March 24, 2018 - No. 11


Bill C-59, the National Security and Intelligence Review Act


Vancouver picket, October 14, 2017, demands Bill C-59 be scrapped, and Bill C-51 be repealed.

Hearings of Standing Committee on Public Safety
Concerns About Dangerous Legislation Raised
Minister, Intelligence, Police and Spy Agencies Address Committee

For Your Information
What the Bill Contains

Hearings of Standing Committee on Public Safety

Concerns About Dangerous Legislation Raised 

During its hearings the Standing Committee on Public Safety was addressed between December 5, 2017 and February 8, 2018 by organizations they invited to speak about their opinions of the legislation. Below are excerpts of concerns raised by civil liberties and rights organizations, advocacy groups, groups representing lawyers and a number of academics.

Civil Liberties Organizations

Cara Zwibel, Acting General Counsel, Canadian Civil Liberties Association:

"While this new bill has partially addressed some of Bill C-51's constitutional deficits, it has certainly not resolved all of them."


"...the definition of 'threats to the security of Canada' that triggers information disclosure remains unduly broad and circular. It is not clear why this definition is so much broader than the one included in the [Canadian Security and Intelligence Service (CSIS)] Act, and we remain concerned that constitutionally protected acts of advocacy, protest, dissent, or artistic expression, particularly by environmental and Indigenous activists, will continue to be swept up in the process."


"....the list of [threat reduction] measures set out in proposed section 21.1(1.1) only require a warrant where CSIS determines that they may violate the law or limit a Charter right. A warrant should be required in any case where these measures will be pursued by CSIS. It is vital that the determination of whether a law is being violated or a Charter right limited not be left solely to CSIS."

Concerning the changes to the Secure Air Travel Act she said: "The process by which individuals are placed on the [No-Fly List] remains opaque, and proposed redress mechanisms are inadequate. Bill C-59 also fails to correct the flawed appeals procedure, which parallels the system in place for security certificates prior to the Supreme Court's Charkaoui decision in 2007. [....] The current process allows the use of hearsay and secret evidence, without access to a special advocate able to test that evidence or to represent the interests of the listed person."

Lex Gill, Advocate, National Security Program, Canadian Civil Liberties Association:

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


"CSE's cyber-operations activities involve no meaningful privacy protections, require only secret ministerial authorization, and involve only after-the-fact review."


"Bill C-59 exacerbates this privacy risk by creating a series of exceptions for the collection of Canadian data, including one which allows its acquisition, use, analysis, retention, and disclosure, so long as it is publicly available. This definition is so broad that it plausibly includes information in which individuals have a strong privacy interest, and potentially allows for the collection of private data obtained by hacks, leaks, or other illicit means. Furthermore, it may encourage the creation of grey markets for data that would otherwise never have been available to government -- a client with deep pockets. The government has failed to demonstrate why this exception, as worded, is necessary or proportionate, or what risk it is meant to mitigate in the first place."

"We don't believe that ministerial authorization through the Minister [of Defence] and the Minister of Foreign Affairs is sufficient. We would prefer to analogize these types of powers to the disruption or reduction powers in the CSIS Act. We note that there is a much more rigorous system for oversight and prior authorization in that context."

Micheal Vonn, Policy Director, British Columbia Civil Liberties Association:

"We know, not least from years of reports from the CSE commissioner, that disputes over the interpretation of legal standards and definitions have been of ongoing concern, and national security activities in general are plagued with the "secret laws" problem of having words in a statute or directive interpreted in sometimes obscure or deeply troubling ways, and ways that may not be unearthed for years."


"Canadian datasets -- which, we need to remember -- are expressly defined as datasets that contain personal information expressly acknowledged as not directly and immediately relating to activities threatening the security of Canada. The test for their acquisition is simply that the results of their querying or exploitation could be relevant and that this assessment must be reasonable. It may be argued that this vast scope for bulk data collection is at least mitigated by the requirement for judicial authorization for the retention of those datasets. But rather than providing significant gatekeeping, this authorization simply compounds the effects of the very low standards that lead up to it. Personal information that does not directly and immediately relate to threats to the security of Canada is allowed to be collected if it 'could be relevant,' if this assessment is 'reasonable,' and if the judge then decides that the dataset can be retained on the standard of 'is likely to assist.' These, then, are the thresholds of what most Canadians would call mass surveillance, and we believe most Canadians would reject these thresholds as shockingly low standards... The proposed standard represents a mass erosion of the privacy protections from the strict necessity standards that currently apply. We recommend that the CSIS bulk data provisions be revised to be expressly within the strict necessity standard, and not in exception to it, and that the criteria for bulk data collection, such as that fashioned by [the Security Intelligence Review Committee (SIRC)] as implicitly principled and workable, be set out within the legislation."

Alex Neve, Secretary General, Amnesty International Canada:

"Without adequate safeguards and restrictions, overly broad national security activities harm individuals and communities who pose no security threat at all. In all of these instances, the impact is frequently felt in a disproportionate and discriminatory manner by particular religious, ethnic, and racial communities, adding yet another human rights concern."


"Currently, other than the Immigration and Refugee Protection Act, none of Canada's national security legislation specifically refers to or incorporates Canada's binding international human rights obligations [...] Our first recommendation, therefore, remains to amend Bill C-59 to include a provision requiring all national security-related laws to be interpreted in conformity with Canada's international human rights obligations."


"....  there needs to be specific prohibition of the fact that CSIS will not involve threat reduction of any kind that will violate the Charter or violate international human rights obligations."


"Bill C-59 also fails to make needed reforms to the approach taken to national security in immigration proceedings. There were very serious concerns about Bill C-51's deepening unfairness of the immigration security certificate process, for instance, withholding certain categories of evidence from special advocates."

Tim McSorley, International Civil Liberties Monitoring Group:

The group was not invited to testify but was brought by the group OpenMedia who believed they needed to be heard:

"We maintain our fundamental opposition and call for the repeal of the no-fly list regime."


"We're concerned that the way [the Security of Canada Information Sharing Act] SCISA is currently worded, and how [the Security of Canada Information Disclosure Act] SCIDA eventually will be worded, will continue to pose a threat to legitimate dissent and protestors' actions in Canada by including critical infrastructure as it's currently defined."


"...for the proposed CSE Act and CSIS, proactive roles should be put in place around the disclosure of foreign intelligence-sharing, as well as around SCISA and SCIDA, and that we have clear definitions on what foreign information-sharing is taking place and how it can take place."

Dominique Peschard and Denis Barrette, Spokespersons, Ligue des droits et libertés:

"It is unacceptable for CSIS to be authorized to compile datasets on Canadians. There are no limits on the data that CSIS can compile, provided that the data is considered 'public.' Judges may approve the compilation of other datasets based on a very weak threshold. The only requirement is that the data 'is likely to assist' CSIS."

"These provisions make it legal for CSIS to continue to spy and compile dossiers on protest groups, environmental protection groups, Indigenous groups and any other organization that is simply exercising its democratic rights. CSIS can count on the support of the CSE, which is also authorized to collect, use, analyze, retain, and disclose publicly available information, and whose mandate includes providing technical and operational assistance to agencies responsible for law enforcement and security. These datasets also pave the way for big data and data mining, which in turn leads to the compilation of lists of individuals based on their risk profile. We are opposed to this approach to security, which places thousands of innocent people on suspect lists and targets Muslims disproportionately. Bill C-59 allows CSIS to continue to address threats through active measures such as disruption. These measures can limit a right or freedom guaranteed under the Canadian Charter of Rights and Freedoms if so authorized by a judge. It is important to note that this judicial authorization is granted in secret and ex parte, so that the persons whose rights are being attacked cannot appear before the judge to plead their 'innocence' or argue that the measures are unreasonable. They may also be unaware that CSIS is behind their problems, which would make it impossible for them to lodge a complaint after the fact. These powers recall the abuses uncovered by the Macdonald Commission, such as the RCMP stealing the list of PQ members, burning down a barn, and issuing fake FLQ news releases to fight the separatist threat. We are therefore strongly opposed to granting these powers to CSIS."

Their recommendations include:

- the Secure Air Travel Act be repealed and any no-fly list be destroyed;

- that 'strict necessity' be the threshold for disclosing and receiving information under the Security of Canada Information Sharing Act;

- that CSlS be stripped of the power to address threats through active measures such as disruption.

Concerning the National Security and Intelligence Review Agency, they recommend that "the agency must have the material, human and financial resources needed to carry out its mandate."

Other recommendations include that "the agency must be clearly seen as an independent organization that also has expertise and whose mandate is to be accountable to the public. We think that what's wrong about Bill C-59 is that, under it, the agency would report much more to the department and the government than to the people on the way the agencies conduct their business. Bill C-59 could be amended to make the agency operate more as a watchdog that reports to the public on the way the agencies respect rights in carrying out their mandates."

Advocacy Groups

Ihsaan Gardee, Executive Director, National Council of Canadian Muslims:

"This law goes too far. It virtually guarantees constitutional breach, and it offers inadequate justification. It strengthens the security establishment when the evidence available gives every indication that the institutions carrying out national security intelligence gathering and enforcement mandates are in disarray, rife with bias and bullying from the top down. Oversight of those agencies is not sufficient. Real reform is necessary."


"Over the last 15 years we have seen three separate judicial inquiries, numerous court rulings, out-of-court settlements, and apologies that acknowledged the constitutional violations committed against innocent Muslims by national security intelligence and enforcement. Canadian Muslims are not only disproportionately affected by these errors and abuses, but we also bear the brunt of social impact when xenophobic and anti-Muslim sentiment surges. [The National Council of Canadian Muslims] agrees with the plurality of experts who state that more power to security agencies does not necessarily mean more security for Canadians. National security mistakes not only put innocent people at risk of suspicion and stigma, but also divert attention away from actual threats and obstruct effective action to promote safety and security. At the same time that Alexandre Bissonnette was dreaming up his murderous plot to attack a Quebec City mosque, the RCMP were "manufacturing crime," according to the BC Superior Court judge in the case against John Nuttall and Amanda Korody. They were Muslim converts and recovering heroin addicts living on social assistance, whose terrorism charges were stayed last year after a court found they had been entrapped by police. Bill C-59 strengthens the security establishment but does not address the security needs of Canadian Muslims. While the idea of prevention is laudable, any potential benefit from this approach will be negated by the incursions on Charter rights that disproportionately affect members of our community, and which will continue to happen under the guise of threat reduction, information sharing, and no-fly listing."


"For many young Canadian Muslims, the documented and admitted involvement of intelligence and enforcement agencies in rendition and other human rights abuses, and the complete lack of accountability and perceived impunity that have been created as a result, have bred a lack of confidence in the Canadian security establishment."


