THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY AND DEFENCE
OTTAWA, Wednesday, April 10, 2019
The Standing Senate Committee on National Security and Defence, to which was referred Bill C-59, An Act respecting national security matters, met this day at 11:45 a.m. to give consideration to the bill.
Senator Gwen Boniface (Chair) in the chair.
The Chair: Before we begin our meeting, I would like senators to introduce themselves.
Senator McIntyre: Paul McIntyre, New Brunswick.
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Oh: Victor Oh, Ontario.
Senator Gold: Marc Gold from Quebec.
Senator Pratte: André Pratte from Quebec.
Senator Griffin: Diane Griffin, Prince Edward Island.
The Chair: And I am Gwen Boniface, the chair from Ontario.
Senators, before we begin Bill C-59, we have one piece of housekeeping related to Bill C-71. Because of the amendments to Bill C-71, is it agreed that the Law Clerk and Parliamentary Counsel be authored to make technical and typographical changes and adjustments to the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Agreed.
Today, we begin Bill C-59, An Act respecting national security matters. We’re happy to welcome the Honourable Minister of Public Safety and Emergency Preparedness, Ralph Goodale, to take us through the bill.
He is accompanied by officials at the table. From Public Safety Canada, Malcolm Brown, Deputy Minister; from the Canadian Security Intelligence Service, David Vigneault, Director; from Communications Security Establishment, Shelly Bruce, Chief; and from the Department of Justice Canada, Doug Breithaupt, Director and General Counsel, Criminal Law Policy Section.
Ministers, as always we welcome you to the committee. I turn it over to you for opening comments.
Hon. Ralph Goodale, P.C., M.P., Minister of Public Safety and Emergency Preparedness, Public Safety Canada: Thank you for introducing the officials who are with me today. There are also several others in the room who can bring expertise to this subject matter as well. We can call upon them as required.
I have one side comment, Madam Chair. This will probably be the last opportunity where I will be accompanied to a parliamentary table by Deputy Minister Malcolm Brown. He will retire in a few days from the public service after an extraordinarily successful and productive career in the Public Service of Canada. I have considered it a great honour to be associated with him for the last three years, thereabouts. I don’t know whether he considers that to be a long time or not, but I have benefited enormously from his wise advice and counsel. It’s a bittersweet occasion. He will have a wonderful retirement, I am sure, but we will certainly miss him in the Public Service of Canada.
May I just say to Mr. Brown, thank you for your excellent service, sir.
Malcolm Brown, Deputy Minister, Public Safety Canada: Thank you, sir.
Mr. Goodale: Senators, thank you for the opportunity to discuss Bill C-59 with you. It’s a pleasure to be here.
Our public safety agenda, as you know, is an ambitious one. We have dealt with a number of very weighty subjects over the last several years, and all of this comes before this committee, in one way or another, for due consideration. I think of the new regime with respect to cannabis, the entry/exit legislation. Earlier than that there was pre-clearance that had to be dealt with, the firearms bill that you noted in your earlier comment, Madam Chair, administrative segregation, on and on the list goes. These are all crucial matters of public policy and security, and I’m very grateful for the Senate’s thorough and conscientious attention to all of them.
I know that you will give due consideration to Bill C-59 as well.
The passage of this bill will better enable our national security and intelligence agencies to carry out their very important work. I want to thank Senator Gold for his efforts to sponsor the bill and lead the debate, and thank all of you for your attention to the subject matter.
As Senator Gold has said, Bill C-59 is “a reasonable, responsible and necessary response to genuine threats to Canada’s national security.”
The legislation will enhance the operational effectiveness of our already world-class security agencies through much more modern legislation and importantly, at its core, it will respect the rights and freedoms afforded to all of us by the Constitution and the Canadian Charter of Rights and Freedoms through enhanced accountability and transparency.
Indeed, the legislation before you today has occupied a great deal of the government’s time and attention dating back to well before it was first introduced in the other place. From the start, we’ve been clear that we want to provide fair and ample opportunity to properly examine the issues that this bill addresses. Those range from repealing certain elements in the former Bill C-51 and providing clear authorities for our security agencies, to improving the information-sharing regime and fixing legislative issues that relate to no-fly kids and much more.
Canadians, experts and parliamentarians have not been shy about airing their views on these often contentious issues. That was made clear when we held the broadest ever public consultation on national security to inform the crafting of this bill in the first place.
By the numbers, nearly 59,000 responses were received to our consultations through online activity. Nearly 18,000 written submissions were sent in by email. There were five public town halls, 17 engagement events led by members of Parliament and 14 in-person sessions with academics and experts.
All of the responses we received, by the way, in summary form, are available online for all Canadians to have access to.
After tabling in the other place, we took the additional, rare step of sending Bill C-59 to a standing committee before second reading. Because we adopted that extraordinary procedure, we had a further 35 hours of study at the committee in the other place. Nearly 100 witnesses provided testimony, and more than 40 very helpful amendments were adopted.
As a result of this extensive arrangement and engagement, I am confident we’ve arrived at a thorough and well-considered piece of legislation that is worthy of your final scrutiny.
Its sheer size and breadth would not allow me to go through a detailed clause-by-clause analysis, but just by way of quick review, let me simply remind you that in Part 1, we create the new national security and intelligence review agency, which some have dubbed a “Super-SIRC.” In Part 1.1, which was added in the other place, we have a very public process for dealing with the instructions to be given to the agencies in relation to the risk of mistreatment.
In Part 2, the intelligence commissioner is created. That is a brand new element of active oversight — not just review, but oversight — which is the first time that has existed in Canadian law. Part 3 provides a new legislative framework for the Communication Security Establishment. Part 4 amendments the CSIS Act, which dates back to 1984. These are important upgrades and updates to the CSIS legislation. Part 5 deals with the Security of Canada Information Act, and issues around privacy and proper procedures. Part 6 deals with the secure air travel legislation. This is the part that deals with the “no-fly kids” issue, among other things. Part 7 provides certain Criminal Code amendments. Part 8 reinforces the jurisdiction of the Youth Criminal Justice Act.
Part 9, importantly, provides a review process in five years, where all of this can be re-examined for the purpose of determining its effectiveness. Part 10 deals with coming into force.
Generally speaking, the components of this legislation fall rather nicely into three distinct themes. The first is enhancing the accountability and transparency of our national security and intelligence activities. One of the key components of this bill is the proposed creation of the national security and intelligence review agency, NSIRA. It’s been clear for some time that to be effective our security agencies cannot operate in isolated silos and neither can their review bodies.
Currently, CSIS and the Communication Security Establishment, CSE, each have their own separate review structures, which has allowed only narrow scrutiny of the government’s national security activities. Incidentally, most departments and agencies of the Government of Canada are not covered at all. NSIRA would be a single review body mandated to examine the activities of any and all federal departments and agencies dealing with national security or intelligence matters anywhere in the Government of Canada.
To complement NSIRA, the bill would also create the new position of an intelligence commissioner. That role would have the responsibility of examining and either approving or not approving any authorizations that would be made by me as Minister of Public Safety, the Minister of National Defence, CSIS or CSE, as the case may be, to undertake certain national security and intelligence activities prior to them actually being conducted.
That’s the new element. They actually examine what we propose to do before we do it. If the intelligence commissioner says “no,” then that activity does not get undertaken. The commissioner would ensure the ministerial authorizations are reasonable, necessary and proportionate, and that appropriate privacy protections were in place.
NSIRA and the intelligence commissioner would also complement the new National Security and Intelligence Committee of Parliamentarians. Significantly, it was just yesterday that NSICOP, which was created by an earlier piece of legislation, Bill C-22, presented their first annual report. I understand from some of the media and academic reactions that it has been well received as a very important innovation in the law, and in the whole process of transparency and accountability.
When you put NSICOP, NSIRA and the intelligence commissioner together, Canada will have a very solid footing in comparison to our global allies on issues related to accountability and transparency for security and intelligence activities.
I should also highlight that the accountability measures outlined in this bill are complemented by another serious push toward transparency. That comes in the form of our national security transparency commitment. It doesn’t require legislation, but it is a policy measure. Deputy ministers will be expected to lead on the implementation of ministerial directions issued by me and my cabinet colleagues, outlining our expectations with respect to transparency within national security departments and agencies.
