The House Committee on Public Safety and National Security (SECU) recently held its clause-by-clause meetings in its study of Bill C-59, the National Security Act of 2017. Those meetings basically entail committee members going through a bill, clause by clause, and voting on motions of proposed amendments. The adopted motions are put into a report which is then tabled in Parliament.
Our National Coordinator, Tim McSorley, live-tweeted all five meetings and this below is a summary of the motions presented, passed or defeated. The report of the SECU committee was tabled in Parliament on May 3rd, and the amended text of the bill is now published online.
All the Liberal motions were adopted, virtually all Opposition motions were defeated, very little of substance was changed to the bill, and virtually no human rights protections were added.
We will follow-up with additional actions.
Summary of Bill C-59 clause by clause meetings
APRIL 17, 2018
In the two hour meeting, the committee was able to get through only part of the National Security and Intelligence Review Agency or NSIRA Act (part 1 of 9 of Bill C-59).
There was a clear pattern of every opposition-moved motion being voted down. All Liberal-moved amendments were adopted, some unanimously.
Here’s a run-down of the decisions, as far as I could follow them (it’s hard without the amendments and the related clauses in front of you).
The amendment motions voted down:
- A motion to increase the number of NSIRA members from 6 to 8 (this was actually ruled out of order because it would incur additional costs) (NDP)
- A motion to appoint NSIRA members via vote of parliament (NDP)
- Motions to make the chair full-time, to make the vice-chair a standing position (and not optional), and changing the time period for acting chairs. These were all in line with the idea that there needs to be more stability in the chairperson-ship of the NSIRA. (CPC)
- A motion to allow for the investigation of complaints against Global Affairs Canada (GAC) and the Canadian Border Service Agency (CBSA). (NDP) Conservatives were interested, but wanted to hear more from GAC and CBSA. Liberals argued it was unnecessary, and a Public Safety representative said that CBSA review & complaints is coming along a separate track.
- A motion for clearer guidelines around interaction of NSIRA and the committee of parliamentarians, to avoid duplication (CPC)
- A motion to allow the NSIRA to issue binding orders (NDP)
- A motion explicitly allowing NSIRA to receive reports from foreign intelligence review agencies. Liberals argued it is redundant/unnecessary. (NDP)
The amendment motions that were passed:
- Liberal motion to address “ambiguity of language regarding NSIRA’s mandate and whether it is overly broad” and that would grant NSIRA “full authority to decide its own procedures and removes any ambiguity about the scope of authority of the NSIRA to avoid possible dispute with other departments.” I don’t have the wording of the amendment, but according to the mover, it is based on the concerns raised by the CBA that the lack of clear definition of “national security” and “intelligence” causes confusion, both making it overly broad but also potentially missing things (ie, Secure Air Travel Act (SATA) does not mention intelligence nor national security, although it is of course a national security law).
- Liberal motion mandating NSIRA to review and report on all new ministerial directions (ie, on torture), as well as on their implementation.
- Liberal motion on access to information, clarifying that the agency will have access to all documents – excluding cabinet confidences – including those covered by solicitor-client privilege.
- The liberals moved an amendment adding language to allow for cooperation between the NSIRA and the Office of the Privacy Commissioner, while at the same time avoiding duplication of work.
They ended with a liberal motion under consideration, but which will be voted on next time. It has to do with adding language that the NSIRA would need to suspend a complaints investigation if it would “compromise or seriously hinder” an ongoing criminal investigation. The language comes from the RCMP review commission. It will undoubtedly pass next meeting.
APRIL 19, 2018
They got through the NSIRA (part 1 of C-59), and started on the Intelligence Commissioner (part 2 of 9 of C-59).
The trend continued today of all opposition motions being voted down, and all Liberal motions being adopted.
Regarding the Intelligence Commissioner (IC), the short version is that all the motions to increase independence of the IC were voted down. Specifically:
- An NDP motion to have the IC appointed by parliament was voted down, on the basis that it would politicize the process (NDP argued that PM-appointment process also gets political, pointing to controversies with Language Commissioner and Auditor General, to no avail).
- The NDP brought a motion to make the position full-time, which was ruled inadmissible because, like with the NSIRA, it would incur further expenses, and such a motion could only be brought by a Minister since this is considered “crown prerogative.” Same for a Green Party motion that would have given the option of it being a full-time position.
- An NDP motion that would have limited the appointment to one, 5 year term was also voted down.
- Similarly, a motion to allow the IC to be chosen from currently sitting judges (and not just retired judges) was also voted down. The argument was that the IC will be considered an “executive advisor”, raising questions about IC’s independence. Liberals also argued that having a sitting member of the judiciary serving in the executive branch would be a conflict, further undermining the “quasi-judicial” nature of the IC. It was also made clear that it couldn’t be a supernumerary judge, even though current CSE commissioner can be a supernumerary judge.
Regarding the Ministerial Direction on Avoiding Complicity in Mistreatment by Foreign Entities, more commonly known as the ministerial directives on torture, the Liberals (Michel Picard) brought a motion to introduce a whole new act, the Avoiding Complicity in Mistreatment by Foreign Entities Act.
The new Act does not actually lay out the rules for how various agencies are to deal with information tied to mistreatment, but rather lays out requirements for such directions to be public. In short it says that: The Governor in council may issue directions to any deputy head on these issues and must issue such directives to a list of deputy heads: the Chief of Defense Staff, the Deputy Minister of Foreign Affairs and the heads of CSIS, RCMP, CSE, and CBSA.
