Charter Statement - Bill C-59: An Act respecting national security matters
Tabled in the House of Commons, June 20, 2017
The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-59, An Act respecting national security matters, for consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-59 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
Bill C-59 proposes a number of measures to enhance Canada’s national security framework with a view to keeping Canadians safe and also respecting and upholding Charter-protected rights and freedoms and the values of our free and democratic society. These proposals have been informed by public consultations undertaken over the past year as well as by the need to ensure Canada’s national security framework keeps pace with developments in the current threat environment.
Bill C-59’s centerpiece is the proposed creation, in Part 1, of a new National Security and Intelligence Review Agency (NSIRA) through the National Security and Intelligence Review Agency Act. The NSIRA would be staffed by members appointed by the Governor in Council for a term not exceeding five years (with the possibility of a single re-appointment). The NSIRA would review and report in an integrated manner on the lawfulness of all national security and intelligence activities across government, thereby enhancing accountability, transparency and the safeguarding of human rights in Canada in relation to national security measures. The NSIRA would also investigate complaints in relation to actions by the Canadian Security Intelligence Service (CSIS), the Communications Security Establishment (CSE), and the Royal Canadian Mounted Police (RCMP), and in relation to denials of security clearance.
The NSIRA would be required to review and report on certain matters on an annual basis, and would otherwise have full and independent authority to determine what other activities to review. Findings and recommendations from the NSIRA would be provided to relevant Ministers through classified reports, including on relevant agencies’ compliance with the law and the reasonableness and necessity of the exercise of their powers. The NSIRA would also submit an annual report of its activities, findings and recommendations to the Prime Minister for tabling in Parliament. This new entity would complement the important work of the proposed National Security and Intelligence Committee of Parliamentarians. Together, they would provide comprehensive scrutiny of Canada’s national security and intelligence activities.
In addition, Part 2 of Bill C-59, the Intelligence Commissioner Act, would establish an independent, quasi-judicial Intelligence Commissioner, who would assess and review certain Ministerial decisions regarding intelligence gathering and cyber security activities. This would ensure an independent consideration of the important privacy and other interests implicated by these activities in a manner that is appropriately adapted to the sensitive national security context.
Several proposed new restrictions, safeguards and accountability measures in Parts 3 and 4 would respond to concerns about the Charter-consistency of the mandates and powers of CSE and CSIS. In addition, these parts would provide these agencies with much-needed and updated intelligence gathering and threat reduction tools in order to address current and emerging threats to security. These new measures have been carefully tailored to respect privacy and liberty, while also enabling the effective protection of Canadians’ safety and the security of Canada.
Part 5 would clarify disclosure and accountability provisions in the newly re-named Security of Canada Information Disclosure Act. This would facilitate the effective and responsible sharing of information already in the possession of the Government of Canada that would in turn help agencies respond to threats to national security, while respecting Canadians’ rights to freedom of expression and privacy.
Proposed changes to the Secure Air Travel Act in Part 6 would bring greater coherence and efficiency to Canada’s secure air travel regime, while at the same time respecting privacy and ensuring that persons who do not pose a risk to air safety can be de-listed in a timely manner in the event they are identified in error.
Changes to the Criminal Code proposed in Part 7 would clarify and limit the scope of certain terrorism offences, as well as ensure that preventive anti-terrorism measures keep Canadians safe and respect their rights and freedoms.
The main Charter-protected rights and freedoms potentially engaged by the proposed measures include:
- Freedom of expression (section 2(b)) – Section 2(b) of the Charter provides broad protection of all forms of expression. However, section 2(b)’s protection does not extend to expression that takes the form of violence or threats of violence.
- Right to life, liberty and security of the person (section 7) – Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. These principles require that laws which engage these rights must not be arbitrary, overbroad, grossly disproportionate or vague. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose. A vague law is so unintelligible as to be incapable of judicial interpretation. These principles also require that any measures that engage the right to life, liberty or security of the person respect basic principles of procedural fairness, including the right to be heard and the right to know the case against you.
- Right to be secure against unreasonable search or seizure (section 8): Section 8 of the Charter protects people against “unreasonable” searches and seizures of their person, property and private information. The purpose of section 8 is to protect individuals from unjustified intrusions upon their privacy. A search or seizure will be reasonable if it is authorized by a law, the law itself is reasonable in the sense of striking an appropriate balance between privacy interests and the state interest being pursued, and the search is carried out in a reasonable manner.
