Proceedings of the Standing Senate Committee on
National Security and Defence
Issue No. 43 - Evidence - Meeting of May 13, 2019
OTTAWA, Monday, May 13, 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 1 p.m. to give consideration to the bill.
Senator Gwen Boniface (Chair) in the chair.
[English]
The Chair: Good afternoon, senators. Before we begin, I’d like to remind senators of a number of points.
If at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we all have the same understanding of where we are in the process.
In terms of the mechanics of the process, I wish to remind senators that when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of the clause. Therefore, before taking up an amendment in a clause, I will be verifying whether any senators had intended to move an amendment earlier in that clause. If senators do intend to move an earlier amendment, they will be given the opportunity to do so.
One small point, if a senator is opposed to an entire clause, I would remind you that in committee the proper process is not to move a motion to delete the entire clause but rather to vote against the clause as standing as part of the bill. If a senator has an amendment, it would be useful to this process if a senator moving an amendment identify to the committee other clauses in the bill where this amendment could have an effect. Otherwise, it will be difficult for members of the committee to remain consistent in their decision-making.
Staff will endeavour to keep track of these places where subsequent amendments need to be moved and will draw our attention to them. Because no notice is required to move amendments, there can, of course, have been no preliminary analysis of the amendments to establish which one may be of consequence to others and which may be contradictory.
If committee members ever have any questions about the process, about the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to the argument, decide whether there has been sufficient discussion of a matter or order and make a ruling. The committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend upon your cooperation and ask all of you to consider other senators and to keep remarks to the point and as brief as possible.
Finally, I wish to remind all senators that if there is ever any uncertainty as to the results of a voice vote or show of hands, the most effective route is to request a roll call vote, which provides an unambiguous result. Senators are aware that any tied vote negates the motion in question.
Are there any questions on any of the above? If not, then we can proceed.
We will proceed. Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-59, An Act respecting national security matters?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Is it agreed, with leave, that the clauses be grouped according to the parts of the bill and their divisions as described in the table of provisions of Bill C-59?
Hon. Senators: Agreed.
The Chair: Shall Part 1, which contains clauses 2 to 49, carry?
Senator McIntyre: Sorry, chair, I don’t have a copy of what you’re reading there.
The Chair: Just a few minutes.
Senator Griffin: I would like one also, please.
The Chair: I’ll just wait until everybody has them. To bring it to your attention, we are at the third from the bottom.
Shall Part 1, which contains clauses 2 to 49, carry?
Hon. Senators: Agreed.
The Chair: Shall Part 1.1, which contains clauses 49.1 and 49.2, carry?
Hon. Senators: Agreed.
The Chair: Shall Part 2, which contains clauses 50 to 75, carry?
[Translation]
Senator Dagenais: Madam Chair, I would like to propose some amendments to clause 50.
[English]
The Chair: Could you read out the first amendment, please?
[Translation]
Senator Dagenais: I’m also going to present my arguments. My amendment concerns the character of “reasonableness”. The role of the new commissioner will be to approve elements of Bill C-59, and the decision based on reasonableness is up to him. Three witnesses have been heard on the reasonableness of the commissioner’s decisions. Personally, I think that the “reasonableness” of the commissioner’s decisions should be determined by the minister, that is to say, when a decision is made; although the new commissioner appointed may be a retired judge, that shouldn’t trump the minister’s decision or accountability.
For example, I refer you to the testimony of three persons whose national security expertise I believe cannot be questioned. The first is Richard Fadden, former national security advisor and director of CSIS. In his testimony, Mr. Fadden clearly stated that his concern related to the role of the intelligence commissioner, in particular to his or her mandate. He said that ministers should be assigned responsibility for the activities of departments and agencies. He still believes this responsibility belongs to the ministers, and that this is a good thing.
In his testimony, Wesley Wark, visiting professor to the Graduate School of Public and International Affairs at the University of Ottawa, said that the role of the commissioner of intelligence and state is to determine that the conditions that allow the minister to issue a certain authorization for intelligence activities have been met. Consequently, that’s the commissioner’s role, but it shouldn’t go beyond the “reasonableness” of the decision.
I would also recall the testimony of Errol Mendes, professor of law at the Faculty of Law of the University of Ottawa, who said that the intelligence commissioner may and must review ministerial authorizations, but not on the grounds of reasonableness, which must ultimately fall to the minister.
In view of this testimony, I’m going to propose amendments to clause 50 of Bill C-59. The first amendment is on page 51. This obviously calls for an amendment to the entire text of the bill wherever the word “reasonable” appears.
The first amendment reads as follows:
That Bill C-59 be amended in clause 50, on page 51, by replacing line 31 with the following:
“lawful.”
In all parts of clauses in the bill, the word “reasonable” must be replaced by the word “lawful” or the words “lawful, and must set out his or”.
[English]
Senator Gold: I cannot support this amendment, and I’ll tell you why. The creation of the office and the mandate of the intelligence commissioner was designed to address a serious constitutional problem with the ways in which certain activities by our security intelligence agencies were operating, in particular with regard to data sets but it goes beyond that.
I respect the opinions expressed by Mr. Fadden and Professor Wark and Professor Mendes, but it was clear from the testimony of Professor Forcese and others that it is necessary to provide a “reasonableness” standard for the intelligence commissioner in order to address the Charter of Rights concerns dealing with Canadians’ reasonable expectations of privacy in data.
No disrespect to Mr. Fadden, who has more experience in these matters than I do. He was not speaking as a lawyer. Professor Wark is not a lawyer. Professor Mendes is a lawyer, but his brief talked about reasonable grounds rather than reasonableness. To say it’s lawful is not the same thing and does not satisfy the constitutional requirements of the Charter.
Because it’s important that our security and intelligence agencies have the confidence to do their work, knowing that they’re not going to be subject to constitutional challenge, I recommend that we reject this amendment and maintain the bill as it is currently drafted.
[Translation]
Senator Dagenais: I don’t want to cast doubt on Senator Gold’s remarks, but I must say that the three witnesses I mentioned are highly qualified in national security. Moreover, as Mr. Fadden said, if we ask appointees to assess the reasonableness of ministerial authorizations, the minister’s decisions could be questioned based on interpretations that might be different, or even very different from one commissioner to the next.
Since these are, first and foremost, national security decisions, we must ensure that the minister is ultimately responsible. In that sense, I agree with the witnesses we heard that the commissioner’s role is limited to determining the lawfulness of a decision. Once again, I’m saying and repeating it, the minister is the person who is ultimately responsible because these are national security decisions. To my mind, responsibility must be attributed to the person who plays the role of minister because commissioners may change from one period to the next. Consequently, interpretations may vary. On that basis, I move that the amendment to the bill be maintained and that the word “reasonable” be replaced by the word “lawful”.
[English]
Senator Gold: Just briefly, to replace the word “reasonable” with “lawful” does not at all address the constitutional problem that has been identified.
Moreover, the intelligence commissioners will be retired Superior Court judges. As the current commissioner testified, Mr. Plouffe, it is not the case that the minister’s role will be overturned. It’s a highly deferential standard that judges under the reasonable standard have long experience in applying. We expect, as was told, it will be an iterative process, an interactive process with the minister. Ministerial responsibility remains, but this is a check and an oversight to ensure compliance with the Charter of Rights and Freedoms.
[Translation]
Senator Dagenais: Madam Chair, with all due respect for my colleague, I’m taking nothing away from the judges, but the fact nevertheless remains that a matter of national interest or national security must be the responsibility of the minister, not a judge, notwithstanding the fact that the judges come from the Superior Court and Supreme Court. I don’t mean to deny their qualifications, but we’re talking about a decision of national interest, an important decision that must be up to the department, and thus to the Minister of Public Safety. Transferring that responsibility to retired judges or judges from the Superior Court or the Supreme Court, or even the Court of Appeal... I’m in no way denying their qualifications. However, where a national security decision is concerned, the decision belongs, first and foremost, to the minister responsible, since he or she is the person ultimately responsible.
[English]
The Chair: We have a proposed amendment on the floor. It is moved by Senator Dagenais:
That Bill C-59 be amended in clause 50, on page 51, by replacing line 31 with the following:
“lawful.”
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Shall we do a roll call?
[Translation]
Senator Dagenais: Madam Chair, I propose that we proceed by a recorded vote.
[English]
Mark Palmer, Clerk of the Committee: The Honourable Senator Boniface?
The Chair: No.
Mr. Palmer: The Honourable Senator Boehm?
Senator Boehm: No.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Dagenais?
Senator Dagenais: Yes.
Mr. Palmer: The Honourable Senator Frum?
Senator Frum: Yes.
Mr. Palmer: The Honourable Senator Gold?
Senator Gold: No.
Mr. Palmer: The Honourable Senator Griffin?
Senator Griffin: No.
Mr. Palmer: The Honourable Senator McIntyre?
Senator McIntyre: Yes.
Mr. Palmer: The Honourable Senator McPhedran?
Senator McPhedran: No.
Mr. Palmer: The Honourable Senator Oh?
Senator Oh: Yes.
Mr. Palmer: The Honourable Senator Pratte?
Senator Pratte: No.
Mr. Palmer: Yes, 5; no, 6.
The Chair: The motion is defeated.
Senator McPhedran, I understand you have other amendments within this part?
Senator McPhedran: Yes, thank you, chair. I think the amendment I’m about to propose is consistent with a number of the recommendations we received from expert witnesses. It really is to further clarify the authority and the role of the commissioner.
I’m looking at line 29, and I’m proposing that we add the following after line 29: “12.1 —”
The Chair: Senator McPhedran, can I just check to make sure everybody has it in front of them? Everybody should have a copy it.
Senator McPhedran: It looks like this “Mc50-50A,” upper right. I think it’s underneath your papers.
Senator Griffin: I have it now, but I didn’t have it.
Senator McPhedran: May I read it?
The Chair: Would you mind, please?
Senator McPhedran: Thank you.
“12.1 In conducting a review referred to in paragraph 12(a), the Commissioner may request information and documentation that are relevant to the review from any person who is able to provide such information or documentation if it is necessary to do so in order to determine whether the conclusions on the basis of which the authorization in question was issued are reasonable.”.
In French?
The Chair: I think it’s good. On debate, Senator Gold.
Senator Gold: Could you explain briefly the rationale? I wouldn’t mind hearing officials speak to it as well. What’s the rationale?
Senator McPhedran: I’d be happy to hear from the officials.
The rationale is that the role of the commissioner — there were a number of questions about the extent to which there could be consultation. Hopefully, this is also a way of being able to clearly allow for consultation with other commissioners, such as the Privacy Commissioner, in the process, as is deemed necessary by the commissioner. You’ll note that the term “may” is being used here, so the discretion of the commissioner is very much respected in the wording of this amendment.
Senator Gold: Thank you. I’m just wondering if we could have input from the officials at the table as to whether this was necessary.
John Davies, Director General, National Security Policy, Public Safety Canada: We were not given a copy of the proposed amendments.
The Chair: Will you ensure the officials receive a copy of the proposed amendment?
