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.

[John Davies]

The idea with this amendment is to replicate exactly what was already in the CSIS Act in terms of access to information covered under common law privilege. When Bill C-59 was drafted, this was just an oversight of the CSIS Act. We didn't want any confusion that there would be any lack of or any differential access for review that SIRC, the Security Intelligence Review Committee enjoyed. All we're doing is fixing an error in drafting when Bill C-59 was created.

I think this issue was raised in other amendments coming up, and it was raised during committee hearings a number of times. It looked like there was less access and that was not the intent.

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

Thank you, Mr. Chair.

This amendment would clarify that, when conducting reviews, the NSIRA has access to all information except cabinet confidences. That would include information that is subject to common law privileges under the law of evidence, such as police and former privilege. The intent was always for the agency to access this information, but making it more explicit removes any potential for disputes should they arise in the future.

Finally, Bill C-58 makes explicit reference to privileges under the law of evidence and it raises the possibility that the absence of such language from this bill, Bill C-59, could be interpreted as suggesting a lack of access. As such, the need to make the review agency's access clear is here with this amendment.

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

In my view this amendment isn't necessary, because under Bill C-59 the NSIRA expert staff already have the authority to obtain ministers' national security intelligence responsibilities or information. Why place an additional formal burden on the ministers? Equally, the NSIRA would already have the authority to publish general background information in its annual and special reports. My submission to the committee is that this amendment is not in fact required.

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

Thank you, Chair. This particular amendment requires the minister to table for Parliament a clear outline of how these organizations work together—the NSIRA, the CSE, CSIS, and the new parliamentary committee—and the powers, duties, and functions of the minister. It's intended to address the committee's confusion on the bill and how all these organizations work together. That's the motivation behind this.

We heard repeatedly throughout testimony on Bill C-59 that how the government will structure the new parliamentary committee and the NSIRA remains unclear. We still don't have a clear idea of how they will work together. That hasn't been clarified yet. Therefore, we should have the minister provide that clarity as soon as possible. Perhaps the officials can provide us some clarity on that today, if possible, in terms of how these bodies will work together.

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

This amendment indicates that really no member designated as the chair can hold the position for more than 30 days. Bill C-59 allows a member to hold the role of chair for 90 days. That's far too long, and a vice-chair should be in place to cover off all the absences of a chair in the first place, so that's the rationale behind this particular amendment.

Opposition Motion—National Security Adviser to the Prime Minister

[Michel Picard, Liberal, Montarville, QC]

Mr. Speaker, thank you for giving me the opportunity to have a say in this debate.

The answer regarding the invitation in India is already quite clear. The invitation should have in fact never been extended and, as we have said many times, when the existence of the invitation was discovered, we withdrew it immediately. Another point: we have full confidence in Canada’s security advisors and diplomatic advisors, who consistently act impartially in the best interests of Canadians.

The opposition raises the importance of ensuring that parliamentarians are kept informed of security issues. On that, we absolutely agree. We agreed when former national security minister Anne McLellan introduced Bill C-81 in 2005 establishing a national security committee of parliamentarians. This bill died on the Order Paper when Stephen Harper’s Conservatives took office in 2006.

We agreed when former Liberal MP Derek Lee introduced a similar bill in 2007, when our colleague from Malpeque did the same in 2009, and when the member for Vancouver Quadra did so in 2014.

Each time, the Conservatives opposed the idea that parliamentarians of all parties and of both Houses should have access to secret information, and that they be kept informed of national security issues in Canada.

Fortunately, as my colleagues know, Bill C-22, An Act to establish the National Security and Intelligence Committee of Parliamentarians and to make consequential amendments to certain Acts, received royal assent in June 2017.

Then, in November, the Prime Minister made it official by saying that “[i]n our system of responsible government, there is no substitute for scrutiny by parliamentarians.”

I am pleased to say that the committee is now in place. Its mandate is to review any matter relating to national security for all government departments and agencies. It will be supported by an independent secretariat headed by an executive director, who will be appointed shortly. The committee will be composed of eight MPs and three senators, all of them holding the highest security clearances.

It is now the appropriate vehicle for parliamentarians to thoroughly review and report on certain national security matters.

The committee is able to analyze the work of a wide range of government departments and agencies involved in security and intelligence.

Establishing this committee closed a loophole in our national security accountability framework. Before, Canada was an outlier in the Five Eyes alliance, since it was the only one not to have such a committee. However, establishing this committee has made Canada a transparency and accountability leader since our committee of parliamentarians has access to ongoing national security and intelligence operations.

By contrast, our committee’s Australian equivalent may only conduct statutory reviews or consider their agencies’ spending and administration. It must obtain a minister’s order to review other matters.