We’re also currently in the process of developing a declassification policy that will set a new standard for the types of information that can be released publicly. Work is also already under way to identify information related to key national security themes that can be proactively released online. The whole purpose here is to keep Canadians well informed.
Madam Chair, the second theme of the bill is amending certain elements of existing legislation to address legitimate concerns Canadians have raised. For example, the bill would clarify which threat-related measures undertaken by CSIS can be authorized by judicial warrants to eliminate any doubt about this matter. That means a judge would need to be satisfied that any authored measures would be reasonable, proportionate and consistent with the Charter of Rights and Freedoms.
Furthermore, the former Security of Canada Information Sharing Act would be altered to respond to privacy concerns and to clarify exactly what information can be disclosed under that act. Advocacy, protest, dissent and artistic expression are explicitly excluded from the definition of activities that could undermine security. The only exception would be if those activities were carried out in conjunction with other activities that do undermine Canada’s security.
Further, institutions receiving national-security-related information under that act would be required to destroy or return any unnecessary personal information. This would create a more responsible, more respectful information-sharing regime that honours our rights of privacy and freedom of expression, while also being effective in dealing with security issues at the same time. That, in turn, would answer the calls of many stakeholders, including the Privacy Commissioner, for better privacy protection within our security framework.
The bill also proposes a clarification of the Criminal Code definition of the term “terrorist propaganda,” which legal experts have criticized as being too vague, too broad, unclear and likely unenforceable. The revised definition we are proposing focuses instead on the more familiar concept of counselling the commission of terrorism offences, a change which could make successful prosecutions far more likely.
Under this theme of correcting legitimate concerns, I would include changes to the Secure Air Travel Act; in other words, the so-called no-fly list. These are complemented by measures in Budget 2018 that provided funding to enhance the Passenger Protect program by developing a rigorous centralized screening system and establishing a redress mechanism for inadvertently affected air travellers. We need the change in Bill C-59 to begin to fix the “no-fly kids” issue.
I know that many of you have heard from and had visits from members of the “no-fly kids” group. My office and I have certainly heard from them, too. Currently, the airlines themselves have control of the Passenger Protect list. And when someone with a similar or identical name to a listed individual attempts to check in online or at a kiosk, they find that they have to go to the counter and be manually cleared for boarding once the airline confirms from the government that the traveller is not, in fact, the individual that is listed. That can be very frustrating and stigmatizing.
Most other developed countries who maintain their own no-fly lists have developed a redress mechanism in the form of a unique identifier number that can be issued to a person once that person realizes they have a name that’s being confused with a listed individual. This, of course, requires the government to have control over the list of names for centralized screening, and Bill C-59 proposes to create those legal authorities.
It’s important to have that authority before we implement the new system in order to be in compliance with the law.
After Royal Assent and once the legal authorities are in place, there is a series of regulatory steps that can be undertaken, and I can assure you that officials have compressed those timelines as tightly as possible in order to get the system up and running as quickly as possible.
There is, of course, the added benefit under our new approach to the passenger protect list where it would be wholly controlled by the government, rather than circulating the list to over 100 domestic and international airlines. Once it’s under the complete control of the government, it is going to be a far more secure list.
The third theme is how our national security and intelligence agencies can adapt to the evolving nature of threats to our national security.
Madam Chair, the framework underlying how we tackle these threats have not had a substantive update since 1984, when the CSIS legislation was first introduced. If you remember 1984, a mobile phone was as big as a bread box and the fax machine was cutting-edge technology. Things have moved along. The world and our technology have evolved exponentially since then. We need laws that are adapted to the modern context and, indeed, laws that can anticipate what we’ll have to deal with in the future.
Several courts, the existing review bodies and a number of independent experts and reports have all made this same point. The legislation needs to be modernized and Bill C-59 attempts to do just that by bringing us into the 21st century. It will help navigate previously uncharted waters by providing the CSE, for example, with the legal authority it needs to keep pace with evolving cyber-threats with increased oversight of its intelligence-gathering activities.
For example, the new law would spell out for the first time what the CSE can and cannot do in the cybersphere. Bill C-59 would also update the CSIS Act, ensuring transparent legal authorities in support of data set collection and data analytics programs. That includes stringent protections about the collection, retention and use of non-threat-related data about Canadians.
Under this new bill, CSIS could only collect this data if it belongs to a category that the minister has previously authorized and the intelligence commissioner has approved. CSIS would only be able to retain such information if authored to do so by a Federal Court.
Furthermore, instead of relying on the ancient doctrine of Crown immunity, the bill would also ensure that designated CSIS employees are afforded the same explicit legal protection as their law enforcement colleagues already have when conducting certain necessary activities.
At least once a year, I, as minister, would authorize the classes of those activities that would be necessary to meet our security and intelligence objectives. I would also authorize which employees can be designated to perform these activities. These authorizations would be subject to review by the intelligence commissioner. The bill would create a very limited justification regime that would help the dedicated men and women of CSIS to effectively carry out their duties in response to evolving threats while in complete accordance with the law.
Writ large, Bill C-59 will provide our security agencies with the tools they need to respond to modern threats while reinforcing democratic oversight and accountability.
Honourable senators, clearly, there is a lot of information to parse in this bill. I will just leave you with one final thought. We now have an opportunity as lawmakers to overhaul our national security architecture while sending a clear and consistent message to Canadians. We have heard you and we will improve how we keep you safe to reflect current realities without sacrificing your rights and freedoms.
As Senator Gold has said, our approach to doing so is reasonable, responsible and necessary, and it’s in keeping with our long-standing commitment to careful, thoughtful and meaningful engagement, which, in the case of Bill C-59, has included over two years of input, revision and improvement.
I look forward to the Senate’s good work as well. Thank you.
The Chair: Thank you, minister. As a reminder to senators, the minister is here with us for the first hour and officials will stay for the second hour.
Senator McIntyre: Thank you, minister, for being here today and answering our questions.
Minister, some have argued that the proposed change in the law that is replacing the offence of the advocacy of terrorism with counselling to commit weakens the current law.
I understand that the idea is to strike a proper balance between national security and the rights of individuals, but surely the right of potential victims to be free from terrorism and the threat of terrorism must be a greater priority.
That said, as reported in The Globe and Mail in September 2018, federal Crown prosecutors in Montreal used the terrorism propaganda provisions in the current law in their effort to remove terrorist content from the Internet.
Can you tell us why these provisions were employed and what led to it? Are you not concerned that removing these provisions will make the work of the police and Crown attorneys more difficult?
Mr. Goodale: The objective, senator, is exactly the opposite. It’s to make it more likely that the provisions of the Criminal Code can be used more effectively, that charges would be easier to lay on the appropriate legal foundation and that prosecutions would be easier to obtain.
The offence of counselling is one that is familiar in the criminal law and the various elements that constitute the offence are well-known to police and prosecutors. In our judgment, it is more likely that police will be able to find evidence and prosecutors will be able to charge with the change in the language that we are proposing in Bill C-59.
The point, too, about counselling is if you examine the new wording as it would result from these amendments, it does not require the counselling of a specific offence. The general act of counselling itself would constitute an offence. Therefore, you would not have to have that extra burden of proof of demonstrating a specific offence was intended against a specific person.
We think the counselling offence actually makes the code provisions more effective.
I would also point out that the legislation does include the five-year review, which is embodied in the law for that very purpose, to make sure that we constantly examine what’s in the law, and if it needs to be upgraded, improved or strengthened, there will be a guaranteed opportunity in the future when Parliament will come back to this topic and make the appropriate changes.
Senator McIntyre: Minister, I’d just like to very briefly follow up on a key section — 83.221 — which deals with the current wording or the proposed wording.
What’s the difference between terrorism in general and a non-specific terrorism offence?
Mr. Goodale: Could I ask our counsel from the Department of Justice, Mr. Breithaupt, to comment on that?
Doug Breithaupt, Director and General Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for the question. The provision was put in place because it was clear that counselling specific terrorism offences would be covered by the Criminal Code under section 22 and section 464. But it was uncertain if it would apply in a case where what is being counselled was not a specific identified terrorism offence but any, some or all of the full range of terrorism offences.
