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.

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you, Chair.

Thank you to the witnesses for coming forward today. It's nice to see you again at the committee.

We've had a fair bit of testimony, and I've asked witnesses about the way CSE is using information gathered from the global information infrastructure, and the fact that right now, while they don't spy on Canadians, Canadians' information can get wrapped up in it, whether they're abroad or whether they've been transmitting through this global information infrastructure. Would you recommend that we amend Bill C-59 to clarify that a ministerial authorization should be required when CSE acquires information from or through this global information infrastructure, when a Canadian is implicated in it?

[Timothy McSorley, National Coordinator, International Civil Liberties Monitoring Group]

Thank you. I'm very glad to be able to present today on behalf of the International Civil Liberties Monitoring Group and our 45 member organizations. I'd like to thank OpenMedia for inviting us to join them today.

I'd like to touch on three main points: first, review and oversight; second, some of the changes to the Canadian Security Intelligence Service Act; and third, the no-fly list.

Regarding oversight and review, the ICLMG greatly welcomes the creation of the national security and intelligence review agency, as well as the intelligence commissioner. However, we believe there are important ways in which both bodies could be strengthened. We hope the committee and government take this opportunity to ensure that both the NSIRA and the intelligence commissioner have the powers and resources they need to carry out their important work. Others have given feedback, which we largely support, regarding the intelligence commissioner, so I will focus on the NSIRA.

The ICLMG has long supported an overarching review mechanism as a way to ensure Canadians' rights are not violated, and to monitor the effectiveness of Canada's national security activities. Bill C-59 does away with the silos that have restricted the various review agencies' work, which alone is a major improvement.

I would highlight three issues, though, that we think the committee should examine regarding strengthening the NSIRA. First, to ensure independence we suggest that the NSIRA members be appointed via vote in Parliament and not through Governor in Council. Second, the complaints mechanism in the NSIRA act should apply not just to the RCMP, CSIS, the CSE, and security clearances, but be expanded to include, at a minimum, the national security activities of the CBSA as well as Global Affairs Canada, although ideally the complaints mechanism would actually include all federal national security related activities.

Third, SIRC has faced important criticism over the lack of transparency in its complaints system. There is, in fact, an ongoing lawsuit over this issue. We have also raised concerns about SIRC's inability to make binding recommendations. The NSIRA act would transpose these problems onto the new agency. We urge the committee to take this opportunity to improve on the SIRC model and ensure we have a strong, effective, overarching review body.

Next, regarding changes to the Canadian Security Intelligence Service Act, CSIS's threat-reduction powers were introduced with Bill C-51 and were heavily criticized at the time. Bill C-59 attempts to solve some of these issues by restricting the powers to a set list of activities. However, we must reiterate in the strongest possible terms our opposition to granting an intelligence agency, which operates in secret, powers akin to those of law enforcement.

My time does not allow me to go into all our specific concerns, but at the heart of this is that CSIS's creation was meant to separate intelligence activities from law enforcement, and today we continue to have the same concerns we had at that time. Even in cases that require a warrant, we believe that a non-adversarial system will not ensure the protection of a target's civil liberties. We do not believe that this is an issue of “if” the system will violate an individual's rights, but “when”.

We are also concerned about new powers granting CSIS agents immunity for acts or omissions that would otherwise constitute an offence. The Canadian Bar Association, among others, raised serious concerns when these powers were granted to law enforcement officers, calling it antithetical to the rule of law. We believe this even more so when such powers are granted to intelligence agents operating in secret, and we think this section should be removed from Bill C-59.

