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.

[Malcolm Brown]

There are no uniquely specific provisions in Bill C-59 to deal with the question of violent extremist travellers. There are elements of Bill C-59 that provide the tools and assets for the agencies that will improve our ability to safeguard Canada from any threats that may present. I will also say, though, that there is a variety of tools that are available to the government, to all of us here and others, to manage and assess and take action as necessary to protect Canadians and ensure, where there is the evidence, that prosecutions can be launched against these individuals.

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

Thank you, Mr. Chair.

I will talk about ISIS fighters. We know that 180 Canadians decided to wage Jihad around the world, especially in Irak and Syria, but also in other places, including Africa. Some 60 of them are known and have returned to Canada. Ten of them are followed more closely by our police services and CSIS, but there is a legal problem. Will Bill C-59 help Canada take measures to enable it to prosecute those people, even if it means deporting dual citizens?

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

Thank you.

I have a little bit of time left, I'm sure.

I have one yes or no question. A previous witness at this committee expressed concern and suggested that if Bill C-59 passes as written—and this applies I suppose to you, Ms. Bruce—then CSE may interfere in the democratic electoral process in another country.

Can you please confirm that CSE has no intention of using its new powers to interfere in any democratic electoral process in any foreign country?

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

In light of the recent domestic terrorist attacks in the U.K., in Europe, and obviously here in Canada, which involved acquisition and the use of objects available to citizens—chemicals, vehicles, whatever—has the government reviewed the revisions in Bill C-59 to ensure that it permits appropriate emergency disruptive activities, specifically to CSIS, including without warrants where required? Are you satisfied with disruptive powers under this bill?

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

Okay, thank you very much for that reassurance.

Can you comment on where the proposed new offensive cyber capabilities that Bill C-59 offers would take us in comparison with our Five Eyes allies in this particular area?

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

In a broader context, Bill C-59 was referred to the committee before going through second reading in the House of Commons. The minister wanted us to check whether improvements could be made to some elements of that huge bill. As public servants, you worked on developing the bill.

Now, in insight, would you say to the committee that the situation has changed or there are elements you had not considered at the time? You know how things are being done now. Are there any changes we could propose as amendments?

[Malcolm Brown]

Of course, I hope so. Seriously, there is no doubt that the bill contains important new tools to that end.

It's kind of a demand-driven environment. Can I say today—I'm making up a number—there are 15 threats and Bill C-59, or some version of it, is passed, and a year from now there will be 14? No.

Can I tell you I believe—and I think this is the view of the agencies—that Bill C-59 provides important tools and assets to help reduce the threats Canada faces? My response is the same as I gave earlier. Assuredly, yes. Does it reduce every threat? No.

[Michel Picard, Liberal, Montarville, QC]

Thank you.

I would like to ask one last and more general question.

The most recent departmental report on the terrorist threat continues to indicate that the threat level is medium. This has not changed for four years. The last report for 2014 also indicated that the threat level was medium.

Does bill C-59 provide the tools required to keep the terrorist threat level at medium? Do you also have tools to help us reduce this threat level?

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

Thank you.

I apologize. At the beginning of my remarks, I used the term “bureaucrats”. I should have said “public servants”, so I apologize for that. I didn't mean it as a slam in any way, whatsoever. I apologize.

There are legitimate concerns that have been expressed about foreign interference in our electoral process, as has been alleged to have occurred in our 2015 election.

Are there enough oversight powers in Bill C-59 to deal with foreign threats to our electoral process?

[Malcolm Brown]

Yes and no. The way that warrants are now used by the authorities that all of these agencies have to go through to access information is a long tradition. The reality is that yes, it's different, but the underlying principles and the foundation in law are the same in the way information is treated. We have to update our procedures and practices, and from time to time examine and ensure that they're still relevant. I think what's in Bill C-59 demonstrates quite a capacity to absorb and propose change. It's important not to think that it's so different that we have to jump to a new framework—not immediately, because we have to think through the consequences.

I think the challenge is to find the right balance to ensure that the concerns you're describing, about people feeling their information isn't being shared willy-nilly, are addressed by the way we manage the information. The layers of scrutiny that are embedded in this bill are so significant that I think.... We'll see, it's a prediction, and I know I've got to stop because I'm taking up your time, but this is an important issue. You have heard witnesses who feel the layers of scrutiny embedded in this bill are too much of a burden.

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

All right.

We also heard Mr. Fadden speak about China, which has about 200,000 people conducting cyberoperations.

Do you believe that the powers granted by bill C-59 open the door to effective action against the Chinese threat in cyberspace?

[Malcolm Brown]

I will answer and my colleagues can add to my comments.

