Bill C-59 (Historical)

National Security Act, 2017

An Act respecting national security matters

Part 1 enacts the National Security and Intelligence Review Agency Act, which establishes the National Security and Intelligence Review Agency and sets out its composition, mandate and powers. It repeals the provisions of the Canadian Security Intelligence Service Act establishing the Security Intelligence Review Committee and amends that Act and other Acts in order to transfer certain powers, duties and functions to the new Agency. It also makes related and consequential amendments to other Acts.
Part 1.‍1 enacts the Avoiding Complicity in Mistreatment by Foreign Entities Act to authorize the issuance of directions respecting the disclosure of and request for information that would result in a substantial risk of mistreatment of an individual by a foreign entity and the use of information that is likely to have been obtained as the result of mistreatment of an individual by a foreign entity.
Part 2 enacts the Intelligence Commissioner Act, which provides that the duties and functions of the Intelligence Commissioner are to review the conclusions on the basis of which certain authorizations are issued or amended, and determinations are made, under the Communications Security Establishment Act and the Canadian Security Intelligence Service Act and to approve those authorizations, amendments and determinations if those conclusions are reasonable. This Part also abolishes the position of the Commissioner of the Communications Security Establishment, provides for that Commissioner to become the Intelligence Commissioner, transfers the employees of the former Commissioner to the office of the new Commissioner and makes related and consequential amendments to other Acts.
Part 3 enacts the Communications Security Establishment Act, which establishes the Communications Security Establishment and, among other things, sets out the Establishment’s mandate as well as the regime for authorizing its activities. It also amends the National Defence Act and makes consequential amendments to other Acts.
Part 4 amends the Canadian Security Intelligence Service Act to
(a) add a preamble to that Act and provide a mechanism to enhance the accountability of the Canadian Security Intelligence Service;
(b) add new limits on the exercise of the Service’s power to reduce threats to the security of Canada including, in particular, by setting out a list of measures that may be authorized by the Federal Court;
(c) provide a justification, subject to certain limitations, for the commission of acts or omissions that would otherwise constitute offences;
(d) exempt employees of the Service and persons acting under their direction from liability for offences related to acts committed for the sole purpose of establishing or maintaining a covert identity;
(e) create a regime for the Service to collect, retain, query and exploit datasets in the course of performing its duties and functions;
(f) make amendments to the warrant regime that are related to datasets; and
(g) implement measures for the management of datasets.
Part 5 amends the Security of Canada Information Sharing Act to, among other things,
(a) emphasize that the Act addresses only the disclosure of information and not its collection or use;
(b) clarify the definition of “activity that undermines the security of Canada”;
(c) clarify that advocacy, protest, dissent and artistic expression are not activities that undermine the security of Canada unless they are carried on in conjunction with an activity that undermines the security of Canada;
(d) provide that a disclosure of information is authorized only if the disclosure will contribute to the carrying out by the recipient institution of its national security responsibilities and will not affect any person’s privacy interest more than reasonably necessary;
(e) require that information disclosed be accompanied by information about the accuracy of the disclosed information and the reliability of the manner in which it was obtained; and
(f) require that records be prepared and kept in respect of every disclosure of information and that every year a copy of every record prepared in the preceding year be provided to the National Security and Intelligence Review Agency.
Part 6 amends the Secure Air Travel Act to authorize the Minister of Public Safety and Emergency Preparedness to collect from air carriers and operators of aviation reservation systems, for the purpose of identifying listed persons, information about any individuals who are on board or expected to be on board an aircraft for any flight prescribed by regulation, and to exempt an air carrier from providing that information, or from the application of any provision of the regulations, in certain circumstances. It amends the Act to authorize that Minister to collect personal information from individuals for the purpose of issuing a unique identifier to them to assist with pre-flight verification of their identity. It also reverses the rule in relation to a deemed decision on an application for administrative recourse. Finally, it amends the Act to provide for certain other measures related to the collection, disclosure and destruction of information.
Part 7 amends the Criminal Code to, among other things,
(a) make certain procedural modifications to the terrorist listing regime under section 83.‍05, such as providing for a staggered ministerial review of listed entities and granting the Minister of Public Safety and Emergency Preparedness the authority to amend the names, including aliases, of listed entities;
(b) change the offence of advocating or promoting terrorism offences in general, in section 83.‍21, to one of counselling the commission of a terrorism offence, and make corresponding changes to the definition of terrorist propaganda;
(c) raise one of the thresholds for imposing a recognizance with conditions under section 83.‍3, and amend when that section is to be reviewed and, unless extended by Parliament, to cease to have effect;
(d) repeal sections 83.‍28 and 83.‍29 relating to an investigative hearing into a terrorism offence and repeal subsections 83.‍31(1) and (1.‍1), which require annual reports on such hearings;
(e) require the Attorney General of Canada to publish a report each year setting out the number of terrorism recognizances entered into under section 810.‍011 in the previous year; and
(f) authorize a court, in proceedings for recognizances under any of sections 83 and 810 to 810.‍2, to make orders for the protection of witnesses.
Part 8 amends the Youth Criminal Justice Act to, among other things, ensure that the protections that are afforded to young persons apply in respect of proceedings in relation to recognizance orders, including those related to terrorism, and give employees of a department or agency of the Government of Canada access to youth records, for the purpose of administering the Canadian Passport Order.
Part 9 requires that a comprehensive review of the provisions and operation of this enactment take place during the fourth year after section 168 of this enactment comes into force. If that section 168 and section 34 of Bill C-22, introduced in the 1st session of the 42nd Parliament and entitled the National Security and Intelligence Committee of Parliamentarians Act, come into force within one year of each other, the reviews required by those sections are to take place at the same time and are to be undertaken by the same committee or committees.

