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.

[Wesley Wark]

No, Mr. Dubé. It would clarify it in two particular ways. It would clarify that the minister would be responsible for any sharing arrangements that were undertaken using this data coming in to CBSA with other federal government departments. That would obviously intersect a bit with SCIDA provisions of Bill C-59, which will come up before this committee.

The more important part in my view is to allow the information collected through this initiative to be shared under written agreements that would be composed by the minister to be shared with select foreign partners. Those are the section 12 provisions of SATA.

[Wesley Wark]

Let me just turn to SATA very quickly, if I could. There are short sections.

Section 11 of the SATA indicates:

the Minister may disclose information obtained in the exercise or performance of the Minister's powers, duties or functions under this Act for the purposes of transportation security or the prevention of the travel referred to

Basically, that's indicating that this is a ministerial responsibility. It doesn't specify how exactly the minister may create regulation around domestic intelligence sharing or information sharing under C-21, but at least it puts the spotlight on the ministerial responsibility there, specifically with regard to domestic federal government information sharing. Given that there's a lot of concern around this and that it will likely resurface when C-59 comes into discussion again, some clarity in that regard would be important.

More importantly, from my view, the notion that we are going to create an entry-exit initiative for air travel and not share it with any of our close partners or any foreign state strikes me as a nonsense and something that is likely to be abused because it is a nonsense. I would prefer to see something like SATA section 12, which says:

The Minister may enter into a written arrangement relating to the disclosure of information referred to in section 11 with the government of a foreign state, an institution of such a government or an international organization

It's setting down rules around how the minister can interact with foreign partners in the sharing of entry-exit data, which is the sensible way to go, rather than having a blanket restriction that will ultimately face pressure and potential abuse.

[Wesley Wark, Visiting Professor, Graduate School of Public and International Affairs, University of Ottawa, As an Individual]

Mr. Chairman and members of the committee, I thank you for the invitation to appear and testify on Bill C-21, an act to amend the Customs Act. I'm going to read my remarks, in a desperate academic attempt to stay within your 10-minute time frame.

Bill C-21 provides statutory powers for the final phase of the entry-exit initiative. As the committee will be aware from previous testimony, the entry-exit scheme dates back to promises made under the Beyond the Border action plan agreed to in 2011 between Canada and the United States. Its provisions are, for now, Canada-U.S.-centric. The Beyond the Border action plan is the latest iteration of agreed schemes for post-9/11 border security, dating back to the safe border accord of December 2001. The Liberal government affirmed its commitment to the entry-exit information plan during a summit meeting between Prime Minister Trudeau and then U.S. President Obama in March 2016.

The entry-exit scheme has had a staged rollout since its first phase, which lasted from September 2012 to June 2013. It served to test the data exchange between Canada and the U.S. at select land border ports of entry. The second phase began in June 2013 for fuller land border crossing information exchange for third country nationals, permanent residents of Canada, and lawful permanent residents of the United States. The final stage of entry-exit, requiring statutory force in Bill C-21, would see the biographical exchange of information on all travellers, including Canadian citizens, at the land border, and the collection of biographical exit data on all air travellers, again including Canadian citizens, leaving Canada.

Biographical data acquired under Bill C-21 would consist, as you've heard, of the page 2 information from Canadian passports presented to Customs and Border Protection officials at U.S. ports of entry when crossing the land border. This information includes, as you'll know, name, nationality, date of birth, sex, and place of birth.

For the air mode, it would involve what is referred to as API/PNR, or advance passenger information/passenger name record, data provided by air carriers and air reservation systems for exit records for air travel. API data includes page 2 biographical passport data plus flight information. PNR derives from airline departure control and reservation systems, and varies depending on the collector. It can include type of ticket, date of travel, number of bags, and seat information.

The information flow that Bill C-21 augments is meant to be automatic. It would involve the passage of electronic data from U.S. CBP at land entry—U.S. entry data becoming Canadian exit data—in near real time. For air travel, it would involve the transmission of electronic passenger manifests from air carriers. All of this information would go to the Canada Border Services Agency for processing.

The backgrounder published by the government when the legislation was first introduced in June 2016 indicates that the entry-exit initiative is meant to serve a large number of objectives. It is not specifically a national security tool, but could, in my view, enhance investigations into the movements of suspected terrorists, foreign espionage actors, and WMD proliferators, among other actors of concerns, and it could provide a useful investigative supplement to other powers available to security and intelligence agencies.

It is worth noting that Mr. Bolduc of CBSA testified before this committee on October 3, making the point that one additional benefit that Bill C-21 powers would provide was “it will bring Canada on par with the rest of the world and our Five Eyes partners. There's a huge, huge benefit for Canada.” This was a direct quotation from Mr. Bolduc. I am not quite sure how to read this enthusiasm, except to say that Bill C-21 measures are, in keeping with a long tradition in Canadian national security, meant to demonstrate our ally worthiness.