In our case, if the committee believes that a national security matter warrants review, it may simply do so.

In the United Kingdom, the committee must obtain a memorandum of understanding from the Prime Minister in order to review matters that go beyond the work of the three British agencies.

Our committee, with its distinctly Canadian design, has a much broader reach than those of two of our important foreign allies, who also have a Westminster-style system similar to ours.

I was pleased to witness the various debates during all the readings and to see how thorough a review it was given by the standing committee.

The expert consensus is that this new committee strengthens the accountability and effectiveness of Canada’s national security and intelligence system. Bill C-59 will further strengthen it by establishing the national security and intelligence review agency.

Since the current government took office, Canada has made great strides in national security transparency and accountability.

All that is to say that when I hear the opposition insist that parliamentarians should have access to security information, I cannot help but contrast the Conservative decade with the past two years.

The Harper government repeatedly rejected the principles of transparency and accountability when it came to national security. The current government acted to bring in significant transparency, openness and accountability with respect to national security.

We should all be confident that Canada’s security advisors and diplomatic advisors act impartially and in the best interests of Canadians.

They deserve much better than the insinuations and allegations on which this motion is based. I for one have full confidence in their professionalism, expertise, and service to Canada.

Opposition Motion—National Security Advisor to the Prime Minister

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Mr. Speaker, the answer with respect to the invitation is already very clear. In fact, the invitation should never have been sent, and once discovered, it was immediately rescinded.

Another point that needs to be noted is that this government has great confidence in the security and diplomatic advisers to the government who always act in an impartial manner and always in the best interests of Canadians.

The Minister of Public Safety and Emergency Preparedness was given a strong mandate with respect to national security. Bill C-59 is a focal point of that mandate. It was drafted following unprecedented national public consultation. Through an online questionnaire, town halls, social media engagement and more, the consultations heard tens of thousands of views, which Public Safety Canada and Department of Justice collected, documented, and analyzed.

As members know, the standing committee held numerous meetings of its own on the national security topic, and I thank members here for their input on this priority issue.

Citizens, community leaders, experts from a broad spectrum of the security field, academics, and parliamentarians alike can see their views reflected in Bill C-59. One of its core themes is central to today's debate, enhancing accountability.

The proposed creation of an intelligence commissioner along with a national security and intelligence review agency would complement the work of the newly established National Security Intelligence Committee of Parliamentarians. I am pleased to say that the latter committee is now in place. The intent of its creation has always been to protect Canadians, and to safeguard our values and freedoms.

Let me turn to the recent trip to India, and the important things that were accomplished during that visit.

India, as has been noted, is one of the fastest growing economies in the world, making it a market of enormous potential. It is already the world's seventh largest economy, and projections are showing that it would be the third largest by 2030, barely more than a decade from now.

For these reasons and others, India is a priority market for Canada. It is Canada's seventh largest export market and 14th largest for imports. In 2017, two-way trade of goods between Canada and India totalled nearly $8.4 billion, almost double the amount we traded a decade ago. More than 1,000 Canadian companies and educational institutions are currently doing business in India, and 400 actually have a physical presence in the Indian market.

Our service exports have grown significantly over the last five years. Canada's institutional investments, especially those made by our largest pension funds, have also been growing rapidly, and are now estimated to exceed $15 billion.

There is so much more we could do. Exports to India totalling $4.2 billion represent less than 1% of Canada's total exports worldwide. In today's ever-changing connected global economy, Canada can only prosper by expanding markets for its companies.

True success in building strong and lasting commercial relationships demands sustained effort and long-term commitment from all stakeholders, whether government, business, or civil society, using a framework of formal structures and informal networks, or a new generation of economic agreements and extensive people-to-people links. This is all the more true when it comes to developing a mutually beneficial commercial relationship with an emerging economic power such as India.

During the recent visit to India, the Prime Minister led a range of efforts to expand and diversify bilateral economic and commercial relations and promote Canadian interests.

The strengthening of the government-to-government commercial framework was demonstrated through the conclusion of several MOUs and co-operation agreements, with significant progress being made on many others. These covered areas as wide-ranging as civil nuclear science and technology, education, audiovisual co-production, information technology, intellectual property, and even sports.

The Prime Minister also met with top Indian business and political leaders, including not only the leader of the federal government, Prime Minister Modi, but also the chief ministers of the states of Gujarat, Maharashtra, and Punjab. These states are populous, enjoy a large degree of autonomy, are immensely influential economically, and buy large quantities of Canadian products and services.