"The security agency's loss of trust within Canadian Muslim communities has been exacerbated by the lack of accountability for past wrongs committed against innocent Muslims. While the government has concluded significant settlements and made apologies, no one from within those agencies has been held to account. To the best of our knowledge, there has been no disciplinary action and no public acknowledgements. Instead of accountability, some of those involved in the well-known torture case of Maher Arar have even been promoted within the agencies. At best, there was individual and institutional incompetence in the security agencies. At worst, it was gross negligence or bad faith. Neither is acceptable and the taxpaying Canadians who fund these agencies deserve better. The lack of accountability projects a culture of impunity within the Canadian security agencies that reinforces the insecurity Canadian Muslims experience. The problems with CSIS will not be mitigated by Bill C-59. No amount of administrative oversight can cure the systemic ills. These agencies need reform.

"We do not see any attention given in this proposed legislation to the real impact that bias in national security has in producing insecurity and harm within our communities. Without a clear statutory mandate and direction from our government, we do not believe that civil society alone can change the culture within CSIS and other security agencies. We are willing to help, but that burden cannot fall only upon us."

Faisal Bhabha, Legal Adviser, National Council of Canadian Muslims:

"First, we are asking that the no-fly list, formerly known as the passenger protect program, be ended. We found that it continues to cause serious damage to Canadian families and fails to provide effective remedy or recourse, as you're going to hear from our colleague beside me."


"Our view remains that no amount of tinkering can solve the underlying problem, which is that the no-fly list is one of the most damaging instruments of racial and religious profiling currently in place in this country. It is the national security analogue to carding in the urban policing context. Since its implementation, it has caused so much damage without any proven or demonstrable benefit that we simply cannot justify it in our rule of law democracy. It was an interesting experiment, but its time has come to an end. What Canada needs is not a list of banned flyers, but rather stronger investigative and intelligence work so that people who present actual risks or who have committed actual crimes are dealt with through the criminal justice system."


"The second recommendation is to reform CSIS. With respect to CSIS, we hold that it cannot be given additional powers, given the current lack of faith and trust in the institution on the part of many Canadians. There's simply too much evidence of systemic bias and discrimination to ask Canadian Muslims and our fellow citizens to trust that any new powers will not be exercised improperly and discriminatorily. In fact, all of the evidence suggests that any new powers will be exercised improperly and discriminatorily. As has been mentioned, abuses in national security disproportionately affect Canadian Muslims, though not only Canadian Muslims, and this is not a coincidence. What is needed is a thorough culture shift within the national security agencies before Canadians can trust that bias and stereotypes are not driving investigations and will not shape the way the proposed new powers to disrupt are deployed."

Zamir Khan, one of the parent founders of No-Fly List Kids:

"I am simply a Canadian citizen and a father, here to testify to the harmful impact that can be enabled by gaps in legislation and when intelligence gathered by our own security agencies is applied in a haphazard manner."


"Canada's no-fly list was implemented in 2007 with a design that included, in the words of our current Minister of Public Safety and Emergency Preparedness, 'a fundamental mistake.' That flaw, which persists today, is that verifying whether passengers are potentially listed persons is delegated to airlines and done solely based on their name, and this is despite both booking information and the Secure Air Travel Act watch-list containing additional identifiers such as date of birth."


"Statistics about the program and its effectiveness have not been shared since its inception in 2007 when the transport minister disclosed that there were up to 2,000 names on the list. Our group has been contacted by over 100 affected families, representing the tip of the iceberg. The vast majority of encumbered travellers are unaware of the source of their difficulties by virtue of the Secure Air Travel Act explicitly prohibiting the disclosing of any information related to a listed person. However, based on the names of the falsely flagged individuals we know of, and the number of Canadians who share those names, we conservatively estimate that over 100,000 Canadians are potential false positives when they fly."


"My three-year-old son, Sebastian, has been treated as a potentially listed person since his birth. That means, for the first two years of his life, Sebastian was young enough, in the eyes of travel regulations, to be considered a 'lap-held infant' who didn't require a seat on the flight, but old enough to be flagged as a possible security threat."


"That stigmatization has been described by the Minister as a traumatizing experience for them and their families. When the children grow into teenagers and young adults, particularly young men, their innocence becomes less obvious. As our group has heard, their delays become longer and the scrutiny more intense. This has meant that some families have missed flights and the kids shy away from air travel for fear of stigmatization. This is not a future I want for my son. The Secure Air Travel Act permits the Minister to enter into agreements with foreign nations to disclose our watch-list to them. For example, a working group was established in 2016 to share our no-fly list with the United States. The prospect of this data being shared internationally is troubling to our families, who have experienced frightening ordeals of being detained and questioned or having passports confiscated while travelling abroad. Indeed, my wife and I are concerned about the treatment that awaits our family should we travel outside of Canada, given what already happens domestically."


"In January 2016, the Minister emphasized to airlines that children under the age of 18 did not require additional screening. However, as was reported by CBC, the result was Air Canada reiterating to their employees that all matches to the list must have their identities verified in person regardless of age. In June 2016, the government announced the Passenger Protect Inquiries Office, or PPIO, designed to assist travellers who have experienced difficulties related to aviation security lists. Our group is not aware of a single family for whom the PPIO has been able to resolve their case. To the average Canadian, a resolution would mean permanently clearing someone who is falsely flagged. The PPIO considers recommending signing up your child for an airline rewards program or applying to the U.S. Department of Homeland Security's redress system as a resolution. For those flagged by the Canadian list like my son, a U.S. redress number does not help. Airline rewards programs are an inconsistent and flawed band-aid that the Minister has called a stopgap measure. It's not good enough."


"[Our] group has secured letters from 202 Members of Parliament, constituting two-thirds of the House of Commons, all calling for the swift establishment of a redress system. There appears to be all-party support for getting this done, but that brings me to the bad news. On reading the proposed amendments to the Secure Air Travel Act contained in Bill C-59 it is apparent that, although the bill takes a small step toward the establishment of a redress system, it falls short of actually establishing the system."


"Bill C-59 ... does not come close to setting out the details of a redress system for people who are falsely flagged by the list. My final point is that we are not asking the government to reinvent the wheel. We need to look no further than our closest neighbour, the United States. We have attached screenshots of booking information for the same passenger travelling from Canada to Halifax and New York, with a Canadian airline, Air Canada. As you can see, the technology is already there for the passenger to input their redress number when travelling to the United States and be cleared at the time of booking."

Laura Tribe, Executive Director, OpenMedia:

Ms Tribe described OpenMedia as "a community-based organization committed to keeping the Internet open, affordable, and surveillance-free."

"I believe the active cyber operations, particularly the ones geared at deploying tools abroad, pose a large security risk for Canada in the way that they could be exploited."


"I think that once you have those powers in a very opaque system where it's difficult to build in the transparency mechanisms, it's hard to see how we can trust a system that we consistently see being misused around the world. Our concern is not that we think that the current government is immediately about to deploy all of these weapons. It's that we're building the powers without any justification to prove that we need them."

Responding to a question about reports of information sharing between the RCMP and the U.S. Drug Enforcement Agency, Tribe said: "I think one of the big concerns we have is that we don't know, or have any information about, how many information-sharing agreements Canada has. We don't know whom they're with. We don't know what all of them are about. When we give our information to the Canadian government or it's being collected, we don't know where it could end up. Conversely, when we take part in agreements with other countries, we don't know how that information could end up back in Canada. One of the concerns we have, and one that our community continues to express, is feeling that no matter what that information is, eventually anyone can get it within the Five Eyes agencies or within any of the related countries' departments. Once it's in one dataset, it's in everyone's."

A committee member who argued that Canada needs to have an "offensive [cyber] capability" asked how "this or any Canadian government [should] guard itself from the very real threats that exist in the cyber network or cyber sphere." Tribe responded, "The biggest concerns we have are that there aren't checks and balances in place in the way that the proposed CSE Act is currently worded.... Fundamentally, though, we are concerned that  the scope is too broad, that it lets CSE do too much without the accountability and checks and balances needed to make sure it's used only if someone is targeting something like our energy infrastructure."


"The clarifications are not there to provide the trust that Canadians need. We weren't consulted on it. We were never asked in the consultation what we thought about giving CSE new powers. I think that's where our community's concern comes from."

Lawyers' Organizations

Peter Edelmann, Member-at-Large, Immigration Law Section, Canadian Bar Association:

Edelmann said that despite "generally supporting" the proposed new legislation, the Canadian Bar Association is of the view that "The breadth of the definition of an 'activity that undermines the security of Canada' in section 2 is still very broad and notably it's different from the definition in the CSIS Act of 'threats to the security of Canada.' Having two definitions is not helpful. It's confusing and it doesn't provide a clear mandate for national security agencies and in particular for an oversight or review agency. I would also note in passing that the amendment to the exception in section 2(2) of the [Security of Canada Information Sharing Act] is troubling as it actually substantially reduces the protection under the current version. Several legitimate political activities might be seen on their face as undermining the sovereignty or territorial integrity of Canada. In the past, we've recommended that there be one coherent, clear definition of "national security" and we continue to be of that view. It's also unclear whether certain other activities fall under the definition of "national security" at all. The problem is particularly stark with the Canada Border Services Agency (CBSA), and we've expressed concerns about this lack of independent review of the CBSA in several past submissions. CBSA remains one of the largest law enforcement agencies in the country and has no independent oversight or review at all."


With respect to CSIS, we continue to have concerns around the disruption powers. In particular, giving kinetic powers to CSIS comes away from the mandate of creating CSIS in the first place, after the McDonald Commission.... We continue to have concerns similar to those we've had in the past with respect to these warrants limiting Charter rights in that context.

Faisal Mirza Chair, Board of Directors, Canadian Muslim Lawyers Association:

"In particular, this bill does not address a key area of security, the legal threshold for searches of digital devices at the border."


"[M]y concern about what's missing from Bill C-59 is that there needs to be some statutory guidance on when the CBSA may search digital devices at the border. We can debate and go over at length the fact that the bill has made progress with respect to balancing individual rights with state interests, but the reality on the ground is all of that can be circumvented by searches of individuals' digital devices at the border. The Customs Act needs to be revisited and reviewed. It is legislation from the 1980s, when digital devices were not the norm, and it contemplated searches of people's luggage. The use of data collection is the future of national security and the devices that people carry with them obviously are integral in terms of preserving a balance between individual interests and state interests and in protecting our security. In today's era, most people travel. Returning Canadians can easily have their digital devices searched without restriction. A better legal threshold that reflects the nature of the technology needs to be established. Currently it's the position of customs and the government that there is no legal threshold to search individuals' cellphones, laptops, etc., when returning at the border. Even with a reduced expectation of privacy in that context, it becomes critical that there at least be some legal threshold; otherwise, the provisions in the Criminal Code or amendments to the Immigration and Refugee Protection Act or amendments to try to protect information sharing become easily circumvented when individuals are coming back through the border with no protections whatsoever."

