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.

[Ralph Goodale, Liberal, Regina—Wascana, SK]

I will, and let me first of all, Monsieur Picard, congratulate Parliament and this committee specifically—there were a few different players before—which did the heavy lifting on Bill C-22. We now have the new committee of parliamentarians, which has passed through all stages in Parliament, and Monday the announcement was made regarding the formation of the committee and the members of Parliament and Senate who will be participating in the committee, a brand new aspect of Canada's national security and intelligence infrastructure in place for the first time.

In addition to that, we now have Bill C-59, which you referred to, Monsieur Picard, which again enhances our national security and intelligence architecture. It clarifies a number of the powers and authorities of various agencies, including CSIS. There had been reports from the Federal Court, from commissions of inquiry, from the Security Intelligence Review Committee, and from others saying that there were doubts or ambiguities in the authorities of our various agencies, which needed to be clarified. In a field like national security, you don't want a lot of grey areas, so the law, the new proposal in Bill C-59, brings that clarity in a number of areas with respect to what our agencies can and cannot do. It also establishes new review and oversight mechanisms, including two things in particular. It's an elaborate—

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

We'll likely have a chance to talk about it again.

With the time that's left, I want to go back to another topic we've had a chance to debate in the House recently, which is the no-fly list. Of course we can debate the legislation and the changes that are a part of Bill C-59, but I just want once again, on behalf of the families who were here in Ottawa on Monday, to ask you when we will see the money for that redress system. Beyond the legislative changes—which have merit, I will agree with you on that—the funds are required in order to put the system in place. That would be my first question. When will we see that money?

The second question is where the dollar amount that's been floated out there comes from—it's escaping me—the $78 million or whatnot that was brought out at one point? What do you see as the costs associated with putting that system in place?

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

My understanding about the national security and intelligence committee of parliamentarians is that they're reviewing CSIS and CSE as to their operations and functions, not so much looking at doing studies. They're going to call in the experts definitely to talk about threat levels and our capabilities. They're going to have a lot more tools at their disposal than we have.

Again, we do have Bill C-59 that's coming before the House. That has a CSE component. This study would dovetail off that as public safety deals with it. Then how does CSE function? How does cybersecurity...? Bill C-59 actually has an enabler there for first-time legislation on cyberwarfare, both on defensive and offensive means. I think once Bill C-59 gets through the House, it will provide us an opportunity to look at that in greater detail and how those changes may impact national defence.

Public Safety

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

Mr. Speaker, the problem is that the no-fly list that was designed 10 years ago contains an inherent design flaw that needs to be fixed. To fix it takes legislation and regulation and a new computer system built from the bottom up.

The first step is to pass Bill C-59 to give us the legal authority to do these things. I urge the NDP to support Bill C-59.

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

Mr. Speaker, Bill C-59, as those parents said today at their press conference, does nothing to fix the problem that they face every single time they try to travel. I would ask the minister if he wants to go in front of those families to tell them, “Do not worry, your child is not on the list.” These are the false positives that are being lived by thousands of Canadians.

Children, business people, and even veterans are finding travelling difficult. They are being humiliated, profiled, and are living in fear of ending up on the no-fly list.

Again I ask the minister: will she fully fund an actual redress system, yes or no?

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

Mr. Speaker, we fully appreciate the frustration of law-abiding travellers who can be stigmatized and delayed as a result of false positives on the no-fly list.

However, to be clear, there are no children on the no-fly list, but there is confusion among similar names. That takes new legislation to fix that problem, new regulations, and a new computer system.

The first of those steps is being taken in Bill C-59. I urge the NDP to vote for it.

[Wesley Wark]

Ms. Damoff, I actually thought about that. It's very much up to members of Parliament to decide on that.

I suppose my personal view, for what it's worth, is that Parliament has a lot of onerous duties around reviewing bills on a schedule. If there had to be a trade-off to building in a scheduled review of this act as opposed to Bill C-59, for example, I would rather see it in something more significant, like Bill C-59, than this one.

