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.

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

Mr. Newark, just to reiterate what you said earlier about the current provisions that Bill C-51 put in place where it is an offence to broadly counsel someone to propagate terrorist propaganda. This means that in a particular case somebody who is propagating terrorist propaganda could unknowingly influence somebody to commit a terrorist act without that person who is propagating the propaganda even knowing that somebody was going to commit the offence.

Let me get to my point. Bill C-59 is proposing that somebody would only be charged if they had counselled somebody, which means that somebody would have to commit the act, and we would have to trace that back to whoever counselled them, whereas the legislation as it currently exists could stop the person from propagating the terrorist activity in the first place, thereby preventing the activity from happening.

Is that a fair assessment?

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

Thank you. I have two questions that I'm sure will consume the entirety of the five minutes.

The question that I have for you, Mr. Day, is in regard to the turf battles. Do you believe that Bill C-59 creates an environment that will mitigate these turf battles, and if not, what do you suggest?

Mr. Newark, my question for you falls along the line of our knowing what our allies are doing around the world. We've seen the history book play out in advance for them with attacks that have happened in places like the Brussels Jewish museum. We've seen what's happened in Europe in 2014 and 2016. With all the attacks that have happened, Belgium expanded the definition of what constitutes a terrorist offence, and lowered its threshold for conviction in line with the 2014 UN Security Council Resolution 2178 and the 2016 European Union directive on terrorism.

In fact, one of these returnees was identified in Belgium. Once one of these returnees is identified by the Belgium authorities, they are systematically arrested and presented to an investigating judge. In Germany now, in every case of a returning foreign terrorist fighter, the prosecuting authority opens a criminal investigation immediately.

What are we doing so terribly wrong on this issue of returning foreign fighters that could or should be included in this bill?

I'll let Mr. Day go first, and then Mr. Newark, please.

[Scott Newark]

As I said at the outset, the definition that is used in Bill C-59 as far as I'm concerned is the same definition used in section 22 of the Criminal Code, which means we're just duplicating something. It's not there. When I look at the wording on this one, I think you will find that both police and prosecutors will come to the conclusion, and certainly defence counsel, and probably judges, that there is a higher evidentiary standard required, targeting more specific action and targeting an identifiable individual. Especially because of the relevance of the promotion of terrorism and radicalization online that we were just talking about, for example, that is a more precise and more applicable definition. Those standards, by the way, are basically the standards that are in place in the sense of the definition of what you have to do on the hate crime sections, section 318 and section 319. For me when I looked at it, I didn't understand why the change was being made, and that always rings an alarm bell for me.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

Mr. Newark, in your article, “C-59: Building on C-51 Towards a Modern Canadian National Security Regime”, in part 7, with respect to the terrorist definition you say, “Hopefully, the Government will be closely called on to explain its actual purpose in making this change, which will almost certainly handicap the carefully crafted and scenario-relevant tool that is the current [section 83]” regarding promotion and advocating terrorism.

The minister came and explained that the definition under Bill C-59 was so vague and so wide that it was inapplicable. Therefore we decided to modify it in order to be able to apply it because nothing happened under the old definition. What is your view on this comment?

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

Thank you for that. Time is limited. I want to ask one more brief question.

General Day, on the questions of artificial intelligence and potentially also quantum computing, how confident are you that Bill C-59, in 2018, is a flexible enough framework to address unknown unknowns that may come at us through the cyber domain in those two areas?

[LGen (Ret'd) Michael Day]

If I may, we have to be careful about the use of a label of “a terrorist”. In the United States, they don't like to use it when it's a white male. It seems unfortunate for them, but it's merely a label of convenience. The act itself was designed to terrorize a certain population, etc.. I think you can get really caught up with terrorism. America has a very distinct use of that, and it needs to be foreign based before it's terrorism. Language is important here.

With regard to what happened in Canada, etc., we have to be careful. When you look worldwide, the vast majority of—to use the broad definition—terrorist threats are actually domestically originated and not from outsiders coming in.

That's why I said that the security in Bill C-59 tends to have a colour or a focus, a lean towards this idea that we're protecting a border. I'm not convinced that the borders exist when it comes to that kind of security; hence, my previous comments.

[LGen (Ret'd) Michael Day]

I could maybe make a couple of comments about the strategic piece. I work with Dick Fadden quite regularly, and I'm aware of his views. I would support them.

