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.

[Scott Millar]

This is a new thing that has been proposed with respect to the CSE's legal authorities. It has only been proposed in the Bill C-59 context, given that the two new elements of our mandate around defensive and active cyber operations would be present. From a charter perspective, these prohibitions were viewed as necessary prohibitions to limit the impact upon those charter rights.

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

I think it's important. Mr. Spengemann spoke of the purpose of Bill C-59. As I said, this stems from a discussion that was long overdue about fixing the most egregious elements of the former Bill C-51, and in none of the consultations were we engaged properly on the cybersecurity aspect.

To Mr. Motz's point, that's exactly why I'm not seeking to remove the defensive capabilities with any amendment. This is the notion of active cyber operations.

The committee will recall that I asked several questions, including to the Minister of National Defence, related to this notion of what, in this digital age, represents an attack on a foreign actor or sovereignty. How will the capability sharing in this bill between the armed forces and CSE, a civilian organization, be taking place?

It's even more problematic to me in the context that we have a budget that's announced a creation of a cybersecurity centre. The minister has promised legislation to that effect in the fall. In that context, I think it's even more important to have a proper study of these elements that are far from leading to unanimity. I believe more studies are required.

As I said, with this amendment, I am not discounting the urgency of having measures in place to protect our cybersecurity to address these threats, nor am I inclined to say that we should never have any active capabilities. Given the way in which the committee and the ministry were engaged in the public consultations and the way the debate has evolved on this particular issue, starting in the last Parliament with Bill C-51, I don't believe we're properly equipped as parliamentarians to be offering this kind of new power with so many unanswered questions.

As I said, the amendment goes along with the statement that I believe it should have been a separate piece of legislation to begin with.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Good morning, Mr. Chair. Thank you.

In my view, this amendment is contrary to the fundamental goal of Bill C-59, which is essentially to give our security agencies the tools they need to protect Canada and Canadians while respecting our rights and freedoms.

The amendment seems to achieve two things. It retains CSE's active cyber operations mandate under proposed section 20, but it then removes the ability of the minister to issue authorizations that would allow the CSE to undertake activities in this regard that would otherwise contravene an act of Parliament or any foreign state.

The authority to conduct active cyber operations is needed to support strategic objectives that go outside of a military or domestic threat context. The deletion of these sections as proposed in the amendment would limit Canada's options to respond to threats. It should also be noted that the authorities under the proposed bill would only take place within very strict legal parameters and approvals at the highest level of government.

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

Thank you, Chair.

NDP-27 seeks to remove any and all references to “active cyber operations”. I'm going to explain my motivation and reasoning for this.

Obviously, Bill C-59 is a response to a Liberal campaign promise, and something that the Liberals made hay of in the last Parliament, about supporting the then Conservative Bill C-51 in exchange for the promise that the most egregious elements would be fixed.

Now—and we'll get to some of those elements later—I don't believe the bill achieves that objective. That being said, in the consultations that both this committee and the minister did, and the debate on Bill C-51 in the previous Parliament, CSE was obviously never part of it, being enacted by the National Defence Act, which is something not normally dealt with by this committee. I understand that with the new cybersecurity reality and the different issues that we face on a day-to-day basis, that's become something that's necessary.

However, given that it hasn't really been part of the consultations, and as you know, Chair, you acknowledged that CSE took on a life of its own as part of this study. With all due respect to our colleagues here from CSE, that is very new. The committee didn't necessarily, as far as I'm concerned, have the institutional memory to appropriately address all those elements in this omnibus legislation. Several witnesses even made the comment saying that the remarks would have to be limited to one part of the bill given its size and scope.

For that reason, notwithstanding a position I may or may not take in the future on active cyber operations, we have just not had adequate reassurance as to the purpose of this nor have we had the chance to properly study it. I would welcome it as a stand-alone piece of legislation. In the meantime, while it's important to have the defensive capabilities, the active capabilities are a slippery slope that I don't believe this committee or parliamentarians are yet ready to be engaged on.

I move this amendment to remove that aspect from the bill.

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

Mr. Chair, I find that argument kind of odd, given that the bill before us, this Liberal Bill C-59, proposes to CSIS the exact wording that I'm proposing for the aspects of the bill dealing with the CSE.

I would assume that the bill, then, would be causing the same problems that Mr. Spengemann is alluding to already in its initial drafting because it's the same wording that's being proposed to change the CSIS Act. This was brought up by the Canadian Bar Association when they appeared before committee. I'm not sure I follow, but at any rate....