Part 3: The Communications Security Establishment Act.
CSE is Canada’s national signals intelligence agency for foreign intelligence. CSE is also Canada’s technical authority for cybersecurity and information assurance.
- Signals intelligence is the interception and analysis of communications and other electronic signals, including any form of electronic communications, such as telephone calls and text messages, computer and internet communications, and satellite signals.
- Cybersecurity and information assurance is about protecting government and other critical computer networks and systems from foreign states, hackers and criminals.
CSE is currently governed by the National Defence Act. Part 3 of Bill C-59 proposes to enact a stand-alone Communications Security Establishment Act to establish CSE in statute, and to authorize and regulate its activities. The proposed Act would modernize CSE’s legal regime, and maintain the general restriction against CSE directing its activities at Canadians and persons in Canada. It would authorize CSE to use certain online techniques to collect foreign intelligence, to identify foreign threats to Canada and to take action online to proactively address threats. It would authorize CSE to extend its cyber protection activities to include private networks of importance to the Government of Canada, with the consent of the owner or operator of the network. It would enable CSE to provide technical and operational assistance to the Department of National Defence and the Canadian Forces. It would also add new privacy and accountability measures, including an approval role for the new Intelligence Commissioner.
CSE’s mandate would have five aspects according to section 16(2) of the proposed Act: (i) foreign intelligence; (ii) cybersecurity and information assurance; (iii) defensive cyber operations; (iv) active cyber operations; and (v) technical and operational assistance. Each aspect has the potential to affect Charter rights and freedoms in different ways, which will be addressed in turn.
(i) Foreign intelligence
The foreign intelligence aspect of CSE’s mandate is to acquire information from the global information infrastructure (GII) (e.g., the Internet and telecommunications networks) for the purpose of providing foreign intelligence to the Government of Canada in accordance with its intelligence priorities. The acquisition of information from the GII must be authorized by the Minister where the activity to acquire it would otherwise be unlawful (subsection 23(3)) or where there is a privacy interest in it.
The Minister authorizes such activities under section 27 of the Act by issuing a Foreign Intelligence Authorization. This authorization must also be approved by the independent, quasi-judicial Intelligence Commissioner before it takes effect (section 29). Information that can be acquired includes the private communications of individuals and private information concerning individuals, including metadata with a privacy interest. Although CSE is prohibited by subsection 23(1) from directing its activities at Canadians or persons in Canada, the practical realities of acquiring information from the GII means that despite best efforts to avoid it, CSE may incidentally obtain private communications and other private information of Canadians and persons in Canada.
In order to provide foreign intelligence, CSE may need to acquire information in an unselected form due to technical and operational reasons. CSE would then apply selection terms or criteria to this unselected information in order to obtain information of foreign intelligence interest.
Section 8 of the Charter protects against “unreasonable” searches and seizures. Because the authority to acquire private information through the GII has the potential to interfere with privacy interests, it may engage section 8.
The following considerations support the consistency of the foreign intelligence mandate with section 8 of the Charter. The acquisition of information from the GII would serve the compelling purpose of providing foreign intelligence to the Government of Canada. This would include information or intelligence about the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group as it relates to Canada’s international affairs, defence or security. This information on its own or in combination with other classified and unclassified information can help provide a comprehensive view and unique insight to the government on potential threats and issues facing Canada.
Generally, before foreign intelligence activities could interfere with privacy interests, they would first have to be authorized by the Minister upon written application by the Chief of the Communications Security Establishment. A key change proposed in Bill C-59 is that the activities would also have to be approved in advance by the independent Intelligence Commissioner, who is a retired superior court judge with the capacity to act judicially.
Authorized activities would be directed outside Canada at foreign individuals and entities; no activities could be directed at Canadians or persons in Canada (section 23). In order to issue an Authorization, the Minister would have to have reasonable grounds to believe that it would be reasonable and proportionate to do so having regard to the nature of the activities and of their objective (subsection 35(1)). This would require taking into account the benefits to be achieved by the activities and any anticipated impact on privacy interests.