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Chair, to wrap up, I want to say that I am against this amendment because I believe the Liberal Party is trying to promote a foreign policy through a national security bill. It isn't appropriate to try to tell others what to do through Bill C-59.

Thank you.

[Michel Picard, Liberal, Montarville, QC]

A little bit, yes.

Since the whole Bill C-59 is looking at improving our national security framework and legislation, I think we should encourage the international community to do the same. I move that the preamble be amended by adding after line 12 on page 1 the following:

Whereas the Government of Canada, by carrying out its national security and information activities in a manner that respects rights and freedoms, encourages the international community to do the same;

[Pierre Paul-Hus, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Chair, amendment CPC-27 proposes a bill in the bill, just as the Liberals proposed a bill on torture.

I will now briefly outline Bill C-371, which was created by my colleague Tony Clement, in 2017.

This bill gives the government the ability to establish a list of foreign states, individuals and entities that impede freedom of religion, impose punishments based on religious beliefs, or carry out or support activities that encourage radicalization.

It deals with what is called the “secret ways” through which money is poured into organizations and institutions in Canada that support radicalization. It would prevent an individual, entity or foreign state that supports or encourages radicalization or is associated with it to fund an institution through donations or gifts.

Individuals and institutions in Canada would be prohibited from accepting money or gifts from states, individuals or entities on the list. Three amendments to the Income Tax Act are included to recognize the provisions of the bill.

It should be noted that in 2015, the Standing Senate Committee on National Security and Defence completed a study entitled “Countering the Terrorist Threat in Canada”. In its recommendations, the Senate report urges the government to take steps to prevent the entry of foreign funds into Canada in cases where funds, donors or recipients are associated with a radicalization movement.

Currently, the Income Tax Act allows the removal of charitable status from groups affiliated with terrorism. In addition, the government maintains a list of designated terrorist groups, including Al Qaeda, ISIS and Hezbollah. This bill would improve the government's ability to control incoming funds beyond charities and designated terrorist groups.

By developing and maintaining a list of foreign states, individuals and entities that promote radicalization and that facilitate the funding of groups that promote or participate in radicalization, the government would have a better set of control measures. We have known for a long time that there are gaps that allow money to come into Canada to support radicalization. The legislation includes provisions on flexibility and review and allows the groups on the list to appeal. This flexibility allows the government to act quickly when sources of funding are identified, but also to be fair when a group or individual has adequately demonstrated that they should no longer be on the list.

