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SECU Committee Report

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Committee Report

Nineteenth Report

Standing Committee on Public Safety and National Security (SECU)

42nd Parliament, 1st Session

Study

Bill C-59, An Act respecting national security matters

In accordance with its Order of Reference of Monday, November 27, 2017, your Committee has considered Bill C-59, An Act respecting national security matters, and agreed on Wednesday, April 25, 2018, to report it with the following amendments:

Preamble

That Bill C-59, in the preamble, be amended by adding after line 12 on page 1 the following:

“Whereas the Government of Canada, by carrying out its national security and information activities in a manner that respects rights and freedoms, encourages the international community to do the same;”

Clause 2

That Bill C-59, in Clause 2, be amended by replacing lines 15 and 16 on page 3 with the following:

“department means, other than in subsection 42(2), a department named in Schedule I to the Financial”

That Bill C-59, in Clause 2, be amended by adding after line 8 on page 6 the following:

“7.1 Subject to this Act, the Review Agency may determine the procedure to be followed in the exercise of its powers or the performance of any of its duties or functions.”

That Bill C-59, in Clause 2, be amended by adding after line 32 on page 6 the following:

“(2.1) The Review Agency must review the implementation of significant aspects of every new or modified ministerial direction that is issued to any of the following:

(a) the Canadian Security Intelligence Service;

(b) the Communications Security Establishment; and

That Bill C-59, in Clause 2, be amended by replacing line 13 on page 7 with the following:

“to have access to information that is subject to any privilege under the law of evidence, solicitor-”

That Bill C-59, in Clause 2, be amended by replacing line 21 on page 7 with the following:

“10 Despite any other Act of Parliament and any privilege under the law of evidence and subject to”

That Bill C-59, in Clause 2, be amended by adding after line 12 on page 9 the following:

“Coordination

15.1 (1) When fulfilling its mandate under any of paragraphs 8(1)(a) to (c), the Review Agency may coordinate its activities with those of the Privacy Commissioner under subsection 37(1) of the Privacy Act to avoid any unnecessary duplication of work.

(2) The Review Agency may, to the extent that it considers it necessary for the purpose of subsection (1), provide the Privacy Commissioner with information concerning its reviews under any of paragraphs 8(1)(a) to (c).”

That Bill C-59, in Clause 2, be amended by adding after line 34 on page 12 the following:

“27.1 Despite any provision of this Act, the Review Agency must suspend an investigation if, after consultation with the appropriate department, the Agency is of the opinion that continuing the investigation would compromise or seriously hinder an ongoing criminal investigation or proceeding.”

That Bill C-59, in Clause 2, be amended by replacing lines 10 to 14 on page 18 with the following:

“(3) Part 7 of the Public Service Employment Act applies to the executive director and the Secretariat’s employees. For the purposes of that Part, the executive director is deemed to be a”

That Bill C-59, in Clause 2, be amended by deleting line 26 on page 19 to line 4 on page 20.

That Bill C-59, in Clause 2, be amended by adding after line 36 on page 21 the following:

“General

54.1 Nothing in this Act is to be construed as limiting the power of any body or person that is authorized under an Act of Parliament to conduct a review or investigation in relation to any activity of a department.”

New Clause 37.1 and New Clause 37.2

That Bill C-59 be amended by adding before line 11 on page 32 the following:

“37.1 Section 37 of the Privacy Act is amended by adding the following after subsection (4)

(5) The Privacy Commissioner may coordinate his or her activities under subsection (1) with those of the National Security and Intelligence Review Agency under any of paragraphs 8(1)(a) to (c) of the National Security and Intelligence Review Agency Act to avoid any unnecessary duplication of work.

37.2 Section 64 of the Act is amended by adding the following after subsection (2):

(3) The Privacy Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commissioner to disclose — to the extent that the Commissioner or the authorized person, as the case may be, considers necessary for the purpose of subsection 37(5) — information concerning the Commissioner’s activities under subsection 37(1) to the National Security and Intelligence Review Agency.”

Clause 38

That Bill C-59, in Clause 38, be amended by replacing line 11 on page 32 with the following:

“38 The schedule to the Act is amended”

Clause 42

That Bill C-59, in Clause 42, be amended by adding after line 16 on page 33 the following:

“(4.2) The Commission shall notify the Commissioner if it refers a complaint to the National Security and Intelligence Review Agency. After doing so, it shall also notify the complainant of the referral.”

