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.

National Security Act, 2017

[Pam Goldsmith-Jones, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. Speaker, this is an issue that every member of the House is seized with today, and we are grateful to Canadians for drawing this to our attention.

There is nothing more important than our children and their safety and security. As a result, I would like to address a couple of aspects of the legislation. We know Canadians are very concerned about their rights. Freedom of expression, the right to life, liberty and security of the person, and the right to be secure against unreasonable search or seizure are at the forefront of this legislation. This is one aspect of that.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, we find ourselves in an unusual situation with respect to the legislation actually going to committee in advance of second reading. We have not seen this in the House before. We just heard an NDP member ask for the Speaker to rule on certain aspects of the legislation with respect to it being an omnibus bill.

Is the reason this is going to committee in advance of second reading so members of the Liberal committee can basically ram through some of the changes they want? We do not have much faith on this side that in fact some of the suggestions, and the very valid suggestions, to change and amend the legislation are actually going to be heard by the members of that committee. Is it not a ploy on the part of the government to deal with this not in a manner that is usual, but unusual? I am interested to hear the member's comments on that.

[Pam Goldsmith-Jones, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. Speaker, what Canadians do not have confidence in is Bill C-51. This has been an exhaustive consultative process, and we are very grateful to those who have spoken up for how Canadian legislation can balance safety and security with rights and privacy.

The fact that this is being considered in an unusual way is a reflection of our deep commitment to open accountable, transparent, and, above all, consultative government. I certainly hope this will go to second reading, and then of course it will return to the House for debate.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, given that my Liberal colleague says that people had misgivings about Bill C-51, I would like to know why the Liberal Party voted for it at the time.

As for torture, if the Liberals are against it, why did they not change the directive so that information that may have been extracted through overseas torture would no longer be accepted?

[Pam Goldsmith-Jones, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Mr. Speaker, I am very happy to be reminded of the reason why many of us put our names forward in the last election, and that was to stand up for Canadians. Certainly, Bill C-51 was a big part of that. I did not vote for that. It is a priority for our government. I am very much in support of Bill C-59.

[Peter Kent, Conservative, Thornhill, ON]

Mr. Speaker, the legislation before us, Bill C-59, is a huge piece of legislation. It goes far beyond the Liberal campaign promise to unwisely roll back a number of elements of Bill C-51, a bill that the Liberals supported when they were the third party in the House. I will say more about that in a moment. Bill C-59 is a multi-faceted attempt at the largest, broadest, and deepest redrawing, remodelling, overhauling, and consolidation—call it what they may—of Canada's national security laws in three and a half decades. It is, by any definition and any measure, an omnibus bill. Bill C-59 would create three new acts and would make significant changes to five existing acts. As my colleague from Barrie—Innisfil noted, the official opposition reserves the right to comment after the Speaker's decision on the NDP motion to separate.

In its complexity, Bill C-59 can only be described as an imperfect bill. There are good elements, which we in the official opposition support, but other elements that we strongly oppose. Similarly, Bill C-59 has been characterized by experts, at least by lawyers, academics, and others who have long studied and opined on national security issues, in a variety of ways, that it would resolve some problems and would ignore others. It would create some entirely new ones. Its elements are a combination of roses and thorns, and a firmly held criticism by the official opposition that two sections would actually weaken Canada's national security agencies and their ability to keep Canadians safe. The current Liberal government would make it more difficult for law enforcement and security agencies to prevent terrorist attacks on Canadian soil. Instead of combatting radicalization and cracking down on those who promote terrorism, Bill C-59 would create loopholes that advocates of terrorism could easily exploit.

With regard to the details, part one of Bill C-59 would create what is described as the centrepiece of the legislation, what others more colloquially describe as a super intelligence agency. It would be called the national security and intelligence review agency. Under its acronym, NSIRA, it would be assigned to review and report on the lawfulness of all national security and intelligence agencies across government. It would investigate complaints against the Canadian Security Intelligence Service, known by its acronym CSIS, complaints against the Communications Security Establishment, CSE, and complaints against the Royal Canadian Mounted Police. NSIRA would be intended, the Liberals tell us, to work with the new committee of Parliament, the National Security and Intelligence Committee of Parliamentarians. The new agency, like the parliamentary committee, would report annually to the Prime Minister. This last point, for me, is another point of concern. On this side of the House, we would have preferred to have had these reports made directly to the Houses of Parliament rather than being filtered through the Prime Minister's Office.

