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.

[The Chair, Liberal, John McKay]

Even though we are a few minutes early, I'm going to call this meeting to order and ask Mr. Brown to lead off.

We're here for two hours. I'm anticipating some order in the first hour when we ask our questions, and maybe a little less formality in the second hour as we dive deeper into Bill C-59.

I appreciate the interest of all of the departmental officials in the deliberations of the committee. This is an opportunity for the committee and various officials to interact on both a semi-formal and a less formal basis.

With that, we'll start with Mr. Brown.

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

Right now, in Canada, we are studying Bill C-59, which deals with cyber attack and counter-attack capabilities.

Do you think NATO countries should have cyber attack capabilities? Could Latvia request this capability? For example, could Latvia say that it would like Canada to conduct a cyber attack against such and such an element in Russia?

Prevention of Radicalization through Foreign Funding Act

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

Mr. Speaker, I thank my colleague for his speech. However, there is something that I need to tell him. Right now, the Standing Committee on Public Safety and National Security is studying Bill C-59. As part of that study, we noticed that there is a gap in Bill C-59, and that could be filled by Bill C-371, which was introduced by my colleague from Parry Sound—Muskoka. It would be nice if my colleague were listening to me, but that is fine.

Today, I am pleased to rise in the House to support my colleague's bill, Bill C-371. I think it is an essential tool for combatting terrorism in Canada. As proposed, the bill would give the government the ability to establish, based on the recommendations of the Minister of Public Safety and Emergency Preparedness, a list of foreign states, individuals, and entities that suppress religious freedom, sentence individuals to punishment based on their religious beliefs, and engage in or support activities that promote radicalization.

This bill deals with what is known as the covert means by which money is paid to Canadian organizations and institutions that support radicalization. It would make it possible to prevent an individual, entity, or foreign state that supports, promotes, or is associated with radicalization from funding an institution through donations or gifts.

This bill is very important because the Liberals prove to us almost every day that they do not fully understand the very clear danger we are facing.

For example, all Canadians in every region of the country heard the Prime Minister say that the Islamic State jihadis can have an extraordinarily powerful voice in Canada.

It is incredible that a prime minister would make such a comment. Not only is it absurd, but it is completely irresponsible.

Many of these people have returned to Canada with terrorist training, which is based on hatred for everything that is contrary to their views. These terrorists have committed unthinkable acts of violence. They have shot homosexuals, raped women and young girls, and killed Christians, Jews, and members of other faiths.

Today, the Prime Minister not only believes that these animals can be integrated into our society, but that they can be a powerful voice. Does the Prime Minister mean that they are a powerful voice for radicalization? Does he perhaps mean that they are a powerful voice for turning back the clock on women's rights? Is the Prime Minister aware of the real danger that these people represent? Does the Prime Minister keep an eye on the news about terrorist attacks in other countries? I am not so sure.

Another example is that the Prime Minister reached a settlement agreement with a terrorist, but he is dragging our veterans, those who fought to protect Canadians, through the courts. Clearly, the Prime Minister lacks judgment. He does not have his priorities straight.

Bill C-371 is important because we know that there have been relatively few charges, prosecutions, or convictions of people who have taken part in or provided material support to the jihadi movement.

We are concerned about the failure to prosecute when it comes to terrorist financing.

We learned that between 2009 and 2014, the Financial Transactions and Reports Analysis Centre of Canada identified 683 cases of terrorist financing, and that no legal action was taken under the relevant sections of the Criminal Code. The terrorist threat to the security of Canada has increased significantly.

In recent decades, a number of Canadians have been convicted in court for planning multi-target, mass-casualty strikes in this country. Threats have been forthcoming from Canadians who have joined terrorists hostile to Canada and its allies. We know that more than 80 Canadians have returned to Canada after participating with Islamist fundamentalist groups. Many of these people return with terrorist training, combat experience and may therefore pose a security risk to Canada. There have been relatively few charges, prosecutions, or convictions for participating in or providing material support to the jihadist movement.

