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.

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

Thank you, Mr. Chair.

Thank you, gentlemen.

First, thank you for the very comprehensive document you submitted to the committee. Bill C-59 is, indeed, complex to study, and the document you have provided contains very important elements.

I would like to come back to one point, the approval process.

The problem right now is cyber threats. In cyber defence, there is a maximum number of resources that can be in the know and that can counter cyberattacks. We work together on this. However, when we talk about active trading, that is, when Canada conducts cyber operations, I find that there are many levels of intervention, given the secret nature of the information. If you want to carry out an operation, you need to collect information or make computer-based interventions in the systems.

This morning, I attended the meeting of the Standing Committee on National Defence. We have heard from people who work on cyber operations. According to them, in defence, the important thing is to provide protection. In case of attacks, they will especially turn to the CSE.

According to Bill C-59, when we talk about conducting operations, we seek the approval of the Minister of Foreign Affairs. On your side, you also ask for supervision by the Intelligence Commissioner.

Don't you think there are too many people involved in secret operations?

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

No.

I have one last question.

How do you think we do currently in comparison to our Five Eyes partners in combatting cyber-threats? Will Bill C-59 make us even more nimble to deal with them?

[Jean-Pierre Plouffe, Commissioner, Office of the Communications Security Establishment Commissioner]

Thank you, Chair.

Mr. Chair, honourable members, I am pleased to appear before this committee again, this time on the subject of Bill C-59. I am accompanied by William Galbraith, the executive director of my office, and by Gérard Normand, special legal advisor.

I have been the Communications Security Establishment (CSE) Commissioner for over four years. I am responsible for reviewing the activities of CSE, primarily to determine whether they complied with the law. This naturally includes everything to do with protecting the privacy of Canadians and persons in Canada. I am a retired judge of the Superior Court of Québec and of the Court Martial Appeal Court of Canada. As I like to often say when I appear before you:

I'm a young 75.

The phrase retired judge means that you cannot expect someone 40 or 50 years old. In order to retire, we have to be at least 69 or 70. That explains my somewhat advanced years.

The law requires the CSE Commissioner to be a supernumerary judge, meaning a judge who is on the bench part-time, or a retired judge of a superior court. My current term expires in mid-October this year, in 2018.

However, once Bill C-59 receives royal assent and part 2 enters into force, my role will change into a completely—and I emphasize completely—new function for intelligence accountability in Canada.

Indeed, the CSE commissioner will no longer perform after-the-fact review of CSE activities. The intelligence commissioner, or the IC if you prefer, will have a quasi-judicial role, of which the first part is reviewing and the second is approving authorizations issued by ministers for certain activities of CSE and CSIS before those activities can be conducted.

This specific role will be to determine whether the minister's conclusion to authorize the activity was reasonable. The test I have to apply is reasonability. In essence, this is similar to the function performed by a court of law when undertaking what we call “a judicial review”. This is, in my view, a critical role, intended to provide a quasi-judicial review of an intelligence agency's activities that may have charter and/or privacy implications.

Part 2 of Bill C-59, the Intelligence Commissioner Act, expressly provides for the transition of the CSE Commissioner into the new role of Intelligence Commissioner. The functions of post-facto review of CSE activities that I now perform will be assumed by the new National Security and Intelligence Review Agency, also proposed in Bill C-59.

This bill also requires the intelligence commissioner to be a retired judge of a superior court, which is appropriate, in my view, given the quasi-judicial function of this new position. However, this bill does not include the possibility of appointing a supernumerary judge, as is the case now with the National Defence Act for the CSE commissioner. I believe this bill should retain the possibility of a supernumerary judge, in part to ensure a broader pool of potential candidates. I was a supernumerary judge when appointed CSE commissioner four years ago, and a short time afterward, I fully retired as a judge.

The problem is the following. The pool of candidates for this job, the new intelligence commissioner, is very narrow. You must find a retired judge who has the proper background to be appointed—for example, a background in security matters or in national defence matters. The pool is very narrow. That's why I'm suggesting that we should keep in the bill what we have in the National Defence Act with regard to the appointment of the intelligence commissioner. In other words, a supernumerary judge should be appointed as the IC and then would retire maybe a few months later. It would be a transitory measure. I can see that if a sitting judge remained the intelligence commissioner for years, he might have some problems with conflicts of interest and what have you. I think for transition purposes, it might be very useful.

