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.

[Merydee Duthie]

That's the electronic version. I should have specified, because Bill C-59 does talk about electronic datasets and most of the phone books or Info-direct kind of share that.

[Merydee Duthie, Special Advisor, Canadian Security Intelligence Service]

I'd like to start by saying that CSIS and CSE are very different agencies, operating under different mandates, and the context in which the definition of “publicly available” is applied in the CSE portion of Bill C-59 is different from the context in which it's applied in the CSIS Act. Bill C-59 establishes proposed sections 11.01 to 11.25 of the CSIS Act, which is a robust framework for the service's collection, retention, and use of datasets in support of our investigations. Essentially Bill C-59 creates three types of datasets: publicly available datasets, predominantly foreign datasets, and predominantly Canadian datasets. It establishes a system of safeguards that govern their use. The safeguards are, in general, applied in consideration of the reasonable expectation of privacy of the different types of datasets. The lowest reasonable expectation of privacy is associated with publicly available datasets, so the safeguards are the lightest but they exist.

The intention of Bill C-59 within the dataset framework is to create three mutually exclusive categories of datasets. A dataset is either publicly available or it's Canadian or it's foreign. If we took the proposed definition of “publicly available dataset”, it would take out any dataset that has a reasonable expectation of privacy. We are told by our legal experts that when you assess reasonable expectation of privacy, you have to take context into consideration, so for a dataset collected by the service, the reasonable expectation of privacy might be different if it were used by someone else.

By adopting this definition, it is possible that we could eliminate the category of “publicly available”, but there is no dataset that can be collected by the service for which there is absolutely no reasonable expectation of privacy. There are a lot for which it is very low, but reaching the standard of zero expectation of privacy would mean not having the category of publicly available datasets. In the extreme, you would create a situation in which if the service wanted to collect the Saskatoon phone book, it would have to apply to get the Federal Court's authorization to do so. From a service perspective, that is simply administratively impossible given the burden it would create for us.

[Michel Picard, Liberal, Montarville, QC]

The depth of Ms. May's concerns is entirely justified by the need to find appropriate ways for agencies to work together in order to reduce this kind of threat. That is the very spirit of Bill C-59, which seeks to give those people the appropriate tools, to give the agencies the right to exchange information, and for all of that to be done under the supervision of a parliamentary committee, especially the exchange of information. We already have the necessary tools to do this. We are still affected by the errors of the past and fearful of the future. That is normal. Of course, there will likely be more errors. Field work being what it is, we will have other experiences.

I would now like to digress and talk about two aspects that should not be taken at face value.

In light of recent events, it would be hard for me to convince my fellow citizens that these events are ultimately not as serious as they seem, given that threat mitigation measures are to be reduced. My fellow citizens would not accept that. In order not to react emotionally to such an event, I remind myself that all operations are conducted under the very strong authority of the Canadian Charter of Rights and Freedoms. Returning to yesterday's events, I would probably not have said anything if, for instance, that person had left home with two flat tires instead of four brand new tires. In short, an unfortunate event might have been avoided.

We are not aware of what has been prevented. For CSIS— and to its great credit—, the hardest thing is not taking pride in preventing situations that we are not aware of. Its role is to protect us and its success depends on the number of events it is able to prevent, with the help of the RCMP. I think the structure of Bill C-59 addresses this kind of need on the whole.

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

Thank you, Mr. Chair.

I propose—and the clerk can check if I've got this right—to deal with amendments PV-10, PV-11, PV-12, PV-13, PV-14, PV-15, PV-22 et PV-25.

I think those are all the amendments in this regard.

These amendments all speak to the same point, and I think those are all the ones that remain extant after the slaughter of Mr. Dubé's amendments. Sorry. It's a ritualized slaughter. We appreciate the effort.

I think those are the ones I could speak to all at once and, with the chair's permission, speak to the fundamental point these amendments are trying to achieve. I hope, because of the unusual nature of this process before second reading, that some of my words might reach ministers' offices as well, and that members of the committee might consider whether it isn't wise to actually have a fundamental rethink of the structure of our security intelligence legislation.

This is an important moment, as we all know. This is the most fundamental review we have had in years. It's really good legislation insofar as it sets up the national security intelligence and review agency. Having NSIRA is a big change, but in my view, Mr. Chair, it doesn't take away from the fundamental mistake that was made in Bill C-51.

Forgive me, but having been through the hearings at Bill C-51, I know there were witnesses this committee didn't hear talking about the risks of CSIS having kinetic powers at all. That's what I want to speak to. I will be brief.

