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]

In your opinion, the Minister of National Defence must remain the minister responsible for your agency, even though Bill C-59 involves some kind of integration that suggests that the Minister of Public Safety and Emergency Preparedness could play a greater role.

As I understand it, you believe that the Minister of National Defence is the one who should take responsibility for the CSE. Is that correct?

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

That's fair enough.

You mentioned the Privacy Commissioner's investigation, but I'm understanding that both your organization and CSIS have also been tasked with looking into that situation, and so in that particular context, when you're doing the research that's prescribed in the legislation where these exemptions exist, notwithstanding section 25, which talks about protecting privacy, would research not be done on, for example, things like Facebook, as part of this information infrastructure? I don't know if that would fall under the definition of information infrastructure, but if you're being tasked with looking into the situation as well, would you not inevitably come across Canadians' information and be allowed to obtain it even if incidentally under what's prescribed in Bill C-59? And under those circumstances, even though it would be in respect of the mandate—I understand that—while I understand you're taking steps to protect privacy, the information nonetheless could be collected over the course of that type of investigation.

Would that not be accurate?

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

The part of the bill dealing with publicly available information specifically exempts the prohibition on targeting Canadians. So you might not be actively collecting it, but you are permitted to collect it as part of the research that's being done under clauses 24 and 25, if I'm not mistaken.

You mentioned information that's hacked or stolen, but under the current legislation, arguably, the information that we're discussing in this particular example—I'm sure there are others that we just don't know of—was not obtained unlawfully. So the work Cambridge Analytica—and probably other companies of that sort—was doing for political parties, for example, was obtaining information through Facebook on people, and that's being done legally.

Would that not fall under publicly available information, if a company like that is able to obtain it? There are no legal repercussions because it's not illegal. Could CSE not do the same thing under those dispositions even if incidentally, as laid out in the law, in Bill C-59?

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

Thank you, Chair.

Minister, it's wonderful to have you here at the public safety committee, so welcome, and welcome back to the officials who are here.

Bill C-59 allows you to conduct active cybersecurity operations against hostile foreign entities. We had some discussion when your officials were here last time about the global infrastructure. I have concerns about how the data of Canadians could get swept up in that, for example, if I'm on holidays in London, England, and you're conducting an operation and I get caught up in that.

You're dealing with strictly foreign entities. What safeguards do we have in place to ensure that you continue to be dealing with strictly foreign entities, as opposed to Canadian citizens?

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

I can assure you that when it comes to the actions that are taken by our government, we are given the appropriate authorities. This gives the Canadian Armed Forces and CSE the authority to act.

The other aspect of what our government has done is to make sure that we have fully funded our Canadian Armed Forces to be able to meet those needs.

More importantly, it gives CSE, within Bill C-59, the legislation to now be able to actively protect Canadians, whereas it couldn't before. Your previous government, at the time of Bill C-51, neglected to do that.

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

That's just the MO of how business is operated. When we go to Bill C-59, part 3 says that you must consult with the Minister of Foreign Affairs.

My question to you is, has the Minister of Defence's role been diminished to being a junior minister to the Minister of Foreign Affairs? If so, why would we want to set that precedent?

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

If we're talking about the abilities then, is there anywhere in the National Defence Act, in comparison to what we're doing here with Bill C-59, that the defence minister has to ask permission of any other minister, and the foreign affairs minister specifically, to carry out any operations?

That's kind of a yes or no. Is there anywhere in the Defence Act that says you need the permission of the foreign affairs minister to conduct any operations?

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

One thing that Bill C-59 will do is to make sure we give CSE the right tools, the legislative ability to be able to leverage their technical ability to keep Canadians safe from all threats and emerging threats.

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

I'm sorry. My policing experience of listening to how people talk and question is coming in here.

I see where you're trying to go with this, and I can assure you, when it comes to the Minister of Foreign Affairs and me, we have a very good relationship when it comes to looking at threats. That's what Bill C-59 is focused on, making sure that we keep Canadians safe but at the same time give Canadians the confidence that their privacy is going to be looked after. More importantly, finally we have CSE being given the ability to leverage their expertise. That wasn't there before, especially when it came to Bill C-51.

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

The Minister of National Defence needs to consult with the Minister of Foreign Affairs, under part 3 of Bill C-59, and will now be junior in that role if the act does come to pass, and will need the advice of the Minister of Foreign Affairs to make decisions. I'm asking right now, given that link, whether he has been advised by the Minister of Foreign Affairs per se. Has he had any conversations with any of his ministerial colleagues? Has he had any conversations with any of his colleagues who are members of the legislative body and not members of the executive with regard to who should or shouldn't appear before a standing committee of the House of Commons?

[The Chair, Liberal, John McKay]

Could you tie that to Bill C-59?

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

Absolutely, and in fact, this is extremely fundamental. I was trying to address that in the answer that I gave about my responsibility with regard to CSE and the military's focus on foreign threats, and that's where CSE's at.

However, with what CSE currently has and with Bill C-59, we'll have additional ability to provide support for other agencies with judicial authorization. I think what's extremely important is making sure that we as a government leverage all the right resources within our government and within the laws. However, at the same time—and I want to stress this immensely, because Canadians expect this—we must have a process in place that respects privacy and transparency. This is something that hasn't happened before. More importantly, we are the last Five Eyes nation to finally come up to that transparency level.

Greta, do you want to add anything to that?

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

Thank you, Mr. Chair.

Thank you to the Minister and to the officials for being here today.

My questions will focus on Bill C-59 and cybersecurity.

First of all, Minister, you said in your comments when you opened things that cyber-operations “would be subject to strict statutory prohibitions against directing these operations at Canadians, any person in Canada, or the global information infrastructure in Canada, and would require a robust approval process.” To me, that's very much in line with democratic principles, but could you speak to the importance of that, to ensuring that when we have legislation, when we're talking about CSE and its powers, that those powers are consistent with democratic principles?

[The Chair, Liberal, John McKay]

At this point, Minister and Mr. Motz, the phrasing of your current question has almost nothing to do with Bill C-59. I'll just point out that we've not yet passed this as legislation, so it's not—

[Harjit S. Sajjan, Liberal, Vancouver South, BC]

When it comes to threats on a daily basis around the world, I look at making sure that, as Minister of National Defence, I have the right resources in the right place to make sure that we're able to interpret the various threats. That's what we'll continue to do. That's what Bill C-59 is about.

On this point—