It also mandates that these directions are public, must be shared with the National Security and Intelligence Committee of Parliamentarians (NSICOP) and mandates the heads of these departments to submit annual reports on the implementation of the directions to Ministers and review bodies, and that a version must be made public.
The motion was adopted between discussion on NSIRA and IC.
It’s positive in terms of disclosure. It doesn’t enshrine the actual directions into law so it will not take a legislative process to bring new regulations, which is not bad because the current directions do not actually outright ban the use of information linked to torture: there is an exception for exigent circumstances that would allow for the use of such information. But it could also mean that the directions can be weakened by a future government. In short, it doesn’t ensure that Canada will not be complicit in torture, simply that if the regulations are loosened, we will know about it.
Run down on the other motions:
- The NDP’s initial attempts to get rid of SCISA — the Security of Canada Information Sharing Act brought in with Bill C-51 — by removing reference to it in the NSIRA Act, were voted down. This was a little confusing, as it wouldn’t affect SCISA itself, but had to be dealt with here since it’s clause by clause.
- The Conservatives brought a motion to have the Minister of Public Safety review the work of new review agencies after one year to determine whether work was redundant and to consider further delineating their mandates, or possibly eliminating one or the other. It was defeated.
- Also defeated were some NDP motions to tighten language about the interaction between the NSIRA and the CRCC (RCMP’s watchdog), over concern that there may be a gap in communication, esp. if the NSIRA declines to hear a complaint.
- The Liberals amended a section of the NSIRA to ensure employees are under the Public Service Act. This was described as a mistake they were fixing.
- The Liberals passed a motion mandating the CRCC to share any complaints with the RCMP before sending it to the NSIRA, to keep them in the loop (my understanding it that it wouldn’t have an impact on what the CRCC sends to the NSIRA).
APRIL 23 & 24, 2018
Some of the larger changes include:
- A change to the CSE definition of “publicly available information” which excludes “information in respect to which a Canadian or a person in Canada has a reasonable expectation of privacy.” The CSIS definition of “publicly available information” remains the same however which is worrying since CSIS’s mandate is to target Canadians or people in Canada whereas the CSE is not supposed to do that. A CSIS official said that by carving out information that has a reasonable expectation of privacy from publicly available information, the agency would not be able to collect any publicly available information.
- An amendment that CSE activities must not infringe the Canadian Charter of Rights and Freedoms (similar to what is found in the CSIS Act).
- Amendment regarding adding “reasonable expectation of privacy” to CSE authorizations of collecting information.
- Addition of clarity to the CSIS threat reduction power of “limiting movement” to specify that it does not include detention.
Other motions on April 23:
- Liberal motion passed: include additional information/statistics in the IC annual report (not specified what kind of information).
- Conservative motions on intelligence to evidence in criminal court cases both defeated.
Other motions on April 24:
- Liberal motion: Ministerial authorizations need to take into account “reasonable expectation of privacy.” Worth noting that NDP and Greens both brought similar, stronger amendments that were defeated.
- Liberal amendment passes: The Minister must notify the IC of any decision to extend the period of an authorization.
- The NDP proposed an amendment to have explicit ban on use of information tied to mistreatment/torture in the CSE Act. It was defeated, unsurprisingly. But part of the response is worth noting: CSE stated that they have had a ban on use of information tied to torture since 2011. But that means that they view the previous Ministerial Directions under the Conservative government, widely seen as insufficient, as being enough. Raises concerns that in the future, there could be support to once again weaken Ministerial Directions.
- There was a lot of debate on an NDP motion to limit the ability of the government to change definitions in the CSE Act by regulation. NDP and Conservatives both argued changes should be made via legislation and voted in Parliament (Section 61 of the CSE Act). Motion was defeated.
- Liberal amendment passes: to change the preamble of CSIS Act to include more language on protection of rights.
- NDP and Greens brought multiple motions to rescind CSIS’s threat reduction powers, but all were defeated.
- Liberal motion passes that will allow information to pass from a judicially authorized Canadian dataset to a foreign information dataset.
- Liberal motion passes: requiring CSIS to produce an annual report to Minister, no later than three months after the end of the calendar year. Then tabled with parliament.
APRIL 25, 2018
Again, the meeting was marked mostly by what was voted down rather than what was adopted: motions to try and fix some problems with the No Fly List, to undo the damage C-51 did to the special advocate system under IRPA, to bringing changes to the Terrorist Entities Listing, to doing away with the redundant s. 83.221 of the criminal code (formerly promotion, soon to be “counselling” of terrorism offences), changing disclosure thresholds in SCISA/SCIDA, were all voted down.
Two things of note were adopted:
1. Liberal amendment to SCISA that sets a threshold of “necessary” for the disclosure of personal information. The receiving organization would need to evaluate whether it meets this threshold, and if it does not they must destroy the information.
2. The Liberals brought a further change to 83.221 of the Criminal Code. The main part still reads the same, with “promotion” being changed to “counselling”, but they brought a further amendment because it would now conflict with 464 of the Criminal Code, which covers what happens to someone who counsels a crime that isn’t carried out.
Most symbolic amendment of the meeting:
Liberal amendment that the preamble be changed to urge the “international community” to follow in Canada’s footsteps of ensuring that national security laws respect fundamental rights and freedoms — ignoring all the amendments they rejected that would have actually protected rights & freedoms.
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