In addition, the Act imposes several other requirements aimed at mitigating privacy impacts. In order to issue an authorization, the Minister would have to have reasonable grounds to believe that the information to be acquired could not reasonably be acquired by other means, and that it would not be retained longer than reasonably necessary. With respect to any Canadian information incidentally collected, the Minister would also need reasonable grounds to believe that measures would be in place to ensure that it would only be used or retained if “essential” to CSE’s foreign intelligence mandate.
Finally, in order to approve the issuance of an Authorization to make it valid so that it can legally authorize any activities, the Intelligence Commissioner would have to find the Minister’s conclusions in the foregoing respects to be “reasonable” (subsection 21(1) of the Intelligence Commissioner Act).
In addition, section 25 of the Act would impose an overall obligation on CSE to have measures in place to protect the privacy of Canadians and of persons in Canada in the use, retention and disclosure of information related to them that would be acquired in the furtherance of the foreign intelligence aspect of the mandate.
(ii) Cybersecurity and information assurance
CSE’s mandate would also continue to be to access and acquire information from the GII for the purpose of providing advice, guidance and services to the Government of Canada to help protect its electronic information and information infrastructure, as well as any other electronic information or information infrastructure designated by the Minister as being of importance to the Government of Canada. As with the foreign intelligence mandate, any acquisition of information from the GII would have to be authorized by the Minister where the activity to acquire it would otherwise be unlawful (subsection 23(3)) or where there is a privacy interest in it.
The Minister authorizes such activities under section 28 of the Act by issuing a Cybersecurity Authorization. This authorization would also have to be approved by the independent, quasi-judicial Intelligence Commissioner before it takes effect (section 29). Information that could be acquired includes the private communications of individuals and private information concerning individuals, although CSE would be prohibited by subsection 23(1) from directing its activities at Canadians or persons in Canada. Nonetheless, given the practical realities of acquiring information from the GII, in particular as it relates to information concerning Government of Canada institutions and infrastructure, CSE may incidentally obtain private communications and other private information of Canadians and persons in Canada.
These activities have the potential to engage section 8 of the Charter. The following considerations support the consistency of the cybersecurity and information assurance mandate with the Charter. Information acquired from the GII would serve the compelling purpose of providing advice, guidance and services to protect Government of Canada and designated electronic information and information infrastructure. These critical networks are under a constant state of attack from cyber threats at the same time as their importance to the security and prosperity of Canada is ever increasing. Both the integrity of the networks, and the security of the valuable governmental information accessible through them, including personal information, must be protected.
As with foreign intelligence activities, before cybersecurity activities could interfere with privacy interests, they would first have to be authorized by the Minister upon written application by the Chief, and then approved by the independent, quasi-judicial Intelligence Commissioner.
Authorized activities would not be directed at Canadians or persons in Canada (section 23). Nor could an authorization be issued for activities in relation to a non-government network without the written request of the network owner (subsection 34(3)).
In order to issue an Authorization, the Minister would have to have reasonable grounds to believe that it would be reasonable and proportionate to do so, having regard to the nature of the activities and of their objective (subsection 35(1)). This would require taking into account the benefits to be achieved by the activities and any anticipated impact on privacy interests.
In addition, the Act imposes several other requirements aimed at mitigating privacy impacts (subsection 35(3)). The Minister would have to have reasonable grounds to believe that information acquired would be retained no longer than reasonably necessary and that consent could not be reasonably obtained for the acquisition of any information. In addition, the Minister could only issue an authorization if they conclude that there are reasonable grounds to believe that any information to be acquired is “necessary” to identify, isolate, prevent or mitigate harm to Government of Canada or designated electronic information or infrastructure. Necessity is a stringent standard that ensures that privacy interests are not invaded unless required to protect cybersecurity. With respect to any Canadian information incidentally collected, the Minister would also need reasonable grounds to believe that measures would be in place to ensure that it would only be used or retained if “essential” to the cybersecurity aspect of the mandate.
Finally, in order to approve the issuance of an Authorization to make it valid so that it can legally authorize any activities, the Intelligence Commissioner would have to find the Minister’s conclusions in the foregoing respects to be “reasonable” (subsection 21(1) of the Intelligence Commissioner Act).
Again, section 25 of the Act would impose an overall obligation on CSE to have measures in place to protect the privacy of Canadians and of persons in Canada in the use, retention and disclosure of information related to them that would be acquired in the furtherance of the cybersecurity aspect of the mandate.