The view is that, in addition to the changes that are proposed in Bill C-59, the framework that is already available to the government in terms of addressing issues associated with terrorist financing is sufficient. Generally speaking, in the context of Bill C-59, the government is open to suggestions. I do think that in the perspectives in the private member's bill that you've mentioned there are some practical considerations that, frankly, make it problematic.

That being said, I think we're constantly challenging ourselves to ensure that all of the agencies have the tools they need to confront the challenges around terrorist financing. There are a variety of steps we can take, and at that I'll let my colleagues jump in, if they'd like, in terms of the tools we have now that, we believe, give us the capacity to respond as necessary.

Gilles.

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

Thank you, Mr. Chair.

Good morning, everyone. Thank you for being here today. Your comments will be most helpful.

My first question concerns the funding of terrorist groups. The question is for Mr. Brown or anyone else who would like to answer.

Mr. Michael Nesbitt appeared before the committee. He expressed his concern that Canada runs the risk of being a home for terrorist financing and other activities. This is a possibility.

Our party, through my colleague Mr. Tony Clement, introduced bill C-371, which is currently being studied in the House. This bill would address what are known as covert means. It appears that the government did not want to support the bill, arguing that bill C-59 and other Canadian legislation provides the tools required to prevent funding by covert means in support of terrorism.

Could you comment on that?

[Shelly Bruce, Associate Chief, Communications Security Establishment]

Thank you.

Mr. Chair, distinguised members of the committee, As associate chief of the Communications Security Establishment. I want to thank you for the invitation to appear before you, as you continue your study of bill C-59, which sets out the Communications Security Establishment Act.

I am pleased to be here today to clarify and explain certain aspects of this important piece of legislation.

Let me begin by underscoring remarks made by Minister Sajjan when this legislation was last discussed in the House of Commons. The minister said:

There can be no greater obligation than to protect the security of Canadians at home and abroad. Bill C-59 would provide CSE with the authorities and tools to maintain the highest standards in security protection while adhering to the high standards of accountability and transparency.

CSE has helped protect the security of Canadians for over 70 years by providing critical foreign intelligence about threats to our national security and our deployed forces, and by protecting Canada's most sensitive information and information systems. In order to deliver this important mandate, governments throughout those 70 years have expected CSE to respond to the priorities of the day and to ensure that it stays ahead of evolving global threats and constantly changing technology—and to meet those challenges while protecting Canadians' privacy, rights, and freedoms. That is what the proposed authorities and accountabilities in the proposed CSE act would do. They would provide CSE modernized authorities to help keep Canadians and Canada safe and secure against global threats, including cyber-threats, in a rapidly evolving technological world. They would provide new accountability measures to ensure that CSE's activities are authorized, reviewed, and are as transparent as possible.

As the committee has studied this bill a number of important questions have been raised. I would like to address a few of the more common ones now.

First, I'd like to address the provision in the proposed act around publicly available information. Questions have been raised about how CSE would use publicly available information and what impact that would have on the privacy of Canadians. To be clear, this provision exists only to allow CSE to conduct basic research in support of its mandate from the sorts of public resources that would be available to anyone in Canada. CSE does not and would not use publicly available information to investigate Canadians or persons in Canada, or build dossiers on them. That is not our mandate, and for us, mandate matters.

The proposed CSE act reinforces this by explicitly requiring that CSE have measures in place to protect the privacy of Canadians and persons in Canada in the use, retention, and disclosure of publicly available information.

How would we use that publicly available information? I can provide three quick examples. First, we could use it to provide general background information for a foreign intelligence or cyber-security report. Second, we could use it to assess the nationality of an individual or organization. Third, we could use it to consult technical manuals associated with new technologies or infrastructure.

Under no circumstances would CSE use this provision to acquire information that was unlawfully obtained. Hacked or stolen data would not constitute publicly available information under the CSE act.

This committee has also heard questions about the proposed active cyber-operations aspect of CSE's mandate, including questions on how they would be used and the potential impact on Canadian privacy. As this is a new authority for CSE, I want to clarify what this means. Active cyber operations would allow CSE, within strict legal parameters and with approvals at the highest levels of government, to take action online to disrupt foreign threats, including activities to protect our democratic institutions, to counter violent extremist and terrorist planning, or to counter cyber-aggression by foreign states. As examples, CSE could use active cyber operations to prevent a terrorist's mobile phone from detonating a car bomb; we could impede terrorists' ability to communicate by obstructing their communications infrastructure; or we could covertly disrupt a foreign threat actor from interfering in Canada's democratic processes.

The proposed legislation is also clear in the limits built into this authority. CSE would be prohibited from directing active cyber operations at Canadians, at any person in Canada, or at the global infrastructure in Canada. The act would also require that these activities be reasonable and proportionate. It would specifically prohibit CSE from causing death or bodily harm, or wilfully attempting to obstruct, pervert, or defeat the course of justice or democracy.