We tend to be focused on, quite frankly, not just the smallest numerical threat in terms of the number of foreign fighters, again who fall along a continuum.... Not all of them are true threats, some of them are incredibly significant threats. However, it tends to obfuscate or blind us to the reality of homegrown terrorism and the networks to which they're connected. I am not yet seeing...and quite frankly there continue to be inhibitions or obstacles to associating those two network pieces.

I think we have to recognize the difference and the blurred line now between state and non-state actors, not just in the cyber domain, but quite frankly in the information domain writ large, and the fact that they have a variety of different aims. Some of them are about security, some about gaining advantage, some of them are commercial-industrial, and some are political. Some of them—if we look south of the border and what they're affecting—are merely to disrupt and create chaos.

I am concerned that current legislation, although it is targeted towards a specific area and is necessary, by itself is insufficient.

We need to have a more holistic look. I'm not proposing that they would all be rolled into Bill C-59, but rather there should be a series of actions and legislation that deal with the whole panoply of threats that Canada faces on an ongoing basis.

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

Thank you both for being here.

I want to pick up on the exchange you had with colleagues on the other side regarding the strategic threat setting for this bill. This morning, we had Mr. Fadden in front of the Standing Committee on National Defence, and Mr. Fadden testified last week in front of this committee.

This morning, he said that one of the threat vectors that he's most concerned about—and it echoes your conversation a few moments ago—is the multiplicity of terrorist organizations with considerable reach. You spoke about the 120 returning ISIS fighters, or whatever the number is.

What else is there in the strategic threat setting that Bill C-59 in 2018 seeks to address beyond returning ISIS fighters?

[Scott Newark]

I provided my opening remarks, and as well, the actual paper that I wrote for the Macdonald-Laurier Institute and a couple of other papers to the committee, so you will have access to that.

I totally agree with respect to border issues not being really included. I don't think that was the intent, frankly, in the drafting of Bill C-59 and fair enough, you use other legislation. But there are so many things that could and need to be done in my opinion. I wondered when you had your last witnesses here including from the RCMP, who had some unusual remarks in my opinion, but they're not so much legal as they are practical.

Do we have a bad guy lookout system in place supported by face recognition biometrics? I know this may come as a surprise but the bad guys use phony ID. Why are our border officers not allowed expressly to be doing enforcement work between ports of entry? It's ridiculous. We need to renegotiate the safe third country agreement.

Let's me clear, obviously you can call it global migration or human smuggling but it's not an accident that these people happened to coincidentally.... More than 50% of them by the way, in these latest waves, were not just people who were Haitians expecting that they were going to leave the United States but people who had actually lawfully obtained visas to come to the United States to illegally enter Canada. That should raise an eyebrow. Why is that? The word is out essentially that it is something that can be done.

What I would suggest is that there are so many issues that are involved in this. It merits a separate study and analysis and not necessarily tacking things on to Bill C-59, because there are enough other things in Bill C-59 that are legitimate but our border security issues I think.... We haven't completed the commitments in the Beyond the Border program or the border integrity technology enhancement program for border surveillance technologies. Those are things that absolutely need to be done.

As I say, the bad guys tell us what they're planning on doing. Remember when this all started and there was a flow of refugees into Europe and they said, we're going to embed our people in amongst them. There was a report out last week from the EU about that fact of those people retuning. That's something we need to pay attention to.

On the final last point just about this, I thought that the Immigration and Refugee Board has done a pretty good job of releasing statistics on the numbers of people who have been ruled inadmissible or timelines and things like that. The one statistic that you don't see is how many people have actually been removed? In our system that's different from being ordered removed.

That's information that is available and it would be a good idea to actually get it because our system in my experience is too bureaucratic and process focused. Process is supposed to serve purpose. If I could add an insight from a career in law enforcement, all too frequently it doesn't, especially in border issues.

You'll see a whole list of recommendations, sir.

[Scott Newark]

As I say, the biggest one I have questions about is the terrorism propaganda. To circle back and answer, precisely because the proposed definition is section 22 of the Criminal Code—which is counselling another person to commit a criminal offence—the way I read the language of that, in effect that offence is already there.

I guarantee you, sir, that if that wording is used, there will be occasions when defence counsel will come to court when somebody is charged, and ask, “Who was it that he was counselling to commit the offence?” If you don't have another person involved, you aren't able to prove the offence.