Part 2 of Bill C-59 would establish what is described as an independent, quasi-judicial intelligence commissioner, who would assess and review ministerial decisions regarding intelligence gathering and cybersecurity activities. Our concerns here flow from the procrastination and delays by the Liberals, more directly by the Prime Minister's Office, to fill vacancies across a range of close to a dozen existing commissioner positions, the last time I looked. These are delays that have more to do with the PMO's misguided intent to socially engineer with partisan overtones these arm's-length positions rather than to appoint by talent and qualifications.

Moving on, parts 3 and 4 of the bill are said to respond to concerns about charter consistency of the mandates and the powers of CSE and CSIS. However, part 4 would strip an important element of Bill C-51, passed by our previous Conservative government in 2015, an element that gave CSIS new authority to disrupt terrorist threats. The Liberals supported Bill C-51 in 2015, though they vaguely committed to roll back what they called problematic parts. They certainly have, caving in now in Bill C-59, to seriously restricting the ability of CSIS to conduct disruption actions to certain specific actions, and only unless and until officers and operatives follow a burdensome process to obtain a judicial warrant ahead of time.

This list would include many of the routine elements of undercover intelligence work, such as impersonating a criminal; fabricating documents, for example, to support such a character impersonation; or misdirecting an identified threat individual to a meeting with co-conspirators. Forcing judicial warrant conditions into suspect terror or intelligence investigations imposes serious new burdens on law enforcement and could very well compromise time-critical efforts to thwart terrorist attacks.

Part 5 of the proposed act is an important part that commits to clarifying disclosure and accountability provisions in the newly renamed security of Canada information disclosure act. This should see the end of departmental and agency intelligence silos, and a more effective sharing of information that is critical to threats to national security. We will see.

Part 6 attempts to bring greater coherence to the no-fly list, where children and adults get red-flagged as false positives because of names shared with threat-identified individuals. However, these improvements are very slight and imperfect. Thousands of Canadian families are still stuck in limbo because their names appear, or the name of a family member appears, on the no-fly list.

Part 7 is another section which we firmly believe seriously weakens public safety by minimizing certain terrorist activities. It removes the advocacy and promotion of terror as a criminal offence. It replaces it with what is characterized as a more targeted general counselling offence for terrorism offences, whether or not a specific terrorism offence is committed or a specific terrorism offence is counselled. As well, part 7 would make it harder for police to pre-emptively detain people without a criminal charge.

The power of making preventive arrests, a sometimes life-and-death tool for officers and operatives, is now limited to situations where such an arrest would be necessary to prevent terrorist activity. Under our previous Bill C-51, the threshold was that such an arrest would be likely to prevent terrorist activity.

The Conservative Party has always taken very seriously the safety of Canadians, as threats to this country's security have evolved and deepened in this age of international terror. We recognize the importance of updating our national security infrastructure and practices. We support the preamble of Bill C-59 as a worthy rationale to reducing the ability of courts to strike down convictions on improperly applied charter grounds.

We also strongly oppose, and I cannot say this too often, parts 4 and 7 as an unacceptable weakening of public safety, and the watering down of provisions in Bill C-51 that helped law enforcement officers and agencies to keep Canadians safe.

In conclusion, Bill C-59 is a complex bill, and it is certainly, by any measure, an omnibus bill. It would create three new acts, and it would make changes to five other existing acts.

As I said earlier, we in the official opposition reserve comment on your ruling, Mr. Speaker, in the fullness of time, and we hope it is a relatively short period of time, to make a decision on the NDP motion to separate.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I am sure my colleague across the way would recognize, or at the very least would acknowledge, that when we dealt with Bill C-51, a significant amount of concern was shown by Canadians. When we were in opposition, we pointed out to the government that there were certain areas that needed to be addressed. What we have before us today is, in good part, a response to some of those issues that were raised when we passed Bill C-51. The present Prime Minister made some commitments to Canadians leading up to the last federal election, and this legislation deals with some of those commitments.

Why does the Conservative Party not recognize that what we are witnessing today with respect to this legislation, which hopefully will go to committee at the end of the day, is the fulfillment of some significant commitments made by the Prime Minister during the last election. We then incorporated additional aspects into the legislation to deal with the concerns related to independent rights and freedoms, while dealing with the issue of security at the same time. Would the member not agree that we can do both at the same time?

[Peter Kent, Conservative, Thornhill, ON]

Mr. Speaker, I thank my hon. colleague for attempting to put the government spin on the treatment of Bill C-51 and what it considers to be reasonable changes, which we, as I said, feel weaken crime-fighting and intelligence agencies in protecting national security. At the same time, we would have preferred to see the changes to Bill C-51 in stand-alone legislation, not folded into or buried in this omnibus bill, which creates three new agencies, changes a number of other acts, and across the board has some serious issues that we in the official opposition simply cannot support. There are good elements. The preamble to the act does lay out very clearly some protections against a judicial finding of error with respect to decisions by security agencies. However, we consider it to be a deeply flawed bill.