(iii) Defensive cyber operations
Another aspect of CSE’s mandate would be to carry out activities on or through the GII to protect the Government of Canada’s electronic information and information infrastructure, and other designated electronic information or information infrastructure. In pursuing this defensive cyber operations aspect of its mandate, the Act would prohibit CSE from directing its activities at Canadians or persons in Canada, or at any portion of the GII in Canada (section 23). Defensive cyber activities would have to be authorized by the Minister, in consultation with the Minister of Foreign Affairs (section 30).
The provisions authorizing defensive cyber operations would not by definition engage Charter rights or freedoms. However, specific activities authorized under this scheme could potentially engage rights or freedoms.
The following considerations support the consistency of this aspect of the mandate with the Charter. First, the purpose of defensive cyber operations would be to further the government’s compelling need to protect critical infrastructure. Also, the nature of any potential effects on Charter rights and freedoms would be limited by the prohibition on activities that would cause, intentionally or by criminal negligence, death or bodily harm, or that would willfully attempt in any way to obstruct, pervert or defeat the course of justice or democracy in any country (section 33). Further, no activities directed at Canadians or persons in Canada could be authorized; only activities aimed outside Canada at foreign individuals, entities and the GII outside of Canada would be permitted. Following the decision of the Supreme Court of Canada in Doré v. Barreau du Quebec (2012), the Charter may also require the Minister to take relevant “Charter values” into account in exercising a discretion to issue an authorization.
As with other authorizations, the Minister would have to meet the reasonable grounds to believe standard in relation to the following factors that serve to mitigate potential rights impacts: that any activity to be authorized is reasonable and proportionate in light of its nature and objective (subsection 35(1)); that “the objective of the cyber operation could not reasonably be achieved by other means”; and that no information would be acquired through the activities unless otherwise authorized under a Foreign Intelligence, Cybersecurity or Emergency Authorization (subsection 35(4)).
As the acquisition of a Canadian’s or person in Canada’s private information would not be authorized under this mandate, the prior approval of the Intelligence Commissioner is not required. However, activities under the authorization would be subject to review by the NSIRA (paragraph 8(1)(a) of the National Security and Intelligence Review Agency Act), which can make findings with respect to CSE’s compliance with the law and the reasonableness and necessity of CSE’s exercise of its powers (paragraphs 8(3)(a) and (b)).
(iv) Active cyber operations
Another aspect of CSE’s mandate would be to carry out activities on or through the GII to degrade, disrupt, influence, respond to or interfere with foreign individuals, states, organizations or terrorist groups to further the government’s international affairs, defence, or security objectives. As with defensive cyber operations, the Act would prohibit CSE from directing its activities at Canadians or persons in Canada, or at any portion of the GII in Canada (section 23). Active cyber activities would also have to be authorized by the Minister, with the consent of the Minister of Foreign Affairs or at the request of that Minister (section 31).
The provisions authorizing active cyber operations would not by definition engage any Charter rights or freedoms. However, specific activities authorized under this scheme could potentially engage rights or freedoms. The considerations that support the consistency of this aspect of the mandate with the Charter are very similar to those supporting the consistency of the defensive cyber operations mandate. One difference is the distinct purpose of active cyber operations, which would be to further the government’s compelling objectives in relation to Canada’s international affairs, defence or security (section 20).
(v) Technical and operational assistance
The final aspect of CSE’s mandate would be to provide technical and operational assistance to federal law enforcement and security agencies, the Canadian Forces and the Department of National Defence. In so doing, CSE’s legal authority to act would be the same as the authority of the agency or entity it is assisting. Although these assistance activities have the potential to engage Charter rights and freedoms, this would be pursuant to existing legal authorities such as Criminal Code or Canadian Security Intelligence Service Act warrants, or the Crown’s prerogative to deploy Canadian Forces on international military operations.
Section 41 of the proposed Act would enable the Minister to issue, on an exception basis, an emergency Foreign Intelligence Authorization or Cybersecurity Authorization without the prior approval of the Intelligence Commissioner. This could be done where the Minister has reasonable grounds to believe that the time required to obtain the Intelligence Commissioner’s approval would defeat the purpose of issuing an Authorization.
Because the activities that could be authorized under section 41 have the potential to acquire private communications and private information, including incidentally about Canadians and persons in Canada, section 8 of the Charter is potentially engaged.