Clause 43

That Bill C-59, in Clause 43, be amended by replacing lines 23 to 27 on page 33 with the following:

“(3) Subject to subsection (3.1), if the Commission discontinues an investigation of a complaint, the Commission shall give notice in writing of the discontinuance and the reasons for it to the complainant and the Commissioner.

(3.1) If the investigation of a complaint is discontinued under subsection (2.1), the Commission shall give to the Commissioner notice in writing of the investigation’s discontinuance and the referral of the complaint to the National Security and Intelligence Review Agency. After doing so, the Commission shall give notice in writing of the discontinuance and the referral to the complainant.”

New Clause 49.1 and New Clause 49.2

That Bill C-59 be amended by adding after line 11 on page 39 the following new clause:

“PART 1.1

Avoiding Complicity in Mistreatment by Foreign Entities

Avoiding Complicity in Mistreatment by Foreign Entities Act

49.1 The Avoiding Complicity in Mistreatment by Foreign Entities Act, whose text is as follows and whose schedule is set out in the schedule to this Act, is enacted as follows:

An Act respecting the disclosure of and request for information that would result in a substantial risk of mistreatment of an individual by a foreign entity and the use of information that is likely to have been obtained as the result of mistreatment of an individual by a foreign entity

Whereas a fundamental responsibility of the Government of Canada is to protect Canada’s national security and the safety of Canadians;

Whereas Parliament recognizes that information needs to be disclosed, requested or used in order to enable the Government to fulfill that responsibility;

Whereas that responsibility must be fulfilled in accordance with the rule of law and in a manner that safeguards the rights and freedoms of Canadians and that respects the Canadian Charter of Rights and Freedoms;

Whereas Canada is a party to a number of international agreements that prohibit torture and other cruel, inhuman or degrading treatment or punishment, including the Geneva Conventions, the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

Whereas torture is an offence under the Criminal Code, which Act also prohibits aiding and abetting the commission of torture, counselling the commission of torture, conspiring to commit torture, attempting to commit torture and being an accessory after the fact to torture;

And whereas torture and other cruel, inhuman or degrading treatment or punishment of individuals are an affront to Canadian values and are opposed by the Government of Canada in the strongest terms;

Now therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

1 This Act may be cited as the Avoiding Complicity in Mistreatment by Foreign Entities Act.

Definitions

2 The following definitions apply in this Act.

appropriate Minister means

(a) with respect to a department named in Schedule I to the Financial Administration Act, the Minister presiding over the department;

(b) with respect to a division or branch of the federal public administration set out in column I of Schedule I.1 to the Financial Administration Act, the Minister set out in column II of that Schedule;

(c) with respect to a corporation named in Schedule II to the Financial Administration Act, the Minister designated as the appropriate Minister by order of the Governor in Council made under that Act;

(d) with respect to a parent Crown corporation as defined in subsection 83(1) of the Financial Administration Act, the appropriate Minister as defined in that subsection; or

(e) with respect to the Canadian Forces, the Minister of National Defence. (ministre compétent)

department means a department named in Schedule I to the Financial Administration Act, a division or branch of the federal public administration set out in column I of Schedule I.1 to that Act, a corporation named in Schedule II to that Act, a parent Crown corporation as defined in subsection 83(1) of that Act or the Canadian Forces. (ministère)

deputy head means

(a) with respect to a department named in Schedule I to the Financial Administration Act, the deputy minister of that department;

(b) with respect to the Canadian Forces, the Chief of the Defence Staff;

(d) with respect to the Canadian Security Intelligence Service, the Director;

(e) with respect to the Canada Border Services Agency, the President;

(f) with respect to the Communications Security Establishment, the Chief; and

(g) with respect to any other portion of the federal public administration, the person designated by order of the Governor in Council to be the deputy head of that portion of the federal public administration for the purposes of this Act. (administrateur général)

mistreatment means torture or other cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed at New York on December 10, 1984. (mauvais traitements)

review body means

(a) the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police established by subsection 45.29(1) of the Royal Canadian Mounted Police Act;

(b) the Commissioner of the Communications Security Establishment appointed under subsection 273.63(1) of the National Defence Act; or

(c) the Security Intelligence Review Committee established by subsection 34(1) of the Canadian Security Intelligence Service Act. (organisme de surveillance)

Directions

3 (1) The Governor in Council may, on the recommendation of the appropriate Minister, issue written directions to any deputy head in respect of

(a) the disclosure of information to any foreign entity that would result in a substantial risk of mistreatment of an individual;

(b) the making of requests to any foreign entity for information that would result in a substantial risk of mistreatment of an individual; and

(c) the use of information that is likely to have been obtained through the mistreatment of an individual by a foreign entity.