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

Mr. Speaker, I certainly appreciate concerns about omnibus bills. However, I recall very clearly in the 41st Parliament when we received Bill C-51, getting it on a Friday, taking it home to my riding, reading it with increasing levels of panic and concern throughout the weekend, and being the first member of Parliament to oppose it in this place.

Therefore, putting aside for the moment that we know we disagree on Bill C-51, I ask my hon. colleague if it was not also an omnibus bill. It had five parts. Each part of Bill C-51 dealt with a different aspect of security. Part 1, with respect to information sharing, was unfortunately not about information sharing where we need it, which is between and among security agencies, but sharing information with others about Canadians. Part 2 dealt with aspects of the no-fly list. Part 3 was about this bizarre, undefined notion that we could ban the promotion of “terrorism” in general. Part 4 was the massively expanded powers for CSIS. Part 5 amended the Immigration and Refugee Protection Act. Within each of those five parts, numerous acts were amended and changed. I would have preferred to see Bill C-51 split up into the five parts that were presented to us as one bill, but I do not recall my hon. colleague agreeing that it should have been split up. Where does he see the difference between this omnibus bill and Bill C-51, that omnibus bill in the 41st Parliament?

[Peter Kent, Conservative, Thornhill, ON]

Mr. Speaker, while I thank my colleague for her question, I think it should more appropriately be asked to the current Liberal government. This Parliament is not debating nor considering Bill C-51, which was passed with the enthusiastic support of the Liberal Party when it was the third party. The Liberals, en masse, as the third party, stood in support of Bill C-51. I would suggest to my hon. colleague that she should more appropriately question the shortcomings of this act, not look back to past Parliaments.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, one cannot help but look to the past to see how we got here today with this bill, Bill C-59, because it really comes from the framework of Bill C-51. It is one of the reasons New Democrats will be opposing this bill, just as we opposed Bill C-51. At least we had an honest debate with the Conservatives about our position on Bill C-51, whereas the Liberals said they had concerns but then voted for Bill C-51, then later ran on a platform to get rid of Bill C-51.

Now we are stuck with Bill C-59. Their objective is clearly to muddy the waters so much that nobody will be able to follow this outside of the House of Commons, aside from experts in security intelligence. People are having to follow House of Commons debates on a regular basis, which is very difficult to do when there are so many things happening.

There still is interest out there. The bottom line is whether the privacy of Canadians will become unhinged by national security issues that undermine our civil liberties. When I look at some of the perspectives of Conservative members on civil liberties, I am, quite frankly, surprised that in this case, with Bill C-59, they do not have more backbone to raise issues about that balance, especially given the fact that one of their members, who very much has a strong civil libertarian background, nearly became leader of their party.

I can say this much about Bill C-51. Civil liberties and privacy are essential for a modern and functioning democracy. One of the continuing concerns with Bill C-59 is the assembly and distribution of personal data. It is real. There are people, such as Maher Arar and others, whose lives have been turned upside down because their personal information was used in a way that exposed them, their families, their business and personal contacts, and the people in their lives. It was an organized decision by our government agencies, the RCMP and CSIS, to exchange information with foreign powers related to that personal, private information. As Bill C-59 goes to committee, the Privacy Commissioner has expressed those concerns.

There are several cases in Canadian history where this has been germane to the concern people have about their privacy. I would argue that it has become even more difficult for individuals because of the use of electronic information for everything from taxes, to banking, to social exchanges, to employment. It is not as if this information is captured and stored in a vault somewhere that has very little exposure to third parties. The reality is that there are breaches. Other governments are actively attempting to break through Canadian databases on a regular basis, even countries we supposedly have decent relationships with in terms of trade, commerce, and discourse. There are attempts to abuse Canadian privacy.

Numerous mistakes have been made, over decades, when Canadians' personal information has been released by accident. I point to one of the more interesting cases we have been successful in. It showed the malaise in government. It was when the Paul Martin administration of the Liberals outsourced data collection for our census to Lockheed Martin through a public-private partnership. Basically, the Canadian census data collection component was outsourced to an arms manufacturer, which was compiling our data at public expense, because we were paying for it. When we did the investigation, we found that the information was going to be compiled in the United States. That would have made that information susceptible to the USA Patriot Act, back in 2004 or 2006. That would have exposed all our Canadian data, if it was going to be leaving the country.

Thankfully, a lot of Canadians spoke out against that. First, they had personal issues related to an arms manufacturing company collecting their personal information, especially when that company was producing the Hellfire missile and landmine munitions, when Canada had signed international agreements on restricting the distribution of those things. They also felt that the privacy component became a practical element with it moving out of the country. Thankfully, that stopped, and we amended it at that time.