Similarly, with the exception of the 2010 conviction of Prapaharan Thambithurai, who was charged with raising money for the Liberation Tigers of Tamil Eelam, there have been no charges in the area of supporting listed terrorist entities like the Liberation Tigers of Tamil Eelam, Hamas, Hezbollah, or the Islamic Relief Fund for the Needy and Afflicted.

Calgary imam Syed Soharwardy, as well as other witnesses, advised the Standing Senate Committee on National Security and Defence that extremist jihadist ideology is being spread at schools and universities in Canada, often under the guise of academic freedom and away from the eyes of CSIS.

The person who told us that is an imam. Specifically, he said this:

The money comes in different ways, in secret ways. Money comes through institutions. There are two organizations in Canada. Basically they are U.S. organizations that are operating in Canada. One is called AlMaghrib Institute, the other is called AlKauthar Institute. Both work in universities, not in mosques. Both give lectures. Both organize seminars. They are the ones who brainwash these young kids in lectures.

That is what the Calgary imam told the Standing Senate Committee on National Security and Defence. I did not make that up. When Shahina Siddiqui of the Islamic Social Services Association appeared before the same committee in 2015, she said this:

I can tell you that my own organization was offered $3 million. We refused, even though I had not a penny in my account at that time, when I started the organization, because this is a Canadian organization, and we don't need funding from anywhere else.

The same thing with our mosques in Manitoba. We were offered money from Libya when we made our first mosque. We refused it.

Did some mosques accept money from overseas because it was legal to do so? If we want to curtail that practice, we have to make it illegal, not just for Muslims but for all groups. One person said no. M. Siddiqui from Islamic Social Services said that he refused money. He was offered $3 million from Libya. He knew it was irregular. There was nothing stopping him from accepting that money. That is what is meant by secret ways. That money could have come in through the back door and, if these people were not honest, they could have had that money. There is no way to control that.

Richard Fadden, former director of CSIS and national security advisor to former prime minister Harper and to the current Prime Minister during the first few months of his mandate, confirmed that there are concerns about foreign financing of Canadian religious and quasi-religious institutions. The danger is real. This bill would serve as another tool to counter those who hate our society. As I said earlier, Bill C-59 is a massive, 140-page document that includes a lot of things. However, ever since the committee started hearing from witnesses, we have seen that this bill is flawed. I mentioned to my colleagues that Bill C-371 would address the gaps in Bill C-59. Despite the government's claims, I think that passing this bill would be very appropriate.

[Francis Drouin, Liberal, Glengarry—Prescott—Russell, ON]

Mr. Speaker, I am pleased to take part in this debate. As we continue to read Bill C-371, I would like to say that I support the purpose of the bill and the ideas that inspired it.

Curbing or preventing the flow of money that supports terrorism is one of the government's key concerns. Bill C-371 seeks to prevent the flow into Canada of foreign funds donated by sources who have been associated with radicalization. During our last debate, several hon. members pointed out that there was some overlap in the bill that conflicts with mechanisms that are already in place in Canada.

The bill also has significant flaws that would be hard to overcome. For example, under Bill C-371 some charitable organizations might be unduly penalized. This would prevent religious, cultural, or educational institutions in Canada from accepting money or goods from sources affiliated with the countries on the list, including senior officials, family members, or partners. Accepting donations from these individuals would become a crime.

The problem is that there would be no list of individuals barred from donating. Charities would have to do thorough background checks on everyone who offers them a cheque, and could face criminal penalties if they fail to do so. The due diligence required would be excessively complex and would require investigative capacity well beyond that available to most charities. Furthermore, the government would probably not be able to enforce the prohibitions in the bill because they are too vague and general. For example, people associated with the countries on the list would not be on the list.

Moreover, the bill is incompatible with government policies on radicalization that leads to violence. The fact is that existing laws and initiatives already fulfill the stated purpose of this bill. I would like to point out that the government is already taking concrete, effective measures to fight terrorism and radicalization leading to violence in Canada. Canada has a robust set of tools to protect Canadians and registered charities from the risk of terrorism and its deplorable acts. One of those tools is the terrorist listing regime in the Criminal Code.

