criminal CodeGovernment Orders

June 15th, 2017 / 8:30 p.m.
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NDP

Wayne Stetski NDP Kootenay—Columbia, BC

Mr. Speaker, I want to start by clarifying for the people of Kootenay—Columbia and those watching across Canada that this Bill C-51 is not Bill C-51 from the 41st Parliament, which was called the anti-terrorism bill. That bill led to widespread protests across my riding of Kootenay—Columbia. People were concerned about the potential to make peaceful protests illegal and the potential impact on their personal privacy rights. Because the NDP is going to support this Bill C-51, in the 42nd Parliament, I did not want there to be any confusion back home.

Regarding the bill before us, we are pleased to support this legislation. We believe that it would provide many overdue protections, particularly for victims of sexual assault. One of the most important provisions in this legislation would clarify the definition of consent. Some of this should be obvious. It should be common sense. In fact, I am appalled that we need to entrench this in law, but here it is. With this amendment, an unconscious person could not be considered to have given consent. There it would be now, spelled out in black and white in the Criminal Code of Canada: someone who was passed out from intoxication, from a blow to the head, or for whatever reason would not be able to consent to sexual activity. Good. While it is outrageous that any other interpretation was ever understood, at least we, as lawmakers, are now making it perfectly clear.

The bill also takes another important step on the issue of consent. A person who is passive during sexual assault, that is, does not scream, “no”, or fight or otherwise resist, cannot be considered to be automatically giving consent. This is necessary and it is overdue. Too often, an individual, unduly pressured or even physically overcome during a sexual assault, will feel fear, confusion, or even peer pressure and will be unable to enunciate his or her refusal. This amendment shifts the burden to the other person to get clear and active consent. To quote University of Ottawa associate professor of law Carissima Mathen, “Passivity is not consent. Consent has to be communicated to you in some meaningful way, not from being quiet.”

That statement is borne out by statistics in a Global News/Ipsos Reid poll. The most recent common reason women gave for not reporting a sexual assault to the police was feeling young and powerless; 56% of victims said so. Forty per cent of respondents said they stayed silent because of the shame they felt, and 29% said they blamed themselves for the assault. Others worried that reporting would bring dishonour to their families, feared retaliation from their attacker, or said they did not have faith in the criminal justice system. New definitions will help clarify the term for the courts, but they do not do enough.

Too often, victims of sexual assault find themselves isolated by the courts. They have no one to protect them from aggressive questioning by a defence attorney and no one to be their advocate. Sometimes there are poorly trained judges, as we learned last year when a judge demanded of a victim why she could not just keep her knees together while she was sexually assaulted. That horrific and shocking statement led to condemnation across the country and the resignation, rightfully, of the judge who made that statement.

Rather than treating victims with care and compassion, our justice system sometimes victimizes them all over again. The solution would be to ensure that victims have access to legal aid as they go through the court process. The current Liberal government must not choose to ignore that essential element in protecting victims.

This legislation also includes the removal of some so-called zombie laws. Those laws, which have become redundant because of other laws that cover the same subject or because they have been overturned by the courts, are an interesting collection. As a former mayor, I know that there are many municipalities with zombie bylaws that need cleaning up as well. Federally, we now no longer have to worry about the detrimental effect of crime comics on our youth. We have many other negative influences to worry about. Similarly, a law banning Canadians from offering a reward for the return of stolen property, no questions asked, seems unnecessary and even detrimental in its own right. I know I personally used that approach to get back my son's stolen mountain bike once, without even knowing it was against the law, as is the case, I am sure, for many Canadians.

One must wonder about the existing laws regarding the practice of witchcraft, sorcery, enchantment, or conjuration. In addition to the fact that it impinges on the rights of some religions, and would confuse the U.S. President who is certain that he is the target of a witch hunt, this might also hurt Harry Potter cosplayers; Dungeons and Dragons "larpers", which I do not know much about but which my staff assure me is a thing; and others for whom sorcery is an entertainment. This is a good law to be rid of.

My favourite among this group of zombie laws is the prohibition on duelling. After all, we stand in a place where the two sides of the House are separated by two sword lengths to ensure we fence only with words and not with rapiers. Still, the last public duelling in Canada took place not far from here in Perth, Ontario, in June 1833, when 23-year-old law student John Wilson shot and killed his friend Robert Lyon, age 20, during a duel over the honour of Elizabeth Hughes, a young school teacher.

Wilson successfully pleaded his case in court, had a lengthy law career, married Miss Hughes, and eventually became a member of the legislative assembly of the Province Of Canada, the precursor of the House of Commons. In case some members of the House or the public believe that duelling will now be legal, it is worth noting that our homicide laws still apply.

The bill offers some good amendments to the Criminal Code. My biggest concern with the bill is not with its content, but with what is missing.

Across Canada, the Supreme Court decision known as the Jordan ruling has allowed many indicted suspects to go free because of the length of time it has taken to bring them to trial.

Just this week, a judge in Quebec City freed a man accused of sexually assaulting his adolescent stepdaughter. Last November, an Ottawa judge freed a murder suspect under the same terms. In fact, across Canada dozens of suspects, people who have been charged with crimes ranging from first degree homicide to sexual assault, have been freed because our courts do not have the capacity or the will to ensure a speedy trial.

While eliminating zombie laws is important, the government's first priority should be to ensure that our existing criminal laws are upheld by the courts. This means more federal and provincial resources and it may mean new laws to reverse the Jordan ruling.

Another item missing from the bill is a long-promised review of damaging and disingenuous amendments introduced by the previous government. The Conservatives' belief that mandatory minimum sentences will somehow reduce crime has been ridiculed by members of the justice system, from lawyers to judges. We have seen over and over the mandatory minimums getting tossed by judges as unworkable and unconstitutional, just as the New Democratic Party's justice critic warned them would happen during debates over those amendments.

Let us look at recent news.

In 2013, a Manitoba judge heard the case of a young man who lashed out at his bullies. The judge refused to apply the mandatory minimum sentence, saying:

A four-year term would clearly place the accused in the heart of the federal penitentiary system normally reserved for hardened criminals. To say that the conditions of a federal penitentiary would be harsh for someone of the accused’s background is an understatement.

(Court of Queen's Bench, Justice John Menzies, October 2013)

In 2016, the Supreme Court of Canada threw out mandatory sentences for repeat drug dealers, concerned that the harsh penalties applied to:

the addict who is charged for sharing a small amount of drugs with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before.

Just this week, in British Columbia, a judge refused to apply mandatory minimum sentences in the case of a young man who was found employed at a small marijuana farm.

All these decisions took the view that judges must have the flexibility to apply their experience, their knowledge, and, their judgment on a case-by-case basis.

We are glad the government intends to review these unconstitutional sentences, and we look forward to the day that the justice minister keeps her promise. If only the Liberal justice minister would, at the same time, expunge the criminal records of those who had been convicted of carrying small amounts of marijuana in the past, we could see true justice done.

I mentioned the other Bill C-51 when I began speaking. As soon as the election was over, the Prime Minister became silent on Bill C-51 after saying his government would make changes to it. Canadians truly hope the Liberal government keeps its word and does revoke sections of that act soon. Thousands of Canadians, including many of my constituents in Kootenay—Columbia, demanded change and they expect this promised on the former Bill C-51 to be kept.