Finally, regarding the Secure Air Travel Act and the no-fly list, we support the tremendous efforts by the No Fly List Kids and other groups to bring about a redress system. However, we believe the government must go further and address the more fundamental problems with the no-fly list regime. Bill C-59 does not address the due process issues that have been raised since 2007. We cannot condone a system that is used to restrict individuals' travel and to place them on what amounts to a terrorist watch list but does not allow them full access to the information against them, in order to mount a full and adequate defence. We have also yet to be shown that it improves upon Criminal Code provisions already in place that can be used to restrict the activities of an individual suspected of planning a crime. While we appreciate potential solutions put forward by others, such as introducing a special advocate system into the appeals process, we do not believe it is sufficient to restore due process. We maintain our fundamental opposition and call for the repeal of the no-fly list regime.

For more on our positions, we sent a brief to the committee, which I believe was circulated yesterday. I'd also be happy to take any questions, or follow up with any members, following the meeting.

Thank you.

[Laura Tribe, Executive Director, OpenMedia]

Good morning. My name is Laura Tribe, and I am the executive director of OpenMedia, a community-based organization committed to keeping the Internet open, affordable, and surveillance-free.

I'm here today with Tim McSorley of the International Civil Liberties Monitoring Group, who were unfortunately not invited by the committee to testify in these proceedings, but whose contributions OpenMedia believes to be critical for an informed discussion of Bill C-59.

OpenMedia's work on privacy and digital security dates back to Bills C-13 and C-30, but has focused more recently on the serious security violations introduced by the previous government's Bill C-51. The OpenMedia community's lengthy efforts on these issues include producing “Canada's Privacy Plan”, a positive vision for the future of privacy in Canada that was crowdsourced from over 125,000 contributors; over 300,000 people speaking up against Bill C-51; two national days of action against Bill C-51, organized in partnership with organizations across the country; over 15,000 citizen comments submitted to the government's national security consultation; and over 6,000 submissions to this committee's written consultation on Bill C-59.

Public Safety Canada's report summarizing the national security consultation results showed that Canadians are overwhelmingly in favour of increased protections for personal privacy. More than four in five responses indicated that their expectation of privacy in the digital world is the same as or higher than in the physical world.

As a result, when Bill C-59 was introduced, we were relieved; it was a sign that change was coming. However, the more we analyzed the bill, the more our worries returned. The changes are less substantive than we had hoped, and invasive new powers were even introduced.

Bill C-59 fails to adequately address the information disclosure provisions and terrorist speech offences brought in by Bill C-51, but also brings in new data collection, cybersecurity, and information-sharing powers that further threaten our privacy and security.

Today this committee has a chance to make this right. Over 6,000 Canadians submitted their concerns about Bill C-59 via OpenMedia's written submission to this consultation. Since then, in the past two weeks, we've had almost 10,000 more Canadians sign a new petition concerning the expanded cyber-operations powers proposed in the CSE act included within Bill C-59. It's addressed to the Standing Committee on Public Safety and National Security and reads:

“As a concerned Canadian, I am urging you to address the dangerous new powers being proposed for CSE in Bill C-59. Throughout the process of reforming Bill C-51, Canadians have been very clear on the need to scale back the drastic and invasive national security measures in the bill.

“Public Safety Canada's own 'What We Learned' report, which formed the basis of Bill C-59, confirmed that a majority of stakeholders and experts called for existing measures to be scaled back or repealed completely, and that most participants in the consultations 'opted to err on the side of protecting individual rights and freedoms rather than granting additional powers to national security agencies and law enforcement...'.

“The new active and defensive cyber-operations powers proposed in Bill C-59 for CSE are directly opposed to the wishes of the majority of Canadians. We asked for privacy, but instead we got an out-of-control spy agency with even more extreme powers than before.

“Security and privacy experts throughout Canada have expressed in great detail the issues with the proposed bill and the changes that need to be made to protect the privacy and security of Canadians. Experts have warned of the consequences of granting powers like these, powers that will be all the more dangerous given the lack of adequate oversight included in the bill.

“I would like to point you to the 'Analysis of the Communications Security Establishment Act and Related Provisions in Bill C-59' report, produced by the Citizen Lab and the Canadian Internet Policy and Public Interest Clinic, CIPPIC. The recommendations laid out in this report should be adopted by the SECU committee.