The Prime Minister interacted with hundreds of Indian and Canadian business leaders through his participation in business-focused round tables and forums. At every opportunity he encouraged them to continue to explore all avenues for increasing trade and investment between our countries.

During his meeting with Prime Minister Modi, the Prime Minister secured a commitment from India to work closely with Canada on finalizing an arrangement before the end of this year, to enable the continued exports of Canadian pulses to that country. As the world's largest exporter of pulses, Canada plays a critical role in providing India with a long-term supply of this very important dietary staple.

Additionally, the Prime Minister announced commitments from businesses, worth more than $1 billion, which will help to expand both of our economies. These included a commitment from Indian companies to invest close to $250 million in Canada, leading to the creation of more than 5,800 good, well-paying middle-class jobs for Canadians. These investments are made by global innovation leaders who have confidence in Canada and understand the long-term advantages of doing business here.

There was a commitment from Canadian companies to invest close to $750 million in India. As is often the case with Canadian investments in India, a significant portion of this amount will go toward large projects aimed at earning long-term, stable income for Canadian investors and pensioners. In addition to the increase in direct company investment, the overall level of investment from Canada's institutional investors and largest public pension funds has surged in recent years, further demonstrating the wealth of opportunities that exist in India.

There was a commitment to provide opportunities in business for women. Reflecting one of the imperatives found in budget 2018, Canada and India will work together on initiatives that help women in both countries build thriving businesses by providing new access to funding, talent, mentorship, and potential customers.

There was an agreement to increase the level of creative collaboration between Canada and India. The cultural sector has huge potential. It will create good jobs in the creative sector, among other ways, and potentially help grow Canada's film industry.

There was an agreement to increase people-to-people ties even faster through education. India is Canada's second largest source of international students, with an estimated 124,000 holding a valid study permit for six months or more at the end of 2017.

Canadian universities and colleges are very active in India, and increased collaboration in education stimulates increased people-to-people ties, encourages joint research and development projects and spurs entrepreneurship and innovation in the decades to come.

There was a renewed emphasis on fostering innovation ties between Canada and India. There is an immense demand and enormous potential for innovative solutions whether in agriculture, food processing, skills development, financial technology, transportation, health sectors, clean tech, and aerospace. Canada has a long tradition of finding these innovative solutions, and is ideally suited to filling this demand from India.

In conclusion, Canada is, has been, and always will be a nation that depends on international trade and investment to prosper. Trade and investment are critical to Canada's prosperity, fuelling economic growth, supporting good jobs at home, raising living standards, and helping Canadians provide for their families with affordable goods and services.

As Canada challenges itself to retain and advance its place among the world's most progressive, innovative trading nations, the strength that comes from collaboration cannot be overstated. This government has invested billions of dollars in helping Canadian workers and innovative businesses become world leaders in their fields.

We have also recently agreed to sign a trade agreement with Pacific rim countries through the comprehensive progressive agreement on the trans-Pacific partnership. This, in addition to the implementation of our agreement with the European Union, will generate thousands if not tens of thousands of new jobs for middle-class Canadians.

Canada now has preferential market access through 12 trade agreements to 45 countries, with over 1.2 billion consumers and a combined GDP of $41.5 trillion. This represents over one-half of the world's output of goods and services, and demonstrates the critical importance of pursuing, with renewed vigour and negotiations, trade and investment agreements, especially with countries such as India.

As reinforced by the success of our expanding economic and commercial relationship with India, Canada is quickly becoming the bridge between Asia and the rest of the world, one that will offer business unprecedented access to new market opportunities. Now is the time to increase our global investment and partnerships, and make the most of this opportunity.

Trade keeps our economy open, dynamic, and competitive, and helps ensure that Canada continues to be the best place in the world to do business. We must emphasize to the world that Canada remains open for business, and is committed to expanding international trade and investment. India is and will remain a very significant part of that commitment.

[The Chair, Liberal, John McKay]

That ends our evidence on Bill C-59. We will go to clause-by-clause after the Easter break.

Thank you.

The meeting is adjourned.

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

I appreciate that. I don't have much time. I apologize.

Clause 23 of the proposed CSE act, under part 3 of Bill C-59 says that activities can't be carried out against Canadians. Subclause 24(1) says that “Despite subsections 23(1) and (2)”—which is the prohibition—“the Establishment may carry out any of the following activities in furtherance of its mandate...”. Then it talks about ensuring the protection of information on these networks.

Social media is part of these networks, and that information is at risk. You have been tasked by a minister to ensure that this information is safe, and you're exempt from the prohibitions on collecting Canadians' information as part of that research.

How can we be assured that Canadians' information will not be collected incidentally, as the possibility of the incidental collection of that information is specifically outlined in the bill?