That compares to the general notion, which reflects the reality of what we're dealing with now: we know that what would be included in the definition of terrorism propaganda is what is being used in radicalization, recruitment, and facilitation, including and especially in domestic circumstances. That's what we're actually facing.

To your point, though, about the larger issues, I'll go back to what I said before. I actually think there are things in Bill C-59 that help us deal with the reality of returning jihadis. The most important thing is that the government did not change the evidentiary level in section 810.011, the terrorism peace bonds. It's still “may commit”. Had that been raised up to “will commit”, that would have put a much more significant barrier on things.

The other thing that is very important in this bill is the provision that requires annual reporting on the number of peace bonds that are actually used, and also a five-year reporting on the impact of the bill itself. In my experience in government, that tends to bring about accountability. I assure you that if those provisions are included, throughout the different offices of the security branches and agencies there will be whiteboards going up with people writing on them, “Okay, I'm responsible for this. I've actually got to deliver this.” That's a good thing, because I think accountability tends to produce results.

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

Thank you, Mr. Chair.

Thank you for being here this morning, gentlemen. Your input is very valuable.

Mr. Newark, this week, public safety officials appeared before this committee with regard to Bill C-59. They said that the bill would create a flexible framework that could respond to emerging threats. Yet the bill says nothing about returning Islamic state fighters. It says nothing about fighting the emerging threats from Russia and China. Nor does it say anything about modernizing our ability to control the funding of terrorism.

Leaving aside the creation of a new review agency and the part-time position of commissioner, and the implementation of the CST and the National Defence Act, the wording of this bill is unnecessarily complex and shows little intent to take the security of Canadians seriously.

Mr. Newark, you talked about the cyber threat and changes in terrorist propaganda. In your opinion, what key feature is missing from the bill?

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

I don't mean to cut you off.

You alluded in your remarks to your concern about the speech crime provision in Bill C-51 being modified under Bill C-59. I was reading a piece that you wrote—it might have been for iPolitics as a matter of fact, back in the fall—where you pointed to your opposition to this.

Just for the record, under Bill C-51, it was a crime for one to “knowingly advocate or promote the commission of terrorism offences in general”. Under Bill C-59, this has been replaced with something much more common in criminal law: “counselling another person to commit a terrorism” act.

I have read your criticism, so I want to jump immediately to ask you a question about how the offence was phrased in Bill C-51. Take the example of a journalist or a group of protestors who were supporting a group—now the times don't align here but I think you'll appreciate the example—of anti-apartheid activists, under the ANC and under Mandela. You know very well that, particularly in the early history of their activism against apartheid, they advocated for non-lethal attacks on public infrastructure.

Now if a journalist here in Canada were writing in favour of that kind of an approach—again, the anti-apartheid movement was one of the most important struggles of the 20th century—it's entirely conceivable, and I'm not the only one to use this example, that they could have been charged under the wording in Bill C-51.

To shift now, to pivot to a counselling offence, doesn't this clarify and bring greater understanding to what is permissible and what is not permissible?

[Scott Newark, Policy Analyst, As an Individual]

Thank you very much, Mr. Chair. It's good to see you again.

I'd like to thank the committee for the invitation to appear before you with respect to this very important Bill C-59. I've had the opportunity to follow some of the proceedings and to read some of the transcripts, and it's very encouraging to see the depth and substance of the questions asked of the individual witnesses who are appearing, including with different perspectives.

I've had a long history, and I was thinking about it before I came here today. It's been almost 30 years, I guess, since I first testified before a parliamentary committee. I was a crown prosecutor from Alberta, and as I put it, I got tired of tripping over the mistakes of the parole system in my courtroom, and realized that the only way to try to change it was to change the laws. That meant coming to Ottawa, because we were dealing with federal correctional legislation. I was appearing before parliamentary committees where I exposed what had happened in a couple of cases.

The important work of the legislative branch struck me then, and it has remained with me throughout. That sometimes gets overlooked, and depending on how things are being handled at the executive branch of government, the really important and critical analysis that committees can do is quite significant. A bill like this is a very good example of that, because you can have different opinions about things on different subjects, but you have the ability to ask questions and to try to elicit information to analyze whether or not the intended results are going to be achieved by the legislation in the way that it's drafted or if other things need to be done. That is particularly true, I think, in relation to legislation like Bill C-59, which is obviously pretty complex legislation and deals with a whole lot of subjects.