Regarding the listing of entities on Canada's Terrorism List: "The difficulty is that organizations whose assets have then been stripped and frozen have no ability to hire counsel in order to engage in submissions with the Minister or to engage in the statutory judicial review. In fact, it's our understanding that this omission results in a constitutional violation. There's a section 7 breach tied in with a section 10 breach, in that these entities are not given an opportunity to hire and retain counsel in order to defend themselves. That constitutional frailty could be a significant problem for this legislation in the future."


Dr. Christina Szurlej, Endowed Chair, Atlantic Human Rights Centre, St. Thomas University:

"Though Bill C-59 has addressed some shortcomings found in the Anti-Terrorism Act, 2015, concerns remain regarding its impact on human rights, particularly the rights to privacy, freedom of assembly and association, freedom of expression, liberty and security, democratic rights, due process rights, and anti-discrimination protections."

"If we're talking about invading the privacy of an individual, normally a warrant is required in order to do that. Yes, there might be exceptional circumstances in certain cases, but the Charter of Rights and Freedoms is in place for a reason -- to constitutionally protect those rights -- and any infringement must be reasonable. Simply saying that the collection of data relates to the functions of CSIS doesn't meet that threshold. Perhaps clearly demonstrating that there is an actual threat to national security may cross that threshold."

Szurlej recommends: "Ensure any limitation of human rights conforms with Canada's national and international obligations. Any encroachment on human rights must be necessary, proportionate, reasonable, and justifiable in a free and democratic society. The government must ensure any collection of personal data is directly linked to protecting public safety and national security, rather than being tangentially connected to the duties and functions of CSIS or any other agency. Legislation should be introduced to protect the Canadian populace from third party commodification of personal data through payment or subscription. The National Security and Intelligence Review Agency should be provided with the authority to render binding decisions. The role of the intelligence commissioner should be elevated from part-time to full-time status."

Craig Forcese, Professor, University of Ottawa, Faculty of Law, as an Individual:

"The new system will only resolve the constitutional problem if it steers all [CSE] collection activities implicating constitutionally protected information into the new authorization process. The problem is this. Bill C-59's present drafting only triggers this authorization process where an act of Parliament would otherwise be contravened. This is a constitutionally under-inclusive trigger. Some collection of information in which a Canadian has a constitutional interest does not violate an act of Parliament, for example, some sorts of metadata. The solution is simple. Expand the trigger to read as follows: 'Activities carried out by the Establishment in furtherance of the foreign intelligence' or cybersecurity 'aspect of its mandate must not contravene any other act of Parliament or involve the acquisition of information in which a Canadian or person in Canada has a reasonable expectation of privacy,' unless they are authorized under one of these ministerial authorizations that are subject to vetting by the intelligence commissioner."

Wesley Wark, Professor, Graduate School of Public and International Affairs, University of Ottawa, as an Individual:

Wark speaks favourably of Bill C-59 throughout. One comment he makes should dispel any notion that what the Liberals have done is merely amend Bill C-51 to get rid of elements Canadians so vehemently objected to:

"Bill C-59 represents a very ambitious and sweeping effort to modernize the Canadian national security framework. It should not be seen as just a form of tinkering with the previous government's Bill C-51."

Haut de

Minister, Intelligence, Police and Spy Agencies Address Committee

On November 30 the Standing Committee on Public Safety held its first hearing as part of its study of Bill C-59, An act respecting national security matters. The hearing opened with remarks from the Minister of Public Safety Ralph Goodale and then questions from Committee members to be answered by Goodale and officials from the Department of Public Safety and Emergency Preparedness, Canadian Security Intelligence Service (CSIS), Royal Canadian Mounted Police, Communications Security Establishment (CSE) and the Department of Justice.

To date, as a result of avoiding a debate in the House of Commons on the bill, the government has not set out its arguments for why the powers in the legislation are required other than to say that it is all about modernization and protecting Canadians. This continued in the Committee. Goodale did not present the government's rationale for the legislation nor explain the various portions of the legislation and why they are being put forward. He started with a brief introduction that everything they do is to protect Canadians and to defend our rights and freedoms:

"Everything that our government does in terms of national security has two inseparable objectives: to protect Canadians and to defend our rights and freedoms."

Neither he in his remarks nor any other MP on the Committee even mentioned the hundreds of thousands of Canadians who spoke out against Bill C-51 and demanded its complete repeal. Instead Goodale sought to hide this from examination by presenting the government's actions as coming from Canadians. "Bill C-59 is the product of the most inclusive and extensive consultations Canada has ever undertaken on the subject of national security. We received more than 75,000 submissions from a variety of stakeholders and experts as well as the general public, and of course this committee also made a very significant contribution, which I hope members will see reflected in the content of Bill C-59."

"All of that input guided our work and led to the legislation that's before us today," he said.

This attempt to overcome the legitimacy crisis the government faces with its refusal to repeal Bill C-51 continued in the questions and answers. The first question for the Minister was presented by Toronto--Danforth, Liberal MP Julie Dabrusin who said: "As part of the consultations that took place, I held a meeting in my riding to which many people came. It was well attended. What came through were some very strong concerns about ensuring privacy rights and Charter rights. [...] Many people have come and asked me why do we not simply repeal the former Bill C-51 from the prior government, the prior Parliament. Why is any new legislation required? Why not just repeal it and leave it as it is?"

Goodale responded stating "Bill C-51 as a single piece of legislation no longer exists. It is now embedded in other pieces of law and legislation that affect four or five different statutes and a number of different agencies and operations of the Government of Canada. It's now a little bit like trying to unscramble eggs rather than simply repealing what was there before."

He added, "Based on the consultation that you referred to, we meticulously went through the security laws of Canada, whether they were in Bill C-51 or not, and asked ourselves this key question. Is this the best provision, the right provision, in the public interest of Canadians to achieve two objectives -- to keep Canadians safe and safeguard their rights and freedoms -- and to accomplish those two objectives simultaneously?

"We honoured our election commitment of dealing with five or six specific things in Bill C-51 that we found particularly problematic. Each one of those has been dealt with, as per our promise, but in this legislation we covered a lot of other ground that came forward not during the election campaign but as a part of our consultation."

Making Dirty Tricks Charter-Proof

In his remarks Goodale focussed on addressing CSIS "threat reduction powers" which permit CSIS agents to do all sorts of dirty tricks. He created the impression that Canadians' main concern was with oversight of these powers rather than the powers themselves. In response to concerns he said that "CSIS needs clear authorities, and Canadians need CSIS to have clear authorities without ambiguity so that they can do their job of keeping us safe. This legislation provides that clarity. Greater clarity benefits CSIS officers, because it enables them to go about their difficult work with the full confidence that they are operating within the parameters of the law and the Constitution."

This "bill will ensure that any measure CSIS takes is consistent with the Charter of Rights and Freedoms. Bill C-51 implied the contrary, but CSIS has been very clear that they have not used that particular option in Bill C-51, and Bill C-59 will end any ambiguity," he said.

In response to questions during the hearing concerning Bill C-51 and what Goodale asserts were the main problems he said, "The most prominent issue that emerged from Bill C-51 was the original wording of what became section 12.1 of the CSIS Act, which implied, by the way the section was structured, that CSIS could go to a court and get the authority of the court to violate the Charter. Every legal scholar I've ever heard opine on this topic has said that is a legal nullity. An ordinary piece of legislation such as the CSIS Act cannot override the Charter. The Charter is paramount. However, the language in the way section 12.1 was structured left the impression that you could go to the court and get authority to violate the Charter.

"In the language change that we have put into Bill C-59, first of all, we have specified a list of disruption activities that CSIS may undertake with the proper court authorization, but when they go to the court to ask for authority, the ruling they're asking for from the court is not that it violate the Charter, but that it fits within the Charter, that in fact it is consistent with the Canadian Charter of Rights and Freedoms, including clause 1 of the Charter.

"That's the difference between the structure of the old section and how we've tried to make it clear that the Charter prevails."

Clause 1 of the Charter states: "1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Elsewhere the Director of CSIS has explained in relation to these "threat reduction powers" and the Charter 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."

Elsewhere in his remarks Goodale said, "Through the collection of new provisions that are here in Bill C-59 we will give CSIS and the RCMP and our other agencies the ability and the tools to be as well informed as humanly possible about these activities and to be able to function with clarity within the law and within the Constitution."

David Vigneault from CSIS also explained that Bill C-59 does not change any of the threat reduction measures CSIS can take for which they do not require a warrant. He gave the example that "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."

Definitions of Terrorism Offences

Goodale turned to the definition of "terrorist propaganda" in the new legislation and the existing criminal offence of promoting terrorism which was included in Bill C-51. In explaining the new wording which would outlaw "counselling the commission of a terrorism offence," Goodale stated, "The problem with the way the law is written at the moment, as per Bill C-51 is that it is so broad and so vague that it is virtually unusable, and it hasn't been used. Bill C-59 proposes terminology that is clear and familiar in Canadian law. It would prohibit counselling another person to commit a terrorism offence. This does not require that a particular person be counselled to commit a particular offence. Simply encouraging others to engage in non-specific acts of terrorism will qualify and will trigger that section of the Criminal Code."

"Because the law will be more clearly drafted, it will be easier to enforce. Perhaps we will actually see a prosecution under this new provision. There has been no prosecution of this particular offence as currently drafted," he added.

In response to concerns Goodale cited that were raised in the Parliament about new "accountability" measures and whether they would provide "too many hoops" for security and intelligence agencies to jump through, he said this is not the case and that two of the country's leading national security experts, Craig Forcese and Kent Roach, said the bill represents "solid gains  -- measured both from a rule of law and civil liberties perspective -- and come at no credible cost to security."

Turning to the issue of oversight and review he said, "Some of the scrutiny that we are providing for in the new law will be after the fact, and where there is oversight in real time we've included provisions to deal with exigent circumstances when expedience and speed are necessary."

He added that "accountability is, of course, about ensuring that the rights and freedoms of Canadians are protected, but it is also about ensuring that our agencies are operating as effectively as they possibly can to keep Canadians safe. Both of these vital goals must be achieved simultaneously -- safety and rights together, not one or the other."

Criminalization of Dissent

Conservative MP Dave MacKenzie asked the Minister to explain Bill C-59 "expressly prohibiting protest and advocacy and so on, will the changes in the new bill result in charges that were not allowed for in Bill C-51? Have we enhanced the probabilities of prosecution in Bill C-59 over Bill C-51?"

Goodale said "the problem with the language in Bill C-51 was that it was very broad, and in the language of lawyers in court, it was so broad that it was vague and unenforceable. If you recall, there was some discussion during the election campaign in 2015 that the language in that particular section might have been used to capture certain election campaign ads, which obviously wasn't the intention of the legislation.