As soon as an entity is added to that list, banks and financial institutions can freeze its assets. In fact, being added to the list can also lead to the criminalization of all support activities to help stop potential sympathizers in Canada from providing any financial assistance to terrorist groups. The Proceeds of Crime (Money Laundering) and Terrorist Financing Act resulted in the creation of the Financial Transactions and Reports Analysis Centre of Canada, or FINTRAC, which oversees the financial system and gathers information to support investigations into terrorist financing.

FINTRAC is also supposed to hand over to the Canada Revenue Agency any financial information it has regarding charitable organizations suspected of being linked to terrorist financing. In addition, the State Immunity Act includes a list of foreign countries that support terrorism. The act makes is possible for victims of terrorism to seek justice from the countries on the list.

Bill C-371 states that anti-terrorism efforts should include charities. Once again, we already have effective mechanisms to do so. The Canada Revenue Agency already monitors registered charities to ensure that they remain focused on their stated charitable goals. Under the current rules, any charity using its resources to support terrorist activities, radicalization to violence, or incitement to hatred would be denied registered charity status or could have this status revoked.

The government also has measures in place to denounce and combat religious persecution, torture, and other human rights violations.

For example, some provisions of the new Justice for Victims of Corrupt Foreign Officials Act make it possible to freeze the assets of those responsible for serious human rights violations.

There are apparently several measures already in place that can achieve the objectives of Bill C-371 without making legitimate charitable organizations liable to penalties. Consequently, despite the bill's good intentions, I cannot support it because of the overlaps and shortcomings in the bill.

Of course we all want to fight terrorism and extremism. That is why, for example, the government established the Canada Centre for Community Engagement and Prevention of Violence to fight the radicalization of young Canadians. In budget 2016, the government allocated funding of $35 million over five years for the work of the Canadian centre. The centre provides national leadership to support local efforts. It makes all the difference.

Communities across the country receive assistance through effective, innovative programs to combat radicalization leading to violence. This assistance often brings together law enforcement authorities, communities, and service providers. Furthermore, our security and intelligence agencies also have access to a series of prevention measures to help them monitor and intercept threats, maintain a no-fly list, refuse or revoke a passport, maintain public order, and lay criminal charges if there is sufficient evidence.

The government also introduced Bill C-59, which will increase accountability and effectiveness in Canada's national security framework. This bill was introduced in response to Canada's largest-ever national security consultation.

I know that all hon. members are united in the resolve to combat extremism, prevent terrorist violence, and bring perpetrators of such acts to justice. Unfortunately, Bill C-371 will not be an effective tool to help us achieve this common goal. I am sorry that I cannot support it, but I look forward to working with the member for Parry Sound—Muskoka and all hon. members to ensure that Canadians are as safe as possible and can live free from all forms of extremism and violence.

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

Thank you, Mr. Chair.

Thank you again for being here.

I want to take off just a little bit from what my colleague Ms. Damoff was talking about. You mentioned in your previous testimony, Mr. Nesbitt, I believe it was, that the culture of security agencies to protect information is a barrier to centralizing information and that ensuring that the right information gets to the right people in a timely manner is problematic.

Would you say that Bill C-59 is well placed to deal with this issue; that is, this mandatory reporting agency that compels information rather than sitting back and waiting? Are we dealing with this right with respect to Bill C-59 being the mechanism and the way it's going to play out?

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

Would you suggest, then, that there might be an opportunity to strengthen Bill C-59 by adding some provisions that have to do with this specifically?

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

To follow up, in 2015, in an article you authored for the National Post, you wrote that “Canada cannot claim to have taken the threat of ISIL funding seriously in the way the U.S. has. Canada’s sanctions, legislation and enforcement are outdated, under-funded and limited in scope.”

Does Bill C-59 address this issue of terrorist group funding in a meaningful way?

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

Thank you.

Professor Nesbitt, in your testimony on the national security review, you suggested that there needed to be better coordination of agencies and organizations.

Is this achieved here in Bill C-59? Do you see the new NSIRA as an ideal group to conduct this centralized information collection and analysis and then to put it together in a bigger picture?