Several witnesses have testified, and I want to mention some important people, such as Richard Fadden, former national security advisor to Prime Minister Stephen Harper and former director of CSIS, who confirmed that there are concerns about foreign funding of Canadian religious and quasi-religious institutions. He testified before the Standing Senate Committee on National Security and Defence:

I think it is a problem. I think it's one that we're becoming increasingly aware of. It's one that we share with a number of our other Western allies and, insofar as I've been able to make out, nobody has found a systemic solution. What I think has occurred on a number of cases, you can find out about a specific case and you can do something about it; the problem is finding out about the specific case.…

In fact, in my previous job, I actually raised with representatives from some of the countries who might be involved in this and suggested to them this was not helpful. The difficulty in most cases is that the monies are not coming from governments. They're coming from fairly wealthy institutions or individuals within some of these countries. It makes it doubly difficult to track. It doesn't mean you're not right in raising it. I just don't have an easy solution.

I would now like to raise an important point, Mr. Chair. Imam Syed Soharwardy of Calgary and other witnesses told the Standing Senate Committee on National Security and Defence that the jihadist extremist ideology is advocated in schools and universities, often under the guise of academic freedom and far from the oversight of CSIS. He told the committee:

The money comes in different ways, in secret ways. Money comes through institutions. There are two organizations in Canada. Basically they are U.S. organizations that are operating in Canada. One is called AIMaghrib Institute, the other is called AIKauthar Institute. Both work in universities, not in mosques. Both give lectures. Both organize seminars. They are the ones who brainwash these young kids in lectures.

Shahina Siddiqui, from the Islamic Social Services Association, appeared before the Senate committee in 2015. She said:

I can tell you that my own organization was offered $3 million. We refused, even though I had not a penny in my account at that time, when I started the organization, because this is a Canadian organization, and we don't need funding from anywhere else.

The same thing with our mosques in Manitoba. We were offered money from Libya when we made our first mosque. We refused it.

Are there some mosques that have accepted money from overseas because it was legal to do so? If we want to curtail them, we have to make it illegal, not just for Muslims but also for all groups, for you to raise funds from abroad. That would be my response.

That said, I think amendment CPC-27 is of paramount importance to Bill C-59. We have heard that there are finance-related elements that already exist in another act. Therefore, it seems that it is more or less effective. So I strongly recommend that the committee accept our bill in Bill C-59.

[Michel Picard, Liberal, Montarville, QC]

The purpose of this amendment is to have section 83.3 come into force after Bill C-59 receives royal assent. I won't read the entire amendment because it is explicit.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Yes.

What this amendment is proposing is that we delete lines 31 to 36 on page 130, which deals with the recognizance specifically. It deletes the changes to the Criminal Code for these recognizance orders under this legislation and reverts back to the threshold for seeking a recog order that “is likely”. That's what I'm proposing, that this goes back to the old language that it's “likely to prevent”, as opposed to the new language which is “necessary to prevent”.

In my opinion, this change raises the bar on getting a recog order to make them harder to obtain. That's why we want to be able to do that. I'll draw back on my experience, not specific to terrorist issues, but on having recog orders, and they can be a valuable tool.

Quite frankly, as we heard from our experts who testified before the committee, recog orders are the most usual tool now that our national security enforcement agencies use to try to keep tabs on an individual who poses a national security risk. We already know that the threshold to obtain those might be somewhat challenging. The threshold right now is “likely”. If we're changing it in Bill C-59 to “is necessary to”, that is upping the threshold, which makes it even more difficult for these orders to be obtained. If we're really trying to put some sort of monitoring mechanism in place for those who are a national security risk, then I don't understand for a moment why we would suggest that we want to raise the bar to that level.

In my opinion, recog orders are about as useful as the piece of paper they're written on. Unless you do constant monitoring, it's a piece of paper. You're asking someone to follow the rules. If they don't want to follow the rules—they may or they may not—at least you then have a recourse if they breach those conditions. If you're making it harder for law enforcement and national security agencies to even obtain that recog order in the first place, then it's even more useless than we have right now.

