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.

Public Safety

[Mark Holland, Liberal, Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness]

Mr. Speaker, yesterday, the Privacy Commissioner said that Canada was moving from the back of the pack and catching up with the rest of the international community. In fact, he said that Canada was moving to the lead as a result of the legislation, Bill C-59.

The fact is that the legislation is putting us at the vanguard, that we are ensuring two things equally: one, the protection of Canadians; and two, making sure that their rights are protected.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Mr. Speaker, the Liberals promised to fix the problems in the Conservatives' anti-terrorism bill, which was an unprecedented attack on Canadians' civil rights.

The Privacy Commissioner sounded the alarm on the Liberals' Bill C-59 yesterday in committee. The thresholds for sharing information about Canadians among departments are still too low and must be more limited.

Will the government finally agree to amend its bill to protect Canadians' civil rights?

[Kellie Leitch, Conservative, Simcoe—Grey, ON]

I've been meaning to ask all of you another question.

In your reading of Bill C-59, each of you have made some comments on the number of layers and whether or not new reviews would be placed on CSIS and their capacity to be able to do things. Do you think it's helpful in allowing CSIS to meet its mandate by having these additional layers? Mr. Leuprecht, you had commented with regard to the issues around methodology and how that would be implemented. Could you comment and then we'll come back to the others?

[Kellie Leitch, Conservative, Simcoe—Grey, ON]

Thank you very much, Mr. Chairman.

Thank you, all, for taking the time to come today.

Mr. Leuprecht, I'd like to ask you one particular question. I guess it's in follow-up to your comment about how Canada no longer lives in an isolated part of the world with respect to these issues around security.

Bill C-59, we've heard from the Department of Justice, will make it more difficult for law enforcement to secure preventative arrests because the threshold is being raised to secure such an order. I was wondering if you could make some comments with respect to that and your perspective on it.

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

Thank you very much.

My next question has to do with the minister's testimony when he was before this committee on Bill C-59. He was talking about the changes from Bill C-51, amending, advocating, and promoting the commission of terrorism offences in general, and replacing the offence to apply only when a person specifically counsels another person to commit a terrorism offence. It provides a clear and more appropriate legal structure surrounding them. When he was questioned, he was asked if this would actually provide law enforcement with better tools to be able to enforce.... Now, you had mentioned that you thought the definition was still too broad. I don't know if you had an opportunity to see what the minister was saying in terms of it actually narrowing the definition to allow law enforcement to enforce....

I'd also welcome comments from both of you on that.

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

I have 30 seconds. I have one more question I want a response to. Sorry.

Bill C-59, as we've heard from the Department of Justice, will make it more difficult for law enforcement to secure preventative arrests. Now, because the threshold to secure such an order is being raised, do you, Mr. Leuprecht, consider this to be problematic?

[Cara Zwibel]

We feel that the scheme laid out in Bill C-59, as we said, is an improvement in terms of clarifying what the contours of threat disruption look like and making clearer to both the public and to the service itself what the acceptable and prohibited bounds are. In particular, the addition of prohibited activities, including detention, was in our view quite an important one.

I want to reference that when we expressed concerns about disruption and why this is not being done by law enforcement, some of that has to do with making sure we can effectively prosecute people once we determine they've done something contrary to the law. The other thing is that we've never been particularly concerned about the kind of disruption you mentioned, such as talking to a parent and saying, “Your child's been getting into some trouble.” We're more concerned with some of the items that are now specifically enumerated in the legislation—things like fabricating or disseminating any information, record, or document; altering or removing websites and communications, and things like that. It's helpful, in our view, to have those in the legislation.

We have suggestions for how the warrant scheme might be improved, and we can elaborate on those in our written submissions.

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

Thank you.