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

Yes. It's in a different form in Bill C-59 than it was in C-51, if I am correct.

[Michael Mostyn, Chief Executive Officer, National Office, B'nai Brith Canada]

Thank you. I will be sharing my time with Mr. Matas.

We thank the committee for inviting us to appear. I will provide some introductory remarks. My colleague David Matas, our senior legal counsel, will elaborate on some of our key points on the proposed legislation.

B'nai Brith Canada is this country's oldest national Jewish organization, founded in 1875, with a long history of defending the human rights of Canadian Jewry and others across the country. We advocate for the interests of the grassroots Jewish community in Canada and for their rights such as freedom of conscience and religion.

B'nai Brith Canada testified before this committee in 2015 and, most recently, in February 2017, on what was then Bill C-51. Our testimony today will develop the same points we had previously expressed, and we will focus on specific areas that touch on our work, particularly part 7.

Our latest audit of anti-Semitic incidents in Canada contains a key truth: Jews are consistently targeted by hate and bias-related crimes in Canada at a rate higher than that of any other identifiable group. Statistics Canada recently released its report on 2016 police-reported hate crimes, and once again Jews were targeted more than any other group in the country. But police-reported hate crimes are only the tip of the iceberg. We require better tools—data and analysis—to gain greater insights into all hate crimes and to do a better job of countering them.

Bill C-59 includes proposals to change the Criminal Code aimed at improving the efficiency and effectiveness of the terrorist entity listing regime. We endorse those proposals providing for a staggered ministerial review of listed entities and granting the minister the authority to amend the names, including aliases, of listed entities.

In the past, B'nai Brith has been supportive of measures to empower security officials to criminalize advocacy and promotion of terrorism, and seize terrorist propaganda. We supported these measures to deny those intent on inspiring, radicalizing, or recruiting Canadians to commit acts of terror and who exploit the legal leeway to be clever but dangerous with their words. Bill C-59 seeks to change the law's articulation of this offence from “advocates or promotes” to “counselling” the commission of a terrorism offence. This is a weakening of the law that we believe is unhelpful. We have noted the assurances provided by the Minister of Public Safety and Emergency Preparedness, but we are still uncertain that such a change, which in our view weakens the law, is needed.

The change of advocacy and promotion to “counselling” also impacts on the definition of “terrorism propaganda”. Bill C-59 would remove the advocacy and promotion of terrorism offences in general from the definition. This is also a weakening of the law.

We accept that the right to freedom of expression is an important consideration, but the right of potential victims to be free from terrorism and the threat of terrorism must be a greater priority.

The importance of a clear articulation of the penalties for advocacy and promotion of terrorism should include the glorification of terrorism, something that should be of concern to all of us.

These are specific points I wanted to raise. There are others that, while not specifically part of the proposed amendments to Bill C-59, are intimately associated and are of interest and concern to B'nai Brith Canada. There are further points here. I'd like to highlight some.

The continuing manifestation of anti-Semitism, hate crimes, and hate speech in Canada affects not only the Jewish community. B'nai Brith Canada sees these worrying trends as national security issues. Organizations such as ours working with law enforcement agencies at the federal, provincial, and municipal levels must address these issues collaboratively.

The government's framework to counter youth radicalization is also extremely important. We endorse the work of the Canada Centre for Community Engagement and Prevention of Violence. We look forward to a stronger dialogue with them.

How can we collaborate in the more effective monitoring of groups engaged in hate speech or incitement directed at children, including those using coded messages that are nonetheless threatening, even where these might fall short of actual crimes? This is very much the focus in countering radicalization at an early stage, where civil society can have better dialogue with law enforcement.

How can we ensure that government agencies shun questionable organizations and groups, particularly those that receive government grants and nonetheless are operating in ways inimical to the fundamental rights and freedoms of Canadian society? We would welcome a channel of dialogue for this purpose.

Lastly, how can we better engage in dialogue with the Canada Revenue Agency to ensure diligent follow-up to complaints regarding organizations engaged in or supporting those expressing hate speech at odds with their charitable status?

There are other points, as I mentioned, in our paper. I'm sure we can answer those in questions.