“In a world and time where digital technologies are being used by so many to threaten our digital safety, we need our government to be helping make the world better, not actively undermining our security.”

As of this morning, our petition has been signed by 9,633 Canadians. On behalf of these signatories, plus the over 300,000 against Conservative Bill C-51, and the other concerned civil society groups who have been unable to join these proceedings themselves, we respectfully ask that you make things right. We are asking you, our elected representatives, to stand up for our privacy and continue the work of repealing Bill C-51. Digital security is critical to Canada's infrastructure, economy, and future. Please do not compromise this in the name of fear or following other countries' bad practices to lead us in a race to the bottom. We need to be stronger than that.

Thank you.

[Dominique Peschard]

Our hope is that the National Security and Intelligence Review Agency can verify that the agencies respect Canadians' rights in the course of their work. That is why we think the agency must first have the necessary resources, as Mr. Mirza previously mentioned. Second, the agency must also be seen and act somewhat as the Privacy Commissioner of Canada does with respect to privacy. In other words, the agency must be clearly seen as an independent organization that also has expertise and whose mandate is to be accountable to the public.

We think that what's wrong about Bill C-59 is that, under it, the agency would report much more to the department and the government than to the people on the way the agencies conduct their business. Bill C-59 could be amended to make the agency operate more as a watchdog reports to the public on the way the agencies respect rights in carrying out their mandates.

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

Thank you, Chair.

Mr. Mirza, let me begin with you and your group. Thank you to both groups for being here today. It's appreciated by the committee.

Mr. Mirza, what would you add to Bill C-59 that you think is absolutely critical for public safety, balancing the need for privacy and rights?

[Pam Damoff, Liberal, Oakville North—Burlington, ON]

Thank you very much.

Thanks to all the witnesses for being here.

My first question is actually for both of you. Currently in Bill C-59 there's no necessity threshold to retain personal information that is disclosed under SCISA. I'm just wondering if you think that an amendment introducing a necessity threshold for the retention of personal information as well as a destruction obligation for information that does not meet the necessity threshold would be helpful to increase transparency and also to protect individuals' privacy.

Maybe I'll first turn to the Canadian Muslim Lawyers Association.

[Denis Barrette, Spokesperson, Ligue des droits et libertés]

First of all, the fact that we are abandoning judicial inquiries is one of the welcome aspects of Bill C-59.

Furthermore, it was a fiasco because it was the only time, following the very sad Air India incident, that those provisions were used. However, they were completely ineffective in the Air India trial. We know they did not produce the results desired by the police departments.

In addition, there was a problem with the way it was done: the accused and the media were not informed. The media accidentally learned at the time that a judicial inquiry was under way. If you read the summary of facts in the Air India affair judgment, you will see that this was not a glorious chapter in the history of Canadian law, particularly since it was a tragedy.

[Yves Robillard, Liberal, Marc-Aurèle-Fortin, QC]

Mr. Barrette, when you appeared before the Committee, you said that the use of investigative measures in the Air India affair had caused a fiasco and that thought should be given to the necessity of the powers conferred on police officers.

I note that, in clauses 145 and 147 of Bill C-59, we would repeal the investigative measures that have not been used since the Air India affair. I would like you to enlighten us on the fiasco caused by the use of those investigative measures.

[Dominique Peschard, Spokesperson, Ligue des droits et libertés]

I will be giving the presentation on the Ligue's behalf. Both of us will then answer questions.

The Ligue des droits et libertés, the LDL, wishes to thank the members of the Standing Committee on Public Safety and National Security for inviting it to testify regarding Bill C-59. Since September 11, 2011, the LDL has made regular representations to defend the rights and freedoms established in international instruments and our charters, and to prevent their violation in the "war on terror."