That led to this particular provision, which speaks to advocating or promoting the commission of terrorism offences in general. And the commission of terrorism offences in general was to speak to basically the counselling of unspecified and unidentified terrorism offences but nevertheless criminalize that. This bill proposes to change the words. Advocating or promoting have been interpreted by the Supreme Court of Canada as being akin to active encouragement, which is the same as counselling. But as the minister indicated, counselling is a well-known term in the criminal law.
Now there was confusion and some criticism around the words “the commission of terrorism offences in general” because it wasn’t generally understood. And this bill proposes to change that wording so it would speak to “counsels another person to commit a terrorism offence without identifying a specific terrorism offence.” It also would include “the offence would be committed whether or not a terrorism offence is committed by the person who is counselled.” It’s to make it more clear, more clean, to have the same objective as the existing offence.
The one difference is that the words “other than an offence under this section” would be deleted, so the proposed offence would have a larger ambit than the current existing offence, because the existing offence would remove from consideration counselling, within the full range of terrorism offences that they counselled under section 83.221(1). That would be proposed to be deleted with this legislation so that counselling the commission of this offence would be included within the ambit of 83.221.
Senator McIntyre: If I may, a final point of clarification on this issue. Thank you for your answer.
As I understand — this can get complicated — the terms currently used in Section 83.221 of the code are similar to the terms used in section 3.18 and 3.19 of that act which establishes the offence the related to hate propaganda. Granted, specific offences are provided in the code for the offence of voluntarily promoting hate propaganda. However, such defence is not provided for in 83.221 of the code. Similarly, the terms used in the new section, 83.22(1) proposed by the bill, that is counsel another person to commit a terrorism offence are similar to the terms used for the offence of counselling provided for, as you have indicated, section 22 of the code.
But the code provides no specific defence in the offence of counselling. Could you explain that to me?
Mr. Breithaupt: That was part of the confusion around the existing offence because of the words “advocating or promoting.” As I indicated, though, the Supreme Court of Canada defines “promotes” as active support or instigation and “advocates” as actively inducing or encouraging. And “counselling” is active encouragement or inducement to commit an offence. Counselling is essentially the same as advocating or promoting. When people saw the words advocating and promoting in the current offence, there were some that did associate the current offence with the hate propaganda offences and wondered why there weren’t defences, why there was not a distinction between private and public communication.
The answer is that the existing offence was essentially counselling offence and there are no such defences or distinctions made with respect to counselling. And through the proposals here, by using the actual word “counselling,” that would make it very clear and disassociate any sort of confusion between the Section 83.221 offence and the hate offences in the Criminal Code.
Senator Boisvenu: In the same vein, when I read this bill, talking about modernizing it always makes me afraid, because, to me, the intention actually seems to be to weaken it. When I look at section 83.221 of the Criminal Code, which is referred to in clause 143 of the bill, it seems to exclude everything that is, I wouldn’t necessarily say promotion, but… You know, these terrorist groups use social media a lot to promote their extremist ideas and to spread propaganda. We have seen this in Quebec. Most of the people who joined terrorist groups and went to Syria made their arrangements through social media.
When we talk about counselling something to someone else, we are talking about private communication; we mean: “I am counselling one person”. However, social media are mass communication. I believe that idea is excluded from the bill, and that concerns me. Just last week, the police indicated that 190 terrorists plan to return to Canada. Of that number, 90 have returned and about five have been arrested. The police have said: we do not have the resources we need to trace those people. The way that this bill is worded makes it even more difficult for the police to intercept those individuals on social media, to prosecute them, and to have them convicted. That ability has been completely excluded from the bill. I do not understand what you mean when you say that it has been “modernized”.
Mr. Goodale: As I said earlier, senator, the objective — and I’ll ask Mr. Breithaupt to comment as well — is to use language in the code that will facilitate the work of police and prosecutors in collecting the appropriate evidence, laying the charges and making those charges stick.
The previous language, as Mr. Breithaupt previously described, was subject to criticism, legitimate criticism that it was perhaps too broad, too vague, and relatively unfamiliar in jurisprudence. Whereas when we use the word “counselling,” there are two things: It’s a term that is familiar in the law for police and prosecutors, and second, it is not limited to the counselling of a specific individual to do a specific thing, but also includes general counselling to commit terrorism-related activities.
So our goal here is to get language that will actually be more effective, and that will be used with greater impact by our police and prosecutors. And our best legal advice is that the language we have adopted in Bill C-59 is more likely to get that more effective result than the previous language that was in the code before.
Senator Boisvenu: I understand it when you explain it that way, Mr. Minister. However, if I were a defence lawyer in court, I would contradict you because the clause clearly says “every person who counsels another person…” There’s a personal relationship there. The jihadists, or the people who promote these ideas, are spreading mass information. I believe that that idea was completely ignored. I don’t know if you would agree to amend this clause so that it mentions counselling a person or group of persons. The bill makes no mention at all of that method of communication. If I were a defence lawyer in court, I would take issue with your argument.
Mr. Goodale: Well, we’ll see. I am prepared to take on that challenge.
Senator Boisvenu: We have to be sure, not we’ll have to see.
Mr. Goodale: I believe we have the legislation right, but let me ask Mr. Breithaupt to comment once again. On your general point, about whether language can be improved —
Senator Boisvenu: You know in court, it’s a matter of words.
Mr. Goodale: I’m happy to consider suggestions for improvements as we go along. So far we have had over 40 amendments to the legislation, so I think that indicates an openness on the part of the government.
Mr. Breithaupt can you comment on this language issue once again?
Mr. Breithaupt: Thank you, minister. The words “another person” indicate that one person is counselling somebody else, and that somebody else need not be limited to a specific person or one person. So the target of the accused incitement has to be a person, but it does not have to be a particular individual or group. So for an accused to be found guilty of counselling, the encouragement must come to the attention of the recipient. However, should that situation not occur, the accused could be convicted of attempted counselling. It doesn’t have to be a particular person, but there would be a recipient at the end.
Senator Boisvenu: Permit me to correct you—and this will be my last comment. This clause talks about counselling someone to commit a terrorism offence. That idea is singular. If I was in court with a client accused of having promoted for a group, that clause would not apply.
Mr. Goodale: Can you comment on that, Mr. Breithaupt?
Mr. Breithaupt: I lost the last part of the question, but I think —
Mr. Goodale: Do you want to repeat that question?
Mr. Breithaupt: — in the sense of dealing with another person issue. It doesn’t have to be limited to a specific person or one person. There has to be a recipient at the end of the day; otherwise, you could have attempted counselling. So we don’t see a problem with the words “another person” appearing in the bill.
Senator Griffin: Thank you, minister, for your excellent presentation on the bill. It’s a large one, but I like how it’s divided up into parts. In particular, I’m interested in Part 6, clauses 129 and 130. Clause 129 allows you, the minister, regarding the no-fly list, to put the middle name of “listees” and other information. When you get to doing the regulations, what do you envisage as other types of information you would be looking at in that regard? Also, to what extent do you think this additional information would alleviate false positives when a traveller is attempting to travel?
Mr. Goodale: Senator, the present system was devised seven or eight years ago, I’m sure with the best of intentions and probably with the notion of how we can do this in the least expensive manner in order to save the taxpayers’ dollars and so forth. It was a system unlike any elsewhere in the world, where the government maintained the no-fly list, which had in it the names of people who would be interdicted if they attempted to board an aircraft. That list was given to the airlines, and they checked it against their passenger manifests to see if any of the names popped up. It was prone to confusion, I think, because there was little room for precision in determining whether a person was a particular listed person.
The airlines, of course, are preoccupied with the things the airlines like to know, such as whether they are a member of their preferred customer program and so forth. When the airlines put all of that other stuff into their programming, it left no room for other identifiers. If you could have had a middle name, age or some other indicator, it might have prevented some of these problems.
But the problems arose because the government of the day made the decision that they were going to piggyback onto the airlines’ information systems rather than doing this as an in-house, standalone, Government of Canada operations. We will design it in a way where it will be interactive. Once a false positive has been identified once, that individual will get a unique identifier number. For future air travel, when they check in online or at a kiosk, they will be able to enter that unique identifier, and they will automatically receive the clearance they need to board the aircraft.
Let me ask Deputy Minister Brown to comment on the regulatory process and the kinds of information that will be required through regulation to make sure that we clear people properly.