(2) The Governor in Council must issue written directions in respect of the matters referred to in subsection (1) to the following deputy heads:

(a) the Chief of the Defence Staff;

(b) the Deputy Minister of National Defence;

(d) the Commissioner of the Royal Canadian Mounted Police;

(e) the Director of the Canadian Security Intelligence Service;

(f) the President of the Canada Border Services Agency; and

(g) the Chief of the Communications Security Establishment.

(3) Directions are not statutory instruments within the meaning of the Statutory Instruments Act.

4 The Governor in Council may, by order, amend the schedule to add a reference to each deputy head to whom directions have been issued under section 3 or to delete any such reference if the directions that were issued to the deputy head have been repealed or if the deputy head’s position has ceased to exist or has changed name.

Deputy Heads

5 Every deputy head to whom directions have been issued under section 3 must, as soon as feasible after receiving them, make them available to the public.

6 Every deputy head to whom directions have been issued under section 3 must, as soon as feasible after receiving them, provide a copy of the directions to the National Security and Intelligence Committee of Parliamentarians and, if applicable, to the relevant review body.

7 (1) Every deputy head to whom directions have been issued under section 3 must, before March 1 of each year, submit to the appropriate Minister a report in respect of the implementation of those directions during the previous calendar year.

(2) Every deputy head must, as soon as feasible after submitting a report under subsection (1), make a version of it available to the public that does not contain information

(a) the disclosure of which would be injurious to national security, national defence or international relations or compromise an ongoing operation or investigation; or

(b) that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

Appropriate Ministers

(2) The copy must not contain any information that the Committee or the relevant review body is not entitled to receive.

Coordinating Amendments

49.2 On the first day on which both sections 2 and 49.1 of this Act are in force,

(a) section 8 of the National Security and Intelligence Review Agency Act is amended by adding the following after subsection (2.1):

(2.2) In the course of its review of activities carried out by departments, the Review Agency must, each calendar year, review the implementation of all directions issued under the Avoiding Complicity in Mistreatment by Foreign Entities Act.

(b) the definition review body in section 2 of the Avoiding Complicity in Mistreatment by Foreign Entities Act is repealed;

(d) section 8 of the Avoiding Complicity in Mistreatment by Foreign Entities Act is replaced by the following:

8 (1) As soon as feasible after receiving a report under section 7, the appropriate Minister must provide a copy of it to the National Security and Intelligence Committee of Parliamentarians, the National Security and Intelligence Review Agency and, if applicable, the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police.

(2) The copy must not contain any information that the Committee, the Agency or the Commission is not entitled to receive.”

Clause 50

That Bill C-59, in Clause 50, be amended by replacing lines 13 to 17 on page 41 with the following:

“(3) Part 7 of the Public Service Employment Act applies to the Commissioner and to his or her employees. For the purposes of that Part, the Commissioner is deemed to be a deputy head, and his or her em-”

That Bill C-59, in Clause 50, be amended by deleting line 30 on page 42 to line 5 on page 43.

That Bill C-59, in Clause 50, be amended

(a) by replacing line 18 on page 45 with the following:

“sions at issue are reasonable, and must set out his or her reasons for doing so; or”

(b) by replacing line 25 on page 45 with the following:

“isfied that the conclusions at issue are reasonable, and must set out his or her reasons for doing so;”

That Bill C-59, in Clause 50, be amended by adding after line 14 on page 46 the following:

“Public Report

22.1 (1) The Commissioner must, each calendar year, submit to the Prime Minister a report with respect to the Commissioner’s activities during the previous calendar year. The report must include statistics, that the Commissioner considers appropriate, relating to the authorizations, amendments and determinations that were approved and not approved.

(2) The Commissioner must consult with the Director of the Canadian Security Intelligence Service and the Chief of the Communications Security Establishment in preparing the report in order to ensure that it does not contain information the disclosure of which would be injurious to national security, national defence or international relations or information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

(3) The Prime Minister must cause to be laid before each House of Parliament, on any of the first 15 days on which that House is sitting after a report is submitted under subsection (1), a copy of the report.”