In the fall of 2016, during public consultations and the hearings of this Committee, the LDL called for the complete withdrawal of Bill C-51, which we considered dangerous and unnecessary. The LDL also called for the introduction of an oversight mechanism for national security activities, similar to the recommendations of the Arar Commission. Bill C-59 addresses these issues only to a certain degree.

First, we welcome the establishment of the National Security and Intelligence Review Agency. However, some conditions must be met before the Agency can fulfil its mandate as watchdog. The size of the task awaiting the Agency should not be underestimated. It should not simply receive public complaints and reports from the organizations it oversees. It should have the authority to initiate investigations itself.

In addition, the Agency must be specifically mandated to verify that organizations are carrying out their national security activities in compliance with the rights and freedoms established in the Constitution. This mandate must also include the review of ministerial directions to ensure compliance with the Charter of Rights and Freedoms. On this point, we would like to note that ministerial directions concerning information sharing must be amended to be consistent with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

A significant number of organizations are involved in intelligence sharing. The Arar Commission counted 24 in 2005. The oversight mechanism will have a considerable task, and it will be an empty shell if it lacks the material, human and financial resources needed to do its job. We would also like to note that provisions in C-59 concerning the Agency's public accountability do not go far enough, and an annual report is insufficient. The minister as well as the public and Parliament should be informed when the Agency discovers practices that are non-compliant with the Charter.

The fact that the Agency's recommendations are non-binding is also a concern. If the recommendations remain non-binding, the organizations concerned should be required to report publicly on the steps they have taken to implement the recommendations.

Lastly, the Agency should have the authority and resources to work with similar organizations from other countries. National security and intelligence organizations cooperate internationally, and the agencies that monitor them should be able to do likewise.

The next issue is the authority given to the CSE. The CSE can intercept anything in the international information infrastructure, regardless of any federal or foreign law. For example, the CSE can intercept communications from U.S. citizens, and the National Security Agency can do the same regarding Canadian citizens, for the purpose of sharing this information. Bill C-59 must prohibit Canadian agencies from receiving information on Canadians from other agencies that they would not have been able to obtain under Canadian law.

While Bill C-59 provides better guidance for the more worrisome provisions of C-51, some fundamental problems remain. The repeal of judicial investigations is a positive move. However, an individual could still be placed in preventive detention for seven days without being charged, even though C-59 raised the threshold for this detention. We urge that this measure and any previous provisions concerning this measure be removed.

There is major concern over the powers given to CSIS, as set out in Bill C-51 and amended by C-59. It is unacceptable for CSIS to be authorized to compile datasets on Canadians. There are no limits on the data that CSIS can compile, provided that the data is considered "public." Judges may approve the compilation of other datasets based on a very weak threshold. The only requirement is that the data "is likely to assist" CSIS.

These provisions make it legal for CSIS to continue to spy and compile dossiers on protest groups, environmental protection groups, Indigenous groups and any other organization that is simply exercising its democratic rights. CSIS can count on the support of the CSE, which is also authorized to collect, use, analyze, retain, and disclose publicly available information, and whose mandate includes providing technical and operational assistance to agencies responsible for law enforcement and security. These datasets also pave the way for big data and data mining, which in turn leads to the compilation of lists of individuals based on their risk profile. We are opposed to this approach to security, which places thousands of innocent people on suspect lists and targets Muslims disproportionately.

Bill C-59 allows CSIS to continue to address threats through take active measures such as disruption. These measures can limit a right or freedom guaranteed under the Canadian Charter of Rights and Freedoms if so authorized by a judge. It is important to note that this judicial authorization is granted in secret and ex parte, so that the persons whose rights are being attacked cannot appear before the judge to plead their "innocence" or argue that the measures are unreasonable. They may also be unaware that CSIS is behind their problems, which would make it impossible for them to lodge a complaint after the fact. These powers recall the abuses uncovered by the Macdonald Commission, such as the RCMP stealing the list of PQ members, burning down a barn, and issuing fake FLQ news releases to fight the separatist threat. We are therefore strongly opposed to granting these powers to CSIS.