Mr. Brown: The minister already really covered most of it. A date of birth and full name are often all you need, but the rest of the information on the second or third main page of your passport — those kinds of identifiers — will be potentially included. Through the regulatory process, we will consult carefully to ensure the balance is right in terms of the information that’s collected is actually the information that is needed and that there aren’t any steps taken to collect unnecessary information.
It will be a transparent process through the usually regulatory process that we would follow.
Mr. Goodale: If something as simple as age had been included under the present system, it would have been clear that a 6-year-old is not the person identified on the no-fly list.
Senator Griffin: Absolutely. So are the unique identifiers different than the unique passenger reference you have under the Customs Act? It is. Okay. Thank you.
Senator Oh: Can I have a supplementary? What if a person has no middle name? You mentioned a middle name. Because I have a professor who is flying. He was invited by Yale University to do a lecture, and the professor doesn’t have a middle name, so he was refused by Air Canada to board the plane.
Mr. Brown: Two identical names but different dates of birth. At times, you will have two people, as unlikely as it may seem, with the same date of birth. Then it would be the location of birth and country of origin. There will be a cascading list of information that will allow you to provide certainty that you aren’t the individual whose name is on the list; that you’re someone who is unlucky enough to have the same name but is obviously not the same person.
Senator Oh: But he was off-loaded. He was not allowed to go.
Mr. Brown: That’s why these amendments are being proposed through Bill C-59.
Mr. Goodale: They’re being proposed to correct it for the future. That’s the objective, senator.
Senator Oh: Thank you.
Senator Gold: Welcome, minister. It’s a pleasure to have you here, and it’s a privilege to be the sponsor in the Senate of this important bill.
I want to ask you about aspects of Parts 1 and 2, which are, in some ways, the most innovative provisions, dealing with review and oversight. They really do mark a significant change in the way Canadians will understand our security system. They are narrow questions, but I’d like to take advantage of your presence here.
Bill C-59, first on NSIRA, proposes that NSIRA be composed of a minimum of three and a maximum of six members, in addition to the chair. It has been suggested by Professors Roach and Wark, as well as other civil liberties groups, that, given the range of issues that NSIRA will now have to look at and the difference competencies that would be required, it should be expanded to be somewhat larger — say, from five to eight members, plus the chair — to reflect the broader range of experience.
Can you comment on that? I’ll have a second question on the intelligence commissioner.
Mr. Goodale: We will watch very carefully to make sure that, as we learn from this new experience, we have the right number of members of the review agency. The Royal Recommendations and so forth that go along with this legislation provide the authority and the funding necessary to deal with the number of members of the agency that are identified in the legislation as it presently stands.
But I would note that the more critical issue is not so much how many members of the new agency there will be, but how much professional staff they will have, and how that staff will be financed to do their job. It will be important for the members of NSIRA to provide the necessary executive guidance and judgment about the work of the agency, but the actual work — the review of the activities of CSIS and all of the other departments and agencies of government — will be done by the professional staff working under the authority of the members of the agency.
What we will work very hard to achieve is not only ensuring we have the right number of agency members per se, but that they are properly staffed and have the adequate budget to do the job we’re asking them to do. They will not only take on the responsibility for examining CSIS and CSE, but also every other department and agency of the Government of Canada, some which don’t have this review mechanism at all at the present time.
The staff will have an important job to do. We will incorporate what exists now of the SIRC apparatus and the commissioner apparatus within CSE, but it will take additional staff over and above that to make sure that we’ve covered everything that needs to be covered.
Mr. Brown: The proposal is to double the resources that are associated with the two existing organizations that will come together. If they are able to demonstrate a need for additional resources in the normal budgetary conversation that takes place with review agencies, I’m confident they would get the support of Cabinet and the Minister of Finance and officials.
I think there’s a lot of scope so that if the demand requires it, there will be a supply of resources.
Senator Gold: Turning to the intelligence commissioner, Bill C-59 proposes the intelligence commissioner would be a retired judge of a superior court or equivalent, and it would be a part-time position. Would you explain why the bill proposes a part-time position rather than a full-time one?
Mr. Goodale: The functions of the new role of intelligence commissioner, as you’ll see in the legislation, are undertaken at certain particular points in time during a year. I will need to issue certain authorizations for agencies to do certain things, and those will be reviewed by the new intelligence commissioner. That, I suspect, is going to be on a fairly predetermined annual cycle where it wouldn’t be necessary for the intelligence commissioner to be in the office every day. They will have certain times of the year where it will be necessary for them to undertake certain activities, but it’s not a continuous process.
If, by experience, we learn that the workload is actually heavier than that, then we would be perfectly prepared to adjust the concept and make it a full-time position if that becomes necessary.
Senator Gold: Thank you.
Senator Oh: Welcome again, minister.
Mr. Goodale: Thank you, senator.
Senator Oh: According to Public Safety Canada, Bill C-59 is a comprehensive bill that would enhance the accountability and transparency of the conduct of national security and intelligence in Canada, strengthening security while protecting rights and fulfilling commitments made by the Liberal Party of Canada during the 2015 federal election campaign to address various aspects of the national security legislation elected earlier in the year.
What are the biggest threats to Canada’s national security, and how would Bill C-59 help to mitigate them?
Mr. Goodale: In terms of offering a threat analysis, I think Mr. Vigneault would be in the strongest possible position to comment on that. I would point you to a document that is issued on an annual basis, the public threat report, which was issued most recently in December and provides an overview of the various threats and risks that our national security agencies have most recently identified. That will provide you with a good general description of the threat environment that exists at the present time, including, for example, the most recent concern in the international community flowing from the horribly tragic events in Christchurch, New Zealand, and the threat of ultra-right-wing extremism leading to violence. That is included in the threat report.
Of course, we’ve seen examples of that in Canada, such as the tragic shooting in a mosque in Sainte-Foy, Quebec a couple of years ago.
To see how all these threats and risks are put together, I would recommend the threat report as the most recent comprehensive statement of what our agencies have identified and what they have to deal with. This is Mr. Vigneault’s daily bread in CSIS. David, maybe you’d like to offer a general comment on the threat environment as you see it at the present time.
David Vigneault, Director, Canadian Security Intelligence Service: Thank you, senator, for your question. I would characterize, first of all, the threat environment as quite complex and evolving at a pace that is challenging all national security intelligence services in the world. Here in Canada, we are most concerned with the threat of violence derived from extremism. Traditionally, in the last number of years we’ve seen that form of extremism leading to violence perpetrated by people invoking religion, such as Islam, as an example. Groups associated with an extreme form of perverting Islam have caused the most significant deaths recently.
The minister mentioned we are more and more preoccupied by the number of ultra-right-wing extremists, people who are invoking a number of different philosophies and approaches like White nationalism, ethno-nationalism and White supremacists. The minister mentioned Sainte-Foy, Quebec; that terrorist attack took place two blocks from where I was born so it’s very close to home.
We’ve also seen people using the methods of terrorists to cause harm. Here, I refer to the attack in Toronto by someone invoking the philosophy of the involuntarily celibate. What was striking is that the philosophy was one thing. The person wanted to cause harm and fear in the population, but he used a technique that had been perfected and publicized by a number of terrorist groups, which is to use a vehicle to kill as many people as you can.
One thing that we see that has not left us and continues to preoccupy us, especially leading up to the election, is foreign interference in our democratic and electoral processes. This is something that we are, as I said, increasingly concerned about for a number of reasons, and I can elaborate later on.
Finally, I would mention the threat of foreign espionage. Canada is blessed in being a country of advanced technologies, universities and cutting-edge enterprises, and our openness unfortunately makes us a target for people who want to cut corners and steal that technology. I believe this will have a very significant impact on our national interest.
All of these threats are underpinned by very significant progress on the technology side. People with ill intent are using advances in technology, communications and encryption to hide their activities. We see it in the cyber world and in a number of other ways where the technological advancements that benefit Canadians and most of the world are also being used for nefarious purposes.
It’s quite a complex environment that we are looking at.
Senator Oh: You answered part of my question on foreign interference in our general election. Will Bill C-59 help in any particular way, minister?
Mr. Goodale: Bill C-59 will enhance the overall effectiveness of our national security and intelligence agencies to ensure that they have the authorities and legal framework necessary to do their jobs effectively.