Senator McPhedran: If I may add one other short point about this, I think this wording is seen as potentially very helpful in reinforcing the standard of reasonableness.
The Chair: Any comments from officials?
Mr. Davies: To be honest, chair, I think we’d need to think about this a bit more. There are a lot of natural points in the act to encourage collaboration to ensure the commissioner has everything he or she needs to make a decision. I don’t think we’ve thought about it from the perspective of outside of government. It sort of implies requests and information from outside of government as well to determine reasonableness. I don’t have a view on that now. We’d need more time to think about that.
[Translation]
Senator Boisvenu: My question is for the senator or the departmental people. Did any witnesses raise this issue?
[English]
Senator McPhedran: Yes, this was something that was raised by Professor Mendes.
[Translation]
Senator Boisvenu: My question is for the witnesses from the department. What impact can this amendment have on the bill? You said you needed to study it, but will it have a significant impact?
[English]
Mr. Davies: I think the key thing to remember here is that the commissioner is reviewing the decision of the minister. He or she will have access to everything the minister had to make that decision. In that way, the minister will already have access to anything else that was a factor in the minister’s decision. It may be a redundant amendment from that perspective.
Senator McPhedran: An additional point of information is that this is an adaptation of points that were raised before us by the current CSE commissioner in indicating, in practical terms, what would be very helpful in being able to fulfill responsibilities.
[Translation]
Senator Boisvenu: Mr. Davies made an important point: He said it would be redundant. Could you prove that to us?
[English]
Mr. Davies: I just said that in terms of what the commissioner is asked to do in his or her mandate, it is to take all the information the minister had before him or her to determine the reasonableness. In that way, what other person would you need to talk to in that regard? You would already have all that body of evidence in front of as the minister, which is in 23(1).
[Translation]
Senator Boisvenu: If I understand what you’re saying, this amendment provides the basis for the minister’s decision. This information must have already been gathered so the minister can make a decision.
[English]
Mr. Davies: That’s right. As I said, section 23(1) is the key part in terms of how information would be provided to the commissioner. It essentially goes through all of the elements in that regard.
[Translation]
Senator Boisvenu: Based on the answer the department has given, do you consider your amendment superfluous? If not, what does it add to the quality of the text compared to what the officials have told us?
[English]
Senator McPhedran: Senator, I was very influenced by what the current CSE commissioner told us in response to questions about how this could strengthen the work that’s already being done. Since it came from someone with the authority and responsibilities in this area, this is an adaptation to his specific recommendation.
It surprises me to hear that it’s being judged as redundant, given that it was the commissioner who made this suggestion.
[Translation]
Senator Dagenais: I have a comment on the amendment. Without wanting to backtrack, where reasonableness is at issue, the decision is left to the commissioner, but, on the other hand, where authorization is not reasonable, then you must rely on the competent minister. That leaves me somewhat confused.
[English]
Senator Pratte: I’m a little bit concerned — and maybe Senator McPhedran can reassure me — because it’s already indicated in the bill, in the new act, that the commissioner would have access to all the information the minister had in making his or her decision.
If we allow the commissioner to try to access more information from a whole series of sources, whether the commissioner would not be led to determine the reasonableness of the activity rather than the reasonableness of the minister’s decision. Do you understand the nuance?
The commissioner’s role is really to decide whether the minister, considering the information he or she had in front of him or her, made a reasonable decision. If the commissioner is allowed to try to get more information, then the range is much wider because he or she can decide based on information the minister did not have in front of him or her.
Senator McPhedran: I think we’ve agreed that the role of the commissioner is that of a reasonable review.
Implicit in that is the gathering of information. It’s not just a function of second-guessing here. It’s a function of being able to review, yes, the information that was before the minister. It may well be that there’s directly pertinent additional information where, with respect to the discretion of the commissioner and the judgment of the commissioner, we have to accept that this is part of the authority. Otherwise, how is the function of the commissioner anything other than just a stamp if exactly the same information is being considered?
Senator Pratte: That’s exactly my concern with this amendment. It has the potential to change the role of the commissioner, which at this point in the bill is envisaged as simply deciding on the reasonableness of the minister’s decision, considering the information that is in the possession of the minister and also considering all the possible options, because it’s a reasonableness test. Therefore, the minister’s determination or decision has to be seen and judged as reasonable, considering all the possible options that are open to him or her.
Senator McPhedran: Madam Chair, this may be a difference in approach. It seems to me that to avoid a process that is, in fact, not a substantive review because the outcome is very much, I think, predetermined if the record before the minister remains absolutely the same and then goes to the commissioner.
Again, in both scenarios there has to be a good amount of trust in the skill and the discretion of the commissioner, but it allows the commissioner to ask reasonable, logical questions about the record and to seek additional clarification. To me, that would seem to be a good thing when we consider the justice considerations here: What is at stake in this kind of review?
Senator Gold: I think we’re at risk of entering the thick morass of administrative law doctrine here. But there is a continuum here, on the one extreme, between simply having the intelligence commissioner tick off a box and saying that it satisfied the criteria. That would be the effect of the lawful amendment we voted down. The other extreme would be reviewing with fresh eyes the authorization, which, in such a case, you would want to have all the information, obviously, that the minister had and any other relevant information, which is what I take the amendment to be.
There is a middle ground, and the middle ground is what the bill provides. That is for the intelligence commissioner to ensure that the minister, in making his or her decision, based on all the evidence, made a reasonable decision. That’s more than just that the decision was lawful, but it’s not the same as reviewing the reasonableness of the authorization and the activities under the authorization.
I think the bill as it stands makes for a meaningful oversight, which is the correct term, one that satisfied the Department of Justice and lawyers that it addressed the constitutional problem, which a rubber stamp wouldn’t, and which was supported by many of the witnesses before us, notwithstanding the testimony that’s been referred to.
I think, on balance, I’m not sure that this is a step in the right direction.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: I’m hearing “no.” It’s defeated.
Senators, I’m trying my best to keep these in order for you. The next amendment is Senator McPhedran’s, and the note at the top should say 50-50b.
Senator McPhedran: Thank you very much, Madam Chair. If we could go to line 35, this is a proposed amendment to follow line 35. It would become 13.1. This is clause 50, on page 50, by adding the following after line 35:
“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. . .
And, again, I’m using language of discretion.
(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.”.
The Chair: On debate.
Senator Pratte: I have a couple of questions for Senator McPhedran. The fact that it’s a new 13.1, does this mean that this amendment would only relate to the Communications Security Establishment, the authorizations that relate to the CSE and not CSIS?
Senator McPhedran: That is my understanding. Again, this is drawn from the testimony of the CSE commissioner.
Senator Pratte: Yes, I remember that.
Senator McPhedran: Maybe we could ask officials for feedback.
Mr. Davies: I think there’s concern when the commissioner sort of goes beyond just providing views on the reasons for approving or not and getting into conditions on telling the minister what he or she must do.
If you look at page 51 at the bottom, “Commissioner’s decision,” section 20(1), both (a) and (b), it’s clear that the commissioner has to set out his or her reasons for stating here that he or she is satisfied or not with the reasonableness. What happens then is it would go back to the minister, in the case that he or she found that it wasn’t reasonable, and the minister would have that information and would be able to, perhaps, resubmit the same authorization to the commissioner, having taken the commissioner’s findings into account.
Senator McPhedran: Senator, I’d like to just offer a point of clarification in response to Mr. Davies using the term what the minister “must” do. That is absolutely not the wording of this proposed amendment.
The Chair: Senator, can you clarify the wording?
Senator McPhedran: It says very clearly that “the Commissioner may.” The idea behind this is to build on what is existing in the bill. It does not contradict. It simply clarifies a discretion that matches the authority of the commissioner, and decision-making remains with the minister.
The Chair: Any response?
Mr. Davies: I would just go back to what I said before: 20(1) already says that the commissioner must set out his or her reasons for doing so in terms of findings of reasonableness, and give that conclusion back to the minister. It seems to be very similar.
[Translation]
Senator Boisvenu: My question is for the officials. I understand you told us earlier that the amendment proposed by the senator — to section 12.1, line 29 — was redundant. Ultimately, however, it seems to me to provide a kind of additional security for the commissioner that isn’t provided elsewhere in the bill.
[English]
Mr. Davies: I think it’s hard to predict how a clause that has, here, the conditions you “may” set out will turn out in practice. I think how the minister will respond to that and sort of the subjective “you can if you want to,” is not really clear how this would play out. I think that would be my caution on that.
Scott Millar, Deputy Chief, Communications Security Establishment: I would add as well, when it comes to the ministerial authorizations, if the commissioner does not agree with the minister’s decisions then the ministerial authorization is null and void. At the end of the day, any minister would have to reconsider regardless, and consider enough information that the commissioner would also agree meets the test as they’re laid out, at least for the proposed CSE act portion.
Senator McPhedran: If I may respond to that, just to reiterate that this amendment doesn’t undermine or contradict what’s already in the bill. It’s offered as a clarification of authority and procedure. The idea behind it is that it actually speeds up the process; it makes for a more effective process.
[Translation]
Senator Boisvenu: My remark concerns the comment by the senator. Senator McPhedran, how does that improve or expedite the process?
[English]
Senator McPhedran: Right now, the description that’s in the act is just fine in terms of the general scope of the authority. Leaving the discretion with the commissioner allows for a more direct articulation of a solution to the problem, if indeed a problem has been found. It takes away any question about the reasonableness of the commissioner taking that action and assisting the minister. This leaves the commissioner with the discretion and authority as laid out in the act, and leaves the minister with the discretion and authority as laid out in the act. It doesn’t undermine either one of those scopes of responsibility for either party.
Senator Gold: I think the act in these areas tries to strike a balance between ministerial responsibility on the one hand, which is fundamental in a democratic society, and appropriate oversight to ensure compliance with our constitutional rights and freedoms. Section 35 of the proposed CSE act makes it clear in subsection (d) that it’s the minister who creates any terms, conditions or restrictions that the minister considers advisable in the public interest. It goes on to speak about how that feeds into the notions of reasonableness and proportionality. I think it’s important not to lose sight of this balance and the importance of ministerial responsibility.
In addition, at least according to the testimony of Mr. Plouffe, who we heard on May 2, the process that’s contemplated — and presumably he’s building upon his own experience within the CSE — is a kind of interactive one. He says that if he comes to the conclusion that the minister’s conclusions are not reasonable, he has to write reasons and send it back to the judge. It goes back to the agency and they start again and they come back. Ultimately it’s for the minister to decide, based upon what he or she receives from the commissioner as to additional conditions.
I think this is unnecessary in terms of how I understand the process already to unfold and what’s contemplated. It does suggest perhaps a slight tilting away from ministerial responsibility, even though behind closed doors there may very well be frank and open exchange about what tweaks might be appropriate. I think putting it into law shifts the balance. I’m not sure it’s necessary, so I have some reservations.
[Translation]
Senator Dagenais: Given the complexity of the amendment, I would ask that we suspend for five minutes to discuss it amongst ourselves in order to ensure we understand the merit of the amendment.