We are extremely disappointed to see that the Secure Air Travel Act preserves the no-fly list. Persons are not told why their names have been placed on the list and, if they appeal, the judge hears the case ex parte based on evidence that the individuals cannot challenge and that may even be inadmissible in a court of law.

The Human Rights Committee condemned this lack of effective recourse in its 2015 comments to Canada. It has never been proven that this list increases the safety of air travel, making the situation even more unacceptable. England, France, and other countries that are targeted by terrorists far more than Canada have no such lists, and the safety of their aircraft is not affected. We ask that the Secure Air Travel Act be repealed and any no-fly list be destroyed.

The Security of Canada Information Sharing Act allows 17 government agencies to share among themselves information that is in the possession of the Canadian government. While C-59 amends the preamble to the Act to state that information must be disclosed in a manner that respects privacy, the Act's provisions contradict this very principle. As the Privacy Commissioner told the Committee on December 7, 2017, the Act does not comply with privacy requirements. The threshold for disclosing and receiving information must be strict necessity. We also support the Commissioner's request regarding the role he should play in enforcing this Act.

In conclusion, we would like to submit the following list of recommendations regarding Bill C-59. While some of the bill's provisions are beneficial, a number of other provisions should be amended or deleted to truly protect Canadians' rights and freedoms.

Our recommendations are as follows: that the National Security and Intelligence Review Agency have the material, human and financial resources needed to carry out its mandate; that the National Security and Intelligence Review Agency be mandated to ensure that national security organizations carry out their activities in a manner consistent with the rights and freedoms established in our constitution; that the Agency report publicly on any rights violations that it has found and on its recommendations; that the organizations concerned be required to report publicly on the way in which they have carried out the Agency's recommendations; that, in the course of its mandate, the Agency be authorized to share information with equivalent agencies in other countries; that Canadian organizations not be allowed to obtain information on Canadians from other international organizations that they would not have been able to obtain themselves under Canadian law; that Bill C-59 repeal section 83.3(4) of the Criminal Code authorizing individuals to be placed in preventive detention for seven days without being charged; that "strict necessity" be the threshold for disclosing and receiving information under the Security of Canada Information Sharing Act; that the Office of the Privacy Commissioner of Canada be mandated to ensure that Canadians' privacy is respected under the Security of Canada Information Sharing Act; that CSlS be stripped of the power to address threats through active measures such as disruption; that the Secure Air Travel Act be repealed and any no-fly list be destroyed.

Thank you.

[Faisal Mirza, Chair, Board of Directors, Canadian Muslim Lawyers Association]

Thank you. Good afternoon, Mr. Chair and members of the committee. On behalf of the Canadian Muslim Lawyers Association, thank you for the invitation to provide submissions about Bill C-59.

I will start with our background. This year will be our 20th anniversary. We are based in Toronto, with approximately 200 members across Canada who work in all areas of the legal field, including private practice and government.

In terms of advocacy, we have consistently appeared at the Supreme Court of Canada dealing with balancing individual rights with state interests. We also assist the legal community and the general public with legal education.

Our underlying goal is to promote a justice system that is fair. Since 2001, we have had the privilege of providing testimony to parliamentary and senate committees responsible for considering national security policy and law.

In terms of my background, I am a criminal defence lawyer with 16 years of experience mitigating cases at all levels of court. I have acted as counsel on several national security cases. I am also an instructor on national security at the University of Toronto. Today I am speaking to you in my role as the chair of the Canadian Muslim Lawyers Association.

In terms of my contribution, I wish to discuss two fundamental areas.

The first is the positive. We see the national security intelligence review agency as having great potential, especially if it's staffed properly.

Second, I will raise our sources of concern. In particular, this bill does not address a key area of security, the legal threshold for searches of digital devices at the border. Further, there are real concerns about a lack of fairness and charter compliance regarding listed entities, which are noted at part 7 of the bill.