[Scott Millar]

I'm not a charter lawyer and expert on legal interpretation. The way C-59 has been constructed is to reflect how we operate now in terms of the elements around publicly available information, when an MA would cover it, and they are what we are familiar with.

Again, by putting this language into the definition of publicly available information it coheres with the idea of what triggers a ministerial authorization, but having them in both spots, I'm not sure what that may or may not mean. It may mean nothing from legal interpretation or it may mean something.

[Scott Millar]

I'm happy to speak to that.

I think it's important when looking at the “publicly available information” proposed amendments, as well as “a reasonable expectation of privacy”, to explain again the purpose of this provision.

First of all, we're not a domestic investigatory body. We don't build dossiers on Canadians. That's not within our mandate.

Second of all, this is meant to reflect the kind of information that we access now, reflect that transparently by way of legislation. The information that we access now in furtherance of our mandate is reviewed and reviewable by the current CSE commissioner—reviews as per privacy matters. It is not meant to broaden information that we have access to. It's basically to say that we will use information that's available to any Canadian, any other department or agency, parliamentary research or what have you, in the furtherance of our mandate.

That is there to provide clarity for those who will review us that when we're doing that kind of thing—looking at a CBC website or what have you—we are not directing our activities at Canadians. The justice charter statement around Bill C-59 makes it clear that this is information that has a low reasonable expectation of privacy. Any kind of information we would acquire that could interfere with the reasonable expectation of privacy would be done under our ministerial authorization, and that explicitly states we cannot direct those activities at Canadians.

Just to make it clear, this is not a way to broaden information; it's to reflect information that's out there that anyone can look at. When we're doing that, we're not directing that activity at a Canadian.

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

I'll just review this amendment. We heard about this quite extensively throughout the entire testimony from a number of individuals, Mr. Fadden, Mr. Boisvert, and others. They spoke of the issue between intel and evidence, and how we navigate that particular challenge. In the language being proposed in clause 60.1, you'll see that we're talking about appointing “a special advocate from among the persons on the list established by the Minister of Justice under subsection 85(1) of the Immigration and Refugee Protection Act”, and then in subclause 60.1(2) we amend section 38.04 of the Canada Evidence Act, with, “A special advocate's role is to protect the interests of a participant in a proceeding”.

The intel to evidence amends section 38 to allow trial judges, and not just special Federal Court judges, to review intelligence where it is in the best interests of justice to determine admissibility. As I said previously, we've had this issue raised by a number of people regarding the barrier of information to prosecution without compromising intelligence and the agreements for information sharing. It was recommended in the national framework discussion but not included—for some reason—in Bill C-59. Mr. Picard, I'm sure, given one of his responsibilities in his past life, would appreciate that there are times when there is important intelligence for an ongoing criminal investigation, and there are those in the intelligence community who would hesitate to have that intelligence shared because they currently have an operative who might be compromised or an entire operation that might be compromised with the release of it. We had talked at length at committee about how we bridge that gap, how we ensure, in cases where we need to prosecute someone criminally, that we can provide information without jeopardizing their rights to full answer and defence, as well as protect issues of national security or ongoing operations or things like that. This language is intended to fill that gap.

Mr. Fadden was one of those who were quite adamant about the gap in previous legislation, not just Bill C-59 as it's written, but previous ones. It's something we have to fix. I think it will help us identify some of the issues we've had with ongoing terrorist threats, potentially on returning ISIS terrorists, or ongoing threats we have locally, and we can provide an opportunity to pursue criminal charges. The idea would be that the trial judge, who in this case wouldn't necessarily be a Federal Court judge, would have access to information through a special advocate who would be available to the defence, without disclosing the information to the accused. That's the whole intent behind this: it doesn't prevent lawful prosecutions and it doesn't negatively impact ongoing operations. They can continue. That's the basis of this amendment.

[Scott Millar]

There are a couple of things. One that is also worked into Bill C-59 is the element of urgent circumstances. If there's risk to life, you can proceed without ministerial authorization. The clarification that I want to provide, though, is that even with the emergency authorizations, all the tests for ministerial authorization still do have to be met before the minister approves. There just isn't that additional level of the intelligence commissioner reviewing that authorization if not available to do so—so if we just have to move quickly. There still is the element of urgent circumstances without a ministerial authorization. That's a separate kind of thing.