In terms of the upcoming election, they will have the responsibility for detecting nefarious activity that may be designed to interfere with the democratic choices that Canadians are entitled to make. That interference being one coming from some foreign source. It will be an agency, whether CSE, CSIS or the RCMP, to determine whether some foreign government, foreign military or foreign source of any kind is trying to manipulate the public atmosphere in Canada.
As you know from the announcement made earlier this year or at the end of last year, the system has been established whereby the security agencies would inform senior officials in the Government of Canada, and those senior officials would collectively make the decision as to whether the situation is sufficiently serious that they need to publicly warn Canadians that there is interference taking place that Canadians should be aware of. They will also, of course, communicate with all of the political parties to make sure they are aware of any risks they might be exposed to.
Just a couple of days ago, CSE issued the most recent report on what they see as potential risks and threats. Ms. Shelly Bruce can comment on that more effectively.
This legislation makes sure all of these agencies, CSE, CSIS and all of the others within the Government of Canada, have the tools and the legal authorities to make sure they can inform and advise the Government of Canada on any foreign risk that is potentially impinging upon Canadian democracy.
The Chair: We have two more senators with questions, minister. I’m watching the clock.
Mr. Goodale: We’ll give it a try, Madam Chair.
Senator Stewart Olsen: Thank you for being here, minister. I’ll try to be brief. I know you’re on a deadline.
This is an outstanding piece of legislation. I have to say that it encompasses so much that it would take a fair bit of study to really dissect it.
I’m always a bit leery when governments create massive new bureaucracies to attempt to pull everything under one umbrella. I’ll cite the RCMP. For instance, right now, they’re being asked to do more and more with less and less. Did you think about possibly “hiving down” and creating units that are much more efficient and able to do this kind of work, rather than these humongous bureaucracies that tend to lose the very thing they’re trying to do because there are just too many people and things coming in all at once? I will echo my colleague with the part-time position that’s overall. I think this is a huge job and a huge piece of legislation.
Mr. Goodale: It’s a big piece of legislation, no doubt, Senator Stewart Olsen. It’s an important piece of legislation.
Actually, in terms of the expert reviews that have been offered by the academic community, the breadth and scope of Bill C-59 have been applauded as tackling a whole variety of issues that needed to be tackled.
In terms of NSIRA, which I think is at the core of your question, the problem in the past, and the subject of a lot of academic criticism, has been that the review agencies have operated in silos; SIRC could look at CSIS, and the commissioner could look at CSE, but you couldn’t follow the intelligence or security activity from the department or agency, from one to another, and see the complete picture.
NSIRA, for the first time, will provide a comprehensive review, from one end of the government to the other. Is that a big job? Yes, it is. It’s never been undertaken before, but that’s been the problem. So we’re getting out of the silos and, with NSIRA, providing the scope to follow the evidence wherever it leads, into every agency and department of the Government of Canada, and provide that kind of review that has never before been legally possible.
When we announced we were adopting this approach, which some had branded “Super-SIRC,” many in the academic community said, “Wow, we didn’t think they’d have the courage to do that.” We did, and we think it’s an important innovation.
But I accept your point that the responsibilities being shouldered by NSIRA are very major, new and more comprehensive responsibilities than have ever been shouldered by a review agency before. The structuring of this organization is going to be very important.
On the intelligence commissioner, if it needs to become a full-time position, we’re certainly prepared to entertain that notion. With the way it’s structured now, at least initially, it doesn’t need to be full-time, but if it does, we can move there very rapidly.
With respect to the RCMP, actually we’re going in the opposite direction that you described. Does the RCMP have big and expanding responsibilities? Yes, they do. But we’re also enhancing the financial resources for the RCMP. There was a period of time, prior to the last couple of years, where the budgets for the RCMP were going down every year. In fact, between about 2012 and 2015 or 2016, the budgets of the RCMP were reduced by about $500 million.
In the last several budgets, we have provided program integrity funding for the RCMP to expand their resources. Now, with the new modernization agenda being implemented by the new commissioner, Commissioner Lucki, there will be a significant expansion of new resources for the RCMP, as the last budget demonstrated just a couple of weeks ago.
Senator Stewart Olsen: Just one small thing, if I may.
The Chair: Quickly, please.
Senator Stewart Olsen: Yes. Perhaps that should have come earlier on.
Regarding your selection of the intelligence commissioner, while being a judge is good, that implies it’s all going to be about legality and, “Can I do this?” You know yourself that in intelligence, there have to be hard decisions, sometimes not palatable to most of us. I don’t really even need an answer. I just wanted to put that on your wavelength to perhaps consider that.
Mr. Goodale: That person will need to be very skillful, absolutely. Their function will be to second-guess; whether it’s second-guessing the Minister of National Defence or second-guessing the Minister of Public Safety, their duty is to look at all the circumstances that we look at and decide, in certain defined circumstances, are the decisions being made by the ministers reasonable, proportionate and necessary in the circumstances. That will require a great deal of very good judgment.
Senator McPhedran: Minister, thank you for the courtesy of agreeing to stay a bit longer to answer the question.
My question goes to Part 6 of this bill and to the balancing of security and rights. As we know, we have recourse provisions in the Secure Air Travel Act, a reference in Part 6, and the restrictions to the information that an applicant may be able to receive on the reasons for their listing on the no-fly list. As some of that information can be deemed sensitive and secret, that’s absolutely acceptable. Section 16 of the Secure Air Travel Act requires that the presiding judge hear information or evidence without the individual present, with the summary provided to the individual, excluding information that was deemed injurious to national safety or might endanger the safety of any person if disclosed.
Minister, given that we already have a system in the Immigration and Refugee Protection Act that allows for a mediated approach with security-cleared lawyers accessing secret information as special advocates that work in the security certificate regime, why not bring a proven system over to the Secure Air Travel Act as covered in this bill?
Mr. Goodale: Senator McPhedran, I will double-check this to make sure that I’m correct. It’s my understanding that if a judge in those circumstances feels that the help of some kind of amicus would be appropriate, the judge can require that. I believe that is in existing law.
It would really fall to the presiding justice to determine whether or not the assistance of a special advocate or some other friend of the court would be necessary in order to ensure that the proceeding was, in fact, fair to those who are before the judge.
Senator McPhedran: That’s a huge area of discretion. If the existing security certificate with the special advocates was in place, then individuals that are being reviewed and monitored would consistently receive representation as opposed to the potential for inconsistent application in this area of discretion for the judge.
Mr. Goodale: I hear your point, but I would make the counterpoint that in courts of law all across the country, judges are called upon to make judgment calls of that nature almost every day.
Senator McPhedran: But not with so much secrecy.
Mr. Goodale: Do you want to comment on this, Mr. Breithaupt?
Mr. Breithaupt: Just to confirm that the Federal Court has the ability to appoint an amicus curiae or friend of the court to assist in such proceedings if the Federal Court judge considered that such an appointment is warranted. That’s the kind of decisions that they make.
Senator McPhedran: My concern is with the “if.” That’s what I’m highlighting here.
Mr. Goodale: I hear your point, senator.
Mr. Brown: I would add the role of special advocates in the security certificate process is really very unique to a very rarely used process. The more traditional process to address the concerns you raise is the amicus. I think the legal view is — and I’m turning to Doug on this as well — that there are well-established precedent in terms of using amicus to protect the very interest you’re concerned about, without having to go to the much more elaborate and complicated process of the special advocates which are linked to the security certificates.
The Chair: On behalf of all committee members, let me thank you for your appearance. I understand officials will stay behind for the next hour.
Senators, we will continue with the government officials. We thank you for staying for the next 45 minutes in order to answer questions.
Senator Boisvenu: Once again, I welcome our witnesses. Perhaps I should have asked the minister this question, but I will ask you anyway. The minister said that the position of president of the agency will be a very complex position with a lot of responsibilities. Why is the Prime Minister alone responsible for the appointment, not the House of Commons? The fact that the Prime Minister is responsible means that this becomes a political appointment for a strategic position. To avoid potential criticism, therefore, why is the House of Commons not responsible for this appointment, as it is for other high-ranking public officials?
Mr. Brown: I’ll take that for the team. You’re right, it’s probably a question you should have asked the minister, because it goes to a question of deliberation of Cabinet. I can tell you the precedent for consultation in all these kinds of positions in the past is quite high, but traditionally they have remained under the prerogative of the Prime Minister. I believe I’m correct in saying that this is following established precedent and practice.