Dr. Leuprecht, the powers in Bill C-51 are not uncommon. You had said in your testimony, again on Bill C-51, “Canadians have a profound misconception of what disruption constitutes. CSIS being able to talk to parents to tell them that their child is up to no good is a disruption power.” I can go on with that, but with the changes proposed in Bill C-59, particularly in securing a warrant to conduct certain disruption activities, do you believe we are heading in the right direction with this legislation on that particular front?

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

Thank you, Mr. Chair, and thank you to both groups for being here today.

Mr. Leuprecht, you had said in previous testimony on Bill C-51, “CSIS is the most reviewed intelligence security service in the western world and therefore, I think we can safely say in the world as it is.” In your reading of Bill C-59, are there any new layers of review placed upon CSIS, and do you think those are helpful in helping CSIS fulfill it's mandate?

[Hayley McNorton]

Considering the broad mandates of both NSIRA and NSICOP, there is a potential for overlap, especially in what they review for. They both could technically review issues related to efficacy, compliance, innovation of agencies.

They're geared toward different things. For example, the parliamentarians have a diversity of expertise, so they would be very useful in reviewing legislation. According to Bill C-59, NSIRA is made up of former SIRC members. They have the experience and intelligence accountability to look at things that are more geared to compliance. However, there probably will need to be some kind of delineating of responsibilities to prevent overlap and the minimization of duplication of work.

[Lex Gill]

Absolutely.

The government has failed to demonstrate why this publicly available information exception as worded is necessary or proportionate, or what risks it's meant to mitigate in the first place. The CSE has identified a need to access reports on the global infrastructure as a justification for this provision, yet a more narrowly defined list of information types would easily respond to such a need.

While section 7 specifies that privacy must be considered, the nature of the protection is vague; the regulations setting out the scope of protection are likely to be secret, and the potential for invasive information collection and abuse is high.

The parallel term “publicly available dataset” in the CSIS Act remains undefined but appears to replicate the same types of problems.

Finally, we welcome the new accountability mechanisms in Bill C-59 and strongly support the creation of the new, integrated review body, and the introduction of an intelligence commissioner with the ability to exercise quasi-judicial oversight. However, we are concerned that significant gaps remain. The commissioner only issues reasons when rejecting an authorization. The reasons are kept secret from the public. There is no adversarial input. The authorizations will continue to be issued on a class basis, and there is no framework for appeal or review of decisions except by the minister and the intelligence agencies themselves.

Without amendments that strengthen the role of the commissioner, his or her ability to exercise meaningful oversight and control will be limited in practice.

We welcome questions from the committee about these issues and other aspects of Bill C-59.

[Lex Gill, Advocate, National Security Program, Canadian Civil Liberties Association]

Mr. Chair, another deeply problematic aspect of Bill C-51 that has not been touched are changes to the Immigration and Refugee Protection Act that undid important protections for named persons in security certificate proceedings. Bill C-51 limited the requirement for disclosure of relevant information to special advocates and introduced a series of procedural barriers which further disadvantaged the rights of the named person.

In our legal challenge, CCLA has argued that these amendments are an unconstitutional violation of the section 7 guarantee to a hearing before an independent and impartial tribunal. Our Supreme Court has affirmed that the individual named in the security certificate “must be given an opportunity to know the case to meet, and an opportunity to meet the case”, an impossible exercise in the absence of a coherent legal framework for full disclosure.

This committee recognized as much in May 2017 when it recommended amending IRPA in order to give special advocates full access to complete security certificate files. We urge that Bill C-59 be amended to correct this issue.

We move now to the new elements of the new national security landscape that Bill C-59 has introduced. Our written submission will address a much wider range of issues in relation to the CSE Act, but we would like to highlight two parts today.

First, the proposed active and defensive cyber-operations aspects of the CSE's mandate essentially allow the establishment to engage in secret and largely unconstrained state-sponsored hacking and disruption. The limitation of not directing these activities at Canadian infrastructure is clearly inadequate given the inherently interconnected nature of the digital ecosystem. Such activities are also bound to impact the privacy expression and security interests of Canadians and persons in Canada, and may threaten the integrity of communications tools such as encryption and anonymity software that are vital for the protection of human rights in the digital age.