The following considerations support the consistency of the emergency authorization power with the Charter. The authority would be exceptional, its use confined to narrow circumstances where important government objectives would be at stake that would not be furthered without timely action. Except for the independent, quasi-judicial Intelligence Commissioner’s prior approval, all other privacy protecting and mitigating conditions for the issuance of an ordinary Foreign Intelligence or Cybersecurity Authorization would have to be met by the Minister in issuing an Emergency Authorization. To enable accountability, NSIRA and the Intelligence Commissioner would both need to be promptly notified of any use of the power (section 42). Finally, an Emergency Authorization would be valid for no more than five days (section 43).
Publicly available information
The general prohibition against CSE directing its activities at Canadians or persons in Canada would not prevent it from acquiring and using “publicly available information”, including information about Canadians (paragraph 24(1)(a)). Such information includes what has been published or broadcast, and what is available to the public upon request or by purchase or subscription (section 2). Considering the information about individuals that can be aggregated, and the things that can be learned from such aggregations using modern technologies and then offered for sale by data-brokers, CSE’s acquisition and use of such information, for example, has the potential to affect privacy interests protected by section 8 of the Charter.
The following considerations support the consistency of the authority to acquire and use publicly available information. The acquisition and use of information already in the public realm would generally not intrude upon protected privacy interests. Where it would, the level of privacy expectation that could be affected would generally be low by virtue of the fact of prior public exposure. In any event, publicly available information could only be acquired and used for compelling purposes in support of CSE’s mandate. Any such information acquired would be subject to appropriate measures to protect privacy (section 25).
Disclosure of Canadian identifying information
Section 44 of the proposed Act would authorize CSE to disclose to designated persons, including government clients and allies, information that could be used to identify a Canadian or a person in Canada if it concludes that doing so “is necessary to international affairs, defence, security or cybersecurity”. The disclosure of potentially private information has the potential to engage section 8 of the Charter.
The following considerations support the consistency of this disclosure authority with the Charter. The Canadian identifying information in question would have been incidentally acquired following the approval of the Intelligence Commissioner – an independent, quasi-judicial decision-maker – and retained following a determination by CSE that it is “essential” to CSE’s mandate. Disclosures would be made on a case-by-case basis. Although the information in question is already in the possession of the government, the Supreme Court of Canada has indicated that individuals may nonetheless retain a “residual” privacy interest in relation to such information and its treatment by the government. If a residual privacy interest is retained in relation to a Canadian’s or person in Canada’s identity, its disclosure under this authority could be considered proportionate to CSE’s compelling foreign intelligence and cybersecurity objectives. The requirement that the disclosure be “necessary” to CSE’s pressing objectives is a stringent one that ensures that any residual privacy interests are only affected if it furthers the government’s important international affairs, defence, security or cybersecurity interests.
Disclosure of information from cybersecurity and information assurance activities
Section 45 of the proposed Act would authorize CSE to disclose information acquired in the course of cybersecurity and information assurance activities to designated persons, including government clients, allies and owners of information infrastructure of importance to the Government of Canada, if necessary to help protect federal or designated electronic information or information infrastructure. Such information could include incidentally intercepted private communications of Canadians or persons in Canada. The disclosure of such communications in particular has the potential to engage section 8 of the Charter.
The following considerations support the consistency of this disclosure authority with the Charter. The disclosure would include information acquired under Ministerial authorization following the approval of the Intelligence Commissioner – an independent quasi-judicial decision-maker – and retained following a determination by CSE that it is “essential” to CSE’s mandate, as well as information provided to CSE by cybersecurity clients for the purpose of cybersecurity and technical assurance activities. Disclosures would be made on a case-by-case basis. Any effect on an individual’s residual privacy interest could be considered proportionate to CSE’s compelling cybersecurity and information assurance objectives. The requirement that the disclosure be “necessary” to CSE’s pressing objectives is a stringent one that ensures that any residual privacy interests are only affected if it furthers the government’s important interests in protecting federal or designated electronic information and information infrastructure.
The restriction against CSE directing its activities at Canadians or persons in Canada would not prevent it from using and analyzing Canadian information if it has reasonable grounds to believe that there is an imminent danger of death or serious bodily harm to any individual, and that the information will be relevant to that imminent danger (section 47). It may also disclose the information to an appropriate person to help prevent the death or serious bodily harm. The information giving rise to the reasonable grounds to believe may have been incidentally discovered by CSE in the course of authorized activities, or may be provided by another agency or individual. The use and disclosure of potentially private information in these circumstances may engage section 8 of the Charter.