I'll deal first with the national security intelligence review agency. This is at part 1. For simplicity, I'll refer to it as NSIRA. This institution has the potential to be a strong pillar of our democracy by providing robust review of national security agencies and their related partners. With more powers being granted to intelligence agencies to deal with evolving threats, this agency reflects the greater need for effective review and oversight. It certainly has a broad mandate, which we think is positive, including to review the activities of CSIS, the CSE, and the RCMP; to investigate complaints against those services; to direct studies and to prepare annual reports; and to report to the Minister of Public Safety.

This strong mandate is a reflection of the expanding powers that are being provided to different agencies in order to effectively conduct national security operations. Clearly there is more power to collect data, more power to share information, more power to conduct surveillance, greater protection of informants, and more powers to engage in preventive measures.

All of this is primarily done either ex parte or behind closed doors. As a result, it is critical to have a very strong review agency to try to prevent mistakes before they happen.

Therefore, how do we ensure that a robust review agency is able to address its role in a fair manner? This government has indicated that it is committed to representative institution, and NSIRA will handle the review of security activities and investigate complaints. It is our submission to this committee that for it to be effective, it is essential that it be composed of a diverse group of persons. It should not fall into the trappings of ineffective oversight bodies that are staffed by people who lack independence and impartiality.

In the 2006 response to the Arar tragedy, recommendations 19 and 20 specifically advised that the RCMP, CBSA, and CSIS improve composition and training of their staff to prevent mistakes based on racial and religious profiling. The same logic must apply to NSIRA. Our concerns are that, as evidenced by the recent lawsuit brought by several CSIS employees alleging that some CSIS managers discriminate and stereotype against Muslims, there is little accountability when this misconduct is reported, and as a result, there needs to be stronger training, better oversight, and diverse composition.

In addition to NSIRA's members, which are statutorily governed to be no fewer than three persons and no more than six persons, there will obviously be a significant staff that's going to assist with investigations and provide assistance to those members. There will be an executive director, who will assist with staffing the agency.

It is our view that individuals in those qualified high-level positions must be aware of the community's perspective. The nature of the information to be drawn and the review of decisions would benefit from having a diversity of perspective.

Our friends in law enforcement have confirmed that working with the Muslim community is key to identifying threats and solving major cases. There are numerous instances where that has happened, but there are also instances of things going wrong and members of the community being mistreated by those very same agencies. For NSIRA to have legitimacy, it must recognize that perspective.

It would be helpful if there were some statutory guidance with respect to the required qualifications and composition of the agency members and from where people are going to be drawn in order to staff it. For instance, having one from the judiciary, one person from academia, and one person from the community with knowledge of these issues would be an important addition to the legislation.

Moving ahead, my concern about what's missing from Bill C-59 is that there needs to be some statutory guidance on when the CBSA may search digital devices at the border. We can debate and go over at length the fact that the bill has made progress with respect to balancing individual rights with state interests, but the reality on the ground is all of that can be circumvented by searches of individuals' digital devices at the border. The Customs Act needs to be revisited and reviewed. It is legislation from the 1980s, when digital devices were not the norm, and it contemplated searches of people's luggage.

The use of data collection is the future of national security and the devices that people carry with them obviously are integral in terms of preserving a balance between individual interests and state interests and in protecting our security. In today's era, most people travel. Returning Canadians can easily have their digital devices searched without restriction. A better legal threshold that reflects the nature of the technology needs to be established. Currently it's the position of customs and the government that there is no legal threshold to search individuals' cellphones, laptops, etc., when returning at the border. Even with a reduced expectation of privacy in that context, it becomes critical that there at least be some legal threshold; otherwise, the provisions in the Criminal Code or amendments to the Immigration and Refugee Protection Act or amendments to try to protect information sharing become easily circumvented when individuals are coming back through the border with no protections whatsoever.