In fairness, the discussion itself has raised issues that are not contained in Bill C-59. I think a very encouraging sign was the way that the government sent the bill here in advance of second reading so that you could have input and suggestions on other subjects. I have some suggestions to make on things like that. I must admit, though, that I would suggest that it probably is a better idea, simply from a procedural perspective, to confine your recommendations to the specifics of the bill, and perhaps, in an ancillary report, make suggestions on other subjects rather than adding huge new amendments to sections and opening up different issues that are not specifically contained in Bill C-59. There's so much of value in Bill C-59 that it's a good idea to move it forward.

My presentation today will touch on essentially three aspects. The first is just to take some examples of things that I think are notable and quite important in Bill C-59. I also have a couple of comments on things, and one in particular I have a problem with, but I suppose, to put it in a larger sense, they're just ones where I would suggest you may want to ask some questions and make sure you understand that what you are anticipating is the case is, in fact, the case. Then, because the minister has invited suggestions on other issues, if we have time—and probably not in the opening statement, but during questions and answers—I have some suggestions on other issues that I think might be of interest.

Let me just give you a little bit of background as well on my personal experience in this, because it impacts on the insights. As I mentioned, I was a crown prosecutor in Alberta. Ultimately, because of one of the cases I was involved in, in 1992 I became the executive officer of the Canadian Police Association. This is the rank-and-file police officers, the unions. We were involved very heavily from 1992 to 1998 in criminal justice reform, policy advocacy. It was from that, in particular, and my work as a crown prosecutor, that I got the sense of the importance of learning from front-line operational insights how you can then shape legislative or policy tools so as to achieve desired outcomes.

Also, not everything needs to be done by legislation. There are frequently instances—and I was struck by this as I was watching some of the evidence from some of the witnesses that you've had—where we don't necessarily need new laws. We need to enforce the ones we already have, and we need to make sure that the tools are in place to use them appropriately. There are some examples of that, I think, in Bill C-59 specifically.

I ended up working with the Ontario government in 1998 as an order in council appointment. That government had intended to achieve some criminal justice reforms, and they weren't getting it done, so they wanted some people with some understanding of the justice system.

After 9/11, I was appointed as the special security adviser on counterterrorism because of some work I had previously been involved in. I had significant interactions with Americans in relation to that. In the old days, it was the Combined Forces Special Enforcement Unit, which became INSET. I had a role, essentially, in being the provincial representative in some of the discussions, and I saw the inter-agency interactions, or lack thereof, and the impact that potentially had.

Since then, I'm actually one of the guys who did the review that led to the arming of the border officers. I still do work with the union on policy stuff. I also do some stuff with security technology committees. The value of that is that you get an understanding of some of the operational insights and what is necessary to achieve the intended outcomes.

I should add, I suppose, the final thing. Last year, I accepted a position at Simon Fraser University as an adjunct professor. I know you'll be shocked to hear that. It's for a course they offer, a master's program, the Terrorism, Risk, and Security Studies program. The course I teach is balancing civil liberties and public safety and security. To go on from a point that the general made, I think the case is that these are not either-or situations. We are fully capable of doing both, and there is a balance involved in this. As a general principle, it is a very good idea, when you're looking at what is proposed in legislation, especially in legislation like this which has national security implications, to keep in mind the general principles of protecting civil rights.

There are two points about that. You'll notice that in “civil rights”, “rights” is modified by “civil”. In other words, they are rights that exist in the context of a civil society. That has ramifications in the sense, I think, of what citizens are entitled to expect of their government. I don't want government intruding on my privacy, but, at the same time, if government has the capability of accessing relevant information and acting on someone who is a threat to me and my family, I expect, under my civil right, that, in fact, government will do what it needs to do to extend that protection.

The other side of that—and I know, Monsieur Dubé asked many questions about this, as did other members of the committee—is the importance of looking at it generally, at what is proposed, to see that there is, in effect, oversight initially and, as well, appropriate review so that the balancing can take place. In my opinion, and more accurately in my experience, having the executive branch reporting to itself for authorization is something that should raise a red flag. There are provisions within the act that ultimately address that, although there are some that raise some questions about it.

In the very brief time left, let me just say that I think that among the important things in the legislation are the extensive use of preambles and definitions about the importance of privacy and what we would generally call civil rights in consideration of why we're doing things. That, I think, was a deficiency in Bill C-51. I can tell you that it is critically important in today's charter world to make sure that is included so that the courts can consider whether or not what was being done by legislative authority in fact took into account the charter issues. A rule of statutory interpretation is “thou shalt consider the preamble in a statute when actually drafting it”.