Previously, I submitted to this committee a written copy of substantive proposals for amendments to Bill C-59. Those comments were sent to your chair on December 6, 2017. I am also submitting today lists containing additional substantive and technical proposals that I sent to Minister Goodale and Minister Sajjan. I think you have a copy of those comments before you. I will highlight a number of these in my remarks.

The importance of the process the government has chosen to follow for this bill is, as stated by Minister Goodale, to allow new ideas and alternative suggestions to be presented before second reading in the House.

In this context, I will speak to changes I am proposing for three parts of the bill: part 2, the intelligence commissioner act; part 3, the CSE act; and part 4, amendments to the CSIS Act. While I am of the view that the proposed legislation is generally sound and that it addresses most of the recommendations made by me and my predecessors to amend part V.1 of the National Defence Act. I am also of the view, following in-depth analysis and discussions with officials and agencies directly involved, that certain amendments should be proposed. Among my substantive proposals, I will describe seven that I consider the most important.

First, I believe the intelligence commissioner should be involved in approving authorizations for CSE active cyber and defensive cyber operations which may also implicate privacy interests. Some commentators have remarked that this is a new and very broad mandate for CSE and that it is too permissive. By comparison, the CSIS Act requires CSIS to go before a federal court judge, in some instances, to have a warrant issued for similar activities.

Second, as the bill is written currently, the Intelligence Commissioner does not approve the minister's decision to extend the validity of a CSE foreign intelligence or cybersecurity authorization for an additional year. I believe the commissioner should be involved, given that he was involved in approving the initial authorization. Otherwise, in effect, the authorization would be for two years. However, this is not what the bill proposes. It proposes that this type of authorization is valid for a maximum of one year. If the minister granted extensions almost automatically without the commissioner being involved, the duration could end up being two years, instead of the one year provided for in the act.

Third, emergency authorizations for CSE issued by the minister for purposes of foreign intelligence or cybersecurity should also be reviewed by the commissioner immediately after they have been issued. This would be similar to the approach that exists in the Investigatory Powers Act in the United Kingdom. Under the U.K. legislation, the period of validity for these emergency authorizations is five days, the same validity period as in Bill C-59. However, in the U.K., the Judicial Commissioner must review and approve these authorizations within that time frame.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thanks very much, Mr. Chair.

I really appreciate the testimony we've had on cyber defence today, and I am reassured that we're doing our best in cyber-defence, but your testimony today identified that the legislation in Bill C-59 is really going to bring CSE in line with the authority to do active cyber that DND already sees itself as having.

In the legislation, section 31 says essentially that active cyber, after being authorized, can be carried out despite any act of Parliament or any act of a foreign state. This is a very broad grant of authority.

I'm wondering whether you consider that DND is already authorized to conduct active cyber-activities without regard to any act of Parliament or the act of any other state.

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

After this meeting, I am going to go to a meeting of the Standing Committee on Public Safety and National Security where we will discuss Bill C-59. We'll be meeting with the CSE Commissioner, as it happens.

That bill involves transferring CSE national defence-related powers to the Minister of Public Safety and Emergency Preparedness. The bill also contains provisions that will require the authorization of the Minister of Foreign Affairs to conduct an operation.

How do you see that?

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you, Mr. Chair.

I want to take the conversation in a bit of a different direction here. I think we're running into a phenomenon here of cyberwarfare not really fitting under the normal protocols of war and the rules of warfare. It operates at the edges of those. International protocols prohibit targeting civilian targets, and those kinds of principles we're used to. I know that neither of you represents CSE, but the legislation that's before Parliament in Bill C-59 proposes to allow active use of cyber-attacks in sabotage. It's a concern for me that we, as Canadians, are stepping into an area of international conflict that's not well regulated internationally.

My question, I guess, would be directed largely to Mr. Feltham. What's your relationship with CSE in terms of their, I would say, requests for moving into active cyber-attacks?

The second part of the question is this: do you feel that you are already authorized in DND to use active cyber-attacks against both foreign states and individuals for CSE? Are you already authorized to do those things? What's your relationship with CSE on those aspects?