[John Davies]

I was just making the point that the National Defence Act has a 30-day time limit for the existing commissioner to respond to the authorizations of the CSE. That's pretty much the approach that was adopted for Bill C-59 for the intelligence commissioner. When you look at the duties and functions of the intelligence commissioner as expressed in clauses 13 to 20 of the proposed intelligence commissioner act, for the most part it's not going to be necessarily a rush or urgent. The issue that may be urgent is with regard to querying datasets, and you'll see in clause 19 and proposed paragraph 21(3)(a) that there are provisions for “as soon as feasible”.

[Scott Millar]

I could add, though, that under Bill C-59 there is this provision that's been added in there in terms of an emergency authorization. If there is a new threat that emerges and there is not the time necessary or available to get the intelligence commissioner to review the minister's decision, we could still proceed under that emergency authorization. It would only be valid for five days, though. Then, if anything continued beyond that, it would require the review of the intelligence commissioner. That has been worked in there to deal with an emergency situation.

[John Davies]

This part of the act was reported exactly from the National Defence Act that dealt with the office of the CSE commissioner, where 30 days was the limit, or “as practical” is the wording. For the most part, the intelligence commissioner will be looking at authorizations that are on an annual basis, so there's going to be a natural cycle. The concern with 24 hours is that you're giving a lot of information to that commissioner. You wouldn't want that commissioner to be rushed and to make decisions on an artificial timeline. Thirty days is seen as a better time to process that information.

On the dataset issue in particular, there is a provision in Bill C-59 to allow for decisions to be made more quickly, or “as feasible”.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

Chair, thank you very much.

Liberal amendments 17 and 18 go together. In fact, they go back to the theme of amendments 1, 9, and 10 from the Liberal side. Colleagues will recall that these have to do with the employment mobility of employees of the various offices and the security intelligence establishments. The logic is that the Public Service Employment Act, PSEA, should be the legislation that addresses these mobility rights.

The rights are substantively unchanged, but technical amendments are required to remove parallel prohibitions from the various pieces of legislation in front of us or embodied in Bill C-59. This one deals with the office of the intelligence commissioner, and section 9 of that act is going to be removed entirely in amendment LIB-18. LIB-17 renders the entire PSEA applicable to employees of the office of the intelligence commissioner, removing the exemption that existed previously.

Again, these are technical amendments, substance unchanged, rendering the PSEA applicable to the entirety of the provisions with respect to mobility of employees into and out of the office of the intelligence commissioner.

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

Yes, and that's because those were the terms of the motion passed by this committee. Otherwise, I'd be able to bring this amendment forward before the House at report stage. That's just to clarify things for people who might have forgotten the terms of the motion.

I just want to briefly say I'm very pleased with the creation of a commissioner. It's my belief, and I hope the government will consider, as my amendment would do, giving the option of the person's being full-time.

In the course of Bill C-51 being examined in the 41st Parliament, we had the advantage of hearing from former Supreme Court justice Mr. Justice John Major, who chaired the Air India inquiry. His advice wasn't taken by the committee at that time, but I believe that a lot of what he said before the committee on Bill C-51 is reflected in the creation of an intelligence commissioner. Mr. Justice John Major, testifying then—and I participated as actively as I was allowed in those committee hearings—said that Bill C-51 was fatally flawed because there was no “pinnacle review”, that was his term, that you needed to have someone like an intelligence czar, someone in a security position, for direct oversight of all the disparate intelligence agencies that we have within Canada so that they do not trip over each other.

He spoke to an issue that Glen Motz mentioned earlier. He said it was human nature to keep information from other agencies. He said that his experience in the Air India inquiry was that the RCMP didn't want to share their information with CSIS, and that CSIS didn't want to share their information with the RCMP. He was very clear on that.

Given the importance of this position—and I certainly support its creation in Bill C-59—I would urge the government, given the extraordinary position of studying this now, before second reading, to seriously consider bringing forward a motion before the bill reaches third reading to allow the intelligence commissioner to be full-time as well, or part-time, at the option of the government.

[Michel Picard, Liberal, Montarville, QC]

I would like to thank all my colleagues for their comments on this amendment. The content and the seriousness of the thing demonstrate the importance of this subject.

It's important to remember that the amendment is part of BillC-59. And the amendment has a dual purpose: the protection against torture and the assurance that we must protect rights and freedoms.

With this amendment, the government is reiterating its position and intention to be an international leader and a model for the protection of rights and freedoms. This amendment therefore has its place, and it has been long awaited. I invite everyone to vote for it.

Thank you.