In this same vein, it is also important to note the restrictions that the government has said it will put in place in terms of information sharing from the vast pool of data that will be collected under Bill C-21. Land border exit information will inevitably be shared with the United States government, because the information is collected by U.S. CBP agents. We are assured that exit information from the air mode would not be shared with the United States or any other foreign government. Whether this blanket restriction makes sense is questionable, in my view. The committee may wish to consider an amendment to the legislation in this regard, which would bring it more into line with the Secure Air Travel Act, of which I'll speak a little later.

Minister Goodale has testified before this committee that “exchange of information both within Canada and with the U.S. will be subject to formal agreements that will include information management safeguards, privacy protection clauses, and mechanisms to address any potential problems.” These are important promises that presumably will be fulfilled through regulation. Notably absent, however, is any commitment to transparency around the entry-exit initiative. There is no requirement, for example, for any annual report to Parliament and the public on its application and efficacy.

This lack of a transparency commitment is compounded by the current absence of meaningful independent review of CBSA, the core actor that will operationalize Bill C-21.

While government officials have testified that the information flows provided for through Bill C-21 will be seamless and automatic, the real issues, it seems to me, involve analysis of the data by CBSA, retention and security of the data, and information sharing. Bill C-21 legislation is a black box in these regards, leaving much to regulation. There is a question in my mind as to whether the legislation needs to be more forthcoming in three particular areas: data retention schedules, information sharing protocols, and transparency requirements.

Before I come to some modest proposals to improve Bill C-21, a note on a parallel and existing legislative power might be in order. There exists already a limited form of entry-exit controls for air travel, which have been in place since 2007 but which were amended with Bill C-51 in 2015 under the title of the Secure Air Travel Act or SATA. SATA, often referred to as the passenger protect program, creates a list of persons that the Minister of Public Safety “has reasonable grounds to suspect will (a) engage or attempt to engage in an act that would threaten transportation security; or (b) travel by air for the purpose of committing” a terrorism offence. I'm slightly paraphrasing the sections of SATA here.

SATA contains some provisions that are not held in common with Bill C-21, including specific powers and information disclosure, both domestically and through written agreements with foreign states and entities. These are under sections 11 and 12 of the Secure Air Travel Act. These sections, incidentally, are not proposed to be amended in Bill C-59 as that bill comes forward, presumably, to this committee.

There is also an important statutory reference to retention of data received from air carriers or air reservation systems in the SATA legislation, and this requires:

The Minister of Transport must destroy any information received from an air carrier or an operator of an [air] reservation system within seven days after the act on which it is received, unless it is reasonably required for the purposes of this Act.

That's section 18 of SATA. In other words, the minister is empowered to retain records of air travel for the listed persons but not for the general public.

To bring Bill C-21 into closer alignment with SATA on data retention and information sharing protocols and to enhance transparency and ensure independent review of its powers, I would suggest the following responses to Bill C-21, which the committee might want to take under consideration:

First, Bill C-21 should adopt the explicit SATA references in sections 11 and 12 for information sharing domestically and internationally. I think this would be an improvement on doing this by regulation.

Second, Bill C-21 should adopt a reasonable retention schedule for entry-exit data based on expert government advice on the minimum period necessary for the retention to meet the many different objectives of the entry-exit initiative as listed in the backgrounder document published with the bill in 2016. A seven-day retention cycle as provided for in SATA would be self-defeating, but so would overly lengthy retention periods. CBSA must not become a data swamp.

Third, Bill C-21 should contain a mandatory requirement for annual reporting to Parliament on its provisions by CBSA.

Fourth, the committee should encourage the government to be explicit about its plans for the conduct of regulatory review of CBSA national security activities, either through an independent body or captured by the paragraph 8(1)(b) mandate for the proposed national security and intelligence review agency, NSIRA, under Bill C-59. This may require future clarifying amendments to Bill C-59.

Fifth, the committee should encourage the government to finalize its plans for an independent complaints mechanism for CBSA. There have been discussions under way about this for some considerable time now.

Sixth, and finally, I would encourage the committee to hold early hearings on CBSA and its rapidly expanding mandate. Doing so might serve as a foundational exercise for the new national security and intelligence review agency when it is created.

Thank you for your time and attention.

[Jennifer O'Connell, Liberal, Pickering—Uxbridge, ON]

Thank you, Mr. Chair.

Thank you all for coming.

I'm going to also start with No Fly List Kids. A lot of the questions have been answered, and I also agree with Mr. Boulerice's comments. But I am somewhat glad you're here in the sense that if funding is an issue, then it's important for this committee to know as part of our pre-budget deliberations, because if we don't know and we don't hear it, frankly, then we can't actually make a recommendation. So I am glad you're here, despite the fact that it sounds like an awful situation to be in, and I am sorry that has happened.

In response to my colleague Mr. Fergus's question about Bill C-59, my understanding is that if the request to come off the list is made and the minister doesn't respond, then they can default off. I think, Mr. Ahmed, you said something to the effect that the name would be on the list and you are just told that it is not on the list. I'm sorry if I misheard, but could you explain why you think that the change in Bill C-59 in terms of the minister's non-response would be a default removal and why that wouldn't actually change anything?