[English]
Senator Pratte: I want to explain briefly that in my understanding of the proposal this would significantly expand the role of the intelligence commissioner. Once he or she determines that the authorization or the decision of the minister is not reasonable, he is then asked to provide a condition that would render the activity in question reasonable. Therefore, the commissioner would decide what kind of activity or operation would be deemed reasonable by him. I think that goes beyond the mandate envisaged by this bill, so I have some hesitation.
[Translation]
Senator Dagenais: I in fact asked that we suspend for consultation purposes, and you’ll know the outcome when we vote. I have no further comment.
[English]
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: I hear a “yea.”
We will do a roll call.
Mr. Palmer: The Honourable Senator Boniface.
The Chair: No.
Mr. Palmer: The Honourable Senator Boehm.
Senator Boehm: No.
Mr. Palmer: The Honourable Senator Boisvenu.
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Dagenais.
Senator Dagenais: Yes.
Mr. Palmer: The Honourable Senator Frum.
Senator Frum: Yes.
Mr. Palmer: The Honourable Senator Gold.
Senator Gold: No.
Mr. Palmer: The Honourable Senator Griffin.
Senator Griffin: Yes.
Mr. Palmer: The Honourable Senator McIntyre.
Senator McIntyre: Yes.
Mr. Palmer: The Honourable Senator McPhedran.
Senator McPhedran: Yes.
Mr. Palmer: The Honourable Senator Oh.
Senator Oh: Yes.
Mr. Palmer: The Honourable Senator Pratte.
Senator Pratte: No.
Mr. Palmer: Yes, 7; no, 4.
The Chair: The amendment carries.
Senators, are there any more amendments on Part 2?
Shall Part 2, as amended, carry?
You have an amendment on Part 2, Senator Boisvenu?
Senator Boisvenu: Are we at page 69 of the bill, clause 76?
The Chair: We’re not there yet.
Senator Boisvenu, am I clear that you have no amendments on Part 2?
Senator Boisvenu: No.
The Chair: Shall Part 2, with amendment, carry?
Hon. Senators: Agreed.
Senator Boisvenu: On division.
The Chair: We’re just handing out some proposed amendments at the moment.
Shall Part 3, which contains clauses 76 to 91, carry?
[Translation]
Senator Boisvenu: This is quite a complex amendment. First of all, I move the following:
That Bill C-59 be amended in clause 76,
(a) on page 69, by replacing line 14 with the following:
Look, since I have three pages of this, instead of reading it, I’ll give you a summary of the purpose of this amendment.
Some witnesses emphasized to us the importance of avoiding a two-tiered decision-making process. What the bill currently proposes is that, where a decision must be made concerning a defensive cyber operation or an active cyber operation — I’m referring to subsection 29(2), on page 73 of the bill, and to section 32, on page 74 — authorization is requested from two ministers, the Minister of National Defence, who is responsible for the bill, and the Minister of Foreign Affairs. However, two witnesses told us that this type of dual political decision-making overburdens the system. As in other programs, when two ministers are involved in a decision, the bureaucracy is set in motion in both cases. What we’re saying here is that we should concentrate this decision-making power in the hands of the Minister of National Defence, who is ultimately accountable to the Privy Council Office and to the public. In short, the proposed amendment would simply delete subsection 29(2), on page 73, which reads as follows:
The Minister may issue the authorization only if he or she has consulted the Minister of Foreign Affairs.
We propose to delete this portion of the bill so as not to require the minister to consult other parties, but rather to do so only as needed. In so doing, we would amend a long series of clauses throughout the bill. I could have read you the proposed amendment in full, but that would have taken several minutes. I would add that this amendment puts this decision back into the hands of the Minister of National Defence, and, if he feels the need to consult the Minister of Foreign Affairs, he may simply do so.
Do you want me to read the amendment in full, Madam Chair?
[English]
The Chair: I believe everybody has it in front of them now.
Senator Boisvenu: I have a few pages.
The Chair: Clearly there will be questions. Take a few minutes and read through.
[Translation]
Senator Boisvenu: While you read them, I’d simply like to report some remarks by two witnesses who suggested these amendments to us.
First, in Richard Fadden’s opinion, several ministerial authorizations would merely complicate matters further. That’s why he was in favour of the option of consulting the Minister of Foreign Affairs rather than an obligation to do so.
Similarly, former senator Hugh Segal, of the University of Toronto, an expert in the field who, for some 15 years, has been very much involved in national security matters at various levels of government, was not in favour of this dual authorization. He also suggested that we propose consultation with the Minister of Foreign Affairs rather than give the minister decision-making authority.
[English]
Senator Gold: I oppose this amendment. This is a dangerous amendment.
The development and addition to CSE of both a defensive and active cybermandate was a product of a long and complex series of consultations between the agencies and others. Defensive cyberoperations may very well, and often will, engage other state actors. Even if the actual activities take place on the territory of Canada, it is necessary that the Minister of Foreign Affairs, to whom we entrust our foreign relations, at least be consulted so as to understand the implications of taking actions which will be known to, very possibly, another state actor with whom we have relations, friendly or otherwise.
All the more important that the Minister of Foreign Affairs be required to sign off on active cyberoperations. These are activities that, by definition, will take place in the territory of another state. This engages Canada’s obligations in international law generally and, in particular, the international law of war.
Active cyberoperations could very well drag Canada into a diplomatic crisis, if not, indeed, engage Canada in the possibility of being considered to be at war. We cannot ignore the importance, in a democratic society, of giving the Minister of Foreign Affairs this critical role when this new mandate is being given to an agency to engage our interests.
It is true that we heard testimony that was concerned about ministers not agreeing. We also heard testimony from, among others, Professor Wark, and we could read in the writings — I don’t believe he testified to this effect — and Professor Forcese, that this so-called double-lock system is critical if Canada is to maintain our accountability democratically and our responsibilities internationally. This amendment, though supported by testimony, or at least implied by testimony, would really be ill-advised and not in Canada’s national interest.
[Translation]
Senator Boisvenu: I entirely agree with Senator Gold. The minister is consulted. I never said he or she had to be consulted. I’ll repeat your remarks: the minister is consulted, but he or she would not have decision-making authority. We have a bill designed to make the Canadian intelligence system more effective. Having previously worked in the bureaucracy, I know that having two ministers responsible for decision-making will encumber the process as a result of both differences of political opinion and bureaucratic differences. Instead we want to streamline the process.
In addition, the Department of Foreign Affairs doesn’t belong to what’s called the “club of five”. The Minister of National Defence takes the lead on information and decision-making. Consequently, having two ministers making decisions could complicate matters. If there is a potential negotiation to be conducted, it will be up to the Prime Minister’s Office to do it. If we really want to make the system more effective, there should be a single decision-making path not two.
[English]
The Chair: Are all senators satisfied they’ve had time to read the amendment?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: We need a roll call.
Mr. Palmer: The Honourable Senator Boniface?
The Chair: No.
Mr. Palmer: The Honourable Senator Boehm?
Senator Boehm: No.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Dagenais?
Senator Dagenais: Yes.
Mr. Palmer: The Honourable Senator Frum?
Senator Frum: Yes.
Mr. Palmer: The Honourable Senator Gold?
Senator Gold: No.
Mr. Palmer: The Honourable Senator Griffin?
Senator Griffin: No.
Mr. Palmer: The Honourable Senator McIntyre?
Senator McIntyre: Yes.
Mr. Palmer: The Honourable Senator McPhedran?
Senator McPhedran: No.
Mr. Palmer: The Honourable Senator Oh?
Senator Oh: Yes.
Mr. Palmer: The Honourable Senator Pratte?
Senator Pratte: No.
Mr. Palmer: Yes, 5; no, 6.
The Chair: The amendment is defeated. Are there any other amendments on Part 3?
Shall Part 3, which contains clauses 76 to 91, carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Senator Boisvenu: On division.
The Chair: On division.
Shall Part 4, which contains clauses 92 to 111, carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Senator Boisvenu: On division.
The Chair: On division.
Shall Part 5, which contains clauses 112 to 126, carry?
Some Hon. Senators: Agreed.
Senator Boisvenu: On division.
The Chair: On division.
Shall Part 6, which contains clauses 127 to 139, carry? Senator McPhedran.
Senator McPhedran: Thank you, Madam Chair. I would like to speak to a possible amendment at clause 135, page 134.
The Chair: Could you flag what it says at the top of the amendment?
Senator McPhedran: Mc 135-134.
The Chair: Can we give senators a chance to make sure they have that?
Senator McPhedran: Yes, of course. Thank you. Clause 135, at page 134, and it’s replacing line 3 of that clause.
The Chair: Does everyone have it? Senator McPhedran.
Senator McPhedran: Just one moment, please. I withdraw. Thank you.
The Chair: Senator McPhedran, you need leave to withdraw.
Senator McPhedran: Madam Chair, may I have leave to withdraw?
The Chair: Agreed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall Part 6, which contains clauses 127 to 139, carry?
Hon. Senators: Agreed.
The Chair: Agreed. On division? Carried.
Shall Part 7, which contains clauses 140 to 158, carry?
Senator McIntyre: Madam Chair, I have an amendment at clause 143.
The Chair: Could you give me the number on the top right-hand corner of it?
Senator McIntyre: PM1.
The Chair: It’s being circulated now. Senator McIntyre, could you just wait for a few minutes?
Senator McIntyre: Yes.
Madam Chair, would you prefer that I read the proposed amendment first and then give explanations after?
The Chair: That would work. Thank you.
Senator McIntyre: Thank you. I move:
That Bill C-59 be amended in clause 143, on page 139, by replacing 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.”.
Colleagues, as you can clearly see, my amendment relates to the offence of counselling to commit a terrorism offence, online radicalization and advocacy of terrorism. It is a very serious security and public safety threat. The terrorist attacks in Christchurch, New Zealand, were inspired by an online network. Internet radicalization was a major factor in motivating Martin Couture-Rouleau to carry out his attacks at Saint-Jean-sur-Richelieu in 2014. Terrorists are increasingly motivated and radicalized by the online advocacy of terrorism.
There has been criticism of the proposals made by the government in Bill C-59 to replace the offence of “advocacy and promotion of terrorism” currently in the act with the offence of “counselling to commit a terrorist offence.” The government has argued that the wording change is needed because “advocacy of terrorism” is too broad. The problem the government may have created is that the offence of “counselling to commit” may now be too narrow.
In this regard, former Crown counsel Scott Newark told the House of Commons committee that the wording of the proposed offence of “counselling to commit” would only pertain to one that counsels another specific individual. He stated:
I guarantee you, sir, that if that wording is used, there will be occasions when defence counsel will come to court when somebody is charged, and ask, “Who was it that he was counselling to commit the offence?” If you don’t have another person involved . . .
— if the advocacy of terrorism is just general in nature —
. . . you aren’t able to prove the offence.
Mr. Shimon Fogel, Chief Executive Officer of the Centre for Israel and Jewish Affairs, said the following at the Senate National Security Committee:
Criminal law experts with whom CIJA consulted shared with us the concern that this . . .