"We've made it more precise without affecting its efficacy, and I think we made it more likely that charges can be laid and successfully prosecuted, because we have paralleled an existing legal structure that courts, lawyers, and prosecutors are familiar with, and that is the offence of counselling. Clearly, it doesn't have to be a specific individual counselling another specific individual to do a specific thing. If they are generally advising people to go out and commit terror, that's an offence of counselling under the act the way we've written it."

Pre-Emptive Arrest Powers

Douglas Breithaupt, Director and General Counsel of the Criminal Law Policy Section, Department of Justice, addressed a question from Conservative MP Glen Motz about how the change of terminology in section 83.3 of the Criminal Code, from "is likely to prevent" a terrorist activity to "is necessary to prevent" a terrorist activity would impact or affect "our ability to make preventative arrests?" Breithaupt explained that 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'."

Sharing Versus Disclosure

NDP MP Mathew Dubé asked the Minister to clarify the difference between "sharing" and "disclosure," as disclosure is replacing sharing in the Security of Canada Information Sharing Act. The Minister's response was that "no new power of collection is being created here. This is all in reference to information that already exists." Elsewhere during the hearing Vincent Rigby, Associate Deputy Minister Department of Public Safety and Emergency Preparedness, explained that "it's actually quite important. As the Minister suggested, moving from 'sharing' to 'disclosing' is also making it clear that this is not about collection. This is about disclosing information, and sometimes I think within the definition of 'sharing,' it can be implicit that there's a collection dimension as well, so we wanted absolute clarity in that regard.

"Also, disclosing makes it very clear that it's from one body, one organization, to another organization, so there are certain requirements on the disclosing organization or agency now in terms of the information they give to another agency or organization."

Cyber Operations

CSE Chief Bossenmaier was asked by Conservative MP Cheryl Gallant to explain provisions in the proposed legislation establishing the CSE which include the Minister of Foreign Affairs in decision-making when authorizing cyber operations.

She responded explaining that for defensive cyber-operations the Minister would need to be consulted, while in "active" (in fact offensive operations) the Minister's approval along with that of the Minister of Defence would be required. She stated that "the Minister of Foreign Affairs would have an interest in and responsibility for Canada's international and foreign affairs, as these activities would be implicating foreign targets or threats to Canada, which would be part of the rationale for that."

Powers for Collection of Information by CSE and CSIS

NDP MP Matthew Dubé also raised a question about a contradiction in the powers given to the CSE in relation to collecting publicly available information, citing subsection 23(1): "we see that it specifically mentions that the activities done by the centre 'must not be directed at a Canadian or any person in Canada', while proposed section 24 says, 'Despite subsections 23(1) and (2), the Establishment may carry out [...]." He added, "Essentially, we're saying that normally it wouldn't be against Canadians or any person in Canada, but now that's no longer the case, because it's specifically saying that it's 'despite' proposed section 23." Dubé noted that "acquiring, using, analyzing, retaining or disclosing infrastructure information for the purpose of research and development, for the purpose of testing systems or conducting cyber security and information assurance activities on the infrastructure from which the information was acquired. To me, that seems to create a situation whereby you could be collecting information from infrastructure here in Canada, which obviously Canadians are using, without necessarily the same accountability that's created by omitting Canadians in proposed section 23."

Greta Bossenmaier, Chief of the Communications Security Establishment said "we focus on foreign targets and foreign threats to Canada, so we don't have a mandate to focus on Canadians. We're definitely an organization that's focused on foreign threats to Canada." She added later "refer to proposed subsection 24(1). In the actual first text there, it talks about 'the following activities in furtherance of its mandate'. Again, our mandate is foreign signals intelligence and cyber security protection. That really is the overarching piece that would be associated with the rest of the subsections." She closed by stating "anything that would happen under proposed subsection 24(1), would be addressed and covered under the review mechanisms that the Minister already spoke about in terms of the national security and intelligence review agency, and of course, the new National Security and Intelligence Committee of Parliamentarians."

Bossenmaier also explained that with the new powers the CSE would be in a position not only to respond to attacks on government and non-government infrastructure, but also to "go out and try to prevent an attack against Canada or Canadians or Canadian infrastructure before it happened."

Liberal MP Michel Picard asked the Minister about how Bill C-59 overcomes the obstacles to keeping and using information collected as a result of a ruling by Supreme Court Justice Simon Noël, which "found problems with the types of information that can be investigated and kept, and with the extent to which it is possible to investigate."[1]

Goodale explained that Bill C-59 "captures Justice Noël's advice and judgment for a procedure going forward dealing with the management of data and datasets."

CSIS Director David Vigneault explained that under the new powers "Bill C-59 sets out categories of information that are determined by the Minister. He tells me, as director, which categories of information we have the right to use. The men and women of the service will go and gather that information in an organized fashion. If the information is part of a Canadian dataset, the Intelligence Commissioner will have to assess the Minister's decision.

"With Canadian information, the Federal Court will have to determine whether we can use it and keep it. The way in which we use that information will be reviewed by the new National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians.

"The way in which the categories are determined by the Minister, the way in which we will use Canadian information, the role that the Federal Court and the Intelligence Commissioner will play, and the fact that any subsequent use of the information will be reviewed by oversight committees, all this will allow us to use information that is absolutely essential in confronting 21st century threats."

Later Vigneault was asked by Dubé about "unselected datasets." "[I]n the bill it says that the Minister and the new commissioner are going to determine whether or not it is appropriate to gather and keep that data.

"How do you go about distinguishing between the datasets? For example, the Minister or the commissioner could decide that one dataset is appropriate, because it relates to someone who poses no threat but who may have had a conversation with a suspect you are targeting. How do you distinguish that dataset from the other information about legitimate associates of the person who may be a threat too?

"Put in a better way, how do you go about distinguishing between the other data and the unselected datasets that affect people who have nothing to do with the suspect?"

Vigneault explained that "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."

Then he added CSIS' view that it requires large amounts of information about Canadians' relations to one another to rule out if Canadians are "a threat." He said, "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."

Dubé responded asking "If the court determines that you have the right to collect that information because the target is legitimate, how do you go about distinguishing the legitimate target from the unselected data that will inevitably be collected? Has a system been put in place?"

Vigneault responded without addressing the question that "the unselected data will be separated out," and that "only the designated people will be able to have access to that information [...] Unselected data will be segregated. Designated people will be able to make requests to use it. Each time that is done, the activities will be reviewed to make sure that our procedures and our implementation comply with the spirit of the law." Asked again how they would separate the data Vigneault explained.

"We do not start our investigations from selected data. We start them from factors that are related to threats."

If an identified target is implicated in potential terrorism or espionage, and if we see that that person is in contact with someone -- certain information can be useful to us, like a telephone number -- we can then check in the unselected data we have been authorized to keep. That is part of the process I explained to you earlier."

"What people are afraid of is that we will be going on fishing expeditions."

"There's no fishing expedition," he asserted.

Changes to Youth Criminal Justice Act

Liberal MP Julie Dabrusin asked "We're now creating a system whereby information about young offenders will be available to people issuing passports. Is that consistent with the objectives of the Youth Criminal Justice Act?"

Douglas Breithaupt of the Department of Justice simply did not answer whether it was consistent with the objectives of the Youth Criminal Justice Act or why the change was being made but rather said that it was consistent with the Security of Canada Information Sharing Act. He indicated how the provision could be used, "For example, the fact that a youth has been subject to a terrorism peace bond could be made available for consideration in making those decisions."

Liberal MP Sven Spengemann asked "about Canadian youth and their vulnerability to terrorism."

He asked the Minister to elaborate on Clause 159 of the bill which he said "brings the Youth Criminal Justice Act into connection with Bill C-59, applies it to Bill C-59, including the principle that detention is not a substitute for social measures and also that preventative detention, as provided for in section 83.3 of the Criminal Code, falls into that same framework. It's not a substitute."

He added, "I wonder if you could comment on your vision of how the bill relates to young offenders, vulnerable youth, essentially the pre-commission of any terrorist offences or recruitment by networks, and then also your broader vision about how we can do better in terms of preventing terrorism in the first place by making sure these networks do not prey on Canadian youth and children."

Spengemann did not explain what he meant by pre-commission of any terrorist acts.

The Minister said that with the new legislation "the Youth Criminal Justice Act applies, so that is the process by which young offenders will be managed under this law."

Turning to "prevention" he cited the government's creation of the new Canada Centre for Community Engagement and Prevention of Violence, "so we would have a national office that could coordinate the activities that are going along at the local and municipal and academic levels across the country, put some more resources behind those, and make sure we are sharing the very best ideas and information so that if we can prevent a tragedy, we actually have the tools to do it."

Changes to No-Fly List

Spengemann also asked the Minister to explain how the amendments to the Secure Air Travel Act provide redress for people, particularly children, who are prevented from travelling as a result of having the same or similar name to someone on the No-Fly List.

Vincent Rigby, Associate Deputy Minister, Department of Public Safety and Emergency Preparedness, responded, that "it's starting off with a centralized screening system so that the government actually does the screening. Right now that is the responsibility of the airline. We'll bring it back to the government so that we can actually provide more rigorous and consistent screening across the board. In the legislation itself there are also references to the notion of an identification number that will allow, those who request the identification number to be screened ahead of time. If there's any misunderstanding with respect to being on the list, that can be addressed before they actually show up at the airport [...] in cases where a child, for example, is not on the list, the government will inform the parents of that. We feel that is an important provision in that there's a great deal of apprehension when there is a false positive match from parents who ask if their child is on the list. Whether it's through accident or through some other provision, I think it removes a lot of that apprehension if we can actually say to a parent that the child is not on the list."

"By having the centralized screening process, we are actually going to have to build the system up from the ground. It will require a big information technology fix that will require significant funding over time to make that happen."

Spengemann then asked the officials to explain, with respect to people being prevented from air travel as a result of a No-Fly List, why "are we in the current situation?" 

Monik Beauregard, Senior Assistant Deputy Minister, National and Cyber Security Branch of the Department of Public Safety and Emergency Preparedness merely responded: "I can't really say why we're in the current situation. We are working with the U.S. We have established a Canada-U.S. redress working group to also facilitate the troubles that some air passengers may experience. We are looking to the American experience in establishing their redress program and learning lessons from the way they have done it."

Liberal MP Pam Damoff explained that a young man in her riding has his name shared on the list. She asked "who creates and who maintains the list? Is it the airlines or the government?"