This legislation reduces the wrongs that could be done by CSIS agents having these new powers to disrupt plots, but it doesn't deal with something quite fundamental that we grappled with in committee on Bill C-51. It was certainly raised by witnesses and experts like Craig Forcese and John Major, former Supreme Court justice, and also in the Senate. Actually one of the most important witnesses on Bill C-51 was heard on the Senate side. His name's Joe Fogarty. He was the U.K. security liaison with Canada. He was an MI5 agent from the U.K. What he pointed to was the big risk of the RCMP and CSIS not talking to each other, and when you then give CSIS powers to actually disrupt plots, you have an accident waiting to happen, basically.

In his evidence, he referred the committee only to those things that are publicly known, but he assured the committee that, from his work as a U.K. security liaison in the Five Eyes system with Canada, there were more examples of which he could not speak. He directed us to the 2009 case of R. vs. Ahmad where, on the evidence, CSIS discovered the location of a suspected terrorist training camp within Canada and decided not to tell the RCMP.

There's another example, which was in the Canadian Press, to which Joe Fogarty also referred. In the case of Jeffrey Delisle, which we all know—the navy officer who sold secrets—apparently CSIS knew of the spying operations of Delisle for a very long time and decided not to tell the RCMP. Delisle was arrested when the RCMP was tipped off by the FBI.

There's a fundamental problem here, which John Major at the time referred to in this committee and its predecessor in the 41st Parliament. It's human nature not to want to share information, so what have we done now? I think we've compounded the problem because CSIS now has the powers to take action, but we haven't dealt with the fundamentals that it still may not want to tell the RCMP.

The situation is much improved because NSIRA can supervise what's going on. If it sees a problem, it can maybe intervene, but there still has never been a public policy rationale put forward by anyone, ever, for why CSIS needs the power to disrupt plots. CSIS was created, as Mr. Dubé referred to moments ago, in order to create a security and intelligence gathering, to give that information to the RCMP. That's the purpose. It was to separate it out, so that you wouldn't have the RCMP burning down barns and so on.

I don't see to this day why we want CSIS agents to have the capacity to disrupt plots within Canada.

The RCMP and CSIS need to work together and NSIRA needs to supervise them. All my amendments take out of our legislation the right of CSIS agents to have kinetic powers. Again, Bill C-59 improves on Bill C-51 in important ways, reducing and better balancing what CSIS agents are likely to do. I know we don't have anyone here from the RCMP on our witness roster but the RCMP job of disrupting plots will be complicated by the fact that CSIS doesn't share information with the RCMP. That's a pattern. That's our history. Things are improved in what CSIS agents can do. Thanks to Liberal amendment 16, we won't be worrying about torture, but there's still no public policy rationale for CSIS agents having these new powers to take kinetic action to disrupt plots.

I'm raising a different issue. The issue of whether we are undermining our own security intelligence operations by having different intelligence agencies tripping over each other, not talking to each other, when they're taking active steps to disrupt a plot. I'd rather have CSIS continue to do what it's always done since its creation, which is to collect the information and give it to the RCMP in a timely manner, which is what they haven't always done, so that the RCMP can arrest the Jeffrey Delisles of this world, not wait to be tipped off by the FBI or trip over CSIS agents who are trying to do the same thing.

Thank you.

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

I'm respectful of the NDP's position on this. Throughout our study of the national security framework and then on this bill, I think we've disagreed on where we fall on this. In our opinion, Bill C-59 respects the rights and freedoms of Canadians while also giving our security agencies the tools they need to protect Canadians. We have taken steps to increase the rights and freedoms aspect of the legislation while at the same time providing the security agencies those tools that they do need.

For that reason and because, as the chair mentioned, this is part of a number of amendments that would have removed that threat reduction provision in the bill, we won't be supporting those changes.

[The Chair, Liberal, John McKay]

I see. We're all hoping to land Bill C-59.

Mr. Dubé, go ahead, please.

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

Yes, these two amendments are absolutely identical. Just to expand upon the comments of my NDP colleague, the government has asked Parliament to basically hand over its role to cabinet, in what has traditionally been called the Henry VIII amendment or clause. It takes from Old English that when in a time of crisis, the government takes power over everything. Parliament is and remains the appropriate vetting for any changes to legislation.

We've heard it was written to allow cabinet to make changes quickly. I understand the need to be nimble in this legislation. However, I don't think, as I raised with the minister when he was here, that the purpose of regulations.... Perhaps it's worth discussing what regulations are needed instead of this clause, but we should never be handing over authority to cabinet for what Parliament is responsible for. To be frank, cabinet should never be asking Parliament to do that, to be honest with you. I have a huge problem with this particular clause.