— proposed change in the law —
. . . creates a potential loophole that could be exploited in courts by extremists, be they jihadists, white supremacists or others seeking to inspire terrorism. One can imagine such a defendant, after counselling social media followers to commit terrorism, arguing before a future court that they simply published rhetoric before a general audience and did not directly counsel another specific person.
At the House of Commons committee, Mr. Michael Mostyn, Chief Executive Officer, National Office, B’nai Brith Canada said, “This is a weakening of the law that we believe is unhelpful.”
Colleagues, I believe that a solution in language to the government’s proposed wording in Bill C-59 was proposed by Mr. Shimon Fogel in his testimony to the Senate National Security Committee. Specifically he proposed:
There’s an existing model in the Criminal Code that offers a simple but effective formula. The offence of instructing to carry out terrorist activity explicitly applies, whether the accused instructs a particular person or even knows the identity of the person being instructed. This reflects the fact that terror groups can be structured so that operatives do not know the identity of one another. The law on counselling terrorism should mirror this language to ensure it applies when perpetrators call on broad audiences to commit terrorism.
This amendment could be achieved by taking elements of the text currently included in section 83.22(2) of the Criminal Code — that is, instructing to carry out terrorist activity — and adding it to 83.221(2) in Bill C-59, which is the counselling the commission of a terrorism offence. . .
This amendment would provide consistency in the Criminal Code, as well as clarity for police, prosecutors and courts in interpreting this provision, and it would definitively secure the objective of this law . . .
It would:
. . . ensure that those who counsel large audiences to commit terrorism can be held accountable for their dangerous actions.
I also agree with the statement made by B’nai Brith witnesses before the House of Commons committee examining Bill C-59. They stated:
. . . the right of potential victims to be free from terrorism and the threat of terrorism must be a greater priority.
— than totally unrestricted free speech.
I agree, and I believe that we must ensure that the law is both usable and effective in allowing those who counsel large audiences to commit terrorism offences to be prosecuted. You have a copy of the amendment.
The Chair: Thank you, Senator McIntyre.
Senator Gold: I really appreciate the motivation behind this particular amendment and the testimony we heard in committee. I am satisfied, however, that the proposed amendment is neither necessary, on the one hand, for reasons I’ll explain and in fact might have some unfortunate, though unintended, consequences.
It’s not necessary, because the counselling provision that currently appears in the bill, which was a response to what was generally understood to be an over-broad and unconstitutional provision in the previous law, does not require one to show that either a particular person was counselled or that the accused knew the identity of the person who was counselled. Counselling was used in Bill C-59 because it already appears in the Criminal Code, both in section 22(1), counselling somebody to be a party to the offence, or just counselling someone to commit an indictable offence in section 464(a).
The courts have interpreted these provisions to make it clear that there is no requirement to prove that either a particular person was counselled or that the accused knew their identity.
I’ll give you a few examples. In the Mugesera case we’re dealing with someone who gave a speech to a thousand people in Rwanda where he conveyed a very violent message. That was held by the court. The case in the Supreme Court of Canada said that was a counselling offence, an indictable offence.
The Ontario Court of Appeal holding in the Jeffers case that putting up multiple posters around the neighbourhood could amount to a counselling offence, although there were circumstances in that case where the result was different.
Briefly, it’s not necessary. There isn’t a gap in the law, and we heard that indeed in testimony from Mr. Breithaupt before this committee on April 10.
Moreover, chair, because the Criminal Code has two counselling offences already without those qualifications, to introduce this new language in this counselling offence then raises the real possibility that the interpretation the courts have already given to the counselling offences will be cast into question. It is an assumption that legislative drafters use words to accomplish certain purposes. You don’t put words in that mean nothing. All of a sudden we would have two categories of counselling offences, one with these, I suggest, unnecessary provisions, and ones without them. I don’t think it serves us well to introduce those kinds of unforeseen complications in the Criminal Code.
For those reasons, though I understand the motivation behind it, I will vote against this amendment.
Senator McIntyre: Just a final word on this. Thank you, Senator Gold, for your remark.
I just want to add that Bill C-59 will redefine this offence of “counselling terrorism.” There’s no question that Minister Goodale, in recent testimony to this committee, made a reasonable and compelling argument in support of the term “counselling.” As the minister noted, “counselling” is consistent with other Criminal Code provisions. Compared to “advocacy” and “promotion,” as described in former Bill C-51, the term “counselling” enjoys greater legal clarity and broader familiarity among law enforcement and prosecutors.
The problem is, as currently worded, the new offence would apply to “every person who counsels another person to commit a terrorism offence.” In my opinion, this wording suggests that the offence exclusively pertains to one who counsels another specific individual. So the reason for the amendment is to broaden the definition of “counselling” terrorism.
The Chair: No other comments?
[Translation]
Senator Boisvenu: I can’t pass over in silence the comment I made in committee when I asked Minister Blair whether the change between Bill C-51 and this bill leaves enormous room for defence lawyers to exonerate their clients because it will ultimately have to be proven that there was direct communication between an individual who influenced or encouraged someone to commit an act and the person who committed or wanted to commit it. While that was previously referred to as incitement, today the term is communication. I think that has the effect of weakening the bill because the standard of proof beyond a reasonable doubt will ensure that many terrorists and people under arrest are acquitted because their guilt is difficult to prove.
[English]
The Chair: No other comments? Question?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: Do a roll call, please.
Mr. Palmer: The Honourable Senator Boniface?
The Chair: No.
Mr. Palmer: The Honourable Senator Boehm?
Senator Boehm: No.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: Yes.
Mr. Palmer: The Honourable Senator Dagenais?
Senator Dagenais: Yes.
Mr. Palmer: The Honourable Senator Frum?
Senator Frum: Yes.
Mr. Palmer: The Honourable Senator Gold?
Senator Gold: No.
Mr. Palmer: The Honourable Senator Griffin?
Senator Griffin: Yes.
Mr. Palmer: The Honourable Senator McIntyre?
Senator McIntyre: Yes.
Mr. Palmer: The Honourable Senator McPhedran?
Senator McPhedran: No.
Mr. Palmer: The Honourable Senator Oh?
Senator Oh: Yes.
Mr. Palmer: The Honourable Senator Pratte?
Senator Pratte: No.
Mr. Palmer: Yes, 6; no, 5.
The Chair: It carries.
Senators, we’re dealing with Part 6. Are there other amendments?
Senator McIntyre: If I may, Madam Chair, and I’ll need your assistance here. My understanding is my amendment, since it has passed, will affect other sections in the bill.
The Chair: Consequential amendments?
Senator McIntyre: Will we deal with it later?
The Chair: When we get to those parts. Perhaps you could flag for the rest of the senators what those are now.
Senator McIntyre: I don’t have them at hand right now.
The Chair: Perhaps, then, as we go along. No other amendments on Part 6?
Shall Part 7, as amended, carry?
Senator Gold: With your indulgence, I’ll have an amendment in Part 10. I beg your pardon.
The Chair: Shall Part 7, which contains clauses 140 to 158, carry?
Hon. Senators: Agreed.
The Chair: As amended. Pardon me.
Shall Part 8, which contains clauses 159 to 167, carry?
Hon. Senators: Agreed.
The Chair: Shall Part 9, which contains clause 168, carry?
[Translation]
Senator Dagenais: Madam Chair, I am moving an amendment to clause 168. Whereas the bill refers to a period of five years, I propose a period of four years. When Bill C-51 was considered, the Conservative government of the time suggested a period of five years. I feel a period of four years would be a satisfactory compromise.
I would like to make the following correction to the amendment to clause 168, which refers to “the third year after”. I propose that it state instead “during the fourth year after” so that the period is four years instead of five. Unless my calculations are wrong, it should read “during the fourth year after” not “during the third year after”.
A period of four years seems entirely reasonable. If for some reason a problem arose with the approval of certain cases and reviews became necessary, I think it would be more prudent to conduct them every four years. Otherwise a significant error in a file as important as national security might be allowed to stand.
[English]
The Chair: Thank you, Senator Dagenais.
Senator McPhedran: Thank you very much, Madam Chair. Thank you, Senator Dagenais, for this amendment. I strongly support it. I’d like to speak briefly as to why.
There may be other members of the committee who, in their previous lives, have conducted such legislative reviews. I have actually conducted a number of them and led a number of them. This is exactly an amendment that I was hoping to propose as well.
The reasoning for this is that I actually have been involved in a legislative review of this nature on a new bill in a three-year period, a four-year period and a five-year period. The value of the fourth year is that what you’re in effect getting is a five-year review, but starting in the fourth year allows for all of that preparatory work that a proper legislative review requires, such as staffing up, clarifying your terms of reference — all of those. It’s time consuming and it’s very important foundational work, but it’s not your legislative review.
I also want to note that 161(8)(1) that we’re proposing the amendment on very clearly anticipates that if more than a year is needed, then the review committee can go back to their respective house or houses and get that further time if they can make the case for it.
So it seems to me that there’s enough flexibility built into this section to allow for very good design of the review. One of the aspects of design that certainly I have found to be most useful in a review of this nature is to make sure that it doesn’t stay within the bubble of just government. In order to do appropriate outreach and gain information from broader civil society expertise, you need additional time for planning and communication. Moving this to a fourth year, I think, would allow optimally for that.
The Chair: Other comments?
Senator Griffin: I’m also supportive of this, but I would like to make a subamendment to improve it yet again. The subamendment will be the words “information sharing.” I’ll tell you where those would come in. Under (b), where it says:
(b) by adding 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. . .
Then I wanted to add a comma and the two words “information sharing” and the sentence continues on as it was, “and on the interaction,” et cetera.
The Chair: Any debate on the subamendment?
Senator Gold: I hesitate to say it’s debate. My question really pertains both to the subamendment and the amendment more generally, and you can tell me if I’m out of order and should wait. It is whether any of this is really necessary — and I’m not speaking now to the issue of the timing; we’ll come back to that later — because the bill already talks about a comprehensive review of the provisions and operations of this act. To me, that implies all aspects under this act. It’s a very complex act. It deals with information-sharing, disclosure, interaction of all the agencies and others that deal with national security.
I’m not clear as to whether it’s necessary at all. I’ll stop there.
The Chair: We’re talking about the subamendment here.
Senator McPhedran: My observation of the subamendment is that it’s actually very friendly to the amendment. To Senator Gold’s point about this being a complex act, indeed it is. It has many parties and groups affected, as well as our overall society.
Rather than a necessary test in determining whether or not we seek greater clarity here, we should be looking to more of an optimal test. Indeed, where you have an amendment that doesn’t undermine the intent of the original section of the bill, and where that amendment actually guides and facilitates the process that’s envisioned in this clause, it seems to me that it can only be helpful to the process.
The Chair: First we’ll deal with the subamendment. Shall the subamendment carry?
Hon. Senators: Agreed.
The Chair: Shall the amendment, as amended, carry?
Some Hon. Senators: Yes.