With one minute left, I think probably the most important operational aspect of this bill is the proactive cyber-activity authorized to CSE. That is a reality of the world in which we live. We are totally cyber-dependent, which also means we have enormous cyber-vulnerabilities. Cybersecurity, in effect, has been an afterthought. This is a step; it is not the complete answer. I do some work in the cyber field as well, and that is something that I think is extremely important.

The one issue I would raise, in closing, which I have a concern about specifically, is in relation to the change in what I think is the evidentiary threshold in the terrorism propaganda offence. I can get into that in more detail, but my concern is, essentially, that it may be making it, for no good reason, no justifiable reason that I can see, harder to use that section, which has extreme relevance now in the changing domestic terrorism environment in which we are living.

I look forward to answering any questions and, hopefully, touching on the other subjects.

[Lieutenant-General, Retired) Michael Day (As an Individual]

Thank you very much, ladies and gentlemen. I appreciate the opportunity to speak in front of this committee.

First, let me say how encouraged I am that Canada, in the space of just a handful of years, has had two bills on national security. Content notwithstanding, the actual debate we're having helps improve...including the choices that we will be deliberately making as a country to either diminish or enhance our security, and I accept that there's a trade-off.

I come at this issue not just from my time in uniform in our special forces community, but also having been the senior uniformed officer responsible for international security in the Department of National Defence as well as being the chief strategic planner. Subsequent to my retirement, I have remained involved in this area, specifically working in the high-tech sector as well as in academia.

As part of the broader issue, I would wish to have my opening comments focused on three specific challenges. First of all is the trade-off between privacy and security, between the charter and the reasonable measures to protect Canadians. This is not, from my perspective obviously, a binary issue, or one that should be looked at as absolutes, but rather a dynamic relationship that should remain constantly under review. We should embrace that tension as opposed to pretending it doesn't exist, with a conversation being seen to have value in and of itself.

Second, there are the unavoidable challenges that are presented with dealing with intelligence and admissible evidence, quality information. This includes the provision of a coherent picture to policy makers. No policy or law will be able to solve this conundrum, however, better processes and deliberate case-by-case choices can be made to better inform our way ahead. I believe those are lacking. I believe this starts with a more coherent, joined up, centrally directed intelligence construct, which is mirrored in other countries, but quite frankly, not fully realized here in Canada. I'll address this a little later. Although this will be debated by many, the gap can be simply defined by the lack of one accountable minister—who is not the Prime Minister—in one department, responsible for the synthesis of a national perspective. The current construct through PCO lacks both authority and reach but most certainly process. The consequences are that we have government officials, both elected and unelected, who are not privy to a complete whole-of-government intelligence assessment, and vulnerabilities ensue as a consequence.

Lastly, we have a cultural blindness as a consequence of the quality of life that we all enjoy. To be sure, that's a double-edged sword, but the willingness to think of others, that they might share our values, our practices, essentially our way of life, is foolhardy. I vacillate, of course, between despair and admiration at this ability to ignore the realities of the world as I've experienced it. I won't be proposing any solution to that issue.

In this first instance, I would want to see a process that is able to flex and contract on a case-by-case basis. I do recognize there are embedded processes within the Government of Canada machinery. I believe them to be inadequate. This space should be defined by a non-political entity, likely expanding on the current judicial processes we have at the moment. In particular, I believe this must be informed by certain rules that trade off the automaticity of an action being appropriate or not with a deliberate set of decisions. Although there are some basic constructs that allow for warrants for certain actions, I don't believe this receives the attention or the expertise that is warranted in a holistic sense. We have a great judiciary, we have a great rule of law, and I believe the solution is in this space.

Lastly, in this area I consider it to be the requirement for whatever process adopted to remain in camera so as to protect that information, which leads me to my second point. By necessity, there's an overlap between various members of the security and intelligence community here in the machinery of government. We need better coordination, not merely information. Too often, even post-Maher, there remain gaps between how information and intelligence are manned in this domain. As an aside, I think it is tremendously important to distinguish between the two—information and intelligence. Although various individuals claim we are addressing this, I would remind this committee, as I'm sure you know, that this claim has been repeated by various officials in various governments for decades now. No good solutions have been reached, in my opinion.