I'd like to cede the floor to my colleague David Matas.

[Prof. Michael Nesbitt]

Thank you so much.

Let me start by thanking you all for this wonderful opportunity and for undertaking the crucial task of reviewing Bill C-59. It is truly indeed an honour and a privilege to be here today and to sit with you.

I have been asked to focus my attention today on part 3 of Bill C-59, the proposed CSE act, and that is what I intend to do. In general, there is no question to me that updating the antiquated authorities governing the CSE and putting the establishment on solid statutory footing is vitally important. As a result, I am strongly in favour of the initiative to craft a CSE act. Indeed, it is obvious to me that the result of this endeavour is a carefully crafted piece of legislation that tries hard to balance the operational needs of CSE to protect Canada's national security interests with Canada's commitment to democracy and the rule of law.

Obviously, given its size and complexity, there will also be much work to do. That simply goes with the territory. In this regard, I have had the distinct benefit of reading the briefs and testimonies of the witnesses that have already presented to this committee. While each guest has offered thoughtful commentary that I encourage you to strongly consider, my overarching sense is that none of us will foresee all the legal or operational challenges to come.

This is the reality of dealing with such a large, important, complex, and highly technical bill. Therefore, more than anything else, it will be vitally important that the current review of the CSE act is thorough and rigorous and that such rigorous review and oversight continues, particularly in the early days and years. This is not an act that should look precisely as it does now, by this summer, or when it is first reviewed, years after coming into force. It will have to be updated to keep pace with technological, operational, and legal developments.

In my mind, the best bet is to focus on robust review and oversight, such that, the issues that do arise in the coming days and years come to the attention of Parliament, to the public, and to the CSE itself, and that there is an opportunity to make the necessary corrections when the time comes.

Neither the law nor Canada's security is well served, if the CSE's legal and/or operational fault lines are kept in the shadows, and it is my sense that the CSE would agree with that sentiment. For this reason, I would start by encouraging you to adopt Professor Kent Roach's recommendation that the review contemplated in part 9 of the act take place sooner, rather than later.

The same goes for the CSE Commissioner's recommendation with regard to the need for the proposed intelligence commissioner to produce an annual report on his or her authorizations, to be tabled in both Houses yearly. Also, there is the need to ensure that any activities that implicate a reasonable expectation of privacy, and thus implicate section 8 of the charter, by necessity, are properly overseen by the intelligence commissioner.

Here, I have three things in mind. First, the CSE Commissioner has recommended that proposed section 37(3) of the CSE act be amended to require the IC approval of ministerial authorizations to extend foreign intelligence operations. Indeed, if the original operation requires IC approval, so too should any follow-up. Arguably, the IC will have more information on which to base a decision at this re-authorization stage. More to the point, it is at this later stage that we will really see whether, and how much, incidental collection of Canadian content is forming a part of the foreign intelligence collection.

This brings me to my second point fairly neatly. I encourage you to focus your legal review of the proposed CSE act on those sections that implicate the collection of incidental information not, as we commonly say, directed at Canadians. In the past, including recently in both the U.S. and Canada, we have seen that lack of oversight over just this sort of incidentally collected information can cause great legal and political controversy that I don't believe anyone is looking for.

In the context of the proposed CSE act, I would then encourage you to adopt Professor Craig Forcese's call to amend subsections 23(3) dealing with the collection of foreign intelligence, and 23(4) dealing with cybersecurity. CSE is made to seek ministerial authorization, and thus IC oversight, where its activities will contravene an act of Parliament, as it currently states, or involve the acquisition of information in which a Canadian or person in Canada has a reasonable expectation of privacy.

Our charter demands oversight where there is a reasonable expectation of privacy. Therefore, it is very hard to see how, without ministerial authorization and IC oversight, the bulk collection of information that implicates the reasonable expectation of privacy, which under the current wording could be permitted, would hold up in any court of law in Canada.

Third and finally, I believe that you have heard testimony that has expressed concern about the collection of publicly available data, without the oversight of the IC. I'd be happy to provide more detail here during the question period. For now, I will simply say that one can certainly be sympathetic to the carve-out for publicly available data. If the public can access it, surely there is no need for the CSE to get approval to do the same, or so the theory might go.