That's the reason we are concerned about the replacement of “is necessary” from “is likely”. After debate, I'd certainly appreciate any comments that our officials may have on the implications of that sort of language on the ability to even obtain a recog order in the first place, and whether that threshold is increased to the extent that it is going to continue to maybe put a risk to public safety and national security because we just don't have that threshold met on an individual. If they did do something, we don't have a mechanism in place where we can even hold them accountable before the courts.

[Glenn Gilmour]

I'll just say that, with the proposed amendment, what we're trying to do is deal with the problem of the potential overlap that had been mentioned in order to ensure that an appropriate punishment can be put on someone who counsels the commission of a specific terrorism offence, whether or not the offence is committed, and they would be captured by section 22 and section 464 of the Criminal Code, so that the maximum five-year penalty would not come into play for that, which was originally in Bill C-59.

The current wording now is restricted to a particular kind of counselling of a specific terrorism offence where the specific terrorist offence cannot be identified, and that's getting to a particular kind of counselling where words are used that don't necessarily focus on.... They're not as specific as focusing on a specific terrorism offence in the Criminal Code, of which there are several, such as participating in the activity of a terrorist group, knowingly facilitating a terrorist activity, the terrorist financing offence, for example, or instructing someone to carry out a terrorist activity, but nonetheless, in all the circumstances, it's apparent that the person intended that one or more of those terrorism offences be committed.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Mr. Chair, before I introduce it, I wish people could see how well committees can work together. This is an example of it.

I'm not trying to drag this out, but in particular to Mr. Dubé and Ms. May, who are the only members of their parties here and are handling every single clause, I want to thank you and applaud your being able to stay on top of it, because it's not easy for either of you.

Given all the procedural things we are doing, what we're trying to do is align Bill C-59 with the Criminal Code. My understanding from the officials is that the wording we have distributed will do that. Maybe justice officials could weigh in very briefly, because it is getting late, on whether this will solve the issue of aligning this offence with the Criminal Code.

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

I feel as if my amendment has gotten lost in relitigating the difference between C-51 and C-59. I just wanted to state, now that we've come back around, that the amendment I'm proposing that's before us right now is that I believe “promotion” is awful. I believe that the solution proposed by the Liberals of “counselling” is redundant, so I call for it to be repealed.

[Glenn Gilmour, Counsel, Criminal Law Policy Section, Department of Justice]

I'm Glenn Gilmour, legal counsel with the criminal law policy section of the Department of Justice. I work with Mr. Breithaupt.

The terms “promotion” and “advocating” are terms that have been judicially interpreted by the Supreme Court of Canada. Promoting was examined by the Supreme Court of Canada in the well-known case of R. v. Keegstra. Advocacy was looked at by the Supreme Court of Canada in the case of Sharpe, which I think dealt with obscenity.

In both of those, the Supreme Court interpreted those particular terms to mean active encouragement. Active encouragement is also the actus reusof counselling. We don't see any difference between promoting and advocacy and counselling, but counselling is well known. There are very few cases involving the wilful promotion of hatred offences, for example, compared with the number for counselling offences in the Criminal Code.

It was felt that to be clearer in law and to avoid the confusion and avoid the possible misinterpretation that advocacy or promotion is broader than what counselling is meant to be, we moved to the well-known concept of counselling in criminal law in Bill C-59.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

I'm sorry, I may be the only one here who feels as strongly as I do about the difference between promotion and counselling. I don't think they're the same. I feel that it is lighter. We heard testimony from officials who came to committee, experts who said these changes were not helpful to what the whole purpose was behind Bill C-59, and that they actually weakened the current legislation and the Criminal Code.

Again, I don't want to belabour the point, because I do want to complete.... This is for the record: I think we can get through all of this tonight. That's what I'm saying, but this is something that I think is critically important for us to deal with.

[Douglas Breithaupt]

Thank you. Quite a bit can be said.

The Anti-terrorism Act, 2015, did create a new offence of advocating or promoting terrorism offences and the commission of terrorism offences in general. This was to respond to a gap or uncertainty in the law. The pre-existing counselling provisions in the Criminal Code would not apply where what is being counselled was not a specific terrorism offence but any, some, or all of the full range of terrorism offences found in the Criminal Code.