Beauregard stated, "The government creates the Secure Air Travel Act [SATA] list based on a dual threshold of identifying individuals who are suspected of posing a threat to airlines but also individuals who are suspected of travelling abroad to participate in terrorist activities. That is not to say that airlines don't have their own lists, but they're not terrorism-related. Airlines will have their own list based on people who've had rage fits on airlines and things like that. There's quite a complex process in place when somebody is flagged at registration. They may be on the SATA list. There's a whole process going back to the government, to Transport Canada, and to Public Safety to vet whether or not that person is a close name match or an actual person on the list."

Damoff asked specifically, "We're not using a U.S. list then, in Canada? That's a question that I'm often asked," to which Beauregard responded, "No. Again, as I explained, we have our own list. The list that is shared with airlines is the Canadian list." Damoff followed up, "There seems to be confusion, certainly among the parents, that there is this list somewhere that every country has access to." Beauregard did not respond to clarify this. [2]


1. In that case Justice Noël ruled that CSIS kept electronic metadata about "non-threat" Canadians and "third parties" over a 10-year period illegally and used the data at its Operational Data Analysis Centre without informing the Minister of Public Safety at the time. According to court documents, CSIS created the Operational Data Analysis Centre (ODAC) in 2006 to be a "centre of excellence for the exploitation and analysis" of different data sets. CSIS should not have retained the information since it was not directly related to threats to the security of Canada, the ruling said. The data about data "allowed the agency to draw out "specific, intimate insights into the lifestyle and personal choices of individuals,"

The head of CSIS at the time Michel Coulombe responded, "All associated data collected under warrants was done legally." He said, "The court's key concerns relates to our retention of non-threat-related associated data linked with third-party communication after it was collected."

"CSIS, in consultation with the Department of Justice, interpreted the CSIS Act to allow for the retention of this subset of associated data. It is now clear that the Federal Court disagrees with this interpretation."

In his ruling Justice Noël suggested it may be time to revisit the CSIS Act of 1984, which is "showing its age" in a technologically advanced world.

"Canada can only gain from weighing such important issues once again," Noël wrote. "Canadian intelligence agencies should be provided the proper tools for their operations but the public must be knowledgeable of some of their ways of operating."

In a statement issued following the ruling Goodale welcomed the ruling, saying the federal government would not be appealing the decision. "I also take very seriously the explicit finding by Justice Noël that CSIS had failed in its duty to be candid with the court," Goodale said in the statement. "In matters of security and intelligence, Canadians need to have confidence that all the departments and agencies of the government of Canada are being effective at keeping Canadians safe, and equally, that they are safeguarding our rights and freedoms."

2. The Secure Air Travel Act permits the Minister to establish who is on the no-fly list, which in effect means that if the U.S. or another government requests that their list be included in Canada's, the Minister can do this. Thus the assertion that a list is "Canadian" hides that the Minister has the arbitrary authority to place anyone on the list based on their "reasonable grounds to suspect a person 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 an act or omission that

(i) is an offence under section 83.18, 83.19 or 83.2 of the Criminal Code or an offence referred to in paragraph (c) of the definition terrorism offence in section 2 of that Act, or

(ii) if it were committed in Canada, would constitute an offence referred to in subparagraph (I).

No proof is required. Furthermore the Act states that the government can share the list with a foreign state and enter into agreements concerning the list, meaning that through regulation Canada's list can be linked to the U.S. list or the lists of other countries or bodies and changed based on changes to those lists.

Haut de


For Your Information

What the Bill Contains



Bill C-59 begins with a Preamble, which in essence states that the government needs new powers for police and spy agencies to keep up with "changing threats" in order to "keep Canadians safe" and protect Canada's national security. Furthermore, these powers must be wielded in accordance with the rule of law, which is made synonymous with respecting the Canadian Charter of Rights and Freedoms. It repeats the notion that the issue is for government to balance rights with security, as if they are separate, and that this must be done in a manner to "ensure public trust and confidence" in the police and spy agencies, which the Preamble says can be done with enhanced "accountability and transparency."

The Preamble ends stating:

"Whereas many Canadians expressed concerns about provisions of the Anti-Terrorism Act, 2015; [Bill C-51 which the Harper government and the Liberals together passed -- TML ed. note]

"And whereas the Government of Canada engaged in comprehensive public consultations to obtain the views of Canadians on how to enhance Canada's national security framework and committed to introducing legislation to reflect the views and concerns expressed by Canadians..."

Part 1: New National Security and Intelligence Review Act

Part 1 enacts the National Security and Intelligence Review Agency Act, which establishes the National Security and Intelligence Review Agency (NSIRA) and sets out its composition, mandate and powers. This would eliminate the Security Intelligence Review Committee and transfer some of its powers and mandate to this Agency. The mandate of the Agency is to "review all national security and intelligence activities across Government."

The Bill folds the review and complaint functions of the Security Intelligence Review Committee of CSIS and the Office of the Communications Security Establishment Commissioner into the new Agency. The review and complaints functions of the Civilian Review and Complaints Commission of the RCMP would be moved to the new agency.

The Agency would "collaborate" with the National Security and Intelligence Committee of Parliamentarians which the Trudeau government has appointed.

A government backgrounder states that the creation of the new agency will in fact permit the sharing of "sensitive information" across government agencies which is currently not permitted with existing review bodies. "This model recognizes the increasingly interconnected nature of the government's national security and intelligence activities," it says. It is of note that one of the main aspects of Bill C-51 was to permit sharing of information between spy and police agencies which had been restricted in the past.

The government states, "The NSIRA would ensure that Canada's national security agencies are complying with the law and that their actions are reasonable and necessary. It would have full and independent authority to determine what government activities it would review. This would include the review of ongoing activities."

"Findings and recommendations from NSIRA would be provided to relevant Ministers through classified reports. It would also produce an unclassified annual report to Parliament summarizing the findings and recommendations provided to Ministers."

The new entity is said to "complement" the National Security and Intelligence Committee of Parliamentarians, however it is unclear what this means in practice.

The NSIRA will be led by a committee consisting of a Chair and no fewer than three and no more than six other members appointed by the Governor General "on the advice of the Prime Minister in consultation with the leaders of the opposition parties."

Each member of the Committee is to be appointed for a term not exceeding five years.

The NSIRA is to be headed by an Executive Director appointed by the Governor in Council for up to five years and a Deputy head.

Each member of the NSIRA, the executive director, each employee of the Secretariat and any person whose services the Secretariat engages to fulfill its duties must "maintain the security clearance required by the Government of Canada, as well as follow secrecy requirements."


The mandate of the NISRA is to:

(a) review any activity carried out by the Canadian Security Intelligence Service or the Communications Security Establishment;

(b) review any activity carried out by a department that relates to national security or intelligence;

(c) review any matter that relates to national security or intelligence that a minister of the Crown refers to the Agency; and

(d) investigate

(i) any complaint made under subsection 16(1), 17(1) or 18(3),
(ii) any complaint referred to the Agency under subsection 45.53(4.1) or 45.67(2.1) of the Royal Canadian Mounted Police Act,
(iii) reports made to the Agency under section 19 of the Citizenship Act, and
(iv) matters referred to the Agency under section 45 of the Canadian Human Rights Act.
The Agency is to have "timely access" to any information that is in the possession or under the control of any department.

An exception to access to information is that the Agency "is not entitled to have access to a confidence of the Queen's Privy Council for Canada the disclosure of which could be refused under section 39 of the Canada Evidence Act." Section 39 of the Canada Evidence Act states that a minister of the Crown or the Clerk of the Privy Council can ensure that information cannot be examined or heard by a court, person or body if it is certified by them as constituting a "confidence of the Queen's Privy Council of Canada."

A confidence of the Queen's Privy Council for Canada is defined in the Canada Evidence Act "without restricting the generality thereof" as

(a) a memorandum the purpose of which is to present proposals or recommendations to Council;

(b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions;

(c) an agendum of Council or a record recording deliberations or decisions of Council;

(d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;

(e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and

(f) draft legislation.

"A Council means "the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet."


The Agency is required to investigate a complaint about activities of CSIS or CSE if: a complainant has made a complaint to the Director of CSIS or the Chief of the CSE and has not received a response "within a period of time that the Agency considers reasonable or is dissatisfied with the response given; and if the Agency is satisfied that the complaint is not trivial, frivolous or vexatious or made in bad faith."

The Agency however is blocked from investigating a complaint if the complainant is "entitled to seek redress by means of a grievance procedure established under the CSIS Act in the case of CSIS or the Federal Public Sector Labour Relations Act in the case of both CSIS and the CSE.

The legislation also establishes the mechanism whereby, based on denial of a security clearance that the government has required, a deputy head can deny employment, dismiss, demote or transfer an individual so long as they send within 10 days after the decision a notice informing the individual of the denial of clearance. The same requirement goes for the denial of a contract to provide goods or services to the Government of Canada.

The Agency can receive and must investigate a complaint from any individual who has been denied a security clearance.

The Agency can attempt to resolve complaints through an "informal process" the results of which must be set out in writing as well as the agreement of the parties to that resolution.


The Review Agency has, in relation to the investigation of any complaint, the power

(a) to summon and enforce the appearance of persons before the Agency and to compel them to give oral or written evidence on oath and to produce the documents and things that the Agency deems requisite to the full investigation and consideration of the complaint in the same manner and to the same extent as a superior court of record;

(b) to administer oaths; and

(c) to receive and accept the evidence and other information, whether on oath or by affidavit or otherwise, that the Agency considers appropriate, whether or not that evidence or information is or would be admissible in a court of law.

"The Agency is required to provide the outcome of its investigation to the heads of the bodies being investigated as well as to the complainant.

In addition to dealing with complaints, the Agency's powers to review the actions of government departments concerning national security include the power to direct the department to conduct a study of those activities and provide the appropriate Minister and the Agency with a report.

On an annual basis the Agency must also submit to the appropriate Minister a report with respect to the National Security activities of CSIS and CSE. The report is to show their "compliance with the law and any applicable ministerial directions; and the reasonableness and necessity of the Canadian Security Intelligence Service's exercise of its powers."

It must also submit to the appropriate Minister a report "with respect to any activity that is related to national security or intelligence and carried out by a department if, in the Agency's opinion, the activity may not be in compliance with the law." Such a report must "as soon as feasible" be shared with the Attorney General as well as the Intelligence Commissioner.

Each year the Agency is also to brief the appropriate Minister for both CSIS and CSE on "the performance of its activities" related to national security or intelligence.

Finally each year it must submit a report to the Prime Minister on its activities for the previous year and recommendations it made and the Prime Minister is required to table this report in Parliament.

If the Agency is of the opinion that it is in the public interest to report on any matter related to its mandate, it may submit a special report to the appropriate Minister.

Part 2 -- Intelligence Commissioner Act

Part 2 enacts the Intelligence Commissioner Act. This Act establishes the duties and functions of the Intelligence Commissioner. The Commissioner is given the power to review actions and proposed actions of CSIS and CSE, including those which will violate the law, and on this basis rule, as to whether they are "reasonable."