That Bill C-59, in Clause 50, be amended by replacing line 22 on page 46 with the following:

“formation that is subject to any privilege under the law of evidence, solicitor-client privilege or”

That Bill C-59, in Clause 50, be amended by replacing line 1 on page 47 with the following:

“25 Despite any other Act of Parliament and any privilege under the law of evidence and subject to”

Clause 76

That Bill C-59, in Clause 76, be amended by adding after line 27 on page 53 the following:

“Whereas the protection of Canada's national security and of the security of Canadians is a fundamental responsibility of the Government of Canada;

Whereas it is essential, to discharge that responsibility, for Canada to have a communications security establishment;

And whereas it is important that the communications security establishment carry out its activities in accordance with the rule of law and in a manner that respects the Canadian Charter of Rights and Freedoms;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:”

That Bill C-59, in Clause 76, be amended by replacing line 26 on page 55 with the following:

“request, by subscription or by purchase. It does not include information in respect of which a Canadian or a person in Canada has a reasonable expectation of privacy. (information”

That Bill C-59, in Clause 76, be amended by deleting lines 13 to 19 on page 58.

That Bill C-59, in Clause 76, be amended by deleting line 28 on page 59 to line 5 on page 60.

That Bill C-59, in Clause 76, be amended by replacing line 3 on page 62 with the following:

“directed at a Canadian or at any person in Canada and must not infringe the Canadian Charter of Rights and Freedoms.”

That Bill C-59, in Clause 76, be amended by

(a) replacing line 13 on page 62 with the following:

“must not contravene any other Act of Parliament — or involve the acquisition by the Establishment of information from or through the global information infrastructure that interferes with the reasonable expectation of privacy of a Canadian or a person in Canada — unless”

(b) replacing line 19 on page 62 with the following:

“Parliament — or involve the acquisition by the Establishment of information from the global information infrastructure that interferes with the reasonable expectation of privacy of a Canadian or a person in Canada — unless they are carried out under an autho-”

That Bill C-59, in Clause 76, be amended by adding after line 10 on page 71 the following:

“(4) The Minister must, as soon as feasible, notify the Commissioner of any extension of an authorization.”

That Bill C-59, in Clause 76, be amended by replacing line 37 on page 73 with the following:

“der an authorization issued under subsection 27(1) or 41(1), if the”

That Bill C-59, in Clause 76, be amended by replacing line 6 on page 74 with the following:

“tion relating to a Canadian or a person in Canada that has been acquired, used or analysed in the”

Clause 82

That Bill C-59, in Clause 82, be amended by adding after line 11 on page 82 the following:

“(1.1) Unless the context requires otherwise, every reference to the former department in any Act of Parliament, other than an Act referred to in subsection (1), or in any order, regulation or other instrument made under an Act of Parliament is deemed to be a reference to the new department.”

Clause 92

That Bill C-59, in Clause 92, be amended by adding after line 17 on page 85 the following:

“And whereas the Government of Canada, by carrying out its national security and information activities in a manner that respects rights and freedoms, encourages the international community to do the same;”

Clause 97

That Bill C-59, in Clause 97, be amended by replacing lines 7 and 8 on page 92 with the following:

“(a) be destroyed without delay;

(b) be collected as a dataset under section 11.05; or

(c) be added as an update to a Canadian dataset if the addition is permitted under that Canadian dataset’s judicial authorization.”

That Bill C-59, in Clause 97, be amended by replacing line 32 on page 94 with the following:

“11.16 (1) The Minister may designate a person, including the Director or an employee, for the”

That Bill C-59, in Clause 97, be amended by replacing line 25 on page 98 with the following:

“the query is likely to produce the intelligence referred to in”

That Bill C-59, in Clause 97, be amended by adding after line 26 on page 98 the following:

“(2.1) The Service may retain the results of a query of a dataset performed under subsection (1) if

(a) the collection, analysis and retention of the results are carried out under section 12;

(b) the retention is strictly necessary to assist the Service in the performance of its duties and functions under section 12.1; or

(c) the retention is required to assist the Minister of National Defence or the Minister of Foreign Affairs in accordance with section 16.

(2.2) The Service shall, without delay, destroy the results that it cannot retain under subsection (2.1).”

Clause 101

That Bill C-59, in Clause 101, be amended by adding after line 20 on page 108 the following:

“Report to Parliament

20.2 (1) The Service shall, within three months after the end of each calendar year, submit to the Minister a report of the activities of the Service during the preceding calendar year, and the Minister shall cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives it.”

Clause 103

That Bill C-59, in Clause 103, be amended by replacing line 23 on page 110 with the following:

“(f) interfering with the movement of any person, excluding the detention of an individual; and”

Clause 107

That Bill C-59, in Clause 107, be amended by replacing lines 32 and 33 on page 111 with the following:

“27 An application for a judicial authorization under section 11.13, an application under section 21, 21.1 or 23”

Clause 118

That Bill C-59, in Clause 118, be amended by adding after line 14 on page 117 the following:

“5.1 (1) A Government of Canada institution must, as soon as feasible after receiving it under section 5, destroy or return any personal information, as defined in section 3 of the Privacy Act, that is not necessary for the institution to exercise its jurisdiction, or to carry out its responsibilities, under an Act of Parliament or another lawful authority, in respect of activities that undermine the security of Canada.