Senator Boisvenu: Mr. Vigneault, I provided some data earlier. Ninety terrorists have come to Canada and only five have been convicted. One hundred and ninety terrorists are waiting to return to Canada. So we are talking about some 300 terrorists who will be on Canadian soil. A number of them arrived at the same time as the influx of illegal immigrants
I believe it was the newspapers in Toronto that revealed that one identified terrorist had returned, and had slipped through at Roxham Road. Is it not a concern to your service to know that only a few of those people have been prosecuted—only five out of 90—whether or not they have committed serious crimes? Also, is it not a concern to your service to know that those people are now as free as birds?
Mr. Vigneault: Thank you, Senator. Clearly, as soon as an individual has actively become associated with a terrorist group, as is the case with Canadians who have gone to fight abroad or people who have gone to support the activities of terrorist groups… In the case of ISIS, that we dealing with here, of course it is a concern. These are people who fit our definition of support for terrorist groups and they are on our radar. However, the people who have come back are not all…those figures are not just about those who support ISIS. They are also people who were supporting other groups, like Hezbollah, al-Shabaab, and so on.
The system works like a fishing net. Several agencies work together and have different mandates. Our mandate at the Canadian Security Intelligence Service is to make sure that we have good information and intelligence in order to manage the threat. In the cases you mentioned, where some people were prosecuted, this is information that we provided to the RCMP so that they could investigate and so that prosecutors could potentially lay charges. The system is very complex and has a huge number of components. The important thing is to ensure public safety. I will ask my colleague to elaborate.
Mr. Brown: I would like to add a few points.
First of all, Minister Goodale has been very clear that for any Canadian who has left Canada to engage in terrorist activity overseas, the primary objective of the Government of Canada is to gather evidence and to prosecute them. The standards of prosecution are high, as they should be, but that is the primary objective.
I would reiterate my colleague’s points about the screening process. All individuals, whether they come irregularly or they come through the planned refugee process and whether it’s government-sponsored or privately sponsored, are screened very thoroughly. Those that are problematic are managed differently and steps are taken.
I think the community has a high degree of confidence about screening processes, the monitoring that the service does and the investigations the RCMP leads with regard to people overseas. I think there is some debate as to whether as many will come back as you suggested, sir, because some may no longer be with us, and others may prefer the status quo of their environment to the potentially warm embrace of law enforcement and the prosecutorial processes that exist in Canada and that await them.
Senator Boisvenu: In an article in Le Journal de Montréal on March 30, the RCMP used worrisome terms and talked about insufficient resources. The employees were saying that they were too overloaded to monitor those people, and that the pace was unsustainable in the medium term.
Can you report back to the committee quite shortly about the resources you have to do this surveillance work? You cannot put a police officer after each of those people. Can we have a good idea of the resources you have to do this surveillance work, so that we can assure Canadians that they are facing a low level of risk?
Mr. Brown: I won’t speak for the service. I suspect that it will be challenged on being specific because of the nature of the confidentiality of the activities of the service.
In his remarks, the minister referenced that in the last budget there was an investment of over $500 million into core programming for the RCMP, but we will work with our colleagues at the RCMP to report back to the committee try to answer your question, sir.
Senator Pratte: My question is related to the amendments proposed to the Security of Canada Information Sharing Act. I’m a little worried by the language used in these amendments. For instance, this concerns activities that undermine the security of Canada. There is a new definition there and there is an exception for advocacy, protest, dissent or artistic expression.
I would have expected that this exception would not protect advocacy work, protests or artistic expression that is related to a violent activity, but that’s not the language in the bill. The language is:
. . . unless they are carried on in conjunction with an activity that undermines the security of Canada . . . .
In the definition of activities that undermine the security of Canada, there is no mention of violence, and nothing that threatens the sovereignty of Canada, for instance, appears to be included.
Mr. Brown: I think the view is it’s broadly interpreted so that it would include your concerns in terms of violent acts, violent extremism and those kinds of issues.
Elisabeth Eid, Assistant Deputy Minister, Defence and Immigration Portfolio, Department of Justice Canada: The definition of “undermines the security of Canada” is meant to be broad. Then, the specifics are examples, but it’s not an exclusive list. Any activity that undermines the sovereignty, security or territorial integrity of Canada, or threatens the lives or security of people or any individual; and for greater certainty — so it would include violent acts. Any advocacy or protest in connection with a violent act, then, could be shared under the act.
Senator Pratte: I understand that. My concern is that some people who should be protected by the exception — artists, for instance — might be active, protesting in favour of Indigenous rights, for instance. Some Indigenous people might think they should separate from Canada, as an example. That would threaten the territorial integrity of Canada, yet there is no violence in their activity.
I’m saying that the exception that is supposed to protect “advocacy, protest, dissent and artistic expression” unless in conjunction with an activity “that undermine the security” — I think this is too broad. It does not really protect artists or advocates who might be engaged in activities that might be seen as against the integrity of Canada, for instance, but who have nothing violent in their actions.
Mr. Brown: Political dissent, advocating the separation of a province, would undermine the territorial integrity of Canada, but it would clearly fall within the exception. It’s the same relationship with artistic expression in that it’s the transition toward violence. This links back to the earlier conversation of counselling, as well. There may be other ways — if it really is an activity beyond the realm of “artistic” and is advocating violence — the artistic element is really a cover for the advocation of violence — that’s what this is about. It’s to provide as broad an interpretation as possible to protect legitimate advocacy — advocacy that might make us feel uncomfortable but not cross the boundaries in terms of advocating for and promoting violence.
Senator Pratte: I don’t want to belabour the point, but I would appreciate if you could provide the committee, through the clerk, with a more detailed explanation of this. Frankly, here in the exception, it’s not written “unless carried out in conjunction with violent activities.” It’s written “unless in conjunction with an activity that undermines the security of Canada.” By my understanding of the language, that would include legitimate activity — radical — but legitimate and non-violent.
Mr. Brown: We can quite easily provide you with the explanation you’re looking for, because I don’t think the problem you see is a problem that is there. But we will do that for you.
Senator Pratte: If it was only me, then I wouldn’t be worried, but I think the Canadian Bar Association, for one, raised that same concern.
Thank you very much.
Senator Gold: This is a question largely for Mr. Vigneault and Ms. Bruce, but I invite anybody else to weigh in. What are your concerns, if you have them, if Bill C-59 does not pass in a timely fashion? To what extent are you able to share with us the degree to which the current legal framework is limiting your agencies’ ability to do the work to protect Canadians?
Shelly Bruce, Chief, Communications Security Establishment: Thank you for the question. The legislation that is before us gives CSE new authorities to exercise our foreign intelligence mandate, as well as in providing a new relationship with critical infrastructure owners and operators in a way that we can actually help them protect their systems and systems of importance to the Government of Canada.
We would be limited to what we’re doing today. Everything in the bill right now for us is very additive. We have a strong foundation, and we will continue to operate within those parameters, but we would not be able to work with those operators and use the tradecraft, tools, methods and techniques for cyber-defence that we have designed for defending government systems — we would not be able to apply those to non-federal systems.
Senator Gold: Could you give an example or two of what kinds of systems you think should be better protected or where your assistance would better protect systems you can’t now but could do under Bill C-59?
Ms. Bruce: Bill C-59 provides for the minister to designate systems of importance to the Government of Canada. Those could be systems in the energy sector, financial sector, transportation sector, et cetera. If those are designated under the minister’s authority, and if those systems’ owners and operators requested CSE to assist them in defending their network and systems, we would be able to under these authorities.
The authorities would also allow us to support Canadian Forces and the Department of National Defence. We could use the technologies we have in giving them operational and technical assistance as they carry out their mandates. Currently, they are not included in the current CSE legislation under the National Defence Act.
There are two other authorities that are in this act that would allow CSE to use its capabilities to conduct active and defensive cyber-operations, to support government objectives or to defend infrastructure in Canada by focusing on foreign targets outside of Canada and, in some way, responding to or degrading or disrupting activities before they manifested themselves in the Canadian critical or global information infrastructure.
Senator Gold: Thank you.
