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.

[Peter Edelmann, Member-at-Large, Immigration Law Section, Canadian Bar Association]

Thank you very much for inviting me to appear before you today.

Bill C-59 proposes complex and major updates to national security law. It would address several decisions of the Federal Court of Canada, and widespread concerns expressed about Bill C-51 in 2015.

The Canadian Bar Association generally supports the goals and structure of Bill C-59 as a positive change, modernizing the legal framework for Canada’s national security infrastructure and increasing transparency, oversight and review, features that have previously been lacking. Our comments and analysis of the proposals in Bill C-59 are offered in hopes of further improving the bill.

Our written submissions provide a number of specific recommendations and I would refer you to those for the more technical amendments we propose. I will use my time today to focus on two or three areas of broader concern.

First of all, we support the creation of the national security and intelligence review agency, the NSIRA. I just have a couple of comments with respect to it but in particular with respect to the mandate. While we commend the decision to avoid language that would unnecessarily restrict the agency's mandate, an overly broad mandate could hinder the agency's ability to focus and assess its performance against its mandate.

In the way that it's drafted now, the NSIRA has responsibility for broad review of any activity of “a department that relates to national security or intelligence”. “Intelligence” is a very broad term. It could include things that are done by anything from the Canada Revenue Agency to Fisheries and Oceans, police departments, etc.

“National security” is also problematic given the multiple definitions that we see in different pieces of legislation. In particular, we remain concerned about the SCISA, the Security of Canada Information Sharing Act, or with the amendments that we have today. The breadth of the definition of an “activity that undermines the security of Canada” in section 2 is still very broad and notably it's different from the definition in the CSIS Act of “threats to the security of Canada”. Having two definitions is not helpful. It's confusing and it doesn't provide a clear mandate for national security agencies and in particular for an oversight or review agency.

I would also note in passing that the amendment to the exception in section 2(2) of the SCISA is troubling as it actually substantially reduces the protection under the current version. Several legitimate political activities might be seen on their face as undermining the sovereignty or territorial integrity of Canada.

In the past, we've recommended that there be one coherent, clear definition of “national security” and we continue to be of that view. It's also unclear whether certain other activities fall under the definition of “national security” at all. For example, the Secure Air Travel Act, SATA, does not refer to national security and it's unclear whether the review of SATA activities would fall under the NSIRA or not. In other words, is this national security legislation? Does it fall under NSIRA?

The coordination of the work of the NSIRA with other review agencies is obviously key although we would note that there remain significant gaps in the review framework. The problem is particularly stark with the Canada Border Services Agency, and we've expressed concerns about this lack of independent review of the CBSA in several past submissions.

CBSA remains one of the largest law enforcement agencies in the country and has no independent oversight or review at all. This is not a role that NSIRA should take on although it does highlight the problem of having a vague definition of “national security” because arguably everything that Canada Border Services Agency does could fall into a broad understanding of national security in a vague sense.

Everyday complaints about problems at the border should not be burdening NSIRA and its resources. A specialized review agency is required.

We also have concerns, in particular, with respect to NSIRA's access to information, and in particular that NSIRA would have access to any information other than a cabinet confidence that it deems necessary to conduct its work. This would extend explicitly to information subject to solicitor-client privilege, professional secrecy of advocates and notaries, or litigation privilege, creating an open-ended mechanism to review legal advice given to the government. This is of significant concern to the CBA.

The role of solicitor-client privilege is fundamental to the functioning of our justice system and this is as true for government actors as it is for private actors. It has been argued that privileged information must be made available because the practices of security agencies often depend on the legal advice they receive.

However, without assurances of privilege, legal advice will be sought less often, based on less candid disclosure by client agencies, or worse, sought and received but not documented.

The other problem with respect to the disclosure of solicitor-client privileged information is how the NSIRA then deals with it in its reports. It's not helpful for the NSIRA to have solicitor-client privileged information. What they need is information about how this is actually deployed in the agency, not the advice that was given behind those decisions.

Concerning the intelligence commissioner, the CBA supports the creation of an independent specialized office for the oversight and authorization of activities by the CSE and CSIS. We have generally called for judicial oversight, but we recognize the advantages of a dedicated commissioner with staff and resources to allow effective ongoing oversight.

The nature of the review mandated by sections 14 to 21 of the proposed intelligence commissioner act does create some concerns for us because there's a system of nested reasonableness findings. Instead of the normal process in front of a judge for a warrant where a judge would find whether there are reasonable grounds to issue a warrant, what the legislation currently foresees is that the minister would make a finding on reasonable grounds, and then the intelligence commissioner would review that on a reasonableness standard.

This creates two problems from our perspective. First, it's unclear how much deference that implies. There's an extensive debate in the courts right now around the application of the reasonableness standard at all and how that plays out in terms of deference.

There's no need to bring that confusion into this area, and there is not that confusion around the reasonable grounds standard, so there's no reason for this nested reasonableness finding other than creating a level of confusion as to how much oversight is actually being provided, in particular because it's going to be provided behind closed doors. It's important for Canadians to understand what the intelligence commissioner is doing and that it be clear.