The last point I'll touch on very briefly is with respect to part 7 of the bill, regarding listed entities. There is a fundamental omission in the Criminal Code legislation that needs to be addressed and fixed.

Listed entities, as you are aware, are currently listed by process of an administrative regime whereby the Minister of Public Safety and Emergency Preparedness, based on a balance of probabilities, determines whether an entity should be listed or not.

The difficulty is that organizations whose assets have then been stripped and frozen have no ability to hire counsel in order to engage in submissions with the minister or to engage in the statutory judicial review. In fact, it's our understanding that this omission results in a constitutional violation. There's a section 7 breach tied in with a section 10 breach, in that these entities are not given an opportunity to hire and retain counsel in order to defend themselves. That constitutional frailty could be a significant problem for this legislation in the future.

Thank you for the opportunity. That's my submission at this time, subject to your questions.

[Chantelle Bowers]

With respect to complaints before the organization, the access to information in that regard is more narrow. Up until now, we've had access to everything, including solicitor-client privilege documentation. Now we notice that in Bill C-59, that access to information is limited. It specifically removes solicitor-client privileged information, for instance. That's the problem we were highlighting.

[Pierre Blais]

I might look at the problem the other way round. The entity that has been added to the limited group is the committee of parliamentarians. I hope you're not suggesting that it's parliamentarians who present a threat.

This new committee of parliamentarians will take a more direct approach to the facts. CSIS has been around for 30 years, and I believe in all modesty that our experience has shown that we haven't been in the news for the wrong reasons. We have managed to maintain confidentiality.

Confidentiality is still a very important factor, but trust is as well. We need to establish that trust and a sense of responsibility among the organizations not here contemplated.

Consider this example. The Department of Finance is not used to seeing someone come in to determine whether something isn't right from a national security standpoint. If that department, or the Department of Agriculture and Agri-food or Transport or any other federal government entity, is concerned by a national security issue, it should be glad that independent organizations are verifying whether its work is being done right and that it isn't making any mistakes in its national-security-related actions.

You must have noticed that Canadians would like to know more about what is going on. They also want to be certain the law is obeyed. I think Bill C-59 meets that demand.

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

Thank you for your answer.

Part 4 of Bill C-59, which concerns CSIS more specifically, contains a point respecting the thresholds of what is authorized. It concerns new measures and ways of making applications. Do you think these changes proposed in Bill C-59 can reduce CSIS's ability to disrupt threats?

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

Thank you, Mr. Chair.

Thank you for being here today, ladies and gentlemen. Your assistance is very important.

I will begin with you, Mr. Fadden.

You said at the outset that you would have voted for Bill C-59 at second reading. However, in accordance with the procedure that was used, the bill was not considered at second reading and was referred to the committee with the recommendation from theHon. Ralph Goodale (Minister of Public Safety and Emergency Preparedness) that the parliamentarians around this table propose serious and worthwhile amendments.

You more specifically reviewed part 4, but, if you had any changes to suggest to the bill as a whole today, what would they be?

[Pierre Blais]

Thank you very much, Mr. Chair.

Good morning, everybody.

Thank you for the opportunity to appear before you today to discuss Bill C-59. I will focus my presentation on two main areas. The first part will lay out SIRC's high-level response to the bill. In the second, I will offer a few suggestions for improvements to the language of the bill based on SIRC's experience in this area.

This is a positive time to be working in the area of review and accountability for intelligence in Canada. Not long ago, I was here to discuss the creation of a committee of parliamentarians in the context of Bill C-22. I'm here again, this time to discuss the government's proposal to create the National Security and Intelligence Review Agency, or NSIRA. I will use this abbreviation. I hate using those acronyms of NSIRA, NSICOP, SIRC, CSARS, etc., but we have to. I will go on with NSIRA, which will be responsible for reviewing intelligence and national security activities across government.