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

Thank you very much.

My second question is for Ms. Bossenmaier and Mr. Jones.

You spoke about the dynamic cyber-threats environment earlier in your conversations and gave some precision on what that means for Canadians. I'm wondering about your assessment of Bill C-59 as an instrument that is sufficiently agile, adaptable, and flexible for a look beyond the horizon and into the future.

Ms. Bossenmaier, I think you mentioned AI, and I think quantum is another unknown unknown. We don't really know how these two dimensions are going to play out.

Is the instrument that we're contemplating and about to put on our books flexible enough to address future challenges as they may arise?

[Greta Bossenmaier]

Thank you, Mr. Chair.

The reality is that it is a formidable task. That's why it's something we take extremely seriously. Again, we've been in the business for 70 years, and I'm sure we have the best technology, the best people we can have to work on this task, and to work on it in partnership. We often talk about this being a team imperative. No one organization can have all the information or all the answers, so we do work closely with academia. We work closely with other partners. We work closely with our allies in terms of developing knowledge and capability to be able to defend against this very, very challenging environment.

In addition to what was already discussed around budget 2018.... Budget 2018 is proposing an increase in resources and a consolidation of Government of Canada cyber-operational capabilities within CSE, so it provides a bit of a multiplier effect and a single source of trusted advice and guidance, but this legislation would also allow us to exercise additional authorities in the cyber-protection space. Again, that goes back to ensuring we can collect foreign intelligence in a very challenging world and that we can see threats before they reach our shores, have broader threat information sharing, and deploy our cyber-tools—some of the advanced tools Mr. Jones spoke about—on private infrastructure if that is requested and if it is designated.

Also in the defence of cyber-operations, instead of trying to defend only at the periphery of our networks, if we see something that is outside—in a foreign land, on a server, for example—trying to take down Canadian infrastructure or trying to steal Canadians' information, Bill C-59, this legislation, would authorize CSE to go out and try to protect Canada before that threat actually reaches our systems.

[Blaine Calkins, Conservative, Red Deer—Lacombe, AB]

Here's my question, and it's not meant to be in any way a slight against the fantastic people we have. I'm sure we have the best and the brightest and I'm appreciative of that, but we know that China has an army of about 200,000 people. We know this from reports we've heard, so it's 200,000 against 500. I'm basically looking to you to tell me why Bill C-59 makes those 500 better off, in defence against what those 200,000 might be doing.

We've seen what's happening right now in the United States with sanctions against China under the guise of security, espionage, and all these kinds of.... It's no secret that the Chinese government has been doing this for years. We've had the current government actually very much engaged with China. We sold some assets to Chinese interests recently, and we've been doing so for years and years. This is not meant to be a partisan comment in any way, shape, or form. How is Bill C-59 helping our 500 against the 200,000? It seems like a formidable task.

[Scott Jones]

Really, when we're talking about a billion malicious actions, we're talking about the gamut, all the way from people poking at our systems, looking to see where they're vulnerable, up to people trying to compromise or install malicious software called malware, or basically exploit any vulnerability that exists. It's a wide range of activities, but what we're trying to do is counter the full range, no matter where it originates. We want to counter any malicious activity that's coming at the Government of Canada, and the number is astonishing. I think that's really where we are going into a few different areas. Number one is making it better. How do we work to make the systems that we have more defendable? That's working with the commercial sector, and that's being able to share more information, being able to share some of our tools and techniques, and pushing it forward.

We've shared some of our tools publicly. We have a system called Assemblyline which we have made open-source and publicly available to anybody who could leverage that. That's how we, for example, defend the government and look at millions of malicious files a day.

The second piece is providing that level of defence that fills the gap between the best available commercial and the state-of-the-art threat activity that we're facing today. Bill C-59 would allow us to then use that on critical systems of importance, as designated by the minister, but also with the informed consent of the system's owners. Informed consent is something that's particularly important in this case.

The third piece is general information sharing, whether that is providing advice and guidance or being able to share what we're seeing, what's going on, and very much clarifying our authorities to share information.

That's where we kind of layer all these things together and start to deal with those billion events.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you.

I want to bring it out a few layers. We've been getting into some details. I'd like you to clarify some things. You said that a billion times a day there are cyber-attacks on Canadian systems, and then, when you were speaking with Mr. Dubé, you talked about threat assessment and the changing environment that you're dealing with in your threat assessments.

Can you help me understand? In Bill C-59, what are the new tools you have that help you to respond to astronomical numbers, those so large I can't even say the word? Maybe you can help me with that.

[Greta Bossenmaier]

For Bill C-59 and the CSE act in particular, CSE is responsible to the Minister of National Defence.