In the case of CSIS's disruption powers, which are in some ways analogous to these new aspects of CSE's mandate, the government has set out a complex framework for prior judicial authorization and a longer list of prohibited activities. While we do not concede the adequacy of that framework, it is notable that, in contrast, CSE's cyber-operations activities involve no meaningful privacy protections, require only secret ministerial authorization, and involve only after-the-fact review.

Second, while the majority of CSE's activities cannot be directed at Canadians or persons in Canada, this is an inadequate safeguard against CSE's overreach in the face of unselected bulk collection. Bill C-59 exacerbates this privacy risk by creating a series of exceptions for the collection of Canadian data, including one which allows its acquisition, use, analysis, retention, and disclosure, so long as it is publicly available.

This definition is so broad that it plausibly includes information in which individuals have a strong privacy interest, and potentially allows for the collection of private data obtained by hacks, leaks, or other illicit means. Furthermore, it may encourage the creation of grey markets for data that would otherwise never have been available to government—a client with deep pockets.

The government has failed to demonstrate why this exception, as worded, is necessary or proportionate, or what risk it is meant to mitigate in the first place.

[Cara Zwibel, Acting General Counsel, Canadian Civil Liberties Association]

Yes, my apologies to the committee for coming in late.

Thank you, Mr. Chair, and members of the committee. The Canadian Civil Liberties Association appreciates the opportunity to make submissions with respect to Bill C-59.

CCLA was a vocal critic of the Anti-terrorism Act passed in the last Parliament and initiated a constitutional challenge to a number of aspects of that law, which remains in abeyance pending consideration of Bill C-59. While this new bill has partially addressed some of Bill C-51's constitutional deficits, it has certainly not resolved all of them. The bill also grants our national security agencies a number of extraordinary new powers that have not been adequately justified and that do give rise to very real civil liberties concerns. The government has framed this bill as being about protecting both national security and rights, and CCLA supports both of these goals, and our comments and recommendations are made in that spirit.

We will begin by identifying the positive changes Bill C-59 makes to former Bill C-51, outline the issues that remain unaddressed, and finally, set out the new problems created by Bill C-59.

Since we certainly can't cover everything in 10 minutes, we'll also be filing a more detailed written submission. Beginning with the items that Bill C-59 has improved, we are reassured by the government's amendments to the terrorist speech offences. Without these amendments, the provisions violate sections 2 and 7 of the charter and may also undermine community-based deradicalization efforts. While the amended offence is arguably unnecessary, given the large number of pre-existing terrorism offences in the Criminal Code, counselling offences are a known quantity in the criminal law and follow a clear legal framework. However, the language of “terrorism offence” in the amendment would be better changed to “terrorist activity”, which is a defined term in the code.

On information sharing, Bill C-59 adds new proportionality and reporting requirements, which is a distinct improvement over the largely unaccountable system introduced in Bill C-51. However, the definition of “threats to the security of Canada” that triggers information disclosure remains unduly broad and circular. It is not clear why this definition is so much broader than the one included in the CSIS Act, and we remain concerned that constitutionally protected acts of advocacy, protest, dissent, or artistic expression, particularly by environmental and indigenous activists, will continue to be swept up in the process.

One of the most controversial aspects of Bill C-51 was the threat reduction powers granted to CSIS and the accompanying warrant provisions that appeared to allow for judicially sanctioned charter breaches. We do not doubt that there are times when CSIS may see an opportunity to take action to reduce the threat to the security of Canada. What is unclear is why this goal cannot be achieved through better communication and co-operation between CSIS, the RCMP, and other law enforcement bodies. This is a very significant shift in mandate that appears to ignore the historical reasons for separating law enforcement and intelligence in the first place, and there has been no convincing case made for why this shift is necessary.