With respect to the CSE, the CBA generally supports the more detailed mandate of the CSE, and we support the structure as it's being proposed. There are several elements of the proposed mandates that are in tension with one another, in particular, the offence and defence in cyber-operations.

We would recommend that there be an explicit vulnerabilities equities process as part of the mandate of the CSE, so that the balancing can happen in a transparent way. The U.S. has a process in place that might work as a model, or at least give ideas with respect to that.

With respect to CSIS, we continue to have concerns around the disruption powers. In particular, giving kinetic powers to CSIS comes away from the mandate of creating CSIS in the first place, after the McDonald Commission.

I'll refer you to our written submissions with respect to our concerns around section 12.1(3.2). We continue to have concerns similar to those we've had in the past with respect to these warrants limiting charter rights in that context.

Finally, I would note with respect to the Criminal Code provision of counselling of terrorism offence, in my view, following the jurisprudence of the Supreme Court in Hamilton, the counselling offences in the Criminal Code already cover everything this offence covers. There is no need to further complicate the Criminal Code. It's already too complex. It ought to be simplified, and the counselling offence covers everything you're hoping to cover here.

Thank you very much for your time, and I apologize if I went a little bit over.

[Gillian Carter, Staff Lawyer, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair and honourable members of the committee. My name is Gillian Carter, and I am a staff lawyer with the law reform directorate at the Canadian Bar Association. Thank you for inviting the CBA to discuss Bill C-59 with you today.

The CBA is a national association of more than 36,000 lawyers, notaries, law teachers, and academics. An important aspect of our mandate is to seek improvements in the law and the administration of justice, and that is what brings us here today.

The CBA has offered its views and expertise at many stages in the development of Canada's national security and anti-terrorism regime. Our written submission on Bill C-59 was prepared by multiple sections of the CBA, including the criminal justice, immigration law, charities and not-for-profit, military law, and privacy and access to information law sections. With me today is Peter Edelmann, a member of the immigration law and criminal law sections and a lawyer specializing in immigration law.

I will now turn it over to Peter to address the main points of our submission.

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

Okay. Thank you very much.

We heard from the British Columbia Civil Liberties Association a few days ago, who told us of a number of concerns. In a subsequent article that was written since their testimony there was concern expressed about Bill C-59 on cyber-operations that could be conducted by the Communications Security Establishment. Since you focused today a great deal on the technological aspects of terror and how that can jeopardize Canadian security, I want to ask you about that.

Their view is that Bill C-59, by empowering the CSE to conduct cyber-operations against foreign actors, constitutes a danger. Specifically, it would normalize state-sponsored hacking. Can you speak again to the importance of cyber-operations from a security perspective? How critical is this? The nature of security is changing. Canadians deserve to be protected. We have to make sure that our approaches are keeping up with changes that are under way.

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

A higher threshold was indeed put in place in Bill C-59. That responded to a long-standing concern among civil rights advocates who were of the view, and I think it's a reasonable position to hold, that to detain someone without a warrant for up to seven days, without applying a criminal charge, as the preventative arrest measure allows for, is questionable. In a democracy, you can at least have that debate.

The government has looked at Bill C-51 and introduced a change. Under Bill C-51, as we heard, an arrest could happen when it was “likely to prevent” a terrorist act. Now, in Bill C-59, an arrest can be made when, on reasonable grounds, there is suspicion to believe a terrorist act might be taking place. You still have that ability to lay an arrest, and in emergency situations it's there. This isn't preventing you from acting as police, correct?

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

You just talked about people who went abroad to join the jihad and then came back; that’s one problem. Another is the domestic issue in Canada. You said that, in Vancouver, the number of identified individuals has gone up from 13 to 268, and that there is a problem with resources.

For the purposes of our study, we need to know whether parts of Bill C-59 may be reducing your legal capacity to intervene. You talked about the need to request a warrant from a judge in order to intervene if the possibility of a terrorism offence is detected.

Do you think Bill C-59 contains problematic provisions that are likely to interfere with your work on the ground?

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

Thank you, Mr. Chair.

My thanks to the witnesses as well.

Your testimony on national security is very important. Our primary objective is to see whether Bill C-59 will allow the police forces you represent to continue to do their work.

As I understand it, terrorism and the return of ISIS fighters worries you a great deal. On the one hand, without giving much away, the government has confirmed that some safeguards are in place, but on the other hand, you seem to be saying that there is a problem.

Can you give me more information about this? Is there a problem with communication between Canada’s intelligence services, the RCMP and the police forces you represent at more regional and municipal levels?

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

We also heard about challenges caused by law enforcement working in silos. You have the RCMP, CSIS. Do you think the proposed national security and intelligence review agency created in Bill C-59 will help ensure that information will be shared in a timely manner? Have you looked at that aspect of it?

