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 for that. You're right. We do need men in positions...who are sending those messages out to young boys and younger men.

On gender-based analysis plus, all of my youth council did the course and surprised me by coming back with their certificate. I got really good feedback from them. It's extending beyond government, where hopefully those young people will take that gender lens and apply it, regardless of where they go in life.

I have a question about how it's being applied. It was interesting. Peter and I just left the public safety meeting. Where it actually came up was a gender lens applied to Bill C-59, the new national security framework, and we were told that it was applied. We're not sure if it's something that can be shared with us as a committee or whether it was confidential.

I'm wondering if you can provide the committee with some further information on how GBA+ is being used, both legislatively and non-legislatively, within the government.

[Dave MacKenzie, Conservative, Oxford, ON]

For the RCMP officers, the minister has already identified the situation I spoke of. Would changes in Bill C-59 have allowed intervention in that whole process with the RCMP and the local police agency dealing with an outside agency?

[David Vigneault]

The way it changes the approach, as I was mentioning earlier, is that, if some of these measures were to limit the freedom of the individual, then the service needs to apply for a warrant to the Federal Court. There is a list in the bill that prescribes the types of activities we can do.

This can be done fairly quickly. The court is responsive to the urgency of threats to national security, but we have not had to use that provision yet. Bill C-59 clarifies the way it would be done, and that would be a tool.

One of the things that I would like to add is, when we use these tools, we must consult with partners, and specifically, with regard to threats of terrorism, we would consult with the RCMP. The law makes it an obligation on our part.

[Dave MacKenzie, Conservative, Oxford, ON]

Would it be correct to say that Bill C-59 does not change with respect to some people being allowed to use disruptive practices with suspected terrorists?

[David Vigneault]

Specifically in terms of the non-warranted threat reduction measures, the new bill does not impose any new measures. The service has used threat reduction measures about 30 or so times.

In your specific example, if we were aware of an individual who wanted to travel abroad for the purpose of joining a terrorist organization, we would not need a warrant to intervene with a parent or with people in close proximity to this individual to inform them of what we know in order for them maybe to have an influence on that. Bill C-59 does not make any changes to that provision.

As I've said, we've used this measure about 30 or so times.

[Dave MacKenzie, Conservative, Oxford, ON]

Thank you, Chair.

Thank you to the panel for being here.

I'm pleased that we're updating the existing Bill C-51, and I think there are some updates in here. I'm sure we all agree that in three or five years from now we'll be looking for more updates.

One of the things that has always been of interest to me and I think to Canadians is that, if we can disrupt and prevent things, it's always better to do that than it is to deal with the fallout afterwards. I wonder if Bill C-59 has changed the scope of the non-warrant disruption activities that could be designed to reduce threats and if so, how and why?

Does Bill C-59 require a CSIS officer to obtain a warrant to go to speak to a suspected person's parents about their child's radicalization or terrorist intent? I recognize that, when you go to a judge to get a warrant, there's a lot of work, a lot of time involved, and sometimes time is of essence. Would this then enter into that whole process?

[David Vigneault]

I will provide some comments, if the committee is comfortable with that.

First and foremost, it's important to say that all CSIS activities must comply with the charter. The minister explained the way the previous bill—Bill C-51, which became law—was constructed. There may have been an issue with the way it was constructed.

Bill C-59 essentially confirms that the law cannot create an opportunity to deviate from the charter. What it does in terms of threat reduction is to ensure that if ever we were to contemplate a threat reduction measure that would limit the freedom of someone protected by the charter, we would have to go to the Federal Court to apply for such an authorization. The Federal Court would then determine if the limit on that freedom is reasonable and proportionate, which the charter itself allows for. That is how the proposed Bill C-59 addresses the charter issue for the threat reduction mandate.

Also, the law will specify the types of activities that are contemplated, so that will be transparent in the law. I would then be able to interpret that, as the director of CSIS, to determine.... If it limits people's freedom, I have to go to the Federal Court for a test. If it's something that does not limit people's freedom, it's an activity I can do. The committee supervises our activities. The new agency would be informed and able to review the activity to make sure we have complied with the act.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Mr. Rigby, the importance of cybersecurity with respect to our infrastructure is your purview, and it's very important to protect against cyber-attacks. We know that the electrical grid is one source of exposure.