Senator Gold: No, I’d like to speak on debate on the amendment, please.
The Chair: Pardon me. Go ahead.
Senator Gold: My concern is with proposed (1.1). It’s not because there’s anything wrong with what is set out there; it’s what is not there. Although the language is that it “must include,” it’s rather, frankly, limited in its scope.
It’s not only CSIS, the RCMP and CSE that are affected by this act. All government agencies — there are 17 or 18 of them — that deal with national security will be reviewed by NSIRA. Many of them have no experience in this kind of review. As much as anything else, taking a look at how they’re doing, which could be a lengthy but an important process. They’re absent here. I would hate to think that the specificity we’re introducing here suggests that review of how the act is affecting them would be deemed less important.
I didn’t mention Canada Border Services Agency, but that’s also a very important one; and, if I might add, National Defence, which was the subject of the first national report of NSICOP, where we learned — much to our surprise, perhaps — how extensive the cyber and other security operations are within National Defence.
Again, this is all good, but it’s very incomplete. I stand by my earlier point. I don’t know that this is that helpful, in light of the comprehensiveness of the review that’s contemplated here.
[Translation]
Senator Dagenais: You have to consider that Bill C-59 will have an impact on the various national security organizations.
If we rightly had to reassess the bill that will affect national security operations, and if, for any reason whatever, we had to alter our methods in all our security organizations, a five-year period might allow an error attributed to the operation of the national security organizations to stand. I repeat: We are talking about national security. In my opinion, four years would be a reasonable period of time, particularly since — even though my friends opposite are all independent — the Liberal Party itself said at the time that a period of three years was enough, whereas the Conservatives called for one of five years.
Today, given the evolving nature of the act and national security organizations, we must set a reasonable period of time, and a period of four years seems to me entirely reasonable, in the event the minister, for one reason or another, had to make corrections or changes to the methods of the national security organizations.
I don’t mean reasonableness must be accepted, but, in another respect, I think a period of four years is long enough. I don’t want to use the term “error”, but we mustn’t prolong the dysfunction in the system, which might hurt the national security organizations.
I think a period of four years is entirely reasonable and a happy medium between three-year and five-year periods.
[English]
Senator Griffin: I have a question for clarification of the proposer of this amendment. The word “must” is used. It doesn’t say it’s exclusively to those agencies, but it must include those agencies. I’m assuming that is meant as a bare minimum; you would not do such a review without these agencies, although it may include others. Can I have that clarified?
[Translation]
Senator Dagenais: If we had to include others for the sake of national security, we could do it. The agencies are named in the bill, but, where it refers to security intelligence, that means the main agencies concerned by national security. And if, for one reason or another, other organizations had to be included for the sake of national security, we shouldn’t reject that idea. However, a four-year period would enable us to act promptly.
[English]
Senator Pratte: I have a question about this for the officials, maybe Mr. Davies. I think you’ve already testified on this, but what was the rationale for choosing the sixth year, and what would be the impact of reducing that period to the fourth year?
Mr. Davies: I believe at the time the sixth year was chosen to coincide with the review of the National Security and Intelligence Committee of Parliamentarians. The idea was to sync it up so there wouldn’t be too much pressure and burden on the national security community to participate in any parliamentary reviews. Everything was supposed to be synced to be at the same time. That was the idea, knowing these things are a big undertaking and not to spread them out year after year.
Senator Pratte: Do you see any negative impact of bringing this delay to the fourth year instead of the sixth year?
Mr. Davies: Probably not a major delay. As I said before, I think this act is so inclusive and there’s so much operational change required by the agencies that it’s going to take you a year, probably a lot more, to get to a steady state. You wouldn’t want to be just getting your feet under you and then all of a sudden be reviewed. You want to make sure there’s a good distance and learning lessons and incorporate those lessons into operations.
Senator Pratte: Thank you.
[Translation]
Senator Dagenais: I respect Mr. Davies’ answer that this should all be done in coordination with a parliamentary committee. However, when bills sometimes need to be amended for the sake of national security, I don’t see why that would have to be coordinated with a parliamentary committee. We’re talking about national security; with all due respect to the parliamentary committee, even if it’s not coordinated, we have to consider the efficiency of our national security agencies above all.
I think a four-year period would help us ensure we at least have something tangible that would enable us to react if, for one reason or another, we had to do so.
[English]
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment, as amended?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: I’m hearing “yea”?
Senator Gold: On division.
The Chair: On division.
Shall Part 9, as amended, which contains clause 168, carry? Agreed?
Hon. Senators: Agreed.
The Chair: Shall Part 10, which contains clauses 169 to 173, carry?
Senator Gold: I have an amendment.
The Chair: Can we just allow the amendment to be circulated first?
Senator Gold: Yes, of course.
As senators will recall, Bill C-59 was amended in the other place to add what is now Part 1.1, the Avoiding Complicity in Mistreatment by Foreign Entities Act. Amongst other things, it provides both for the authority, in all cases, of the cabinet — and the obligation in very specified cases — for the Governor-in-Council to issue written directions in respect of the subject matter of this part of the act. That is to say, in relation to where disclosures of information of any foreign entity would result in a substantial risk of mistreatment of an individual or where the information received might have been tainted by mistreatment suffered at the hands of this source.
This is a major step forward in providing a legislative anchor for these directions to the appropriate deputy heads. The amendment I will propose reads as follows:
That Bill C-59 be amended on page 148 by adding the following after line 6:
“SCHEDULE
(Section 4.91)
SCHEDULE
(Section 4)
Deputy Heads to Whom Directions Have Been Issued”.
This is a blank schedule which will become populated, if I may use that term, by the deputy heads to whom the directions that I just described will be issued.
For example, if the Chief of the Defence Staff or the Deputy Minister of National Defence should receive a direction as contemplated by the act, they would appear in this schedule. The public then has easy access to the list of those deputy heads and, therefore, areas within government where the directions have been issued.
That’s the purpose of this amendment, just to facilitate access to the information as it unfolds.
The Chair: On debate?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Senator Boisvenu: On division.
The Chair: On division.
Shall Part 10, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division, thank you.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Does the committee wish to consider appending observations to the report?
Some Hon. Senators: Yes.
The Chair: I understand there are some observations.
Senator McIntyre: My amendment to clause 143 was accepted, so therefore there’s no need to delete other clauses.
The Chair: Senators, there was an indication that there are observations. I have some from Senator Gold and Senator McPhedran. Is there anyone else? Senator Griffin.
We’ll start with Senator Gold.
Senator Gold: I have a number of observations. Shall we take them one by one?
The Chair: I understand they have been distributed.
Senator Gold: Yes, and I’m sure we could use our officials’ input from time to time.
The first observation responds to testimony that we heard towards the end of our hearings with regard to the French translation of NSIRA, which in French is described as the “Office de surveillance”. It was recommended to us, and francophones and francophiles agreed that a more appropriate way to describe NSIRA and its functions is an “Office d’examen”.
We are recommending that the government change the name throughout the act or the description of NSIRA to “office d’examen.” It was too cumbersome to do this by amending each and every clause throughout this very large bill, and it does not change the functions of NSIRA so it has no practical effect, but it would soothe the savage beasts of those who care about the language, as we all should.
Senator McIntyre: I agree entirely with that observation, Senator Gold. I chaired the New Brunswick review board for 25 years, and in French it was called commission d’examen.
The Chair: We have the first observation proposed by Senator Gold. Are we all in agreement?
Hon. Senators: Agreed.
The Chair: Senator Gold, number 2?
Senator Gold: The second one also responds to testimony from some witnesses or groups of witnesses with regard to the new powers — mandate — granted to CSE for active and defensive cyber. Some have argued that the intelligence commissioner ought to play a role; others were quite clear that it was not an appropriate role to play.
Because this is a new mandate, both for the CSE and because the intelligence commissioner function is a new one, we thought it appropriate to invite the government to take a look at this issue again as to what role the intelligence commissioner might play in the process of approving — and the language is a little unhelpful, actually — and overseeing the authorizations for these activities.
The Chair: Are you satisfied with the language you have in number 2?
Senator Gold: I now say the “process of approving.” “Approving” is not quite the right word. I’m looking for some help here from Doug or Scott. If you’re comfortable with that, it’s fine.
Mr. Millar: I would leave it to committee members. I guess the element, senators, I spoke to last time, in terms of how the legislation was designed in such a way, I won’t repeat all of that, but the intelligence commissioner was there for section 8 of the Charter and other rights protections were built within the prohibitions and the reasonable proportionality test.
In terms of whether “might” is accurate or “in the process,” I’m not sure what you might envisage there. The role of the intelligence commissioner is to be that quasi-judicial oversight, that approval. The commissioner exists for the approval of and the reviewing reasonableness of a minister’s decision. If you’re envisaging that kind of a role for the intelligence commissioner, then the language could be adjusted to reflect that. I would say again that quasi-judicial oversight kicks in with respect to section 8 of the Charter. Again, under our active and defensive cyberoperations, should the bill pass, we would be prohibited from collecting information under that.
The last thing I would say is the intelligence commissioner is involved in the active and defensive cyberoperations by virtue of the fact that we could only act on intelligence already approved by the minister and subsequently approved by the intelligence commissioner. So there is already involvement of the intelligence commissioner in the process of active and defensive cyberoperations.
Senator Gold: I appreciate that. We had testimony to that effect, and I don’t disagree. But we also heard other testimony. This is an attempt to capture the divergence of opinion and punt it to the government to take a look at it.
I might suggest, though, that the language is a little misleading here because it’s the process of approving not the cyberoperations but the ministerial authorization for those operations. I think that’s a more accurate way of describing the role of the intelligence commissioner. I didn’t mean to suggest otherwise.
The Chair: It’s your observation. Do you want to read it out?
Senator Gold: It is:
The government should consider what role, if any, the intelligence commissioner might play . . .
— not must or should —
. . . in the process of reviewing the ministerial authorizations of the Communications Security Establishment’s active and defensive cyberoperations.
[Translation]
Senator Dagenais: Madam Chair, I’m put off by talk about an approval process by the commissioner. In national security operations such as active and offensive cyber operations, giving the commissioner another role in the approval process may slow down or obstruct the work of the national security agencies. So it seems to me the commissioner will have quite a big role, but, if he takes a stand in approval processes, that will obstruct matters. We have to act upstream and quickly when it comes to national security. I’m amused by that observation.
[English]
The Chair: Shall this observation carry?
Hon. Senators: Agreed.
The Chair: Number 3, Senator Gold.
Senator Gold: Yes. The challenge of determining what exactly is publicly available information and what it includes was the subject of much testimony in the committee. We know that there were internal undertakings and understandings that, for example, within the service and within the community that hacked information will not be considered publicly available. That’s tout à l’honneur of our intelligence and security agencies. Nonetheless, questions have been raised as to how clear and publicly known these things might be.
We know that Bill C-59 was amended in the other place to provide that publicly available information is not information in which we have a reasonable expectation of privacy, but lots of questions still remain. Does that include metadata?