Following a review of "conclusions on the basis of which authorizations are issued or amended" and whether they are "reasonable" the Commissioner must issue a written decision approving the action or not approving it. The Act appears vague enough that the approval can be given or denied after the action has already been taken. In the case that the Commissioner does not give approval they must set out reasons for doing so. The Commissioner must provide a copy of every decision made to the National Security and Intelligence Review Agency.

In a news release the government says the Commissioner will be "fully independent of government" which is to provide Canadians "trust" in what he or she authorizes.

The Commissioner is to be appointed by the Governor General on the recommendation of the Prime Minister and is required to be a retired judge of a superior court. They will hold the position "during good behaviour" for "not more than five years" and can be reappointed for one additional term of not more than five years. "During good behaviour" means that the person can only be terminated "for cause."

The Commissioner has the rank and all the powers of a deputy head of a department and has control and management of his or her office and all matters connected with it.

In regards to CSIS, the Commissioner would review and approve the Minister of Public Safety's decisions regarding "classes of activities that could be undertaken pursuant to the authorization scheme for acts or omissions that would otherwise constitute offences." In other words, the Commissioner would provide authorization for CSIS to violate the law and review its activities which violated the law.

They would also "review and approve the Minister [of Public Safety's] decisions regarding classes of Canadian datasets that CSIS could collect (retention of such classes requires authorization from the Federal Court within 90 days); and review and approve authorizations for the retention of foreign datasets and, in exigent circumstances, the querying of Canadian datasets."

The legislation defines dataset in a very broad manner as: "a collection of information stored as an electronic record and characterized by a common subject matter; (ensemble de données)"

The issue of CSIS and the CSE collecting datasets appears throughout the legislation. Such collection was not explicitly dealt with in Bill C-51.

A backgrounder from CSIS indicates that the collection of datasets relates to the collection of personal information on Canadians and non-Canadians in particular, from social media.

"The ease of movement across international borders and spread of social media networks and modern communications technology can be used by individuals and groups seeking to harm Canada. This creates some very real challenges for CSIS."


"Traditional subject interviews, human source reporting and physical surveillance requires significantly more time, effort and intrusion."

"The [changes to the CSIS Act in Bill C-59] will introduce a robust authorization regime for foreign datasets. Foreign datasets contain personal information and predominantly [TML Weekly emphasis added] relate to non-Canadians outside of Canada."

Part 3 -- New Communications Security Establishment Act

Part 3 of Bill C-59 enacts the Communications Security Establishment Act, which establishes the Communications Security Establishment (CSE) in law and expands its powers, especially in the domain of what are called cyber operations and outlines what activities are permitted. Currently, the Communications Security Establishment Canada (CSEC) is governed by the National Defence Act with the Chief of CSEC receiving instructions from the Minister of National Defence.

The following information about CSE is posted on its website:

"CSE is one of Canada's key security and intelligence organizations, focused on collecting foreign signals intelligence in support of the Government of Canada's priorities, and on helping protect the computer networks and information of greatest importance to Canada. We also provide assistance to federal law enforcement and security organizations in their legally authorized activities, when they may require our unique technical capabilities.

"CSE's mandate and authorities are defined in the National Defence Act, which requires CSE to do three things:

a. to acquire and use information from the global information infrastructure for the purpose of providing foreign intelligence, in accordance with Government of Canada intelligence priorities;

b. to provide advice, guidance and services to help ensure the protection of electronic information and of information infrastructures of importance to the Government of Canada;

c. to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties.

Foreign intelligence is defined as: "information or intelligence about the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group, as they relate to international affairs, defence or security."

Global information infrastructure is defined as including "electromagnetic emissions, any equipment producing such emissions, communications systems, information technology systems and networks, and any data or technical information carried on, contained in or relating to those emissions, that equipment, those systems or those networks."

The stated purpose of its work is:

CSE collects foreign signals intelligence in order to inform and alert the Government of Canada to the activities of foreign entities outside Canada, including foreign intelligence services, who are actively undertaking activities which seek to damage our country's -- and our allies' -- prosperity and security.

We play an integral role in helping to protect Canada and Canadians against foreign-based terrorism, foreign espionage, cyber attacks, kidnappings of Canadians abroad, attacks on our embassies and other serious threats with a significant foreign element, helping to ensure our nation's prosperity, security and stability.

Our foreign signals intelligence work also supports government decision-making in the fields of national defence and foreign policy, providing a better understanding of global events and crises and helping to further Canada's national interests in the world. We also work to protect computer networks and electronic information of importance to the Government of Canada, helping to thwart state-sponsored or criminal cyber threat activity on our systems.

Provisions in the Proposed New Legislation

CSE's mandate is set out as follows:

The Establishment is the national signals intelligence agency for foreign intelligence and the technical authority for cybersecurity and information assurance.

The mandate now has five aspects as opposed to the three contained in the National Defence Act. They are described as: foreign intelligence, cybersecurity and information assurance, defensive cyber operations, active cyber operations, and technical and operational assistance. Defensive and active cyber operations are being added to the mandate.

The new Act lays out the Ministerial Authorization regime for the carrying out of activities of different types within these categories.

It formalizes that CSE will provide advice, guidance and services to help ensure the protection not only of federal institutions' electronic information and information infrastructures but of any others designated by the Minister as being of importance to the Government of Canada.

A government backgrounder says this means that CSE "would be able to defend important networks outside of the Government of Canada," indicating that it could "more extensively share information about specific cyber threats with the owners of critical infrastructure, like telecommunications companies or the banking sector." However the legislation itself makes it clear that the Minister may declare any such information or infrastructure of importance to the government of Canada.

The legislation also provides for CSE to "acquire information from the global information infrastructure or from other sources" in order to provide the advice, guidance and services referred to. It includes provisions for CSE to enter into arrangements with other entities having similar powers as well as foreign entities.

It stipulates that activities carried out in furtherance of foreign intelligence, cyber security and information assurance, defensive cyber operations or active cyber operations must not be directed at a Canadian or at any person in Canada, and the defensive or active cyber operations must not be directed at any portion of the global information infrastructure that is in Canada.

Despite this constraint in the proposed law the new Act allows CSE's activities to contravene other Acts of Parliament as long as they are carried out with the appropriate authorizations.

In addition, an overarching "Principle" is included in the proposed legislation that explicitly allows the commission of illegal acts:

It is in the public interest to ensure that the Establishment may effectively carry out its mandate in accordance with the rule of law and, to that end, to expressly recognize in law a justification for persons who are authorized to carry out activities under this Act to, in the course of carrying out those activities, commit acts or omissions that would otherwise constitute offences.

There are also sections dealing with confidentiality and disclosure of information.

Ministerial Authority

In the new Act when referring to Minister it is designated as the Minister of National Defence. However, also in the legislation the Governor in Council can designate any other Minister to authorize the CSE to use its powers.

Foreign Intelligence Authorizations

Under Section 27 of the new legislation the Minister may issue a Foreign Intelligence Authorization to CSE that authorizes it to carry out any of the following activities despite any other Act of Parliament or of any foreign state:

(a) gaining access to a portion of the global information infrastructure; 

(b) acquiring information on or through the global information infrastructure, including unselected information; 

(c) installing, maintaining, copying, distributing, searching, modifying, disrupting, deleting or intercepting anything on or through the global information infrastructure; 

(d) doing anything that is reasonably necessary to maintain the covert nature of the activity; and 

(e) carrying out any other activity that is reasonable in the circumstances and reasonably necessary in aid of any other activity, or class of activity, authorized by the authorization.

The Minister may issue an authorization for such activity only if he or she concludes that there are reasonable grounds to believe that:

(a) any information acquired under the authorization could not reasonably be acquired by other means and will be retained for no longer than is reasonably necessary;

(b) any unselected information acquired under an authorization for the acquisition of such information could not reasonably be acquired by other means; and

(c) the measures referred to in the Act for protecting privacy will ensure that information acquired under the authorization that is identified as relating to a Canadian or a person in Canada will be used, analysed or retained only if the information is essential to international affairs, defence or security.

Cybersecurity Authorizations

The Minister may authorize CSE to access a federal institution's information infrastructure or some other information infrastructure designated as being of importance to the government and acquire any information originating from, directed to, stored on or being transmitted on or through that infrastructure for the purpose of helping to protect it from mischief, unauthorized use or disruption.

The legislation sets out the following conditions for cyber security authorizations: "The Minister must conclude that there are reasonable grounds to believe that any information acquired under the authorization will be retained for no longer than is reasonably necessary and that the consent of all persons whose information may be acquired could not reasonably be obtained." Written approval for the authorization must be given by the Intelligence Commissioner.

In the case of an application for CSE to access privately-owned information infrastructure, the application must include the written request of its owner or operator for the activity that would be authorized.

Any information acquired must be necessary to "identify, isolate, prevent or mitigate harm to federal institutions' electronic information or to electronic information infrastructures designated as being of importance to the Government of Canada, including any information that is obtained subject to an authorization about a Canadian or person in Canada."

Defensive and Active Cyber Operations

The new law enables the CSE to carry out both "defensive" and "active" cyber operations if the Minister concludes that there are reasonable grounds to believe that the objective of the cyber operation could not reasonably be achieved by other means.

Concerning "defensive" operations a government backgrounder indicates that "with new legislation and the increased accountability measures that come with it, CSE would be authorized to take action online to defend Canadian networks, owned by both the Government of Canada and the private sector, and proactively deter cyber threats before they reach our systems."

Concerning "active" operations, CSE will be authorized to "carry out activities on or through the global information infrastructure to degrade, disrupt, influence, respond to or interfere with the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group as they relate to international affairs, defence or security." In its backgrounder the government indicates this means CSE would be permitted to "take action online to disrupt foreign threats, including activities to protect our democratic institutions, counter violent extremism and terrorist planning, or counter cyber aggression by foreign states." [TML emphasis added]

The legislation states that active and defensive cyber operations may include any of the following actions being authorized:

(a) gaining access to a portion of the global information infrastructure; 

(b) installing, maintaining, copying, distributing, searching, modifying, disrupting, deleting or intercepting anything on or through the global information infrastructure; 

(c) doing anything that is reasonably necessary to maintain the covert nature of the activity; and 

(d) carrying out any other activity that is reasonable in the circumstances and reasonably necessary in aid of any other activity, or class of activities, authorized by the authorization.

The authorization for these activities must specify such things as the activities or classes of activities that it authorizes CSE to carry out, those which "would otherwise be contrary to any other Act of Parliament," who is authorized to carry out the activities, any terms, conditions and restrictions the Minister considers advisable in the public interest or to ensure the reasonableness and proportionality of the actions authorized, and any other terms, conditions or restrictions that the Minister considers advisable to protect the privacy of Canadians and of persons in Canada, including conditions to limit the use, analysis and retention of, access to, and the form and manner of disclosure of, information related to them.