But not all publicly available information is the same, and bulk publicly accessible information in the hands of the state is a very different thing indeed from that information in the hands of an individual like you or me. For example, unlawfully obtained information, hacked passwords for example, can become public but nevertheless will also be thought of as private information—at least in the eyes of those who hold those passwords. Moreover, discrete pieces of public information may seem harmless on their own, but when harnessed together by the state to produce big data analytics that can also be publicly purchased and then collected as one piece of information, the amalgam of public information can offer very private insights into the lives of individuals. Of course, all of this adds to the thinking, which is already present with respect to some publicly available information, that in the right context public information can itself implicate a reasonable expectation of privacy and thus implicate section 7 of the charter once again.

Put another way, just because it was accessed publicly, does not mean it doesn't implicate the privacy protections of our charter. This will, of course, have ripple effects for how that information can be used and shared. With IC oversight, for example, such private “public” information might be shared with the RCMP for prosecutorial purposes. Without IC oversight, information collected in violation of the charter will not likely be able to be used in support of such prosecutions.

In short, unless CSE's collection of public information is brought under the purview of the IC, there is real reason to fear that we have both a security and a liberty concern here.

Thank you very much for your time.

[Michel Picard, Liberal, Montarville, QC]

The work that both of your organizations are doing, making sure that our private lives are well protected and our rights are well protected, is needed. We salute that.

I had the privilege of leading more than a dozen consultations on Bill C-59 in the first year I was here. People were very loud, on both sides of the fence. There were those who wanted to have a bit of protection, and those who accepted the fact that we need to maybe compromise—if the word works—part of our privacy in order to make sure we are safe.

I'm sure you did a lot of research here and there to make sure you got the most precise and value-added comments supporting both sides of the fence. What is the nature of the comments you received from those who accept reducing their privacy in order to be more secure?

[Laura Tribe]

I think one of our concerns is that it's unclear what publicly available means. We would love to have that addressed through the amendments to Bill C-59, so that it is really clear on exactly what these things do or don't mean so they aren't left to law enforcement to interpret themselves. With publicly available information, unless it explicitly says that people are not allowed to purchase commercially available information, to purchase huge datasets, then, as far as we're concerned, that's still a possibility and a real concern for us.

We would put forward the idea that the ability to Google everything and start recording all of those datasets is problematic. Collecting that mass amount of information, in general, is of concern. Additionally, proactively purchasing and growing those datasets without any direct targets, without any clear suspicion or motivation is really concerning as citizens who are trying to live our lives, who are feeling like we are victims or targets or suspicious actors in our own state. The ability to engage as a citizen is really hard to do without putting a lot of information on the Internet right now. Feeling like anything you put out there is now also being proactively collected and stored by your own government is quite terrifying.

[Laura Tribe]

I'm not certain what the powers are that CSE would use. I know that based on experts' reading of Bill C-59 and the proposed CSE act, those are the capabilities that are possible within the powers that are being given to CSE. I think that's the concern, that we might not be in a position right now where those are being used, but if we continue to grant those powers, we could be in a place where they are used. That's our concern.

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

I'm having trouble understanding your reasoning. Fundamentally, Canada does not want to take an aggressive position against any international community, but we have to protect ourselves. According to what you've written and what you've provided to the committee, we are giving CSE too much power, but we have to be prepared to defend our institutions and systems.

You see the rise of certain practices in Canada as a potential gateway to intervention abroad. That's what I'm having trouble wrapping my head around. I appreciate that you don't want a cyber-arms race, but we have no choice. We want to protect ourselves, and we need the tools to do so.

Your group, OpenMedia, posted a video on YouTube. According to the video, Bill C-59 will give Canada's electronic spying agency near-limitless powers in the international realm, in terms of what you were saying, and make it possible to spread false information online for the purpose of influencing foreign elections, as the Russians are said to have done in the 2016 U.S. election.

Is it your position that CSE will proactively influence the democracies or elections of other countries?