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.

[Peter Fragiskatos, Liberal, London North Centre, ON]

That can't be guaranteed in the same way that a Conservative filibuster on Bill C-59 can't be guaranteed. Robust debate will take place, and we'll have it out there.

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

We heard from national security experts that the sharing of information has been a problem. Mr. Davies, what assurances do we have that C-59 will take care of that?

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

Mr. Chair, let me add that, at the moment, all these interactions remain unclear. The problem is interactions between agencies. The purpose of our amendment is really to allow the Minister of Public Safety to clarify these interactions by providing accurate descriptions. Once Bill C-59 is in effect, we will be a bit like the Tower of Babel.

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

Mr. Chair and dear colleagues, Bill C-59 is an omnibus bill. So there are already a lot of stages and steps. I don't think we can accept the argument that it adds something. It's already complex. As my colleague mentioned, when Mr. Fadden, the former national security advisor, came to testify before the committee, he confirmed that it was really complex and difficult to understand. I think we should take into consideration the fact that a man like him is telling us that it isn't clear and that he hopes the committee will try to find solutions to make things better.

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

As I understand it, this would be like a one-time requirement because it's in the first year of C-59 coming into force, and it's setting up the rules around what that should look like. It's about making clear for Parliament and for agencies what the outline will be and what the prospective relationships and responsibilities would be because we don't exactly have those clearly defined yet throughout C-59.

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

What we're really asking for in CPC-12 is that it require the Minister of Public Safety and Emergency Preparedness to outline the roles and responsibilities of multiple national security agencies and departments after one year of C-59 coming into force. This will help identify overlaps and duplicated work and may potentially lead to further consolidation or disbanding of agencies or departments.

Mr. Fadden told us that this bill is beginning to rival the Income Tax Act with sub-sub-subsections in its complexity. There are excluded subsections of subsections of subs, and there are exempted ones. If there's anything the committee can do to make it more straightforward, Mr. Fadden and others have encouraged us to do so. That's why the creation of proposed section 17.1 is in this particular subamendment.

[John Davies]

When C-59 was drafted, a dedicated mobility scheme was created to allow employees from the federal government to move in to NSIRA and move out. You'll see this again with the intelligence commissioner. In hindsight, that was a mistake. That should not have happened, following further legal advice, discussions with the Public Service Commission, and so on. All these amendments do is strip out the dedicated regime that was built and use the exact language in the PSEA.

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

I appreciate that, Chair. I hear the roaring train coming my way.

Once again, these are just consequential amendments related to the full repeal of all the information-sharing provisions in Bill C-59, which are just cosmetic changes to what was in Conservative Bill C-51.

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

Thank you, Chair.

As you know, one of the most controversial aspects of former Bill C-51 was the information-sharing regime that was put in place, known as SCISA, and Bill C-59 brings essentially a cosmetic change alone to that regime. As far as we're concerned, this remains a problematic system to have in place. NDP-9.1 and the consequential amendments seek to fully repeal the elements of the bill that allow for this information sharing to take place.

[Peter Fragiskatos, Liberal, London North Centre, ON]

I do see it as a friendly amendment, Mr. Chair. I think the department's fine with it obviously. They've come up with the wording. If it's good with them, frankly, I don't have a legal degree and if they think this particular amendment does not compromise the rule of law or any other major legal framework as part of Bill C-59 in general terms, then I'm not going to be very difficult.

In fact, as you'll see, with any amendments that I'm proposing I'm open to suggestions. In general terms, I think we have amendments here that respect the rule of law, respect legal tradition in Canada, and I'll leave it to the officials to take up the matter where there could be a major question. The opposition can raise that and I'm open to suggestions, but I think the wording of the amendment in general terms is good.

[The Chair, Liberal, John McKay]

Ladies and gentlemen, we'll commence our deliberation of clause-by-clause consideration of Bill C-59. Where we left off last Tuesday was at amendment LIB-8. I'm going to call upon Mr. Fragiskatos to reintroduce that discussion.

(On clause 2)

Public Safety

[Ralph Goodale, Liberal, Minister of Public Safety and Emergency Preparedness]

Mr. Speaker, the hon. gentleman is a distinguished lawyer and knows very well that I cannot comment on the items that are included in his question.

However, I can tell him that the issue of transparency and accountability is taken very seriously by our government. We have implemented measures in Bill C-59, in Bill C-22, and we have published the first-ever ministerial directives with respect to the issue of torture in dealing with international entities.

I am pleased to say that he is one of the members of Parliament that in fact serves on the national security and intelligence—

[Ralph Goodale, Liberal, Minister of Public Safety and Emergency Preparedness]

The hon. gentleman will know that I am prohibited from commenting on outstanding court proceedings, but I would point out in response to his questions about transparency and accountability with respect to our security agencies that we have issued new ministerial directives and we have published those ministerial directives for the first time ever.

We are also in the process of working on Bill C-59, which implements a whole series of transparency and accountability measures, and we have created the first-ever National Security and Intelligence Committee of Parliamentarians.

[John Davies]

First, the Civilian Review and Complaints Commission, the CRCC, which is the existing body attached to the RCMP, is the one that was quite concerned that the language in their act, the RCMP Act, was imported over to Bill C-59. They're the ones who brought it up as very important.

I'm not familiar with specific examples where this was used. It's probably more in the normal civilian complaints relative to normal police behaviour, but I thought it was important enough to include just in case there was a need.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Sure. The amendment clarifies that, when investigating complaints, the review agency has access to information that is subject to common law privileges under the law of evidence not otherwise named, such as police informer privilege. The intent was always for the review agency, again, to access this class of information, but making this explicit removes any ambiguity.

Finally, Bill C-58 makes explicit reference to privileges under the law of evidence. This raised the possibility that the absence of such language from Bill C-59 could be interpreted as suggesting a lack of access. This avoids that risk by making the review agency's access clear in legislation.