It's my understanding that all the provinces—and the United States for that matter—have a framework in place to protect their grids, with the exception of Ontario. Is there some federal provision or something that Parliament could do, even with Bill C-59, requiring all the provinces and territories to ensure that protection is in place, because we're all connected?

[Douglas Breithaupt]

It's important to realize that the counselling offence, as proposed in Bill C-59, is an offence that would be subject to prosecution. The “terrorist propaganda” definition applies to a system within the Criminal Code.

Former Bill C-51 created two new warrants in the Criminal Code, one allowing for the seizure and forfeiture of terrorist propaganda in a tangible form, according to the definition, and the other allowing a peace officer to come before a judge to seek a warrant for the deletion of terrorist propaganda from a website that's available to the public through a Canadian Internet service provider. The terrorist propaganda definition applies to these warrants, as well as under the Customs Act, because it allows terrorist propaganda or prohibited goods under the Customs Act.

[Douglas Breithaupt]

Indeed there is a link to the counselling offence that's proposed in Bill C-59. The “terrorist propaganda” definition is proposed to be amended to mean “any writing, sign, visible representation or audio recording that counsels the commission of a terrorism offence”. It's very closely linked to the new counselling offence.

There were concerns with the current wording of the terrorist propaganda definition, which is “advocates or promotes the commission of terrorism offences in general”, suggesting that this wasn't so easy to apply. That has been deleted, fulfilling a commitment the government made to narrow overly broad definitions, including “terrorist propaganda”.

[Cheryl Gallant, Conservative, Renfrew—Nipissing—Pembroke, ON]

Okay. The approval is required for the second part.

For Mr. Rigby, what is the justification for Bill C-59 changing the definition of “terrorist propaganda” in the Criminal Code? It raises the evidentiary standard beyond what is the factual reality of current practices in radicalization, recruitment, and facilitation, and actually duplicates what is already the crime of counselling a criminal offence in section 22 of the Criminal Code.

In light of this, will the government consider removing the proposed amendment in Bill C-59 relating to terrorist propaganda?

[David Vigneault]

Thank you for your question, Mr. Dubé.

My answer comes in two parts.

First, as I briefly mentioned just now, a number of measures already allow us to collect, use and keep information. It starts with the Minister, who will determine the category of information we can use. That category is reviewed by the commissioner. So a quasi-judicial review is conducted by the Intelligence Commissioner. If the information affects Canadians, the Federal Court will decide whether it is absolutely necessary for CSIS to keep and use the information. The Federal Court will apply the privacy test to determine whether to let us use the information. The system to be put in place by Bill C-59 includes criteria that allow us to use the information.

Second, I understand that people are very interested in our use of the information, but, for an intelligence organization like CSIS, it is absolutely critical to have information. Let me give you a specific example. Having a bigger dataset allows us to characterize threats and to say with whom such and such an individual is in contact, and whether or not that constitutes a threat. Often, it allows us to establish that there is no threat. Having that dataset means that CSIS does not investigate innocent people.

[Douglas Breithaupt, Director and General Counsel, Criminal Law Policy Section, Department of Justice]

Thank you very much for the question.

Yes, Bill C-59 would propose to revert one of the thresholds to what it was before former Bill C-51. There are two thresholds: that the peace officer have, first, reasonable grounds to believe that a terrorist activity may be carried out, and second, reasonable grounds to suspect that the imposition of a recognizance with conditions or the arrest of the person is, as it currently reads, “likely to prevent the carrying out of the terrorist activity”.

This bill proposes to change that phrasing to “be necessary to prevent the carrying out of the terrorist activity”. This would restore that particular branch of the test to what it was originally, with the Anti-terrorism Act of 2001, and that's attached to the branch of the test that's “reasonable grounds” to suspect. 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.

[Sven Spengemann, Liberal, Mississauga—Lakeshore, ON]

I may ask you to venture outside the box here, but would you have a rough estimate of how long it would take to build the IT parameters you've described, once we have budgetary approval and Bill C-59 is enacted?

[Monik Beauregard, Senior Assistant Deputy Minister, National and Cyber Security Branch, Department of Public Safety and Emergency Preparedness]

The only thing I'd add is that instituting a redress program is quite complex. It requires legislative amendments, regulatory work, consultations with airlines, and some fairly significant IT fixes. I think in Bill C-59 you have the essential first steps to lead us down the path of a centralized program.

We have the proposed amendments here that will enable public safety to gather the information into establishing a program. These are really the first steps that we need down the path to a redress program.