The Government of Canada had to pay more money to assemble that data and information in Canada, so it cost us more. What the Liberals were trying to do was export the jobs, ironically, outside the country. The vulnerability of the Canadian data we were paying for was out of the country, then we had to pay a premium to bring it back and keep it in the country. That practice has ceased. We recently had the innovation committee confirm that, when the census committee came before us.

With Bill C-59, I still have grave concerns about the Security of Canada Information Sharing Act. It appears that most of the changes are going to be cosmetic. The Privacy Commissioner has alluded to that as well. When CSIS and other government agencies have that information, when is it scrubbed when it is provided? When is it no longer used? When is it no longer stored? When can it potentially be exposed by accident or for a reason?

Bill C-59 would put several laws in place. I want to note that there was extensive public consultation on it. The reality is that Bill C-51 was criticized by civil liberty advocates in “Our Security, Our Rights: National Security Green Paper, 2016”. The public feedback we had from that review was related to people's personal privacy and how it would be used.

I want to make sure we are clear that this is not a mythological issue. It has actually been noted. On November 26, the Federal Court issued a ruling on CSIS bulk data collection. The electronic data of people over a 10-year period was clearly something that concerned Canadians.

Unfortunately, we have not come to the realization that Bill C-51 was a flawed bill from the get-go. It was not a bill New Democrats could support, and Bill C-59 would just put a mask over that bill.

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

Mr. Speaker, I thank and commend the hon. member for Windsor West for his thoughtful speech. I certainly thank the New Democratic Party caucus for joining me in the 41st Parliament in opposing Bill C-51.

I think there have been substantial improvements made in Bill C-59. I think we would all agree with that, but I remain very concerned that the powers are overreaching for CSIS agents to seek a court order from a single judge that would allow a warrant for a constitutional breach. I have raised this in briefings we have had with officials. Officials claim that the language in Bill C-59 would mean that they could not get a warrant that violated the Constitution and the charter, but the language in the bill itself appears to negative that proposition. It appears that it would still allow CSIS agents to receive a warrant that would allow them to violate our Charter of Rights and Freedoms.

I know that I am diving into the details of the bill, but it would take a lot of study. Many sections are very much improved, and the government deserves commendation for those sections, but these are the ones that chill me to the bone in terms of how our democracy functions and whether we allow security agents to obtain a warrant to violate our Constitution.

I wonder if my friend for Windsor West has any comments.

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, the hon. member is getting into some of the details, but I think the details are very important. When we start to look at the practical applications of those details and how it affects people's lives, it is a very pertinent and important question and very much germane to what I am concerned about with regard to personal privacy.

The member is absolutely correct with regard to the language. There is a contradiction there, which can become a discretionary call. We saw this before with the Maher Arar case and then other cases. If there are no clear, explicit rules for understanding how to move on an actual item of information or an individual, it can create immense complications for them. I know for a fact that when CSIS agents have decided, for whatever reason, and sometimes they are good reasons, I am assuming, to interview or intervene with a family in Canada, it is almost impossible to do so without the community knowing in one way or another. Even the most innocent elements can have a disastrous effect on a family and the perception of that family in the community. This is one of the reasons we cannot have these grey areas or contradictions that are in the legislation right now.

I come from a community of 200,000 in the general Windsor area. The greater Windsor area is larger than that. I can tell members that if there is some type of engagement with a family by CSIS, it gets beyond the personal boundaries, which can be quite complicated. Fishing expeditions, if they become that way, can have traumatic repercussions for families, including their children.

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

Mr. Speaker, I thank my colleague from Windsor West for his speech.

I share many of his worries and concerns. For instance, in November 2016, the Federal Court issued a rather scathing decision on the fact that for 10 years, CSIS had been storing thousands of pieces of personal information on average, ordinary Canadians who were not even likely to be investigated and who posed no threat. The Liberal government decided not to appeal the Federal Court ruling. However, in Bill C-59, the Liberals are making legal what was ruled illegal by the Federal Court, namely storing personal information for very long periods of time on people who are not being investigated and who pose no threat to national security.

What are my colleague's thoughts on that?

[Brian Masse, NDP, Windsor West, ON]

Mr. Speaker, we have to ask what the repercussions of all these breaches are.

Our men and women who are serving Canada so well in our intelligence agency and our law enforcement agencies need specific, clear rules, which cannot be reinterpreted, to do their jobs with such sensitive casework and files. I am concerned that Bill C-59 would not provide that framework and could undermine, quite frankly, what is necessary, which is confidence for them to be able to do their jobs, integrity with regard to privacy, and repercussions if there is a problem.