Mr. Vigneault: Thank you, Senator Gold, for the question. In the response to Senator Oh’s question on the threat environment, I mentioned earlier that the threat environment is indeed getting more and more complex and challenging for intelligence services, not only in Canada, but around the world. For me, the three specific powers that are either clarified or are given to CSIS are the ability to collect, retain and use data sets; the clarification of our threat-reduction mandate; and the creation of limited justification for acts that would otherwise be legal are critical for our ability to carry out our mandate.
Your question is what happens if Bill C-59 is not passed. These have an impact. Day to day, as an organization, the threat environment is such that we need to have the right tools and authorities to do our work. For us, in order to discharge our mandate, they’re critical. Indeed, we’re looking with patience to see if the Parliament decides to provide us with these authorities. They’re critical.
Mr. Brown: Very briefly, I would add three things that I think are critical. I think there is broad-based support on the question of the “no-fly kids,” the Passenger Protect list and the changes. If Bill C-59 does not pass, those will continue to be a major issue for many Canadians.
The strengthening, clarification and the changes to the Security of Information Sharing Act provides important protections. We have worked closely with the Privacy Commissioner on questions of necessity, and there are important gaps we’re strengthening there.
Finally, there is the question of oversight — this ability the minister talked about to follow the trail. This is a widely recommended approach; it goes back many years, even to the Air India inquiry and others. While it will make all of us in this business uncomfortable, as it should, because it’s actually better scrutiny, it’s absolutely essential.
It’s an opportunity that will be lost.
Ms. Bruce: I have one final point on the intelligence commissioner, and having that quasi-judicial role in the legislation and in CSE’s operations and the services. At least in CSE’s context, it responds to some criticisms that have been levied by successive commissioners and gives CSE much more of a legal footing going forward.
Senator McIntyre: Thank you for being here, and answering our questions. My first question has to do with investigative hearings. The bill raises the threshold for using the recognizance with conditions, and yet, it is eliminating investigating hearing provisions altogether. Understandably, these provisions in the code are rarely used. As for the investigative hearings, the Supreme Court of Canada upheld its constitutionality in application under section 83.28 of the code. Despite this, Bill C-59 repeals sections 83.28 and 83.29, so my question is this: Are you not concerned that this will put our law enforcement agencies in a more difficult position when potentially confronted with a serious terrorist threat in the future? Anyone can answer.
Mr. Breithaupt: Thank you, senator, for the question. Yes, Bill C-59 proposes to officially repeal the investigative hearing. It should be noted that the investigative hearing provisions actually sunsetted on October 25, 2018, so they don’t currently exist. They were never used. And the bill calls for its repeal.
The Minister of Justice recently noted that the government has concluded that the investigative hearing power is no longer necessary given that there is a range of existing tools available to law enforcement to investigate past or future terrorism offences. There are a wide range of tools available, such as the availability of longer durations for wiretap authorizations, as an example.
On the other hand, on the recognizance with conditions, I don’t know if you want to hear a response in that particular area?
Senator McIntyre: Well, the government is raising the threshold and the previous government had lowered the threshold.
Mr. Breithaupt: The bill provides for the reenactment with the recognizance, as amended, should the bill receive Royal Assent. Those provisions as well have sunsetted as of October 25, 2018.
Senator McIntyre: Speaking of the threshold of proof, my next question has to do with preventative arrest. As we know, and to be more specific, the section or subsection on preventative arrest has existed since a previous government introduced and passed Bill C-36, the Anti-terrorism Act, on October 15, 2001, following the horrific terrorist attacks in New York City.
Now, that said, Bill C-59 increases the threshold of proof by requiring that the arrest be “necessary to prevent the carrying out of the terrorist activity.”
So the proposed wording “necessary to prevent” and the current wording “likely to prevent” are quite different in terms of the level of evidence required, and law enforcement officers have less time to act. Under the proposed amendment, there will be, if I can put it mildly, fewer legislative tools that will allow them to take action before the worst happens.
As you know, in Australia and the U.K., preventative arrest provisions are up for 14 days. In Canada, a similar detention period has a maximum seven-day limit. Does that give you pause to ask why the government is further weakening the rather modest tools that Canada does have?
Mr. Breithaupt: I can’t personally speak to the why question, but I can tell you, as I mentioned before, these provisions have been sunsetted. They would be reenacted through Bill C-59 if it were approved and received Royal Assent. The recognizance with conditions is designed to prevent the carrying out of a terrorist activity and it is flexible enough to be used in respect of an individual who may in some way be connected to the carrying out of terrorist activity without necessarily being the central figure.
There are two thresholds to the recognizance with conditions. A peace officer may lay information before a provincial court judge if the peace officer believes unreasonable grounds that a terrorist activity may be carried out and suspects unreasonable grounds that the imposition of a recognizance with conditions on a person or the arrest a person is currently likely to prevent the carrying out of the terrorist activity, and the bill would propose to substitute “likely” for “necessary” as has been indicated.
The effect this proposed amendment would be to require the police to present evidence of a greater link between the recognizance with conditions or the arrest, and the prevention of the terrorist activity.
Senator McIntyre: The point I’m driving at here is that words are very important, as we know, so we have the proposed wording versus the current wording. The current wording is very clear, “likely to prevent.” The proposed wording is ”necessary to prevent.“ I would have liked to ask this question to the minister, but unfortunately we didn’t have enough time. It’s a political decision that the government has to make, but I can’t understand why they are using the words ”necessary to prevent“ as opposed to “likely to prevent.”
Right now the current law is “likely to prevent,” and I think it should remain that way, but we’ll leave it at that.
Mr. Breithaupt: The Minister of Justice recently noted the 2016 consultations of the Green Paper and background document, and these consultations helped to inform the government in how the recognizance with conditions should be reformed. The recognizance with conditions, although likely to be used infrequently, continues to be an important tool for law enforcement to use in an appropriate case of preventing a terrorist activity.
Senator Gold: I have a supplementary question or comment, because I also understand that important individual liberty interests are at stake when you subject somebody to arrest or detention, whatever the category is. Are you able to comment on what the constitutional or Charter dimensions of changing the wording from “likely” to “necessary” might be?
Mr. Breithaupt: Thank you for the question. I would refer senators to the Charter statement issued upon the tabling of this legislation.
Senator Griffin: My question relates to Part 5 of the bill, and it’s regarding the proposed amendments to the Security of Canada Information Sharing Act, and that section is proposed to be amended to specify that when a government institution discloses information to a recipient institution, the disclosing institution must be satisfied that “the disclosure will not affect any person’s privacy interests more than is reasonably necessary in the circumstances.”
But under the CSIS Act, CSIS may collect information “to the extent that it is strictly necessary.” What is the difference between the threshold of “reasonably necessary” and that of “strictly necessary,” and what would be the reasons behind these differences in wording?
Mr. Brown: I’ll start and perhaps my colleague will want to talk about the provisions within the CSIS Act.
The first thing to be clear on with the Security of Canada Information Sharing Act is that the threshold is different because it’s not about collecting of information. It’s about the sharing of information that has already gone through a threshold or screen as it has been collected. I’ll let my colleague talk about the thresholds, if you would like, with regard to CSIS.
We have worked to strengthen the regime to clarify the obligations a sending department, who has already collected it under its own stringent rules, to then share it with another colleague department. You have to be satisfied that the information is accurate, there are a series of criteria. And then the receiving department actually has to say that they need the information. You just can’t throw it over the transom and not worry about it any longer. If you don’t think it’s actually necessary for you to do a function, you must destroy the information.
There’s a lot of confusion about this point. It’s easily understood why there is confusion, which is why the government is proposing to change the title to disclosure. It’s not about collecting information, it’s about sharing information that has already been collected. That is an effort to try and explain why the thresholds are different. David, do you want to talk about the thresholds in your own collection process?
Mr. Vigneault: The threshold for collection for CSIS is strictly necessary for our ability to deliver on our act. SCISA will not provide any new authority for CSIS to collect information. It is not enhancing the power there. It is also not forcing any organization to share with CSIS. It is a discretionary power, but it provides a better framework for an organization to share with us.
Senator Griffin: Thank you.
Senator Gold: A question was asked by Senator Stewart Olsen about NSIRA and the review structure that is being put in place. I would ask for brief comments from Mr. Vigneault and Ms. Bruce as to how you see this affecting your work. As the minister mentioned, you are both used to being reviewed, but do you see this as an unreasonable burden on the one hand, an enhancement to do your job on the other, or something in the middle that is trying to cover all the bases?