(2) Subsection (1) does not apply if the retention of the information is required by law.

(3) Subsection (1) does not apply to the Canadian Security Intelligence Service in respect of any information that relates to the performance of its duties and functions under section 12 of the Canadian Security Intelligence Service Act.”

That Bill C-59, in Clause 118, be amended by replacing lines 15 to 18 on page 117 with the following:

“6 Nothing in section 5 or 5.1 is to be construed as authorizing the collection or use of any information that is disclosed under section 5.”

New Clause 118.1

That Bill C-59 be amended by adding after line 18 on page 117 the following:

“118.1 The Act is amended by adding the following after section 7:

7.1 For greater certainty, for the purpose of paragraph 8(2)(b) of the Privacy Act, the authority in this Act to disclose information includes the authority to disclose personal information, as defined in section 3 of the Privacy Act.”

Clause 119

That Bill C-59, in Clause 119, be amended by

(a) replacing line 22 on page 117 with the following:

“9 (1) Every Government of Canada institution that discloses”

(b) replacing line 35 on page 117 to 5 on page 118 with the following:

“(2) Every Government of Canada institution that receives information under this Act must prepare and keep records that set out

(a) a description of the information;

(b) the name of the institution that disclosed it;

(c) the name or position of the head of the recipient institution — or of the person designated by the head — who received the information;

(d) the date on which it was received by the recipient institution;

(e) whether the information has been destroyed or returned under subsection 5.1(1);

(f) if the information has been destroyed under subsection 5.1(1), the date on which it was destroyed;

(g) if the information was returned under subsection 5.1(1) to the institution that disclosed it, the date on which it was returned; and

(h) any other information specified by the regulations.

(2) Section 9 of the Act is amended by adding the following after subsection (2):

(3) Within 30 days after the end of each calendar year, every Government of Canada institution that disclosed information under section 5 during the year and every Government of Canada institution that received such information must provide the National Security and Intelligence Review Agency with a copy of every record it prepared under subsection (1) or (2), as the case may be, with respect to the information.”

Clause 120

That Bill C-59, in Clause 120, be amended by replacing lines 9 to 21 on page 118 with the following:

“graph 9(1)(f) or (2)(f); and

(c) respecting the manner in which records that are required by subsection 9(1) or (2) are to be prepared and kept and specifying the period during which they are to be kept.

(2) Subsection 10(3) of the Act is replaced by the following:”

Clause 141

That Bill C-59, in Clause 141, be amended by

(a) replacing lines 25 to 27 on page 128 with the following:

“the applicant should remain a listed entity or whether the Minister should recommend to the Governor in Council that the applicant be removed from the list, taking into account the grounds set out in subsection (1).”

(b) replacing lines 32 and 33 on page 128 with the following:

“applicant, the Minister is deemed to have decided that the applicant should remain a listed entity.”

Clause 143

That Bill C-59, in Clause 143, be amended by

(a) replacing lines 13 and 14 on page 130 with the following:

“to commit a terrorism offence without identifying a specific terrorism offence is guilty of an indictable offence and”

(b) replacing lines 18 to 21 on page 130 with the following:

“whether or not a terrorism offence is committed by the person who is counselled.”

Clause 144

That Bill C-59, in Clause 144, be amended by replacing lines 27 and 28 on page 130 with the following:

“mission of a terrorism offence. (propagande terroriste)”

New Clause 157.1

That Bill C-59 be amended by adding after line 32 on page 133 the following:

“Section 83.3 of the Criminal Code

157.1 If section 83.3 of the Criminal Code has ceased to have effect in accordance with section 83.32 of that Act before the day on which this section comes into force, then that section 83.3 becomes effective again as of the day on which this section comes into force and sections 146 and 148 of this Act apply in respect of that section 83.3.”

New Clause 169.1

That Bill C-59 be amended by adding after line 38 on page 137 the following:

“169.1 Part 1.1, other than section 49.2, comes into force on a day to be fixed by order of the Governor in Council.”

Your Committee has ordered a reprint of Bill C-59, as amended, as a working copy for the use of the House of Commons at the report stage.

A copy of the relevant Minutes of Proceedings (Meetings Nos. 88 to 90, 92 to 98, 101 and 104 to 108) is tabled.