Recognizing that it’s complicated, we would recommend that the responsible minister or ministers issue some public guidance as to their understanding so that the public, the agencies and other stakeholders will understand the rules of the game in a rapidly changing environment. That’s the thrust of this.
The Chair: Observation number 3, any comments? Agreed?
Hon. Senators: Agreed.
The Chair: Observation 4, Senator Gold.
Senator Gold: I’m looking at my colleague on the left to see. I’ll speak to this and we might want to put a couple together and discuss them.
It’s clear that NSIRA is given a system-wide, government-wide review function in the act, and for the first time will have that kind of system-wide review. We also know that NSICOP is a new and welcome addition to the review and accountability of our security and intelligence establishment. But we also know that issues of privacy rights and personal data are implicated in all kinds of ways within the day-to-day operations of our security and intelligence community and, of course, figure prominently, and the protection of our privacy rights figure prominently in the bill.
We heard testimony from the Privacy Commissioner, who said, if I recall correctly, two things. One, he said he bemoaned the fact that although he was entitled to provide confidential information to NSIRA, he had no explicit authority vis-à-vis NSICOP. That was one. Second, he was hoping for collaboration and cooperation with NSIRA and NSICOP, and thought that was a salutary thing, as I do too. But the actual nature of that isn’t clear to me entirely, especially given the review functions to NSIRA and the role of NSICOP to set its own agenda.
Therefore, this is an observation that invites the government to consider what role — and I might say more formal role or how to structure the role — the Privacy Commissioner might play or ought to play in the context of the review functions of NSIRA and NSICOP. It takes no position on what that should be, but invites the government to consider it.
Senator McPhedran: I want to begin by expressing support for the thrust of the observation that Senator Gold has proposed here. I would like to read into the record a more detailed build on that for consideration by the committee. The wording from number 4 just spoken to by Senator Gold, this is my proposal for how that could be elaborated upon:
The Communications Security Establishment’s use of publicly available information under section 23(1)(a) of the proposed Communications Security Establishment Act should be reviewed by NSIRA in cooperation with the Privacy Commissioner. NSIRA and the Privacy Commissioner should report on their findings and assessments to the National Security and Intelligence Committee of Parliamentarians annually.
I would highlight what I think is a change. First of all, it’s more detailed, it’s very specific about the function here and mentions the specifics of the act. Subject to officials who may want to respond to it, I think for this observation this is a message from our committee, and hopefully from the Senate, that there is a role, a function, here of parliamentarians. It’s setting it out much more clearly, and it’s creating the assessments and findings being presented annually to parliamentarians, entirely consistent with what is described in the act as the function of the National Security and Intelligence Committee of Parliamentarians.
This is more detailed. I don’t think there’s any substantial difference, although Senator Gold may wish to comment.
Senator Gold: My only comment would be — and I’m really looking at the clerk — whether Senator McPhedran wants to propose it as an amendment to mine so it becomes all one, whether it makes sense to have it as one or as two separate observations.
The Chair: It’s the committee’s decision. We can do it as a single or we can do it as two separate.
Senator McPhedran: I propose it as an amendment.
The Chair: To Senator Gold’s.
Senator McPhedran: To Senator Gold’s.
The Chair: Would you read it through?
Senator McPhedran: Yes.
The Communications Security Establishment’s use of publicly available information under section 23(1)(a) of the proposed Communications Security Establishment Act should be reviewed by NSIRA in cooperation with the Privacy Commissioner. NSIRA and the Privacy Commissioner should report on their findings and assessments to the National Security and Intelligence Committee of Parliamentarians annually.
Senator Gold: I have a question for the officials. The phrase that’s of some concern to me in Senator McPhedran’s addition would be, “should be reviewed by NSIRA in cooperation with the Privacy Commissioner.” I don’t know what that means. I don’t know if the intent is to give the Privacy Commissioner a formal role or to require NSIRA to cooperate. If it is, I’m a little uneasy. Bill C-59 gives NSIRA the review function.
The Privacy Commissioner plays a really important function in our system, as an agent of Parliament. So I’m a little concerned about that. I feel a little uneasy.
What I’m proposing, which is broader, I can stand behind. I certainly wouldn’t oppose this as a separate one, Senator McPhedran, but maybe I can ask for comment from the officials. Maybe my concerns are ill-placed.
Mr. Davies: I’ll start, and Mr. Millar will help me out.
There are already provisions in the act to encourage NSIRA to work with the Privacy Commissioner. Section 15(1) is clear in terms of encouraging cooperation between the two entities.
I think the concern when you get more prescriptive, like an annual report, you would have to talk to the Privacy Commissioner, but that may not be where the Privacy Commissioner thinks the most value is in terms of looking at privacy issues affecting Canada, where the budget comes from and so on. Likewise with NSIRA. They’ll have their own board and work plans.
You just want to be sure that these things are thought through. There may be some asymmetrical information access issues as well between the Privacy Commissioner and NSIRA. NSIRA has access to everything, except for cabinet confidences. That’s not necessarily the case with the Privacy Commissioner, also within the works and the confines of the Privacy Act.
Senator McPhedran: Just two points. One, the wording of the observation that I’ve proposed is drawn from the testimony of the Privacy Commissioner.
Second, the words “in cooperation with” are not nearly as prescriptive or directive as is being characterized.
The Chair: I’m wondering if, just as a suggestion, we can park this, move on and then come back to this at the end. In the meantime, we may be able to sort out some wording and, in the end, we may be able to keep two separate ones or we may not. Are we agreeable with that?
Senator Gold, do you want to move to number 5, then?
Senator Gold: Number 5 is Senator Griffin’s.
Senator Griffin: They all got grouped together. I’ll read mine:
[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 urges the government to authorize the Privacy Commissioner to share confidential information with NSICOP.
As you will recall, our first witness was the Privacy Commissioner, and he did see this as a flaw in the bill. So rather than proposing an amendment, I wanted to propose an observation.
Senator McIntyre: I don’t have any problem with your observation, Senator Griffin, but perhaps a very minor suggestion. In the line “Therefore, the committee urges,” I would suggest “the committee invites the government to authorize.”
Governments don’t like to be urged, if I may put it mildly. I would suggest “the committee invites.”
[Translation]
In French, the sentence would read as follows: “Par conséquent, le comité invite le gouvernement à autoriser...”
[English]
Senator Griffin: I’ll accept that subamendment, even though it’s wimpier than what I wanted.
The Chair: Is everyone in agreement with observation number 5?
Hon. Senators: Agreed.
The Chair: Agreed.
Number 6. Senator Gold, is that yours?
Senator McPhedran: I support it.
Senator Gold: Sorry, I was confused. We had a lot of testimony, in our discussion of the Secure Air Travel Act, of the situation that can result when information that’s relevant to a person’s case cannot be shared or disclosed in open court because of the nature of information or the sources from which the information came.
A number of witnesses testified and recommended that special advocates be provided to persons who are appealing, for example, their presence on the no-fly list. These are not the kids who have the same names but people who are actually on it and want to get off it, and, for whatever reason, are denied that but have the right to appeal under the act.
The challenge here is the scope of the role of a special advocate and the difference between the special advocate and an amicus. We had testimony on that.
We just think this is an important issue of due process that needs to be examined more carefully. To that end, we are somewhat prescriptive here. I think that they ought to provide special advocates, but again it’s an observation and the government will do what it decides to do.
[Translation]
Senator Dagenais: The idea of appointing special advocates seems to suggest that those currently in office are incapable of doing their jobs. Second, who’s going to pay for this? I’m somewhat hesitant. I understand that advocates like to work and that they enjoy it, but we have to be careful all the same. What makes them any more “special” than others?
Senator Gold: I appreciate the question on costs. This will generate costs, and that’s why the matter must be thoroughly analyzed. However, I believe that the expression “special” advocates means “front-line”, that they have a kind of authorization to receive and be cognizant of intelligence that would otherwise be “privileged”.
[English]
That could not be disclosed in open court.
So the special advocates we have in the immigration and refugee appeal proceedings are lawyers who have special clearance so that they can receive the information and then represent the person who can’t necessarily be there, and that provides for fairness in the procedure.
[Translation]
Senator Boisvenu: I want to understand Senator Gold’s intent. Do you mean that, if people wind up on a list and file an appeal, it will be up to the government to provide them with a lawyer and to pay their fees?
[English]
Senator Gold: In the same way that people who are subject to security clearance provisions under the immigration security act have the right to have a fair trial or a fair process when their liberty is at stake. I’m not saying the nature of the liberty interest is exactly the same when you’re detained and threatened to be deported as when you’re denied the ability to get on a plane, because you can’t be there, necessarily, and you don’t have access to the case against you. In the absence of someone to represent your interests there, there is a serious question of whether your rights to fundamental justice are being adequately protected.
In that respect, yes, the government would pay the price for these processes, as it does in the immigration and refugee appeal process.
[Translation]
Senator Dagenais: I understand Senator Gold’s good intentions. On the other hand, if people wind up on a travel ban list, it’s because someone somewhere made that decision. Now we’re saying that, if people want to challenge the government’s decision, they’ll be entitled to a lawyer paid for by the government. I find it hard to imagine the government saying it has made a decision and then reassuring people that they shouldn’t worry about lawyers’ fees because it will pay them. I admit I find that a bit unusual.
[English]
Senator Gold: Perhaps one last word, and we can call the question. The law gives you the right — and it’s not Bill C-59 — to appeal that decision. The question is: Is it a fair appeal if you have no one there who has access to the case against you and who can plead your case? It’s really a question of fundamental justice.
[Translation]
Senator Boisvenu: I think that’s a very dangerous precedent. Ultimately, there are a lot of federal acts under which people may have to assert their rights, whether it be in immigration or labour matters. Would the government pay lawyers in those specific cases?
[English]
Senator Gold: Would the officials have a comment?
Mr. Davies: I would say that this issue has been brought up a lot. Anytime there’s a case before the Federal Court, sometimes there’s information that is sensitive, is classified. The defendant may not know the full case against him or herself. In immigration proceedings, in the Immigration and Refugee Protection Act, division 9, there is a provision for special advocates to represent the defendant at certain points in the process when classified information is brought in.
Right now, that doesn’t exist in other parts of law. In the proceedings, if you were on the no-fly list and it went to Federal Court, the judge may appoint an amicus, a friend of the court, who would have access to classified information but not really representing the defendant. That amicus may bring up points of law, argue things and take on a role as the judge defines, but the testimony that I think you’ve heard prior at this committee was “should a similar scheme.”
Special advocates do cost money. There would be a roster, training and everything. I guess the reality is the amicus as well does cost resources, and the government has to pay for that.
This issue is just one area of law in terms of administrative law. There are a lot of other programs the government is looking at as to whether this kind of scheme makes sense. How you would frame it may be different from the immigration setting.
That would be only one observation I would make. As you observed, the government should look at this. There are broader issues at play that you may want to think about.