[Greg Fergus, Liberal, Hull—Aylmer, QC]

I would like to ask a second question.

A provision of Bill C-59 indicates that if the minister does not respond to a request to delist a name, the name will be removed from the list by default. Do you think the provision is acceptable? I know we can do better, but is this provision significant?

[Khadija Cajee]

Okay. As far as our understanding goes, the office exists basically in name only. I don't know if it's even staffed, to be honest with you. We have applied. They have some sort of application process online that we have applied to, but the response is always basically the same as the response from before the office was announced. It hasn't changed anything in terms of our experience or the fact that the children are still on the list or any of that. That all still remains the same. There is still no mechanism to get the children off the list.

The only thing that's changed with the incoming Bill C-59 is that now the Minister of Public Safety and Emergency Preparedness is actually sort of legally allowed to say that, yes, your child is on the list, whereas, previously, he wasn't allowed to say that.

That's our understanding, but nothing substantial has changed.

[Sulemaan Ahmed]

We were advised that we would be told if our child was on the list or not through Bill C-59, but it does not mean that they will be removed. Therefore, it does not tell us anything that we don't know already.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Thank you for that.

My understanding is that with Bill C-59, there is a system for recourse. I just want to make sure that if an application is made, the minister can then respond to that application when a person is placed on a no-fly list, specifically children.

[Sulemaan Ahmed, No Fly List Kids]

We thank you for the opportunity to be here today, Mr. Sorbara. I would like to thank a few members of the committee including the Honourable Wayne Easter, Kamal Khera, yourself, and others who have already written letters of support. As of today, we have 168 MPs in the House of Commons from all political parties—the Greens, the NDP, the Conservatives, the Bloc Québécois, and the Liberals—who have supported this in writing

Our view is that Bill C-59 is legislation. What we require is funding immediately, and we require it for a technical solution. The United States has had the solution for a decade. As a nation, we do not need to wait another two years for funding or legislation to pass in the House, then another two years for a budget, and yet another two years, because as David Herle, the senior adviser to Minister Goodale has told us, once the funding is provided, it will require two years at least to make a build. That's six years, sir.

[Francesco Sorbara, Liberal, Vaughan—Woodbridge, ON]

Thank you, Mr. Chair.

Thank you for all your presentations today. This is the last panel of the two weeks of travel we've been doing.

I need to get right down to it with No Fly List Kids.

Sulemaan, we've had a number of conversations over the last few months. I appreciate you folks coming here, and I really wish you didn't have to come here. I usually like to meet my stakeholders, and I'm happy to see them, but I think that in this instance it's disappointing to have folks having to come to the finance committee to let us know what's going on, especially with regard to your eight-year-old son, Adam.

I do know from conversations that there are many of us in support of fixing the system. I also know that in Bill C-59, our national security legislation, there have been steps put in place to get us on that journey. This is a system that was created and has been a long time coming. It has created some issues.

How disruptive has this been to your family? I want you to know that there are many MPs and other people working to help fix the situation. I do believe that Bill C-59 is one step towards that.

Transport, Infrastructure and Communities

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, I thank my colleague for his interesting question. It reminds me of what we saw with the Conservative government's Bill C-51 and what we are still seeing with Bill C-59. Bill C-59 is supposedly going to repair the damage caused by Bill C-51, which jeopardizes the right of activists to protest for the environment.

The Canadian Civil Liberties Association is currently in court because the CSIS watchdog refuses to release documents that would show whether these people were spied on. This is sowing division and keeping people from speaking out and making sure the country and the government are on the right track with regard to the environment and sustainable development. We find that unacceptable.

Public Safety

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

Mr. Speaker, in fact, the details of Bill C-59 have been examined by the most eminent experts in the field. Every single one of them has said that this represents a major step forward in terms of transparency, scrutiny, and accountability, including real-time oversight and the creation, for the first time, of the office of the intelligence commissioner that will examine the activities of security agencies before those activities are undertaken, as well as having them reviewed afterward.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Mr. Speaker, Canadians' overall distrust of our security agencies is a direct consequence of the fact that we have no mechanism to provide real-time oversight and accountability.

The government is currently in court with environmental groups it has accused of spying. Even the watchdog tasked with monitoring CSIS operations failed in its duty by dismissing their complaint and throwing a cloak of total secrecy over the whole case.

Bill C-59 does nothing to fix these problems, but pays lip service to them. When will the minister truly take steps to make real-time oversight, fix these problems, limit the excessive powers of CSIS, and truly protect the rights of Canadians to peaceful protests?

[Niall Cronin]

I'm sorry. It was Bill C-59...?

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Okay. That would be interesting to know, because the minister did say that, to date, the safe third country agreement hasn't been brought up, and we're wondering why.

I'm just wondering if in either of your departments there has been any analysis on the potential effects of Bill C-59, in terms of the availability of either of your departments to share information with CBSA or IRCC or even the IRB, with regard to people who have sought asylum protection or have received it, and to identify them as potential public safety risks.