Ms. Bruce: Thank you very much for your question, senator. CSE has been under review since 1996 and the Office of the CSE Commissioner and that team has had unfettered access to CSE’s information. I believe that, as an organization, we have come to appreciate just how much better that makes us as an organization. We have adopted the vast majority of the recommendations and I think we’re feeling quite good about that.
We are an organization that is trying very hard to be open and transparent. We have the new Canadian Centre for Cyber Security, which is a public-facing institution within our organization and is a bit of a milestone for us. At the same time, a large portion of our activities necessarily have to take place in the secret realm. In those cases, having that review function to come in and look at those activities acts as a bit of a proxy for Canadians to be able to have that vote of confidence. If they see something that is concerning, they can relay that to Canadians. I think that has made us a better organization and it has also helped to reinforce the idea of our licence to operate with Canadians and makes it a little more valid going forward.
The amount of effort that we put into this is not trivial, but I think the return on that investment in the overall scheme of things and that licence to operate have been beneficial.
Senator Gold: So it’s a positive thing?
Ms. Bruce: I see it as a positive thing.
Mr. Brown: Uncomfortable, sometimes.
Ms. Bruce: Uncomfortable sometimes, but positive.
Mr. Vigneault: I agree with what my colleague mentioned. Successive directors of CSIS have said publicly and privately to me that the review has made CSIS a better organization. Having someone who is not consumed by the day-to-day of the activity but can take a post facto approach in reviewing what is happening is helpful. Since I have been director, I can attest that I hold the same opinion that it is helpful.
The other element is that the foreign agencies with which we work in close collaboration — and sometimes against — often come from countries that are not democracies and are not governed by the rule of law. In Canada, we are fortunate that we have these protections so that fundamental liberties and rights are protected. As a Canadian, I applaud that.
As director of CSIS, I would say that I need to operate and I need to have the confidence of Canadians, institutions, the review agency and the Federal Court. It’s very important for me that, through these tools of accountability, we have the social licence to be able to operate using intrusive tools that are necessary to protect Canadians. It is not a burden. Allocating the right resources is something that we do, and this is something that, in this case, we are prepared if Bill C-59 receives Royal Assent.
Senator Oh: Thank you, witnesses. My question, to go back to the terrorists, is: what is the motive or reason behind why we want to bring back terrorists who left Canada and were banned from coming back? We want to bring them back and reeducate them. We do not know how much their brain has been screwed up and damaged and whether you can reeducate them.
This is a burden to the taxpayers, and we have no obligation to do that. We have been deporting immigrants who come here and are not properly documented and we check their backgrounds. Can you explain the motive for bringing them back to create security problems?
Mr. Brown: I think the answer is quite straightforward. I do not believe there is a desire to repatriate any of the individuals you have described. I think the minister has been quite clear on that point, and there are very precise legal obligations with regard to the right of re-entry. Minister Goodale has publicly been quite clear about not undertaking proactive measures, so I think I can assure you that the premise about wanting to repatriate the individuals you have described is not correct.
Senator Oh: But how much guarantee in security do you have that these people are on a track and that the public is secure?
Mr. Brown: I’ll let my colleague, who deals with it on a daily basis, answer. However, I think I’m paraphrasing what Minister Goodale has said publicly that every one of the national security agencies works every day to ensure that every safeguard that can be put in place is in place. I think he would also say that nothing in life is guaranteed, but every safeguard and step that can be taken is being taken.
I mentioned earlier that our primary objective that anyone on whom we can gather evidence is prosecuted, and in the unlikely or rare instance where people do arrive, that is managed in a way that does everything to safeguard Canadians, starting with prosecution, surveillance and the gathering of evidence and those kinds of things. David, do you want to add anything?
Mr. Vigneault: Senator, I will add that if, indeed, someone who is engaged in some form of terrorism activities or terrorism support is coming back to Canada, CSIS and our partners are very much engaged. We are obviously concerned about the potential threat these individuals represent. We do careful analysis of the information we have and what potential threat this person represents.
We are working in an organized way. The community has put together what is called a National Security Joint Operations Centre, NSJOC. Essentially, we have representatives of CSIS, CSE, RCMP, Immigration, Passport and probably a couple of other partners. It’s essential to look at all the tools we have at our disposal to make sure we manage a threat properly.
In the case of CSIS, that could be surveillance. However, I would not want to leave the impression that we have the capacity to do 24-7 surveillance on a number of targets. It also means that we have other tools, including threat-reduction measures, which allow us to mitigate the threat.
It’s not just CSIS or the RCMP, but all the other partners at the federal level, and law enforcement at the provincial-territorial level, are involved in these activities when we have an individual who indeed is coming back to Canada.
Senator Oh: That’s going to cost a lot of money, with five agencies watching them. How long do you plan this surveillance to continue?
Mr. Vigneault: Each case is different, senator. We are assessing the threat that the individual represents. Some of them are coming back and not re-engaging in terrorism; they are not re-engaging either through association or through communicating terrorism views and so on. Those who are, you can be sure we are on top of this. This is our mandate. This is where CSIS, RCMP and other partners have to put our resources.
Senator McIntyre: My next question is a technical one. It has to do with the list of terrorist entities. Under the current system, and bearing in mind section 83.01 of the code, the term “entity” is defined as “a person, group, trust, partnership or fund, or an unincorporated association or organization.” As we know, the code establishes the procedure for placing an entity on or removing it from the list.
I draw your attention to clauses 141 and 142 of the bill, which brings amendments to the procedure for including and removing listed entities involved in terrorist activities.
As I understand, subclause 141(2) of Bill C-59 adds the new subsection 83.05(1.2) to the code. The Minister of Public Safety is authorized to change the name of the entity on the list, add any other name to the list, or delete the name of the entity on the list.
As I understand, this new provision reduces the burden of proof when adding the name of an entity linked to an entity already on the list. Is there a reason for reducing the burden of proof? Mr. Breithaupt?
Mr. Breithaupt: Thank you, senator. I’m not sure what you mean by “burden of proof.” The same process would apply, but the Minister of Public Safety would be given the power personally to modify a primary name of an already listed entity or to add or delete an alias that’s on the list.
Senator McIntyre: But only if he has reasonable grounds to believe that a listed entity is using a name that is not on the list.
Mr. Breithaupt: This is the certificate of mistaken identity that you’re referring to? My apologies. The change being presented here for consideration is that currently the wording for 83.05(7) would allow for an entity to make a request for a certificate when their name wasn’t the same or similar to the name of an already listed entity.
The proposal here is to make it clearer. To read the provision, it requires that the entity whose name is the same or similar to a name appearing on the list may apply. So it focuses more on why you would apply for a certificate of mistaken identity, because there is mistaken identity, but the current provision is more broadly worded. This would sort of focus on the question of mistaken identity and seeking the minister to offer a certificate for that purpose.
If I may, briefly: When I answered previously the recognizance with conditions question, I quoted from 83.3(2). You mentioned preventative arrest, so I should also mention that there is a proposed change to turn “likely” into “necessary” also in 83.3(4) of the Criminal Code, which is dealing more with preventative arrests type of thing. I wanted to clarify that because I had read the wording for the test in 83.3(2), but there is a similar change in 83.3(4).
Senator McIntyre: Thank you for that point of clarification. Final question, if I may: Going back to the list of entities, as I understand, the periodic review of the list of entities is every two years. Under the proposed legislation, the periodic review of the entities would be five years. I am wondering why this change.
Mr. Brown: The reality is that it is a very thorough and complex process, and frequently there is not much change over a two-year period. The thinking was more efficient use of resources and do it over a longer period of time. There is always the provision, if there is an event or intelligence, to move more quickly, but that the statutory ongoing review would be done over a five-year period. So it’s an effort to use resources more efficiently, and it is about examining the existing list and confirming that those organizations should stay on the list. Adding happens anytime, and if there were requirements because of a specific event, there could be a provision for removing someone, an organization, sooner than that, driven by external events.
Senator McIntyre: All of this is followed by publication of the Royal Gazette?
Mr. Brown: Yes. All transparent.
Senator McIntyre: Thank you.
The Chair: I want to express our thanks on behalf of the committee to officials who have joined us for the last two hours. It assists greatly in our preparation as we look at this bill. Mr. Brown, in particular, I know senators join me in wishing you a very happy retirement.