Just to work on the good graces of my Liberal colleagues, they have noticed, probably, we've been very supportive of a number of theirs, and probably will be of a number of theirs coming up. I think this is a reasonable exchange, with the understanding that it could easily still accomplish the goals of Bill C-59 on being nimble when nimbleness is required, yet not take the power or the responsibility away from Parliament and leaving it solely up to cabinet.

Thank you.

[John Davies]

As was said, CSE has been dealing with review as a distinct unit in its agency for the last 20 years to manage oversight and review. It's the same thing with CSIS and with SERC for the last 30 years. They are already conditioned to deal with review. There is certainly more thematic or sectoral reporting implied with Bill C-59 in the amendments, whether that's the LIB-16 reporting link to information sharing with a foreign entity, threat reduction, and so on. It's difficult to speculate what the real cost would be from doing this. They're already used to doing this.

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

Thank you, Chair.

I move that Bill C-59, in clause 76, be amended by adding after line 35 on page 79 the following:

60.1 (1) Within the first four months after the commencement of each fiscal year, the Establishment must submit to the Minister a report on the administrative costs of meeting the requirements imposed on the Establishment under the National Security and Intelligence Review Agency Act and the National Security and Intelligence Committee of Parliamentarians Act for the preceding fiscal year.

(2) The Minister shall, within 15 days after a report is submitted under subsection (1), publish the report on its Internet site.

This was really brought forward to address issues raised by a number of national security experts with regard to, basically, a budget cut to our national security agencies. Under Bill C-59, the new reporting requirements, without new funding, effectively means a funding cut for CSIS and CSE, and could actually put Canadians at risk during heightened security threats.

With regard to Dr. Leuprecht, Mr. Boisvert, as well as Mr. Fadden, and based on other conversations that my office has had, I would propose that CSE and CSIS provide to Parliament through the minister—which is what this talks about—an actual accounting of the administrative costs with compliance, to ensure that we are informed as to how much the government has cut from national security.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

The important part of this amendment—and I think Mr. Motz covered it—is the fact that it goes beyond just adding prohibitions and changes the role of the intelligence commissioner fundamentally. That's an important piece to keep in mind.

We're talking about stand-alone pieces as we look through this act. We can't lose sight of the fact that there is a robust oversight system that has been put in place that covers this entire bill, C-59. We can't understate the role of NSIRA or the role of the parliamentary oversight committee that has been put into place. What fundamentally makes Bill C-59 a strong act, in my mind, is the fact that we have introduced such strong oversight. Sometimes we get lost looking at the trees, but we need to take into account that part as well, which is LIB-16 and the oversight, and the fact that this specific amendment oversteps what would be the role of the intelligence commissioner.

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

Thank you, Mr. Chair.

Some of the amendments are sometimes more difficult to read because we get into language about subsections and deleting lines and such. However, I think this one is worth reading into the record for those following along, since the folks who follow us don't see the text of all of the amendments. That can make the process challenging.

This amendment proposes that Bill C-59, in clause 76, be amended by adding after line 5 on page 75 the following:

47.1 (1) The Establishment is prohibited from

(a) disclosing information obtained in the performance of its duties and functions under this Act, or requesting information, if the disclosure or the request would subject an individual to a danger, believed on substantial grounds to exist, of mistreatment; or

(b) using information that is believed on reasonable grounds to have been obtained as a result of mistreatment of an individual.

(2) For the purposes of this section, mistreatment means torture or cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed at New York on December 10, 1984.

[Scott Millar]

I would hesitate to comment on what the intelligence commissioner or NSIRA would or wouldn't do in terms of the pace at which they would do things. It does not appear to me that there's anything in Bill C-59 right now—I'm happy to be corrected by Public Safety—that would prohibit the intelligence commissioner from seeing the emergency ministerial authorization to inform, if there were a continuation of that kind of activity under a full ministerial authorization.

[Philippe Méla, Legislative Clerk]

I can try. The amendment as it reads right now, says, basically “That Bill C-59, in clause 76, be amended by replacing lines 8 to 10”, but we don't want to do that anymore. What you want to do is add, so it should read, “by adding, after line 11 on page 71, the following”, and then the proposed subsection 37(3) would become a new proposed subsection 37(4).

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Can I finish? Actually, in your amendment it has, “That Bill C-59, in clause 76, be amended by replacing lines 8 to 10...”. You're saying “by adding after line 10 the following”. Is that what you're saying? Are you adding? Or are you replacing and adding?

[Scott Millar]

You're getting at an important point there, which is the difference between us and CSIS in terms of CSIS being able to direct their activities at Canadians. They operate more in the physical world than the online world. They are an investigatory body. There is a prohibition proposed in Bill C-59 that says we cannot target Canadians or Canadian infrastructure. That prohibition is already proposed in Bill C-59 right now.