Let me underscore the fundamental change in our approach to ministerial authorizations.

Bill C-59 builds on CSE's current ministerial authorization regime by broadening its application and introducing new and important oversight and review functions. Under the act, CSE will seek a ministerial authorization for any activity that would interfere with the reasonable expectation of privacy of a Canadian or a person in Canada, or contravene an act of Parliament.

For CSE's foreign intelligence and cyber-security activities, these would be subject to approval by the Minister of National Defence and the intelligence commissioner. Active and defensive cyber operations are not collection activities and cannot be directed against Canadians or persons in Canada. As such, they would be approved by the Minister of National Defence and the Minister of Foreign Affairs. All of CSE's activities would also be subject to full review by dedicated independent review bodies.

Mr. Chair, I'll conclude by thanking the committee for inviting me and my colleagues here today to testify.

Thank you for your important deliberations on the Communications Security Establishment Act. We look forward to answering your questions.

Thank you.

[Malcolm Brown, Deputy Minister, Department of Public Safety and Emergency Preparedness]

Thank you very much, Mr. Chair.

I'll make a few opening comments, and then I think my colleague Shelly from the Communications Security Establishment will also have some opening comments.

I'm pleased to have the opportunity to appear with my colleagues today to discuss Bill C-59, the proposed National Security Act, 2017.

As you can see, I'm joined by officials from the Public Safety portfolio, including the RCMP and CSIS, the Communications Security Establishment, and the Department of Justice.

I want to begin by thanking all the members of this committee for reviewing this bill.

As you know, this bill is the focal point of Minister Goodale's mandate with regard to national security. It is also the result of an unprecedented nationwide public consultation, one in which this committee played an important role.

The consultations undertaken by Public Safety Canada and the Department of Justice involved an online questionnaire, in-person town halls across the country, social media engagement, and much more. In total, tens of thousands of views were heard, collected, documented, and analyzed.

Of course, this committee held numerous meetings of its own on the topic of national security.

The proposed legislation reflects all of this input - from citizens, parliamentarians, community leaders, national security experts, and academics.

Bill C-59 has three core themes.

Number one is to enhance accountability and transparency. This would be done through the proposed creation of an intelligence commissioner and a national security and intelligence review agency, both of which would complement the work of the newly established National Security and Intelligence Committee of Parliamentarians.

Number two is to fulfill mandate commitments with respect to the former Bill C-51. This includes proposed revisions to threat reduction activities under the CSIS Act, amendments to the Criminal Code, improvements to the Secure Air Travel Act, and revisions to the Security of Canada Information Sharing Act.

Number three is to ensure that our national security and intelligence agencies can keep pace with the evolving nature of security threats. This includes measures such as modernizing the CSIS Act, establishing the proposed Communications Security Establishment Act, and making other legislative updates.

In short, bill C-59 is designed to update and modernize Canada's national security framework to reflect current realities. Its overall objectice is to keep Canadians safe, while safeguaring our rights and freedoms.

To ensure that this bill achieves this objective, Minister Goodale signalled his intention for a thorough review and analysis of its contents as it proceeds through the parliamentary process.

Beginning this past summer and continuing through to the new year, officials from Public Safety Canada and from across the security and intelligence community have engaged key stakeholders. In many ways, this has been a continuation of conversations that began with the national security consultations in 2016, which I mentioned earlier.

The aim of these discussions and interactions has been not only to respond to technical questions about the content of the bill, but also, and mainly, to obtain feedback and input about how to improve the bill.

We've had meetings and exchanges with the Office of the Privacy Commissioner of Canada, the Security Intelligence Review Committee, the Office of the Communications Security Establishment Commissioner, and the Civilian Review and Complaints Commission for the RCMP.

We also had a number of exchanges with prominent academics in the field of national security in order to obtain constructive feedback to help ensure the bill achieve its objectives. I can assure you that these discussions were very helpful.

Similarly, we have taken a keen interest in the deliberations of this committee, including the testimony of witnesses and the detailed written briefs made available on the committee's website. I should note that, although separate from Bill C-59, the government announced in June that it would be adopting a national security transparency commitment to be applied across Canada's federal national security apparatus. Public Safety Canada is exercising a leadership and coordination role for implementing that commitment and supporting the establishment and operation of an advisory group. This work will complement the ultimate objectives of Bill C-59.

It is Minister Goodale's aim to have an open and thorough conversation in order to ensure that this bill is the best it can be.

It is in this spirit that my colleagues and I appear before you today. We look forward to responding to any questions the committee may have about the bill.

Thank you very much, Mr. Chair.