In addition to requiring that the activities of CSE be "reasonable and proportionate," it would be prohibited from "causing death or bodily harm, or willfully attempting to obstruct, pervert or defeat the course of justice or democracy."

The reasonableness of the Minister's conclusions would be subject to the approval of the Intelligence Commissioner. Authorizations for cyber operations are not to exceed one year, but can be extended for up to another full year by the Minister.

"Two-Key" Authorization for Cyber Operations

The new legislation establishes that for active cyber operations approval must come from both the Minister of National Defence and the Minister of Foreign Affairs. Authorizations for defensive cyber operations would require the approval of the Minister of National Defence and "consultation" with the Minister of Foreign Affairs. CSE would be required to report the outcomes of their activities to both Ministers.

Exceptions, Exemptions and Immunities

As is currently the case, under the new legislation CSE is prohibited from "directing defensive and active cyber operations activities at Canadians, any person in Canada, or the global information infrastructure in Canada." An exception however is made if the information is acquired "incidentally" in the course of carrying out activities under an authorization issued under the Act. Incidentally is defined to mean "that the information acquired was not itself deliberately sought and that the information-acquisition activity was not directed at the Canadian or person in Canada."

The new Act further states that information "identified as relating to a Canadian or a person in Canada will be used, analyzed or retained only if the information is essential to identify, isolate, prevent or mitigate harm to electronic information or information infrastructures or of federal institutions or that is designated to be of importance to the Government of Canada."

As well, CSE may use and analyze information relating to a Canadian or a person in Canada "if it has reasonable grounds to believe that there is an imminent danger of death or serious bodily harm to any individual and that the information will be relevant to the imminent danger." It may also may disclose the information "to any appropriate person if its disclosure may help prevent the death or serious bodily harm."

Emergency Authorizations

If the Minister concludes that there are reasonable grounds to believe that the conditions for an authorization are met "but that the time required to obtain the [Intelligence] Commissioner's approval would defeat the purpose of issuing an authorization," the Minister may issue an authorization to carry out any activity referred to under the sections on foreign intelligence or cyber security without it being subject to review by the Intelligence Commissioner. In other words the alleged review powers of the Intelligence Commissioner can be circumvented.

No Civil or Criminal Liability

According to the proposed Act "No person who acts in accordance with authorizations granted under the legislation, or who aids, in good faith, a person who they believe on reasonable grounds is acting in accordance with such an authorization incurs any criminal or civil liability for anything reasonably done further to the authorization."

Cooperation with Federal Law Enforcement, Security Agencies and the Military

Under the proposed legislation, CSE would be authorized to "provide technical and operational assistance to federal law enforcement and security agencies, the Canadian Armed Forces (CAF) and the Department of National Defence in their performance of their lawful duties." According to the government backgrounder, CSE would be permitted to "assist CAF missions and to help protect our forces with cyber operations."

Arrangements with Similar Entities, Including Foreign Entities

Under the section on Foreign Intelligence a government backgrounder states: "CSE would be able to use a broader range of advanced capabilities to acquire foreign intelligence from foreign targets outside of Canada."

More specifically, under Section 55 of the proposed Act, CSE "may enter into arrangements with entities that have powers and duties similar to the Establishment's -- including entities that are institutions of foreign states or that are international organizations of states or institutions of those organizations -- for the purposes of the furtherance of its mandate, including for the purposes of sharing information with them or otherwise cooperating with them."

Part 4 -- Amendments to Canadian Security Intelligence Service Act

Part 4 amends the Canadian Security Intelligence Service Act.

It adds a preamble to the existing Act which states that "it is important that the civilian intelligence service perform its duties and functions in accordance with the rule of law and in a manner that respects the Canadian Charter of Rights and Freedoms..."

The amendments are said to "more clearly define" the current threat reduction mandate of CSIS by "clarifying what type of measures can be authorized by judicial warrants, ensuring compliance with the Charter."

According to the existing Act, where there are "reasonable grounds to believe that a particular activity constitutes a threat to the security of Canada or Canadians, CSIS is authorized (within or outside Canada) to take measures to reduce the threat."

Currently threats to the security of Canada are broadly defined in the CSIS Act, and include "espionage, sabotage, foreign influenced activities, terrorism and domestic subversion (activities against the constitutionally established system of government in Canada)."

The legislation would provide CSIS with a "list of distinct measures that can be authorized under warrant to address threats in the current environment."

The list of measures that can be authorized are:

(a) altering, removing, replacing, destroying, disrupting or degrading a communication or means of communication;

(b) altering, removing, replacing, destroying, degrading or providing  -- or interfering with the use or delivery of  -- any thing or part of a thing, including records, documents, goods, components and equipment;

(c) fabricating or disseminating any information, record or document;

(d) making or attempting to make, directly or indirectly, any financial transaction that involves or purports to involve currency or a monetary instrument;

(e) interrupting or redirecting, directly or indirectly, any financial transaction that involves currency or a monetary instrument;

(f) interfering with the movement of any person; and

(g) personating a person, other than a police officer, in order to take a measure referred to in any of paragraphs (a) to (f).

There is a change from the language in the existing legislation which spells out that in applying for a warrant to carry out any of these actions, an affidavit from CSIS must include "(c) [the] type of communication proposed to be intercepted, the type of information, records, documents or things proposed to be obtained and the powers referred to in paragraphs (3)(a) to (c) proposed to be exercised for that purpose."

This relatively precise language is replaced with the requirement that the affidavit must indicate:

(c) the reasonableness and proportionality, in the circumstances, of the proposed measures, having regard to the nature of the threat, the nature of the measures, the reasonable availability of other means to reduce the threat and the reasonably foreseeable effects on third parties, including on their right to privacy..."

Authorization to Violate the Charter

The new Act would permit CSIS to "limit a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms only if a judge, on an application issues a warrant authorizing the taking of those measures."

It states further that the judge may issue the warrant referred to "only if he or she is satisfied that the measures, as authorized by the warrant, comply with the Canadian Charter of Rights and Freedoms." If this is the case CSIS is required to notify the National Security Review Committee of the measures "as soon as the circumstances permit."

In taking measures to "reduce a threat to the security of Canada" by limiting a right "in compliance with the Charter" CSIS, as stipulated in the current provisions, may not:

(a) cause, intentionally or by criminal negligence, death or bodily harm to an individual;

(b) wilfully attempt in any manner to obstruct, pervert or defeat the course of justice; or

(c) violate the sexual integrity of an individual."

The new Act adds the following prohibitions:

(d) subject an individual to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture;

(e) detain an individual; or

(f) cause the loss of, or any serious damage to, any property if doing so would endanger the safety of an individual.

In addition, the existing definition of bodily harm in the Act --"bodily harm has the same meaning as in section 2 of the Criminal Code" -- is repealed. It is not clear why, but it appears to create a grey area as to what constitutes bodily harm.

The Act establishes a system of immunity from prosecution for terrorism related offences where CSIS uses "human sources" in alleged terrorism investigations and the "very act of providing direction to a human source operating covertly within a suspected terrorist entity could potentially engage a number of terrorism offences in the Criminal Code."

In addition it outlines immunity for CSIS agents or those persons working with them to "make false statements" in order to maintain their covert identity, as well as to authenticate false documents and use or transfer them. The amendments to the Act would explicitly exempt a CSIS agent or someone working with them from section 368(1) of the Criminal Code which makes it an offence to knowingly use, sell or transfer a forged document as if it were genuine or possess it for this purpose.

In addition the following "Principle -- justification" is added to the Act concerning CSIS's ability to violate the law:

Principle -- justification: (2) It is in the public interest to ensure that employees effectively carry out the Service's information and intelligence collection duties and functions, including by engaging in covert activities, in accordance with the rule of law and, to that end, to expressly recognize in law a limited justification for designated employees acting in good faith and persons acting under their direction to commit acts or omissions that would otherwise constitute offences.

From this "principle" the amendments to the Act create new mechanisms for CSIS agents and those they "direct" to break the law.

For example, the Minister of Public Safety is being given the power to "personally designate" on the recommendation of the Director of CSIS anyone to perform "information and intelligence collection activities" for up to one year. In addition, the Director may appoint someone to do the same for a period of 48 hours if "it is not feasible" for the Minister to carry out a designation and if the employee "would be justified" in breaking the law. The Director of CSIS or a designated senior employee may authorize those designated by the Minister to "direct another person" to violate the law for up to one year. The authorization must spell out the actions that will violate the law, who will be doing the directing and who will be directed to violate the law. The criteria for carrying out such violations is that the designated employee or the person they are directing is engaged in good faith in their actions in relation to a threat to the security of Canada and believe on reasonable grounds that "the commission of the act or omission, as compared to the threat, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the threat, the nature of the act or omission and the reasonable availability of other means for performing the information and intelligence collection activity..."

Other criteria being established for when a person can be directed to carry out an offence are if the agent "believes on reasonable grounds" the action will:

(i) preserve the life or safety of any individual, 

(ii) prevent the compromise of the identity of an employee acting covertly, of a human source or of a person acting covertly under the direction of an employee, or 

(iii) prevent the imminent loss or destruction of information or intelligence."

Within all of this CSIS is now required to "notify the Review Agency as soon as the circumstances permit" after someone is designated by the Minister or Director and they are authorized to carry out offences as part of their information and intelligence activities.

Data Sets

The new law would establish that the Minister of Public Safety at least once every year shall determine classes of Canadian and foreign datasets for which collection is authorized. This appears to provide a blanket mechanism for the Minister to authorize CSIS to collect any digital information they want in Canada or abroad where it is "publicly available." The classes are subject to the review of the Intelligence Commissioner to determine whether the Minister's determination is "reasonable."

An authorization shall be valid for a period of not more than five years from the date on which the Commissioner approves it.

Once data is collected CSIS employees must determine whether it complies with the approved classes and if it does not must either destroy it or make a request to the Minister for determination of a new class for collection.

In addition it permits a CSIS agent to collect datasets, Canadian or foreign, if it is "required to assist the Minister of National Defence or the Minister of Foreign Affairs in accordance with section 16."

Section 16 indicates that CSIS may collect "information or intelligence relating to the capabilities, intentions or activities of:

(a) any foreign state or group of foreign states; or

(b) any person other than

(i) a Canadian citizen,

(ii) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or

(iii) a corporation incorporated by or under an Act of Parliament or of the legislature of a province.

This appears to make legal the collection of any form of data in Canada or abroad if it is requested by the Minister of Defence or Minister of Foreign Affairs. Meanwhile elsewhere existing limitations on collecting such data pertaining to Canadians is provided with a loophole in what is called "exigent circumstances."