Moreover, the legal framework for the exercise of these powers established in Bill C-51 was deeply problematic and clearly unconstitutional in our view. The scheme as modified by Bill C-59 is an improvement. It establishes clearer contours around what actions are permitted and what is prohibited, and the warrant scheme appears to be intended to ensure that the charter rights of individuals are respected. If CSIS is to continue to have these powers there are a number of ways in which we believe the scheme should be improved.

First, the requirement for CSIS to consult with other federal departments or agencies to see if they can reduce the threat should be amended to clarify that if a law enforcement body is better placed to do so, CSIS should not pursue threat reduction. Second, the list of measures set out in proposed section 21.1(1.1) only require a warrant where CSIS determines that they may violate the law or limit a charter right. A warrant should be required in any case where these measures will be pursued by CSIS. It is vital that the determination of whether a law is being violated or a charter right limited not be left solely to CSIS.

Finally, the new national security and intelligence review agency should be required to report on the number of warrants issued under proposed section 21.1, and the number of requests that were refused. SIRC does so now, and reducing reporting requirements is not consistent with Bill C-59's stated goal of enhancing accountability.

Some of the most problematic aspects of Bill C-51 received only cosmetic improvement or none at all. As this committee is aware, the passenger protect program continues to raise serious constitutional problems. The process by which individuals are placed on the list remains opaque, and proposed redress mechanisms are inadequate. Bill C-59 also fails to correct the flawed appeals procedure, which parallels the system in place for security certificates prior to the Supreme Court's Charkaoui decision in 2007.

While the no-fly list is undoubtedly different from being named in a security certificate, both have the ability to substantially interfere with the constitutionally protected rights and liberties of an individual and to seriously impact their lives and families. The current process allows the use of hearsay and secret evidence, without access to a special advocate able to test that evidence or to represent the interests of the listed person.

This committee recognized these profound issues in May when it recommended the use of special advocates in no-fly list proceedings, among other safeguards, and yet Bill C-59 does not address these concerns. It should do so by adopting this committee's initial recommendation. We would note that the terrorist entities list raised similar issues.

[Hayley McNorton, Research Assistant, Department of Political Science, Royal Military College of Canada, As an Individual]

Mr. Chair, to enhance intelligence accountability, we have suggested five recommendations.

The first is that Bill C-59 does not describe if and how NSIRA, which is the national security and intelligence review agency, will support the National Security and Intelligence Committee of Parliamentarians. In the existing system, the committee of parliamentarians could apply to OCSE, the office of the CSE commissioner, the Security Intelligence Review Committee, or the Civilian Review and Complaints Commission, if they needed additional assistance. However, if Bill C-59 is passed, it will only apply to NSIRA or the CRCC. In regard to this recommendation, we consider how much support NSIRA will give the committee of parliamentarians and what kind of support they will give the committee of parliamentarians.

The second suggestion is that the Civilian Review and Complaints Commission should retain its ability to review issues and investigate complaints related to national security. The existing legislation giving NSIRA the ability to review matters related to national security issues goes against the recommendations from the O'Connor commission. Also, in the end, it would give the CRCC undue influence over what NSIRA reviews in regard to national security, because NSIRA will remain the principal point of contact for the complaints and reviews, which it would then refer to NSIRA.

The third recommendation is that NSIRA should have the ability to conduct joint investigations with provincial police and complaint bodies. The CRCC has this power as well. Basically, a lot of the federal intelligence and security agencies work with provincial police bodies, so that is also a consideration.

NSIRA should develop and establish standards for intelligence accountability.

Last, NSIRA should take reasonable steps to co-operate with the committee of parliamentarians to avoid unnecessary duplication of work in relation to the fulfillment of their respective mandates.

[Daniel Therrien]

On balance, Bill C-59 makes important improvements, but the recommendations I am making, particularly on the necessity threshold and legal safeguards for retention or destruction, are necessary to achieve the right balance.