In Bill C-51, the offence of advocating or promoting the commission of terrorism offences in general was criticized for using vague, overbroad, and potentially violating the charter because of its use of the phrase “advocates or promotes the commission of terrorism offences in general”. The government did a green paper consultation and has come back with a proposed reformed section 83.221 with the same intent but with wording to apply a well-known concept of counselling. Essentially it is the same thing. Counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. Essentially advocating and promoting is the same thing, but counselling is clear to understand.

There were briefs and testimony before the committee trying to get clear on how the proposed revised section 83.221 would interact with the current offences of counselling in sections 22 and 464 of the Criminal Code. Some believed that the offence is superfluous and duplicates sections 22 or 464. There was some confusion as to the purpose of the proposed provision. The overlap was intended to give the prosecutor increased flexibility in deciding which offence to charge on a given case, having regard to the particular circumstances of the case.

Bill C-59 proposed, as you can see, a changed offence using a more familiar language, which is a counselling offence. I might just read it. Proposed subsection 83.221(1) says:

Every person who counsels another person to commit a terrorism offence—other than an offence under this section—is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

It continues, in proposed subsection 83.221(2):

An offence may be committed under subsection (1) whether or not

(a) a terrorism offence is committed; and

(b) the person counsels the commission of a specific terrorism offence.

Further to the discussions in the committee, and on further thought, the view that the overlap was intended to give the prosecutor increased flexibility was the initial design of the proposed offence or revision of the offence, but we've noticed that section 464 of the Criminal Code provides that, except where otherwise expressly provided by law, where one person counsels another to commit an indictable offence that is not committed, that person is liable to the same penalty as one who attempted to commit the offence, which is generally half the maximum penalty for the completed offence. In the case of life imprisonment, it would be 14 years, for example.

It would be potentially open to interpretation that, due to the exception in section 464, which is a counselling offence that is not committed, the proposed section 83.221 would cap any counselling related to terrorism offences that are not committed at a maximum penalty of five years' imprisonment. This is a legal problem that could significantly limit the punishment available, but could be rectified by amending the bill.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

Yes. I apologize.

Currently, section 83.221 of the Criminal Code speaks to the promotion of terrorism as opposed to the counsel of terrorism. We're back to that legal debate we had during testimony. What's the difference between the promotion of terrorism and the counselling of terrorism? I'm wondering whether it creates a duplicate law by having it changed.

We heard in testimony that it removes protections for victims of hate crimes or violence, and the only judicial decision on this, in R. v. Driver, determined that the language existing today made no change to the burden of evidence. I'm curious to know why we're replacing “promotion” with “ counselling”. It makes no sense to me. I think it actually weakens the intent of this bill. This is exactly the sort of offence that part of Bill C-59 was going to improve, and in my humble opinion, I believe the change of this language actually weakens it.

I'm curious to hear from the Department of Justice official and his backup whether you think this actually improves it. I don't want an opinion, but please explain to me why “counselling” is better language than “promotion”.

[Glen Motz, Conservative, Medicine Hat—Cardston—Warner, AB]

If I understand this correctly, Bill C-59 is proposing to remove the counselling of terrorism as an offence. Is that right?

I need to get this thing back up again.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

We, being the Liberal Party this time, are not supporting the amendment. However, in its place I do have proposed wording that would align—and the official can perhaps weigh in on this when we have it—the wording of Bill C-59 with the Criminal Code.

With those amendments, just so you're aware, Chair, I do have amendments that are consequential to this one for NDP-96, because they both tie together.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

As Matthew was just saying, there is no need to fix the language that was so problematic in Bill C-51, on advocating terrorism offences or advocating terrorism in general, or all of that. In Bill C-59, we're attempting to fix language for a section that is completely unnecessary and is, in fact, redundant to what we already have in the Criminal Code. As you noted, Mr. Chair, a number of my amendments go to this point, but again, it was the Canadian Bar Association, the Canadian Civil Liberties Association, and the International Civil Liberties Monitoring Group, among others, who asked why we want to insert a redundant provision in Bill C-59 to something that's already covered in the Criminal Code.