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

Turning to the legislation itself, we have had testimony on this, as well as an open letter that was talking about the new offence that was in Bill C-51 on advocating or promoting the commission of terrorism offences in general and the broad definition of “terrorist propaganda”. When we had the minister here, he talked about how, in Bill C-59, we've amended that wording because it was actually too vague and no charges had been laid because they weren't enforceable in court.

Do you feel these changes will assist you in actually being able to lay charges that can be enforced in court?

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

Thank you.

I have one last question for each you. I have about three minutes left.

Chief, you spoke specifically to the three concerns that you have as a police association with respect to terrorism peace bonds—which we've kind of covered off—the intel-to-evidence, and the encryption. We've heard from a few witnesses so far at this committee who have expanded upon their thoughts and given us some indication of what they would like to see more of or improved upon in this bill as it's currently written, which is why we're having the debate now, before second reading. We can make some changes, which is great.

If you were to change Bill C-59 in ways that you think would be absolutely critical for public safety—keeping in mind the balance between rights and privacy—what would those changes be, and how would they be accomplished?

I'd like to hear from both of you on that, if I could.

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

We have the peace bonds, but the other aspect now of Bill C-59 is the preventative arrests. We understand the language in the new legislation limits it to an arrest that “is necessary” to prevent a terrorist activity. Under the old Bill C-51, the threshold was “is likely to prevent”, which was the language that was used. In fact, the committee heard from the justice department earlier in this study, and they confirmed that the threshold to make a preventative arrest was being raised. They said that, “It would require the police to present evidence of a greater link between the conditions to be imposed on the person or the arrest of the person and the prevention of terrorist activity.”

Again, similar to peace bonds, do you believe that this higher threshold will make it more difficult for law enforcement to make preventative terrorism-related arrests?

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

Thank you, Chief Martin and Deputy Rankin, for being here today.

I want to go back to the comment one of you made earlier with regard to peace bonds. We know that Bill C-59 increases the threshold from “is likely” to “is necessary” to prevent a terrorist activity in order to even obtain a peace bond in the first place.

Determining that a peace bond with certain conditions is necessary to prevent an act of terrorism is a pretty high bar. The amount of evidence that would go into proving that is nearly the same as to prove a criminal charge, to lay an information.

Can you explain to the committee the importance of peace bonds, and if you've used them, how often you've used them? In your opinion, could this new, increased threshold be a risk to Canadians?

Federal Public Sector Labour Relations Act

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Mr. Speaker, my colleague touched on a whole host of issues. However, I would like to quickly address his comments with respect to Phoenix.

The member talked about the fact that we were advised to dial back in January of 2016. However, the reality is that the previous Conservative government fired 700 compensation advisers throughout the public service. These were the people who did that work. Therefore, to suggest that we could suddenly stop the process is completely inaccurate. We could not have done that. The motions were already in process, individuals had been fired or let go, and there was no opportunity to start dialling back and not implement Phoenix.

Let us talk about the legislation being introduced today.

Bill C-59, which had been introduced by the previous Conservative government, had provisions in it that took a heavy-handed approach to perhaps some bad apples in the bunch. In my experience of dealing with the public service and unions, when we can work collectively with unions, when we can collaborate together to bring forward good policy, that is when we truly get the benefit of this. That is what the legislation before us today would do. It attempts to create an environment in which we can work with the unions to bring forward good legislation so we can have decent policy from which they can benefit and we can also benefit.

Does the member not see the value in working collaboratively with our unions?

[Micheal Vonn]

Thank you for the question. I hope it's appreciated that the BC Civil Liberties Association takes security very seriously. The importance of getting this correct, getting these rights and freedoms of Canadians to fit together with the ability of the government to provide national security protection occupies a great deal of our bandwidth.

Canada, as you may know, was really—to use some of the language that has already been introduced—a bit of a laggard in a number of arenas, including having the kinds of transparency and accountability mechanisms that are standard in many of our ally countries. We welcome the ability to enshrine in legislation and make more transparent the accountability that is needed for Canadians to trust that national security is working in their interests. We have advanced in that regard.

Our concern about Bill C-59 is that there is a sense in which this is the moment to get the big pieces right. When we bring forward our concerns about the thresholds for bulk data surveillance, which has never been appropriately debated at a parliamentary level, we are saying that we welcome this opportunity to put the big thinking together in relation to these pieces, but that in part because we have an omnibus bill before us, some of those aspects are being given insufficient attention.

[Jim Eglinski, Conservative, Yellowhead, AB]

Thank you.

On November 20, I spoke in the House on Bill C-59, and I talked about part 5, which amends the Security of Canada Information Sharing Act. We have heard and read repeatedly that information sharing and breaking down the silos for information are critical to protecting Canadians. Do you believe that Bill C-59 is increasing or decreasing our ability to share information?

[Raymond Boisvert]

Again, I think Bill C-59 is a good balance. I think Canadians will be better served by it and I think we'll have as good an opportunity as in the past to deal with emerging threats.