This bill was last introduced in the 42nd Parliament, 1st Session, which ended in September 2019.
Ralph Goodale Liberal
This bill has received Royal Assent and is now law.
This is from the published bill.
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.
All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.
The Chair Liberal John McKay
Mr. Dubé, I have had a liberal interpretation of Mr. Spengemann's question on Bill C-59, and I've had a liberal interpretation of your question. Could we somehow or another tie the interaction to Bill C-59 and ask witnesses to bear that in mind when responding to members' questions.
February 15th, 2018 / 12:20 p.m.
Interim Vice-Chairperson and Acting Chairperson, Civilian Review and Complaints Commission for the Royal Canadian Mounted Police
I'm not aware that we've actually dealt with it as a specific subject. In a world where Bill C-59 did not exist, it would be an issue that would be on our list of systemic review issues that we might want to consider looking at in the future. Therefore, in the new context where the new agency is created, they might very well, using their own powers, do a review of that subject. Yes, I think it would be in that case definitely related to national security, certainly the way you framed the question.
Sven Spengemann Liberal Mississauga—Lakeshore, ON
Okay, that's very helpful, thank you.
I have a second technical question and a couple of broader ones within the remaining five minutes. Are there any budgetary or personnel pressures that you see resulting from the proposed changes to accountability and oversight as stipulated in Bill C-59, from the perspective of the commission?
Guy Bujold Interim Vice-Chairperson and Acting Chairperson, Civilian Review and Complaints Commission for the Royal Canadian Mounted Police
Thank you.
Mr. Chair, honourable members, thank you for inviting me here today to speak to you about Bill C-59, An Act respecting national security matters. As you said, Mr. McKay, I am accompanied by Ms. Joanne Gibb, Director of the Research, Policy and Strategic Investigations Unit of the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police.
I will focus my comments today on part 1 of the bill, which seeks to establish the national security and intelligence review agency, thereby transferring certain powers, duties, and functions from the Civilian Review and Complaints Commission for the RCMP to this new agency.
As the head of the commission, I strongly believe in the importance of civilian oversight and review, whether it is related to national security or, for that matter, related to law enforcement more generally. Independent review fosters positive change and makes organizations better, and I think that's an objective we shouldn't lose sight of when we're talking about these changes. Consequently, the commission supports all of the efforts to enhance the national security review framework.
The trust that Canadians have in their public safety and national security agencies is predicated on accountability and transparency, to the degree possible. Independent review, whether it is by the National Security and Intelligence Committee of Parliamentarians, or by expert civilian bodies such as the Civilian Review and Complaints Commission, the Security Intelligence Review Committee, or the Office of the CSE Commissioner, contributes to the overall accountability framework of the organizations entrusted with keeping Canada safe and secure.
As the government seeks to further strengthen that framework by creating the National Security and Intelligence Review Agency, the commission welcomes the opportunity to work collaboratively with the new review body to ensure that RCMP activities are independently examined.
Created in 1988, the commission has significant experience and expertise in managing complaints and conducting reviews of the RCMP, whether it is into the RCMP’s actions in relation to the G8 or G20 summits, the RCMP seizure of firearms in High River, or policing in northern B.C., to name a few subjects.
The Civilian Review and Complaints Commission for the RCMP, as it is known now, has long been a key element of the RCMP’s accountability structure. By independently reviewing complaints, and where necessary making findings and remedial recommendations, the commission strives to bring about constructive change in the RCMP.
Currently, the commission is undertaking a review of the RCMP's implementation of Justice O'Connor's recommendations in relation to the Maher Arar affair. That investigation is ongoing at this time and is expected to be completed before the end of the fiscal year. The commission will then prepare a report outlining any findings and recommendations pertaining to the six sectors examined by Justice O'Connor.
It is my hope that any findings or recommendations made by the commission would guide the new review agency in its future work in relation to the RCMP's national security activities.
In his 2006 report, Justice O’Connor stressed the importance of a review body being able to “follow the thread”. Through Bill C-59, the new national security and intelligence review agency will have the mandate to do just that, providing a more holistic approach to national security review. Justice O’Connor also stressed the need to eliminate silos and for expert review bodies to work more collaboratively. We're hopeful that this will be an outcome of the new legislation and new oversight structures.
Since the mandate of the RCMP is much broader than just national security, I am pleased that Bill C-59 permits the national security and intelligence review agency to provide the Civilian Review and Complaints Commission with information it has obtained from the RCMP if such information relates to the fulfilment of our own mandate. I believe that this is critical to the overall effectiveness of the expert review bodies.
For example, if in the course of a national security review the national security and intelligence review agency becomes aware of a policy issue unrelated to national security, that issue could be flagged to the CRCC for further examination. This is the reality of the world we're living in.
To further illustrate the importance of collaboration and co-operation, I would suggest that if a public complaint was received by the commission that pertained to national security, but also contained allegations related to RCMP member conduct, the two review bodies should be able to collaborate, within their respective statutory mandates, to deal with the complaint. That is the only way that the Canadians who had made a complaint would receive an appropriate response to all their complaints.
Although the legislation requires the complaint to be referred to the National Security and Intelligence Review Agency, the CRCC, as the expert review body in relation to policing and police conduct, could deal with the allegation related to member conduct. This would ensure a consistent approach in reviewing complaints of RCMP on-duty conduct.
In terms of changes to the commission's mandate relative to Bill C-59, certain elements in the legislation might benefit from further clarification, and that the members of this committee may wish to consider further. Proposed amendments to the RCMP Act require that the Civilian Review and Complaints Commission refuse to deal with a complaint concerning an activity that is closely related to national security and refer any such complaint to the national security and intelligence review agency. That means the CRCC will continue to receive all public complaints related to the RCMP, and thus will remain the point of intake for public complaints. The onus will then be on the CRCC to determine whether the complaint is, in the words of the legislation, “closely related to national security” before deciding on how it will dispose of it.
Absent a definition of national security, however, the commission must make a determination on whether to refer the complaint to the national security and intelligence review agency. Once referred to the national security and intelligence review agency, that agency must receive and investigate the complaint in accordance with section 19 of the new legislation. There is currently no authority, however, for a referral back to the CRCC if the national security and intelligence review agency were to deem, after it had examined a complaint, that it was not a matter closely related to national security. This is a matter that the committee may want to consider further.
Also, while Bill C-59 prohibits the commission from dealing with or investigating complaints closely related to national security, as well as RCMP activity related to national security, there is no prohibition on the commission's chairperson from initiating a complaint related to national security. Further to the RCMP Act, if the chairperson is satisfied that there are reasonable grounds to investigate the conduct of an RCMP member in the performance of any duty or function, the chairperson may initiate a complaint in relation to that conduct. Bill C-59 does not amend subsection 45.59(1) of the RCMP Act and, as a result, the chairperson could initiate a complaint closely related to national security. I respectfully suggest that the committee may wish to consider whether this is consistent with the intent of the legislation.
As I indicated at the beginning of my remarks, I believe in the importance of civilian oversight of law enforcement, and we at the Civilian Review and Complaints Commission for the RCMP are fully committed to working with the new national security and intelligence review agency.
In closing, I'd like to thank the committee for allowing me to share my views on the important role of the independent civilian review. I welcome your questions.
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.
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?
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.
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?