It's a fairly limited bill in some respects, and if there is that parliamentary reporting requirement, I think that would go a long way to meeting any concerns and would not necessitate a review. If the public reporting suggested there were major problems with the initiative, then presumably Parliament could take some action.

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

Thank you very much.

Thank you, Professor Wark.

I understand that Statistics Canada already publishes entry information for people coming into Canada, as well as their country of origin, so in terms of annual reporting, would it make sense to just have StatsCan add the exit information to their annual report, as opposed to producing a brand new report? If so, do you think it would make sense to make the amendment here, or in Bill C-59?

[Wesley Wark]

Yes. It would be a crosscutting provision. It's really a timing matter, in a way. I think legitimately it should be in Bill C-59 and then referenced back to Bill C-21 in terms of coming-into-force provisions. Probably you folks around the table are more expert than I would be on how to manage that process. It should be in legislation somewhere. There could be a reference in Bill C-21 to that, cross-referencing another piece of legislation, I would think.

[Wesley Wark]

I think I would just reference the fact that the government has been working on a complaints mechanism for CBSA. From my personal perspective, for what it's worth, I would give them time to work that out. They have consulted with outside experts and so on about how that might work. Hopefully, it won't be too long before we see what they're proposing. Then Parliament will have its say on that.

On the independent review of CBSA, my concern is just to kind of leave it vague, as part of a potential responsibility that might fall to the National Security and Intelligence Review Agency under Bill C-59, without CBSA being specifically referenced. Given the important role that CBSA is now playing, I would prefer to see it listed in the legislation somewhere that it will be subject to an independent review by somebody.

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

Thank you.

Talking about the complaints procedures, one of the things we've also raised in prior evidence is if there are errors with the information collected, how that gets reported back. You've referred to what the recourse procedures are as well, what's a review. They're slightly different. In fact, how do you say this information that's been collected is an error? Also, what if somebody wanted to contest how long information had been held, saying they felt it had been held too long or it shouldn't have been held? First of all, would you see that built into this legislation? You've been referring to Bill C-59 a fair bit. Do you see it built into another piece of legislation, and what would that look like?

[Wesley Wark]

Absolutely. We're seeing this come forward, and I again refer to Bill C-59, which isn't yet before the committee, and some other aspects around CSIS data analytics and so on. I think this is crucial for public confidence. It's crucial for the organization of CBSA itself. I think when vast amounts of data like this come into the holdings of an organization like CBSA the default is to keep it forever, just in case. I think that's a bad default kind of response. I think there should be a very strict retention schedule built into the legislation that would distinguish between the vast bulk of innocent information, which should be disposed of quite quickly, and information that might be concerning, that could be retained for a longer period of time. I think that should be part of the legislation, not left to vague regulation that we might not see.

[Wesley Wark]

That's correct, although national security, as you'll know, Mr. Dubé, is not defined anywhere in the law, so the definition could be stretched or compacted, depending on the need.

Bill C-59 doesn't specifically indicate that CBSA, as one of the principal security and intelligence agencies, would necessarily fall under the systematic review of the new National Security and Intelligence Review Agency. The only agencies that are listed in part 1 of Bill C-59 are CSIS and CSE, and the rest is left to a broad mandate where CBSA and others might be reviewed, but not necessarily.

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

The committee of parliamentarians and what's being proposed in Bill C-59 is the first time we're seeing any kind of review for CBSA. In that context, if I'm not mistaken—I just want to make sure I'm understanding correctly what's being proposed—that would only be for issues related to national security. Is that correct?

[Wesley Wark]

The short answer to that is absolutely. It seems to me it would fit nicely under the current government's transparency commitments. As you know, in Bill C-59 there are a variety of statutory requirements for agencies to provide public reports, and in some cases unprecedented public reports to Parliament and the public, for example from CSE. I think this would be very appropriate to build into Bill C-21.