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

NATO's article 5 is summed up as an attack on one being an attack on all. It was only used once, on 9/11, and of course it was civilian infrastructure that was attacked. With Bill C-59, there's going to be a cyber-offensive posture provided to the Department of National Defence and the Canadian Communications Security Establishment. What would be classified as an article 5 in the cyberworld?

Public Safety

[Ralph Goodale, Liberal, Minister of Public Safety and Emergency Preparedness]

Mr. Speaker, the research reports today are highly speculative, but the point is simply this. We are dealing with a flawed system that was implemented about 10 years ago by the previous government, and we are trying very hard to fix that system. It requires new legislation, new regulations, and a new computer system built from the ground up. The first step, the legal authority, is contained in Bill C-59, and I am sure that all members of Parliament will want to vote for this legislation.

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

Actually, I'll take the half minute to ask one other....

If you were to change one thing in Bill C-59, Mr. Fogel, that you think is absolutely critical for public safety and balancing the need for rights and privacy, what would it be?

[Shimon Fogel]

Mindful of the time, I'll be very brief.

It is, I think, the reverse. “Counselling” is the new language that's introduced in Bill C-59.

For me, it's less about the language that's used as it is about establishing who it's directed toward. Bill C-59 requires a direct link between someone who is promoting or counselling terrorist activity and the one who's going to act upon it, without recognizing that an individual promoting it may have the intention of creating a certain environment that will be attractive to as yet unknown or unidentified individuals, so you can't establish that direct chain.

If we were to tweak it in a way that makes it more consistent with other legislation but doesn't require that direct link on specific acts, I think it would strengthen the legislation.

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

Thank you, Mr. Chair. I feel so privileged.

I thank both witnesses for being here and for your testimony.

I'm intrigued by your testimony, specifically about the language. I want both of you to weigh in on this if you could, please.

Changing “counselling” of terrorism to the “promotion” of terrorism, how does that change the context of Bill C-59 and what CSIS and other agencies need to do? Are we still going to be as effective with that term change?

Mr. Fogel, could you go first, please?

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

Thank you very much.

As you know—this is a bit beyond Bill C-59 but does fit into the discussion because we are talking about security—in late September, Minister Goodale issued a ministerial directive on information obtained by torture. For the purposes of the record, the new rules ban the use of information that was probably obtained through torture, except when it's necessary to save lives or to prevent against major personal injuries.

For example, last week I asked Professor Forcese if it would be more effective to enact that directive and the principles on which it is based in legislation—

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

Thank you very much, Mr. Chair.

Mr. Roach, the first question is going to you.

We're talking about security matters here, and when you look at Bill C-59 and see the repeal of investigative hearings, which you're very much in favour of, I think some Canadians might sit back and read about that in an article, or hear political parties that are not in favour of it, and feel less safe.

Can you speak about investigative hearings in general terms? You called them an “unwieldy concept” in a piece with Craig Forcese, for Policy Options. An ineffective approach is basically what it comes down to, but can you expand on that?

[Shimon Fogel]

I'm not entirely familiar with that particular aspect of the case. It is good practice, and I believe, frankly, that Canada already undertakes consultation with all its like-minded allies on a routine and regular basis looking for best practices, those that we can share with others, and those where we can benefit from the experience of other nation-states.

I'm encouraged when I look at the process of Bills C-51 and C-59 and the commitment to periodically review, both to refine on the basis of experience but also to be able to be responsive to changing circumstances on the ground. That's exactly the right approach that we should be taking. I'm encouraged that we do consult with our allies in order to benefit from their experience in areas where we have less.

[Professor Kent Roach, Professor, Faculty of Law, University of Toronto, As an Individual]

Thank you very much for inviting me to appear before the committee.

My colleague Craig Forcese has already addressed you and has focused on parts 2, 3, and 4 of the bill. I will focus on the other parts of Bill C-59.

Part 1 providing for a government-wide super-SIRC has been widely praised. In my view, it implements the important principle, if not the precise details, that animated the Arar commission's report; namely, that review should expand with the state's national security activities and that review strengthens rather than weakens security.

Improvements can still be made. I recommend that the new and very much welcome super-SIRC be somewhat supersized. In my view, it should contain a minimum of five members and up to eight members. Amnesty International has endorsed this recommendation, and you've heard some very interesting proposals about strengthening the new super-SIRC both from Professor Wark and Mr. Fogel.