Senator McPhedran: Thank you very much. I think it would be great if we could bear in mind that not only is there a proven process already referenced in more detail by Mr. Davies, but as Senator Gold has set out, we’re not talking about the creation of new rights. We’re talking about not only respect and words about rights, but we’re talking about the state, with its enormous resources, and the fact that legislation, law passed by the state, by Canada, needs to have a threshold of fairness in order to be credible and functional.
The special advocate function is actually both time-saving and cost-saving because in the moment, when decisions have to be made, relevant information is going to be made available in a protected manner to the person who is being subjected to the review. We want that review to take place. We want the security aspects of what Bill C-59 addresses to be reinforced and supported, and we want it to be efficient. We want it to respect Charter rights. It’s possible to do both, and the function of the special advocate becomes a critical component of doing both.
[Translation]
Senator Boisvenu: Madam Chair, one of the greater flaws in the justice system in Canada is that victims are guaranteed neither financial nor legal support. There is no such support. Ultimately, we would be offering financial and legal support to people on a black list...because there is still a right to appeal. What we’re adding is the idea of funding one’s right to appeal; whether the individual is rightly or wrongly on the list, whether the individual is guilty or not, we’ll have to pay the costs. Is that in fact what you’re saying?
we won’t be making any distinction between an individual who should be on the list and one who shouldn’t and whom we should perhaps reimburse for legal fees. However, why should we pay the fees of the individual who is rightly on the list? Even victims are entitled to that treatment in Canada. I find it utterly unfair.
Senator Dagenais: So, if my understanding is correct, if I don’t agree with an act that concerns me, I can challenge it and ask the government to pay my lawyer. I think that’s nonsensical. People have a right to challenge the laws and may hire a lawyer, but it makes no sense then to say that the government should pay that lawyer.
[English]
Senator Gold: Chair, I think we need to call the question. With the greatest of respect, that’s not what’s being proposed here. This is not a right to challenge the law. It’s not a court challenge. This is simply a recommendation that when a person’s liberty has been denied, and they are before a court appealing that decision, they have the right to have somebody there who has access to the information relevant to the case against them because, by definition, the evidence is not able to be disclosed in public for national security reasons. It would provide an ability of a security-cleared lawyer to stand in his or her place in order to make sure that their constitutional rights are respected. It’s a big deal, but it’s not more than that. Perhaps we can call the question.
The Chair: Call the question, then. All those in favour?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Okay. Let’s do a roll call.
Mr. Palmer: The Honourable Senator Boehm?
Senator Boehm: Yes.
Mr. Palmer: The Honourable Senator Boisvenu?
Senator Boisvenu: No.
Mr. Palmer: The Honourable Senator Dagenais?
Senator Dagenais: No.
Mr. Palmer: The Honourable Senator Frum?
Senator Frum: No.
Mr. Palmer: The Honourable Senator Gold?
Senator Gold: Yes.
Mr. Palmer: The Honourable Senator Griffin?
Senator Griffin: Yes.
Mr. Palmer: The Honourable Senator McIntyre?
Senator McIntyre: Abstain.
Mr. Palmer: The Honourable Senator McPhedran?
Senator McPhedran: Yes.
Mr. Palmer: The Honourable Senator Oh?
Senator Oh: No.
Mr. Palmer: The Honourable Senator Pratte?
Senator Pratte: Yes.
Mr. Palmer: Yes, 5; no, 4; abstentions, 1.
The Chair: The observation carries. Number 7, Senator Gold.
Senator Gold: Thank you, chair. Numbers 7 and 8 really speak to a concern that we make sure that the tools we’ve put in place in this bill and the tools are available are adequate to the task of combatting terrorism, both online and in our courts, under circumstances where the threat environment is changing so rapidly, the technological capacity of people to engage in terrorist activity and other forms of violent extremism is ballooning. Despite the fact that I think Bill C-59 does provide a very rich suite of tools to law enforcement, to security and intelligence agencies, the world is changing so quickly.
So observation number 7 invites the government to evaluate whether the existing provisions of the law are adequate to address the presence of online terrorist propaganda and online violent extremist content and whether law enforcement, national security and intelligence agencies have sufficient tools to address the potential harms caused by such content.
Senator McIntyre: I don’t have any problem with your observation, Senator Gold. It’s just that it reads, “The government should evaluate,” and I was wondering if we should reframe and simply say, “The committee invites the government to evaluate.” I don’t want to be picky.
Senator Gold: Picky is good. I’d be fine with that.
The Chair: Considering Senator McIntyre’s suggestion, I see agreement from Senator Gold. Are we agreeable with number 7?
Hon. Senators: Agreed.
The Chair: Number 8.
Senator Gold: Number 8 flows directly from the testimony of Professor Forcese towards the end of his appearance before this committee but responds as well to preoccupations that he has expressed over the years in his academic writing. Although I shouldn’t speak for officials at the table — but they might want to comment — engage questions that our intelligence, security and law enforcement agencies have been grappling with for decades. That is the challenge.
That challenge was addressed, understandably, by many senators around the table when questioning: Why are there so few prosecutions? Why are there so few convictions? We have some statistics, but I think the fact remains there are lots of reasons why. Some of them may have to do with resources.
One cluster of reasons has to do with the challenge of taking information gathered in the course of intelligence gathering by our agencies, and converting that to usable evidence in the hands of law enforcement, which could then be translated into prosecution.
Figuring out operationally, but also legally, how we move between intelligence to usable evidence is one of the challenges we face in Canada in order to properly prosecute. It’s a particular challenge in Canada because we have broad disclosure rules in our criminal law; and it’s to our credit, but it complicates matters. We can’t change that without changing fundamentally the nature of our criminal justice system, which is not what is being contemplated here.
The other challenge flows from that in that because we have the need to protect some information that remains and should remain undisclosable because it would compromise sources or intelligence operations, sometimes criminal cases can’t be held in open court. Therefore, we have a procedure in our law, through the Canada Evidence Act, whereby things can go to Federal Court, and it’s not in open court, to boot.
These things conspire with others to challenge our ability to translate the intelligence we’re gathering to keep us safe and to properly prosecute in many cases. So the recommendation here is that we in the Senate ought to take it upon ourselves in the next Parliament to use our good offices to look at this carefully, inviting our security and intelligence agencies, inviting the academic community and other stakeholders to share their experience. We could then perhaps be helpful in addressing a problem that, at least for some time, has remained rather knotty and difficult to unravel.
So that’s the thrust of this. I know it’s a bit unconventional to recommend that the Senate take on its own initiative. I’m relatively new here still, so if that’s out of order I’m sure somebody will point that out. However, I do think it would be an important contribution, once we pass Bill C-59, to take the next step to try to make more effective the law enforcement dimensions of our national security law.
Senator McPhedran: I want to strongly support this proposed observation, and I want to ask if it might be possible to add a few words at the beginning. Those words would be: “Prior to the review in section 168(1), the Senate should . . .” all the same wording.
My rationale for that is the considerable added value of having the Senate launch a process prior to the design of the fourth-year review that we’ve been discussing in order to make available a lot of information that would enhance the actual review under what would become section 168.
Senator Gold: Chair, I would welcome that. I would add one more thing, for the benefit of senators who are wondering what we are undertaking or binding.
As members of this committee know, this committee does not have the ability to give itself work. For the Senate to do this, it would require a motion in the Senate and a decision by the Senate as a whole. So were we to proceed with this observation, it would remain in the next Parliament for the Senate to discuss and debate. If it so decided to authorize this or any other committee to undertake this study, it would so do.
The Chair: Any other comments? Are senators in agreement with observation number 8?
Hon. Senators: Agreed.
The Chair: Senator McPhedran, I understand you have some observations as well?
Senator McPhedran: I do.
The Chair: For the sake of all senators, what we have written is in English only. Senators will have to read them out so that others will have the benefit of the translation.
Senator McPhedran: Putting aside number 4 on my list, because I think we’re going to have a discussion about that, number 1 on the list that was circulated is the following:
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.
I’m hoping my friends on the other side like this one.
Senator McIntyre: Senator McPhedran, in light of my amendment to section 143, this is now irrelevant.
Senator McPhedran: Can you help me to understand why?
Senator McIntyre: Well, I don’t know. I’m asking you.
Senator McPhedran: But you’re saying it’s irrelevant, so can you help me to understand?
Senator McIntyre: The offence of counselling, there are four steps that are part of the amendment I have made. I just don’t understand your —
Senator McPhedran: Do you think it’s just superfluous to your amendment?
Senator McIntyre: Yes, I think it’s a bit superfluous.
Senator McPhedran: Okay.
Senator McIntyre: Had my amendment not been adopted, I think it would have been different. That’s just my opinion.
Senator McPhedran: Okay.
Senator McIntyre: Maybe others have a different opinion on this.
The Chair: Any others?
Senator McPhedran: Senator McIntyre, this is more specific than your amendment because it speaks very clearly to the guidelines, describing what constitutes the offence. Do you not see this as complementary to your amendments?
Senator McIntyre: Well, maybe it’s both. The purpose of my amendment is that the offence of counselling to commit a terrorism offence be broadened to apply when perpetrators call on broad audiences to commit terrorism. Of course, what I suggested is that we take the elements of the text currently included in section 83.22(2) of the code — that is, instructing to carry out a terrorist activity — and adding it to 83.21(2) in Bill C-59, which is counselling the commission of a terrorism offence, and then inserting the four clauses that are part of the amendment. I think that pretty well covers it all. If colleagues want to adopt your observation, that would still be fine with me.
Senator McPhedran: Because it doesn’t undermine the amendments that we’ve —
Senator McIntyre: No, it doesn’t undermine.
Senator McPhedran: Right, it doesn’t undermine.
The Chair: Are colleagues in agreement with number 1?
Hon. Senators: Agreed.
The Chair: Number 2, Senator McPhedran.
Senator McPhedran: Yes. This is a question I’d like to pose to the officials who are with us in relation to the second one:
Section 21.1 of the Canadian Security Intelligence Service Act should be interpreted to require a warrant anytime Charter rights are implicated by a threat reduction activity. All CSIS threat reduction activity should be reviewed by NSIRA and reported on annually to NSICOP.
I very much welcome feedback from our officials.
Tricia Geddes, Assistant Director, Canadian Security Intelligence Service: Thank you, senator. I’m happy to provide a little clarification here. We spent a significant amount of time ensuring that the amendments to the language in our acts around the threat-reduction provisions were going to be quite clear and precise this time about the Charter compliance, to make sure it was clarified. Any threat-reduction measures undertaken should be Charter compliant.
That said, while we were working on the language, we were trying to ensure we weren’t creating a threshold that would invoke a requirement for a warrant with some of our very simple threat-reduction measures that we currently are able to undertake without a warrant.
The language like “implicated” or “engage” we felt was too broad and that would encompass a number of activities, one example of which might be asking a family member of a prospective terrorist traveller to dissuade them from travelling, as this might engage their Charter rights to mobility. Another example is reporting social media accounts for violation of terms of use, such as the promotion of extremist material online.
Those types of things, we understand we could currently undertake without a warrant. We assess all of our threat-reduction measures with legal advice from Department of Justice colleagues. Their view was that we would like to leave ourselves the flexibility to have those very simple threat-reduction measures undertaken without a warrant. Indeed the language we chose to use was around limiting a right or freedom. That’s what we proposed in the bill.