Indeed, as included in the bill before you, NSIRA is to review any activity of CSIS or CSE carried out in any other department or agency that relates to national security or intelligence and any other matter related to national security referred to it by the minister. This will bring a dedicated national security review of the type that SIRC has been doing for more than 30 years to a large number of other departments and agencies, including in particular the CBSA and the RCMP. This will answer the gap that so many, including SIRC, have commented on over the years.

The recently created National Security and Intelligence Committee of Parliamentarians, or NSICOP, has been added to the proposals respecting the new intelligence commissioner. Together the three entities will represent a substantial change in the accountability system for intelligence in Canada.

I will just take a minute to describe for the committee the mandate and responsibilities of the Security Intelligence Review Committee, or SIRC. I will stress that SIRC is an independent external review body that reports to Parliament on CSIS's activities.

SIRC has three core responsibilities: to carry out in-depth reviews of CSIS's activities, to conduct investigations into complaints, and to certify the CSIS director's annual report to the Minister of Public Safety and Emergency Preparedness. In essence, SIRC was created to provide assurance to Parliament, and by extension to Canadians, that CSIS investigates and reports on threats to national security in a manner that respects the law and the rights of Canadians.

SIRC has discharged its mandate faithfully over its history, and it has had an impact. This was demonstrated most recently by the Federal Court of Canada decision of October 2016 that confirmed SIRC's long-standing practice of assessing the lawfulness of CSIS activities, including how CSIS applies the “strictly necessary” threshold to its collection and retention of information, which is one element that is all over the place now. Through its review work, SIRC contributed to high-level discussions on the type of intelligence that CSIS can collect and retain, as we see in the dataset provision of Bill C-59.

But the legislation makes clear that the National Security and Intelligence Review Agency, or NSIRA, is an entirely new entity, to be created—not from SIRC or the Office of the CSE Commissioner—but from a desire to push the accountability agenda forward in Canada. SIRC and the Office of the CSE Commissioner will be dissolved when NSIRA is created.

SIRC, along with its partners and counterparts in the review community, have long called for change of this nature that will break down the silos that have hampered review for so long.

When the decision was made in Canada more than 30 years ago to create SIRC, it represented some of the best, most forward thinking at the time on accountability for intelligence. But this is a new era, with new challenges for accountability. Canada has an opportunity to again fashion itself after the best of thinking on accountability, taking into account the important experience of others.

The parliamentary element of accountability means designing a committee of parliamentarians, which, I imagine, you already know. I am pleased that the government did not stop at the creation of NSICOP and has included equal attention to expert review.

Internationally, we can see our allies similarly adding substance to the review and oversight structures responsible for national security. In the U.K., there is the new Investigatory Powers Commissioner's Office. In New Zealand, there has been a doubling of the size of its inspector-general. In Australia, expanding the size and remit of its inspector-general for intelligence is actively being discussed as we speak.

Canada's deliberations on accountability are happening at a time when there has been a shift in thinking on accountability for intelligence agencies, translating into expectations among the public of greater transparency. To that end, one of the great strengths of the bill is the provision that allows for the agency to issue special reports when it decides that it is in the public interest to report on any matter related to its mandate. The new agency will issue these reports to the appropriate minister, who must then cause them to be tabled before each House of Parliament.

This will allow the new agency to signal a significant issue to the minister and the public in a timely way. SIRC is not currently able to do this, and it has been a limitation for SIRC in its ability to present the results of its work in a timelier manner. In light of the government's recent statements regarding transparency, this is an important provision. At the same time, we note that there are no provisions in the bill requiring CSIS to issue a public report to match the requirement of CSE in this regard. In the interests of transparency, SIRC views this as an important gap that SIRC puts to the committee to consider in its deliberations.

The proposed legislation makes clear that SIRC and its experience will be central to what is coming. The transitional provisions clarify that, at the coming into force of part 1, SIRC members, of whom I am one, are to be continued as NSIRA members for the remainder of their term. In the majority of—