We should think about having more diversity in appointments and not simply focusing on the consultation with leaders of political parties, which is very much a holdover from the original 1984 Cold War era CSIS Act. We could also include people with expertise in privacy, as you heard from the Privacy Commissioner. I think it is also important that there be representation where possible from communities that may be disproportionately affected by national security activities.

The mandate of the new review agency needs to be better defined. On my reading, the reference to “department” or “corporation”, which is incorporated in the new act, does not include the RCMP. This should be very clearly spelled out. It should be clear that the new committee can review the national security activities of the RCMP, hear complaints about the national security activities of the RCMP, and have full access to classified information that the RCMP has on the same basis that it will have access to classified information that CSIS, CSE, and other agencies involved in national security have.

Moving to part 5, I remain of the view that the SCISA part of Bill C-59 remains the weakest part of the bill. I would advocate that the definition of threats to national security in section 2 of the CSIS Act be the default trigger for information sharing, subject to carefully tailored and justified additions in cases where that may be inadequate. The novel Bill C-51 definition of activities that undermine the security of Canada was grossly overbroad. Even after the amendments in this bill, it would remain overbroad.

When I talk about overbreadth, and I know that some members of this committee have read the Air India commission report, I refer to overbreadth not only from a civil liberties perspective but frankly from a security perspective. If everything is a security threat, effectively nothing is a security threat. I think we really should tighten the definition with respect to information sharing.

On the subject of Air India—and here I'm going just a touch beyond Bill C-59—I must again reiterate my objections to the CSIS human source privilege that was enacted in the Protection of Canada from Terrorists Act. If it is not repealed, at least I would recommend that, as an urgent matter, there be a study of whether CSIS's practice of granting anonymity to witnesses is hindering terrorism prosecutions.

The Privacy Commissioner has made a strong case to you that the standard for receiving agencies under SCISA should be raised to “necessity”. I agree. I would also not be troubled by having that same standard with respect to sending agencies. The Privacy Commissioner raised the issue that sending agencies may not have experience with security, but they also maybe don't have the same incentive that receiving agencies may have to keep, perhaps unnecessarily, the information that they receive.

In this regard, a critical feature of the new review agency is that it will be able to examine the legally privileged material that is the basis on which receiving agencies will make decisions, perhaps wrongly, to retain any information.

Moving to part 6, the committee is well aware of the problems of a no-fly list. The reforms in C-59 strike me as minimal. Four months is a long time to be a wrongfully listed person, even if the default has been changed. Special advocates should have a role in appeals, and Bill C-51's restriction on the information that these security-cleared advocates can see in security certificate cases should also be repealed. More fundamentally, however, perhaps the new committee that has access to classified information should review whether the costs of the no-fly list, both financial and human—in terms of false positives—are actually worth its benefits.

Moving to part 7 of the bill, I note that the CCLA submitted to you that the reference to terrorism offences in the counselling offence is not defined. That's not my reading. I would read the reference to terrorism offences as referring to the definition of terrorism offences contained in section 2 of the Criminal Code, but this is a matter that needs to be clarified.

The changes to the preventive arrest provisions are difficult to evaluate, but I would favour further amendments to clarify limits on questioning of people who may be detained for up to seven days. I would also advocate that there be some response to the Driver case in Manitoba, which held that at least one part of the peace bond provisions relating to treatment programs violated the charter. I would also recommend that we look at something like section 10 of the U.K. Terrorism Act, 2000, which would allow people to challenge listing as terrorist groups without that very act of challenge being the basis for a terrorism offence.

I applaud the government for repealing investigative hearings, a technique that has never been successfully used and, if used, could hinder terrorism prosecutions.

Finally, this is important and complex legislation that was made necessary by Bill C-51. I would propose that given the comprehensive, if not radical, nature of C-51 and the important proactives of this bill, that the review of this bill be commenced within the fourth year of its enactment, not the sixth year as contemplated in part 9. I would also propose that the review be undertaken by a special joint committee of the Commons and the Senate, which could include one to two members of the new National Security and Intelligence Committee of Parliamentarians.

In addition to my previously submitted brief, which I hope you have and has been translated, those are my submissions.

Thank you very much. I look forward to your questions.