When making this body of knowledge prosecutable, we need to do better. Although recognizing the hue and cry that will result, in some instances, it may mean, or continue to mean, a court process that is not transparent to the general public. These are the types of trade-offs that I believe are necessary. It's not a good solution. In fact, it may be a bad solution, but it's not the worst solution. In fact, it may be the best of a number of bad solutions. We are living in the worst solution, which is that we don't appear to address it at all. Implementation of independent monitors, etc., or any additional process may be considered as part of that solutions space.

With regard to electronic surveillance and security, I admit to an incredulity at either the inability or naïveté of Canadians in general, and quite frankly, the government in particular, accepting that there must be rules and policies surrounding these activities. It has shocked me. Over the last four or five years, I've worked a lot in the cyber domain. It's shocking to me how little effect successive governments have had in addressing the cyber-threats that this country faces on a daily basis. The vulnerability of our energy grid, the financial sector, among others, and the lack of a government-wide set of policies and legislation to enforce compliance leads me to believe that we are living in a country that is now fully compromised by foreign actors at the state and non-state level.

A voluntary system will not work, as a vulnerability by one is a vulnerability to all, in fact. The CSE legal mandate is a good and useful step, but it's only part of the picture. I am a strong believer that mass surveillance metadata, not individual surveillance or collecting individual information, and the power of directed and non-directed machine learning are critical to embrace and to better understand the space in which we are working. Lacking this, we will fall further behind.

Turning briefly to accountability and functionality in the government, I would cite the most recent report by the U.S. director of national intelligence, which is a significantly different role than the proposed commissioner of the intelligence, whose mandate falls well outside of my area of expertise and understanding, although it does appear to me to be a very good step. Although the current intelligent assessment secretariat fulfills some of the functionality of DNI, it falls short. Focused on the provision of intelligence to the Prime Minister and given its position in the Privy Council Office, it lacks the appropriate authorities to direct, as well as the degree of ministerial accountability needed. We have no minister responsible for this and no such equivalent director of intelligence. There is no mandate and therefore, the function is not served.

It seems to me that much of the public debate on the bill in question, C-59, is about legal mandates, compliance, oversight, and governance. I don't wish to imply that this isn't needed, let alone value added, but rather suggest that the necessity of this conversation should not be mistaken for sufficiency. By itself, the debate on those issues is insufficient.

In a rapidly changing world, an equal amount of discussion should be given to the efficacy of the security and intelligence agencies and supporting departments, how well they work together, how rapidly they are able to, not just respond in the moment, but adjust to changing threats, etc.

As a criticism, I could argue that one would say the jealous safeguarding of mandates authorities—or more crudely put, turf battles—will be argued by any number of officials who will come in front of this committee. I would posit that you would be fooling yourself to believe that those turf battles aren't actively fought on a daily basis and therefore, inhibit a fuller, broader understanding of the threats that we face and the actions that we can take in response. However, I was strongly and tremendously encouraged to see Ms. Rennie Marcoux appointed as the executive director of the committee proposed. She is a true intelligence professional, but this is a separate function, and I do not mislead myself into believing that replaces the proposed DNI, which I would support. This is a gap that needs attention.

Furthermore, not being in government at the moment, I do remain uninformed about how the interaction between that commission and PCO, the assistant secretary of security intelligence, and the national security advisor will all work together, reminding ourselves that the PCO answers only to the PMO and there's no accountable minister, let alone mandate, and therefore, no real authority besides that which is practised, but not enforced.

In addressing the oversight committee I believe I noted with concern that in some instances the committee—and I stand to be corrected on this—would not have access to certain intelligence. I think I've read that in some of the critiques. To be very clear, for lack of a better term, I believe that to be admittedly stupid. The committee should have access to any and all documentation seen and used by the intelligence committee regardless of the originator controls. Anything less makes a mockery of oversight. Decisions will be made. Actions will be initiated based on that foreign-based intelligence.

There is a need to continue to force the interaction most especially between the intelligence and security agencies and associated departments. I'm convinced that Bill C-59 is a good step forward, but it needs to be enlarged in processes and interactions, and an accountable minister appointed.

I'd be more than happy to talk about threats and other processes during our Q and A.

Thank you very much.