Under a section defining exigent circumstances" the new CSIS Act permits the collection of datasets which have not had approval by the Intelligence Commissioner if CSIS determines that the information is required:

(i) to preserve the life or safety of any individual, or

(ii) to acquire intelligence of significant importance to national security, the value of which would be diminished or lost if the Service is required to comply with the authorization process under section 11.13 or sections 11.17 and 11.18.

Part 5 -- Amendments to Security of Canada Information Sharing Act

Part 5 amends the Security of Canada Information Sharing Act to indicate that it now addresses "only the disclosure of information and not its collection or use." On this basis the Act's name is changed from the Security of Canada Information Sharing Act to the Security of Canada Information Disclosure Act.

The purpose is changed so that the Act's purpose is to encourage and facilitate the disclosure (instead of sharing) of information between (instead of among) Government of Canada institutions in order to protect Canada against activities that undermine the security of Canada.

The term sharing of information is replaced with the disclosure of information throughout.

It amends the definition of "activity that undermines the security of Canada."

The existing definition is:

activity that undermines the security of Canada means any activity, including any of the following activities, if it undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada:

(a) interference with the capability of the Government of Canada in relation to intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada;

(b) changing or unduly influencing a government in Canada by force or unlawful means;

(c) espionage, sabotage or covert foreign-influenced activities;

(d) terrorism;

(e) proliferation of nuclear, chemical, radiological or biological weapons;

(f) interference with critical infrastructure;

(g) interference with the global information infrastructure, as defined in section 273.61 of the National Defence Act;

(h) an activity that causes serious harm to a person or their property because of that person's association with Canada; and

(i) an activity that takes place in Canada and undermines the security of another state.

"For greater certainty, it does not include advocacy, protest, dissent and artistic expression."

The amendments are:

activity that undermines the security of Canada means any activity that undermines the sovereignty, security or territorial integrity of Canada or threatens the lives or the security of people in Canada or of any individual who has a connection to Canada and who is outside Canada. For greater certainty, it includes


(f) significant or widespread interference with critical infrastructure;


(g) significant or widespread interference with the global information infrastructure, as defined in section 273. 61 of the National Defence Act; and

(h) conduct (previously any conduct) that takes place in Canada and that undermines the security of another state.

The existing language concerning advocacy, protest, dissent or artistic expression is replaced with the following as a separate section:

For the purposes of this Act, advocacy, protest, dissent or artistic expression is not an activity that undermines the security of Canada unless carried on in conjunction with an activity that undermines the security of Canada.

This appears to in fact broaden the ability to declare advocacy, protest, dissent or artistic expression activity that undermines the security of Canadians by the addition of the new caveat "unless carried on in conjunction with an activity that undermines the security of Canada." The addition of "For the purpose of this Act" to the existing language also appears to make this definition apply only for this Act and not for others.

The addition of a definition of dataset is also added to the Act.

In addition amendments would:

- 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;

- 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

- 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 -- Amendments to the Secure Air Travel Act

Part 6 amends the Secure Air Travel Act.

This legislation passed in 2015 sets out the power of the Minister of Public Safety to establish a list of people who can be denied the ability to fly without having committed any crime.

The existing legislation states that the Minister "may establish a list on which is placed the given name, the surname, any known alias, the date of birth and the gender of any person who the Minister 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 an act or omission that

(i) is an offence under section 83.18, 83.19 or 83.2 of the Criminal Code or an offence referred to in paragraph (c) of the definition terrorism offence in section 2 of that Act, or

(ii) if it were committed in Canada, would constitute an offence referred to in subparagraph (I).

These amendments are said to address problems with the enforcement of Canada's no-fly list whereby in addition to those listed, people with the same or similar names, including children, are routinely prevented from traveling. The amendments do so by giving more powers to the Minister of Public Safety to oversee and enforce the list rather than having it enforced just by airlines as well as establishing a unique identifier for those who experience such problems which they can use to indicate to an airline that they are not the person listed.

The amendments specify the Minister of Public Safety or the Minister of Transport have the power to obtain any information they prescribe in regulation which is in an airline or an aviation reservation system's control on someone on or expected to be on any flight.

They are now also permitted to include additional information on the list. Currently the Minister can add "the given name, the surname, any known alias, the date of birth and the gender" of a person on the list. The amendments would permit them to add middle names and "any other information that is prescribed by regulation that serves to identify the person..."

The amendments would specify that requests from airlines for this information can only be in respect of a listed person or a person who the Minister has reason to believe is listed. Given that the Minister establishes the list this appears to create a loophole through which the Minister can get the information on anyone if they "have reason to believe" they are on the list. The Minister can also disclose the information they obtain from an airline for purposes of identifying them or complying with a court order.

In addition existing language which permits the Minister to enter into a written agreement with a foreign state or international organization is amended to maintain this power.

Amendments also provide the Minister with the ability, if they wish, to tell a child's parent, guardian or tutor if they are not a listed person.


Currently "a listed person who has been denied transportation as a result of a direction made under section 9 may, within 60 days after the day on which they are denied transportation, apply in writing to the Minister to have their name removed from the list."

Currently if the Minister does not make a decision on an application for removal within 90 days or a longer period if agreed to by the Minister and the applicant, the Minister is deemed to have decided not to remove the applicant's name.

This is to be changed to a period of 120 days and an additional 120 days if the Minister "does not have sufficient information to make a decision and he or she notifies the applicant of the extension within the first 120-day period." After this either 120- or 240-day period, if the Minister has not made a decision, the Minister is deemed to have decided to remove the applicant's name from the list.

The Act would give the Minister the power to issue a unique identifier to travellers "to assist with pre-flight verification of their identity." This addition of a unique identifier is presented as a means to address the fact that people are prevented from flying as a result of having the same name as someone else on the list. The unique identifier would be used to "prove" that a person is not the person on the list.

The amendments would also ensure that the government can not only collect, use and disclose information it obtains but can retain it as well.

Part 7 -- Amendments to the Criminal Code

Part 7 amends the Criminal Code to amend existing powers related to terrorism offences.

Terrorist List

The amendments change the criteria for being listed as a terrorist organization in the following manner:

(a) the entity has knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity; or

(b) the entity has (previously "is") knowingly acted (previously "acting") on behalf of, at the direction of or in association with an entity referred to in paragraph (a).

Provisions are also being added so that the Minister by regulation may change, add or delete other names of a listed entity by which it is or has been known.

Amendments extend from 60 to 90 days the time that the Minister has to decide if an entity should remain listed if an application for removal is submitted by an applicant.

Reviews of whether an entity should remain on the list are extended from every two years to every five years.

An entity currently claiming not to be a listed entity can apply for a certificate stating they are not the listed entity. Amendments would change this so that an entity "whose name is the same or similar to an entity appearing on the list" may apply.

Advocating or Promoting Commission of Terrorism Offences

Section 83.221 of the Criminal Code currently states that "(1) Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general -- other than an offence under this section -- while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years."

This is to be changed to:

(1) Every person who counsels another person to commit a terrorism offence -- other than an offence under this section  -- is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

The definition of terrorist propaganda is changed from:

terrorist propaganda means any writing, sign, visible representation or audio recording that advocates or promotes the commission of terrorism offences in general  -- other than an offence under subsection 83.221(1)  -- or counsels the commission of a terrorism offence.


terrorist propaganda means any writing, sign, visible representation or audio recording that counsels the commission of a terrorism offence, other than an offence under section 83.221.

As well, Part 7 will:

(b) change the offence of advocating or promoting terrorism offences in general, in section 83.221, to one of counselling the commission of a terrorism offence, and make corresponding changes to the definition of terrorist propaganda.

"Preventive Detention"

Under the section entitled Recognizance with Conditions the amendments change the threshold for imposing a recognizance with conditions from a situation where it is "likely" the recognizance would prevent the carrying out of the terrorist activity to the requirement that it be "necessary" to prevent the carrying out of terrorist activity.

In the case of a pre-emptive arrest of a person without a warrant the law would be amended to permit it in the case where the arrest was "necessary" instead of "likely" to prevent terrorist activity.

In addition the amendments would repeal sections 83.28 and 83.29 dealing with investigative hearings. Section 83.28 deals with orders for investigative hearings which relates to the ability of the government to detain people indefinitely, without charge and require them to answer questions and provide evidence.

Section 83.29 relates to warrants for someone who does not comply with the order in section 83.28.

Section 83.3 deals with recognizance conditions and the ability to arrest people and detain them with or without a warrant. This and the sections above being repealed are subject to a Sunset Clause which is to come due July 15, 2018.

The amendments put forward by the Trudeau government would extend Section 83.3 to five years after Bill C-59 receives Royal Assent.

The amendments would also 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. Section 810 deals with sureties to keep the peace.

Part 8 -- Amendments to Youth Criminal Justice Act

Part 8 amends the Youth Criminal Justice Act. It specifically gives exclusive jurisdiction to a youth justice court to make orders against a youth in proceedings related to terrorism. The current Act gives the court jurisdiction but not exclusive jurisdiction.

However later in the amendments, the Act is amended to make it clear that despite the exclusive jurisdiction, "a justice has jurisdiction to make an order under section 810 (recognizance -- fear of injury or damage) of the Criminal Code in respect of a young person. If the young person fails or refuses to enter into a recognizance referred to in that section, the justice shall refer the matter to a youth justice court."

It also amends provisions for the temporary detention of minors. Section 30 states:

30(1) Subject to subsection (7), a young person who is arrested and detained prior to being sentenced, or who is detained in accordance with a warrant issued under subsection 59(6) (compelling appearance for review of sentence), shall be detained in any place of temporary detention that may be designated by the lieutenant governor in council of the province or his or her delegate or in a place within a class of places so designated.

An amended section states:

30 (1) Subject to subsection (7), a young person who is detained in custody in relation to any proceedings against the young person shall be detained in a safe, fair and humane manner in any place of temporary detention that may be designated by the lieutenant governor in council of the province or his or her delegate or in a place within a class of places so designated.

It also changes measures when a youth can elect to be tried in an adult court. Section 67(1) of the Youth Criminal Justice Act currently provides that a person can elect to be tried by a youth justice court judge or by a normal judge with or without jury if:

(c) the young person is charged with having committed first or second degree murder within the meaning of section 231 of the Criminal Code before the young person has attained the age of fourteen years...

The amendments change this provision to:

(c) the young person is charged with first or second degree murder within the meaning of section 231 of the Criminal Code...

Part 9 -- Review

Part 9 requires that a comprehensive review of the provisions and operation of this entire legislation be undertaken by the committee of the Senate, of the House of Commons or both Houses of Parliament after six years of being in effect and within one year of the review submit a report on the review to the appropriate House. Such a review would effectively be past a second four-year mandate for the current government.

Haut de



Website:   Email: