Parliamentary Passage of Bill C-59: the National Security Act, 2017 - Fulfilling Commitments to Address Former Bill C-51: Overview of New Measures

The Government used the input provided by Canadians during its unprecedented public consultations on national security to follow through on its commitment to amend the problematic elements of the Anti-terrorism Act, 2015 (former Bill C-51).

Canadians were clear during the consultations that they expect their rights and freedoms to be protected at the same time as their security.

An Act respecting national security matters (the National Security Act, 2017) is currently awaiting Royal Assent. Once in effect, it will provide the Government with the necessary authorities to address emerging national security threats while ensuring that these authorities are consistent with the Canadian Charter of Rights and Freedoms (the Charter) and respect Canadian values.

Introducing new safeguards to the Canadian Security Intelligence Service (CSIS) threat reduction warrant process

The National Security Act, 2017, once in effect, will address concerns with the previous open-ended warranted threat reduction regime by reinforcing the supremacy of the Charter, clarifying what type of threat reduction measures can be authorized by judicial warrants and introducing a range of new safeguards for CSIS’ threat reduction measures.

These amendments, once in effect, will:

• create new safeguards, accountability measures and requirements that enhance transparency;
• establish a list of distinct measures that can be authorized under warrant to address threats in the current environment; and,
• ensure CSIS seeks a warrant for any threat reduction measure that would “limit” a Charter-protected right or freedom. Before a warrant can be issued, the judge must be satisfied that the measures authorized are consistent with the Charter.

Additional safeguards, oversight and reporting requirements will also be adopted to ensure that robust accountability measures are in place.

Clarifying the information sharing process between federal institutions for national security purposes under the former Security of Canada Information Sharing Act (SCISA)

The Government heard the concerns raised by Canadians with respect to the SCISA. Once in effect, important legislative changes in the new Security of Canada Information Disclosure Act (SCIDA) include:

• advocacy, protest, dissent, and artistic expression activities will be excluded from the definition of information that can be disclosed under the SCIDA, unless these activities are carried out in conjunction with activities that undermine the security of Canada;
• the threshold for disclosing information in the interests of national security to other federal government institutions with a national security mandate will be clarified to ensure that disclosures meet specific requirements with respect to the utility, integrity and privacy impacts of the information;
• the relationship between SCIDA and the Privacy Act will be clarified;
• the title of the former Act in English will be amended to the Security of Canada Information Disclosure Act to better reflect that the Act only addresses information disclosure; and,
• a new record-keeping requirement will be added requiring institutions to maintain specific records of the disclosures made under the Act, and to report all disclosures to the new  National Security and Intelligence Review Agency on an annual basis.

In addition to these legislative changes, the Government will provide additional clarity as to which institutions are able to receive information under the SCIDA by publishing an overview of the national security mandate of each recipient institution and a list of the heads of institutions or persons designated to receive information, where appropriate. 

Accordingly, Public Safety Canada will be launching a Strategic Coordination Centre on Information Sharing (SCCI) which will serve as a coordination hub for government policies on domestic and international information sharing. The SCCI will coordinate the implementation of the new SCIDA with national security partners and will provide ongoing support, training, and resources for these partners to ensure cooperation and integration across the Government of Canada. The SCCI may not collect information for national security purposes.

These changes will better reflect that this Act only provides an authority for the disclosure of information, not its collection.

Since the Act does not provide an authority to collect information, Government departments and agencies may only collect based on their existing authorities.

Amending the Secure Air Travel Act

The Government is committed to enhancing the Passenger Protect Program to address fairness and privacy concerns, while keeping Canadians safe.

Reducing False Name Matches

The Government appreciates the frustration of travellers who are wrongly flagged by air travel security lists and we are working on solutions.

The National Security Act, 2017 created the legal authority to make changes to the Secure Air Travel Act (SATA) that will allow us to make improvements to the way passengers are screened at airports. 

Government-controlled centralized screening: once the changes to SATA are implemented, the Government of Canada (instead of air carriers) will begin electronically screening air passenger information against the SATA list. By collecting basic passenger information from air carriers in advance, false name matches will be reduced and threats posed by listed persons will be mitigated.

Redress program: once the changes to SATA are implemented, a new automated redress mechanism will be launched for those who experience travel delays related to the SATA list. The Government will issue a unique number to travellers who apply for redress. This number will allow those individuals who have the same name, or similar name, as someone on Canada’s SATA list to be distinguished from individuals who are actually on the SATA list.

The enhanced Passenger Protect Program is a substantial undertaking that will take time to implement. It requires new regulations, the development and testing of IT systems, and adoption of the new system by air carriers. The implementation of these changes is expected to begin in 2020.

While the Government implements these long-term solutions, the National Security Act, 2017, once in effect, will allow the Minister of Public Safety to inform parents that their child is not on the list, providing them assurance regarding their child’s status.

Recourse Process

Through the proposed changes to SATA, the Government will also improve the fairness of the recourse process.

Under the current system, an individual remains listed if a decision by the Minister is not rendered within a 90-day period. Once the changes to SATA are implemented, the individual’s name will be removed from the SATA list if a decision on their recourse application is not rendered by the Minister of Public Safety within 120 days.

There are cases when delays may be unavoidable resulting in there being insufficient information for a decision to be rendered, such as when agencies are waiting for information from partners or when the applicant has requested more time to respond to the case against him or her. As a result, it is proposed that the Minister may extend the set decision period if the Minister notifies the applicant of the extension within the first 120 day period. 

Amending the Criminal Code

Once in effect, amendments address the following elements of former Bill C-51:

• clarifying the scope of the Advocacy or Promotion of the Commission of Terrorism Offences in General;
• defining Terrorist Propaganda more clearly;
• increasing a threshold for a Recognizance with Conditions; and,
• requiring annual reporting on the number of Terrorism Peace Bonds entered into.

Counselling the Commission of a Terrorism Offence

Former Bill C-51 created a new offence of knowingly advocating or promoting the commission of terrorism offences in general, knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed.  The maximum punishment is five years imprisonment. There has been no prosecution of this offence since it came into force in July 2015, and it was criticized by legal experts for being unclear, too vague and overly-broad.

Once the legislation is in effect, the revised offence eliminates unclear concepts and terminology and, instead, uses the well-known criminal law concept of counselling. In this case, the new offence will be counselling another person to commit a terrorism offence without identifying a specific terrorism offence. The offence may be committed whether or not a terrorism offence is committed by the person who is counselled.

Defining Terrorist Propaganda more clearly

Prior to the National Security Act, 2017, terrorist propaganda material was defined as any writing, sign, visible representation or audio recording that advocates or promotes the commission of terrorism offences in general or counsels the commission of a terrorism offence. Former Bill C-51 created two new warrants in the Criminal Code that allow a judge to order the seizure and forfeiture of terrorist propaganda material, or the removal of “terrorist propaganda” when it is in electronic form and is made available to the public through a Canadian Internet service provider. The former Bill C-51’s definition of “terrorist propaganda” had been criticized for being unclear.

Since the language of “advocating or promoting the commission of terrorism offences in general”  will be clarified in the revised counselling the commission of a terrorism offence, this problematic portion of the definition of “terrorist propaganda” will be replaced with the revised wording, focusing on the clearer concept of counselling of terrorism offences.

Increasing a threshold for a Recognizance with Conditions

A recognizance with conditions is a tool to assist law enforcement in disrupting terrorist plans to carry out a terrorist activity. A peace officer who believes on reasonable grounds that a terrorist activity may be carried out, and suspects on reasonable grounds that imposing conditions or arresting a person is likely to prevent it, can go before a judge to seek to have a recognizance imposed on that person.

The legislation, currently awaiting Royal Assent, will revert one of the thresholds for this tool to its higher pre-Bill C-51 level. Under the legislation, a recognizance will need to be “necessary to prevent” a terrorist activity instead of only “likely to prevent” it. This change strengthens the provision’s compliance with the Charter. The recognizance with conditions sunsetted on October 25, 2018. However, the legislation will re-enact the recognizance with conditions as amended by the legislation.       

The revised recognizance with conditions provision is subject to a five-year sunset clause, providing for a possible Parliamentary debate and vote on extending the provision up to an additional five years.

Requiring Annual Reporting on the number of Terrorism Peace Bonds entered into

A terrorism peace bond is an order made by a court under the Criminal Code. It is used where there are reasonable grounds to fear that another person may commit a terrorism offence. This legislation, currently awaiting Royal Assent, will create an obligation for the Attorney General of Canada to make an annual report to Parliament on the number of terrorism peace bonds entered into each year. This will allow for greater transparency and accountability. No specific changes to the terrorism peace bond itself were made through this legislation.