[Alex Neve, Secretary General, Amnesty International Canada]

Thank you very much, Mr. Chair. Good afternoon, committee members. It's always a pleasure to be in front of this committee. I very much welcome the opportunity to address you on this issue.

I want to begin by highlighting to you that in the course of my 18 years now—I'm getting to be an old-timer—as secretary general of Amnesty International Canada, the number of Canadian citizens, permanent residents, and other individuals with close Canadian connections who are imprisoned abroad in circumstances where there are very serious human rights concerns has grown exponentially. From perhaps one or two cases per year, it is now common for us to be monitoring 20 to 25 such cases at any one time, something I once rarely imagined would arise in my human rights work. Canadians held as Amnesty International prisoners of conscience, political prisoners facing unfair trials, prisoners at risk of torture and executions—these people have now, unfortunately, become relatively commonplace and a significant part of our human rights program.

What accounts for that dramatic increase? First of all, the world is a much smaller place and business, work, studies, humanitarian work, journalism, family visits, and personal travel take more Canadians to more corners, including dangerous corners of the world, more frequently. Second, there are growing numbers of Canadians who hold multiple nationalities and many governments that refuse to recognize their Canadian nationality. Finally, in a post-September 11 world, we find that many governments have felt increasingly emboldened to disregard fundamental due process and human rights safeguards for prisoners when they invoke allegations, spurious or well-founded, on grounds of national security. Mohamed Fahmy's experience is one such example. You will hear from him in a moment.

When Mohamed returned to Canada he was passionate about wanting to pursue a reform agenda—reforms on many fronts, including Egypt, which is no small challenge. He very much wanted to draw from his experience, and the similar cases taken up by Amnesty International over the years, to formulate an agenda for reform in Canada as well, to strengthen consular laws, policies, and practices so as to ensure that Canadian officials are doing all they can to protect Canadians imprisoned abroad in circumstances involving serious human rights violations.

That is why we launched the protection charter in January 2016, two years ago. We welcome this opportunity to be here to highlight some of the charter's key recommendations to you. There are 12. I'll just refer to each of them without going into detail.

One, enshrine the right to consular assistance and equal treatment in Canadian law. Two, develop transparent criteria regarding such matters as support to families, issues around medical treatment, and collaboration with civil society and lawyers. Three, do more to protect Canadian journalists abroad. Four, actively defend Canadian nationality in cases involving dual or multiple nationalities. Five, do not allow unjust foreign laws or practices to deter or limit Canadian action. Six, establish an independent office for review of consular assistance. Seven, provide consistent support for death penalty clemency. Eight, institute review and oversight of Canadian national security agencies. Nine, address post-release concerns such as access to justice and freedom of movement. Ten, ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Eleven, develop a network of governments ready to assist each other with consular cases. Finally, twelve, establish guidelines regarding government action on behalf of detained permanent residents and other prisoners with close Canadian connections.

Two years later, we have welcomed significant progress in four of these areas: death penalty clemency is restored; review of Canadian national security agencies is part of Bill C-59; consultations regarding ratification of the Optional Protocol to the Convention against Torture are under way with provinces and territories; and there is a developing intergovernmental network through the Global Consular Forum.

Mohamed and I would like to highlight five of the eight remaining recommendations, which we continue to urge the government to adopt.

Before we turn to Mohamed and then back to me, I want to also begin, though, by reminding us all why this matters so very much: Ronald Smith, Canadian citizen on death row in Montana since 1983; Wang Bing Zhang, one of the first Chinese post-graduate university students to study in Canada, with numerous family members who are Canadian citizens, including his daughter, imprisoned in China since 2002; Huseyin Celil, citizen, imprisoned in China since 2006; Bashir Makhtal, citizen, imprisoned in Ethiopia since 2007; Mohamed el-Atar, citizen, imprisoned in Egypt since 2007; Saeed Malekpour, permanent resident, imprisoned in Iran since 2008; Raif Badawi, whose wife and three children are Canadian permanent residents, imprisoned and sentenced to flogging in Saudi Arabia in 2012; and Li Xiaobo, whose son is a Canadian citizen, imprisoned in China since 2014 immediately following an earlier eight-year term of imprisonment.

Those are some of the most entrenched cases of concern for us at this time. We're also following other cases in China, Iran, Saudi Arabia, Turkey, and Syria. These are the individuals and the families for whom your study and proposals for consular reform have real consequences for life, liberty, safety, and justice.

I will now turn things over to Mohamed.