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March 24, 2018 - No. 11
Supplement
Bill C-59, the National Security and Intelligence
Review
Act
PDF
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Bill C-51 be repealed.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."
Academics
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."
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]
Note
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.
For Your Information
What the Bill Contains
Provisions:
Preamble
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."
Mandate
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."
Complaints
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.
Powers
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.
Redress
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.
to:
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.
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