Senator Gold: Thank you for that. I know it is an observation, but do I understand correctly that, if this were actualized, you fear it would put an unnecessary obstacle in your way vis-à-vis those categories of activities you described?
Ms. Geddes: Yes. It would assume we would need to seek a warrant for a broader category of activities and not one that I think would be envisioned by the committee, at least from the examples we provided about warranted versus not warranted threat reduction. Again, we did explore the language carefully. Words like “implicated,” “engaged,” and so on were studied very carefully with counsel to see how they might be interpreted, as opposed to a much clearer task and precise language around limiting rights or freedoms.
Senator McPhedran: I have a question for our officials that pertains to the second part of this proposed observation which reads, “All CSIS threat reduction activity should be reviewed by NSIRA and reported on annually to NSICOP.”
Could I have any response to that part?
Ms. Geddes: Sure. In fact, it is required that all our threat-reduction activity would be reviewed by NSIRA. I’ll leave it to my colleague John Davies to comment on the follow-on report to NSICOP.
Mr. Davies: Proposed section 8(2) requires the review agency, in each calendar year, to review one aspect of the service’s threat-diminishment activities. That would be hard-wired now if this bill were passed. There is a concern if you move up to “all” threat-reduction activity; you would not really be sure of the end scope of that. The idea was, each year, to take one angle and get the review body to look at that. The summary is reported publicly. To do all aspects every single year, you would not be sure of the scope and the burden on the agency or the review body.
Senator McPhedran: That’s a very important point.
Ms. Geddes: To clarify, it’s true that all of our threat-reduction activities are “reported” to NSIRA, as opposed to “reviewed” by NSIRA. That is a nuance, for sure.
Senator Gold: This question is for the officials. I sometimes think we fall into error in seeing all of these new structures in hierarchical terms. NSIRA reviews a lot of departments and agencies involved, and the intelligence commissioner has oversight of various activities. NSICOP is different. Is there is an implicit gesture towards the thought that somehow NSICOP is there to review NSIRA, and it’s not, as I understand, the function of the committee of parliamentarians to set their own agenda — well, the mandate that they have and their ability to set their agenda. Am I right in describing it in non-hierarchical terms?
Mr. Davies: That’s right. Acts are set up to encourage complementarity between the two bodies, to make sure they don’t overlap in their work plan and in the burden on both of them to do very similar kinds of reviews, to cooperate as much as possible. There would be nothing preventing NSICOP from doing a deep dive on this aspect of the service’s mandate if the committee members wanted to do that.
Senator McPhedran: Could I make sure I’ve understood the point you just made, Mr. Davies? In the one we will revisit, observation 4, as well as in this one, there is a very specific reference to reporting to the committee of parliamentarians. I don’t think I’ve understood if you’ve made the point; is there a problem with that, reporting annually to the committee of parliamentarians?
Mr. Davies: I think maybe it’s how we’re using the word “reporting.” The act includes a lot of transparency between the review bodies. So, “Be aware that I’ve reviewed that,” if you are allowed to see the information. “Here you go. Here are the results of our review,” in terms of NSIRA sending information to the NSICOP and vice versa. It’s not a hierarchy. It’s not NSIRA reporting to the NSICOP or in any way responsible; they are completely distinct entities.
Senator McPhedran: The wording in this proposed observation is “reported on annually to.” Is that problematic, from your perspective?
Mr. Davies: It’s fine for the review agency to hand over the findings of an assessment that NSIRA has done. It is expected that they inform each other. I don’t think you want to go down the road that somehow NSIRA is subservient or somehow accountable to NSICOP.
Senator McPhedran: Should the wording change to “should be reviewed by NSIRA with its findings reported annually to,” instead of “reported on”? Is it simply a transmission of the information?
Mr. Davies: That’s probably a better way to characterize it.
Senator McPhedran: Okay. I’m happy to make that change.
The Chair: Would you read your proposed change it in its entirety, please?
Senator McPhedran: Yes, I will.
Section 21.1 of the Canadian Security Intelligence Service Act should be interpreted to require a warrant anytime Charter rights are implicated by a threat-reduction activity.
In that portion of it, I am persuaded “are implicated” is too strong a term. Our present discussion is on the second part, which would read, as changed as a result of the response from officials:
All CSIS threat reduction activity should be reviewed by NSIRA with its findings reported annually to NSICOP.
The Chair: Senator McPhedran, just to be clear, are you taking out the first sentence in what you’ve distributed?
Senator McPhedran: Yes.
The Chair: The proposal on the table at the moment then is just the final sentence?
Senator McPhedran: That’s correct.
The Chair: I ask you to read it again.
Senator McPhedran: I will:
All CSIS threat reduction activity should be reviewed by NSIRA with its findings reported annually to NSICOP.
The Chair: We have a proposal on the table for observations. All those in favour?
Senator Gold: Mr. Davies, now that you’ve heard it, do you have any last comments that would be helpful?
Mr. Davies: Just to remind you of my observation on your observation: When you say “all,” remember that the drafting now has at least one aspect for the burden issue. If you say “all” threat reduction should be reviewed and reported on, that is again a very large scope to be taken on every year.
Senator McPhedran: If you took out “all” and it became:
CSIS threat reduction activity should be reviewed by NSIRA with its findings reported annually to NSICOP.
Mr. Davies: I think that’s — yes.
Senator McPhedran: That addition is manageable? I’m going with that.
The Chair: So, senators, the proposal is:
CSIS threat reduction activity should be reviewed by NSIRA with its findings reported annually to NSICOP.
All those in favour?
Hon. Senators: Agreed.
The Chair: Agreed?
Senator Boisvenu: On division.
The Chair: On division, thank you.
Number 3, Senator McPhedran.
Senator McPhedran: No, I’m withdrawing number 3.
The Chair: Okay. And your final one is number 5, and then we’ll revert to number 4.
Senator McPhedran: Yes, thank you. So number 5 reads:
When NSIRA reviews records on information sharing provided to it under proposed section 9(3) of the Security of Canada Information Sharing Act, it should do so in cooperation with the Privacy Commissioner. NSIRA and the Privacy Commissioner should report on their findings and assessments to National Security and Intelligence Committee of Parliamentarians annually.
It’s a repeat of the previous theme of the information sharing to the committee of parliamentarians, and it also is a repeat of the concern for engagement with the Privacy Commissioner.
The Chair: Comments?
Senator Gold: Technical question. Bill C-59 renames the act the “Security of Canada Information Disclosure Act.” I think we would suggest that we make that change.
Senator McPhedran: Yes.
Senator Gold: I still remain a little uneasy with the language of both — I believe in cooperation. I just don’t know what this means here. The implication that somehow there is some responsibility for joint review and reporting gives me some pause. I wonder if the officials might give their views on this.
Mr. Davies: My observation would be the same as we talked about with number 4. Again, NSIRA is a separate entity with its own board. It will create its own agenda. The Privacy Commissioner may have his or her own priorities for his or her institution, their own budget. Making sure each are aware of each other’s priorities and agendas and being able to cooperate and share information in that regard is one thing, but to imply they should be working together on the same study, given their different mandates and potential different priorities throughout the year, and to do so in an annual way may be difficult.
Senator McPhedran: Could I ask whether that comment applies also to the second part that begins, “NSIRA and the Privacy Commissioner”?
Mr. Davies: Yes.
Senator McPhedran: Because bringing the Privacy Commissioner into the loop to be able to raise privacy concerns from the specialization from the job given to the Privacy Commissioner by Parliament doesn’t necessarily mandate or require formal cooperation. It does require a degree of information sharing, which in turn would go before parliamentarians.
Mr. Davies: You’re correct. The act as proposed does encourage coordination. As I mentioned, section 15.1(1), there’s an expectation they’re going to talk to each other, deconflict agendas and not create redundant reviews on the agencies. In that sense, they would likely want to talk about their findings and any conclusions inasmuch as they could, but to say that they must be working together in all cases annually on this kind of review, I’m not sure if that would be sustainable in the long term.
Senator McPhedran: I’m just wondering, given we are going to discuss number 4, whether we could roll this in. The principles articulated in 4 are really repeated in 5, but they’re specific to a different section of the act.
The Chair: Okay. Shall we stand that down and then we’ll go back then to number 4?
Senator Gold, do you want to proceed? I’m not sure if you’ve been able to work anything out or not.
Senator Gold: The discussion has been helpful, so thank you.
Mr. Millar: I didn’t want to impose myself, but I’m available to make a few points on the publicly available information on CSE, but I stand ready. As it relates to number 4 in terms of the two and the review of publicly available information or the role of the Privacy Commissioner.
Senator Gold: What I would recommend is that we actually separate out what is identified as number 4 on the document from which I’ve been presenting recommendations and then treat Senator McPhedran’s ones separately, only because I don’t think they contradict — I think they could stand together as separate observations. I would feel more comfortable speaking directly and only to number 4, which is, to repeat what I’ve said before, that the government should review or “could be invited to review,” if Senator McIntyre would prefer that language. I’m indifferent one way or the other. The idea is to invite them to review what role the Privacy Commissioner might play in the overall context of the reviews that are mandated by the act, in this case to NSIRA or to the role that NSICOP is required to play under its act, Bill C-22. That then leaves the field open for the government working with the relevant institutions to decide what tweaks, if any, they might want to introduce into legislation going forward.
The Chair: Senator Gold, just to be clear, in your particular proposal and observation, which in your proposal is numbered 4, you’d leave the wording as it is today?
Senator Gold: I would like to leave it as it is and treat the other issues separately, if possible.
Senator McPhedran: This is also a request for official response, just to make sure I’ve understood correctly. As I understand, the reference to section 15(1), primarily by Mr. Davies, dealing with the mandate and aspects of the mandate of the establishment, did I understand you correctly to say that the act as proposed already incorporates some form of engagement with the Privacy Commissioner to a greater extent than what we see now?
Mr. Davies: Yes. For example, subsection 2.
Senator McPhedran: Okay. So may I suggest or ask whether Senator Gold might be willing to take out the words “if any,” since the proposed act clearly sees a role for the Privacy Commissioner without a lot of detail?
Senator Gold: Sure. I have no problem with that.
Senator McPhedran: Okay. Then I’ll withdraw my number 4 and go for this.
The Chair: Okay. So what we’ll be voting on, Senator Gold.
Senator Gold: I’ll re-read just the lines that changed. In English:
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).
And the French actually needs not change, quite frankly. It captures the same idea.
The Chair: Are we in agreement, senators?
Hon. Senators: Agreed.
The Chair: Senator McPhedran, does that close yours?
Senator McPhedran: I think it does.
The Chair: Perfect. Thank you all.
Senators, is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make technical, numerical and typographical changes and adjustments to the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Is it agreed that I report this bill, as amended, with observations to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you very much, senators. It’s much appreciated.
To the officials, thank you very much for joining us today.
(The committee adjourned.)