Wednesday, May 15, 2019

The Standing Senate Committee on National Security and Defence has the honour to present its

TWENTY-SECOND REPORT

Your committee, to which was referred Bill C-59, An Act respecting national security matters, has, in obedience to the order of reference of December 11, 2018, examined the said bill and now reports the same with the following amendments:

1. Clause 50, page 50: Add the following after line 35:

“13.1 If the Commissioner determines that the conclusions referred to in section 13 are not reasonable in respect of an authorization but would be reasonable if a specific condition were added to that authorization, the Commissioner may

(a) refer the matter back to the appropriate minister for reconsideration; and

(b) provide that minister with a description of the condition that would have to be added to the authorization in order to make the conclusions reasonable.”.

2. Clause 143, page 139: Replace lines 26 and 27 with the following:

“whether or not

(a) a terrorism offence is committed by the person counselled;

(b) the accused counsels a particular person to carry out the terrorist activity;

(c) the accused knows the identity of the person whom the accused counsels to carry out the terrorist activity; or

(d) the person whom the accused counsels to carry out the terrorist activity knows that it is a terrorist activity.”.

3.  Clause 168, page 146:

(a)  Replace line 1 with the following:

“168 (1) During the fourth year after this section”; and

(b)  add the following after line 7:

“(1.1) The comprehensive review referred to in subsection (1) must include an assessment of the effect of this Act on the operations of the Canadian Security Intelligence Service, the Royal Canadian Mounted Police and the Communications Security Establishment that relate to national security, information sharing, and the interaction of those organizations with the National Security and Intelligence Review Agency, the Intelligence Commissioner and the National Security and Intelligence Committee of Parliamentarians.”.

4. New schedule, page 148: Add the following after line 6:

“SCHEDULE

(Section 49.1)

SCHEDULE

(Section 4)

Deputy Heads to Whom Directions Have Been Issued”.

Your committee has also made certain observations, which are appended to this report.

Respectfully submitted,

Observations to the twenty-second report of the Standing Senate Committee on National Security and Defence (Bill C-59)

1.  The government should change the National Security and Intelligence Review Agency (NSIRA)’s name in French, replacing “Office de surveillance” with “Office d’examen” in order to more-accurately reflect its mandate.

2.  The government should consider what role, if any, the Intelligence Commissioner might play in the process of reviewing the ministers’ authorizations of the Communications Security Establishment’s active and defensive cyberoperations.

3.  To provide greater clarity and direction, the responsible minister should issue written, public guidance to CSE and CSIS on the interpretation of what constitutes “publicly available” information or datasets, including whether or not illegally released (hacked) information is to be considered “publicly available”.

4.  The government should review what role the Privacy Commissioner might play in the context of reviews by NSIRA and the National Security and Intelligence Committee of Parliamentarians (NSICOP).

5.  The Committee observes that although Bill C-59 authorizes the Privacy Commissioner to share confidential information with NSIRA, it is silent with respect to NSICOP.  Therefore, the Committee invites the government to authorize the Privacy Commissioner to share confidential information with NSICOP.

6.  The government should provide special advocates to represent individuals in appeals under the Secure Air Travel Act (SATA).

7.  The committee invites the government to evaluate whether existing provisions of the law are adequate to address the presence of online terrorist propaganda and violent extremist content, and whether law enforcement, national security, and intelligence agencies have sufficient tools to address the potential harms caused by such content.

8.  Prior to the review set out in section 168(1), the Senate should, on its own initiative, undertake a study of the unique challenges surrounding terrorism and other national security prosecutions, including, but not limited to, the operational and legal challenges of converting intelligence to evidence and the respective jurisdictions of the Federal Court and trial courts in deciding disclosure of sensitive evidence.

9.  The government should develop and distribute investigative and prosecutorial guidelines describing what constitutes the offence of counselling commission of a terrorism offence under section 83.221 of the Criminal Code and best practices on successfully obtaining a prosecution.

10.  CSIS threat reduction activity should be reviewed by NSIRA with its findings reported annually to NSICOP.