The following considerations support the consistency of the proposed authority with the Charter. The purpose of any invasion of privacy would be of the utmost importance, namely to prevent imminent death or serious bodily harm. Such an objective may serve to justify the use of information already in CSE’s possession. To enable accountability for such use or disclosure of Canadian information, the Minister and the NSIRA would be notified (subsection 47(3)).
Role of the National Security and Intelligence Review Agency (NSIRA)
Under the new National Security and Intelligence Review Agency Act, the NSIRA would have the authority to review all of CSE’s activities, including for compliance with the law, and for compliance with any authorizations issued by the Minister and any approved by the Intelligence Commissioner. It would be broadly empowered to access information to conduct its reviews (section 9). The NSIRA would report annually to the Minister on CSE’s activities, including CSE’s compliance with the law and the reasonableness and necessity of the exercise of its powers (section 33). In the case of any observed non-compliance with the law, the NSIRA would have to report to the Minister, and to the Chief (section 35). The Minister would then have to inform the Attorney General of Canada. The NSIRA would also have to report annually to the Prime Minister on its activities, findings and recommendations, including any reviews and findings in relation to CSE’s activities (section 38). The Prime Minister in turn would have to cause that report to be laid before each House of Parliament.
The creation of the NSIRA with authority to review and publicly report on CSE’s compliance with the law is an important accountability measure. This may be particularly relevant to the Charter consistency of CSE activities that potentially engage privacy interests, such as those authorized under Foreign Intelligence, Cybersecurity, and Emergency Authorizations, as well as disclosures of information in urgent circumstances and to advance foreign intelligence and cybersecurity objectives. Any such privacy effects would occur in circumstances in which persons affected may be unaware of the intrusion and so unable to bring potential concerns to court. Enabling an independent body to review and, in particular, publicly report on CSE’s compliance with the law supports the reasonableness of the law authorizing CSE’s activities.
Apart from privacy-related considerations, NSIRA’s mandate may contribute to the constitutionality of any other potential Charter effects. To the extent that individuals may be unaware of effects on their rights and freedoms due to the covert nature of CSE’s activities, the NSIRA’s ability to review activities and publicly report on any observed non-compliance would create an effective accountability measure to secure compliance with the law.
Prohibition on disclosure
With certain exceptions, section 56 would prohibit the disclosure, in a proceeding before a court, person, or body with jurisdiction to compel the production of information, of the identity of a person or entity that has assisted or is assisting CSE on a confidential basis, or any information from which the identity of such a person or entity could be inferred.
A designated judge of the Federal Court would be able to authorize disclosure of the information in two instances: (1) if the judge is of the opinion that the individual is not a person or entity that is assisting or has assisted CSE or if the identity of such a person could not be inferred from such information; and (2) in the case of a proceeding that is a prosecution of an offence, where disclosure of the identity or information from which the identity could be inferred is essential to establish the accused’s innocence.
The purpose of the section is to ensure that the identity of persons or entities that assist CSE would be kept confidential in order to protect their security and to encourage individuals or entities to provide assistance to CSE. The intention is to protect the identity of persons who provide assistance to CSE and any information from which their identity could be inferred.
The prohibition on disclosure has the potential to engage section 7 of the Charter where the identity of the individual or information from which identity can be determined is being relied upon in a proceeding that engages the liberty interest of an individual, such as a criminal prosecution or those related to certain proceedings under the Immigration and Refugee Protection Act. Specifically, the prohibition could engage section 7’s guarantee of procedural fairness.
The following considerations support the consistency of the prohibition with section 7 of the Charter. In the case of a criminal proceeding, the disclosure of the identity of a person or entity that has assisted or is assisting CSE may be disclosed where it is essential to establish the accused’s innocence. This is similar to the common law police informer privilege rule, which has been held to be constitutional as it relates to fair trial rights protected under the Charter. As well, section 38.14 of the Canada Evidence Act would apply to give trial judges the authority to order whatever remedy would be required to protect an accused’s right to a fair trial, where confidentiality is invoked. If the right of an accused to a fair trial is compromised as a result of the application of the section 38 scheme, the trial judge can use their discretion to put an end to the prosecution.
In the case of certain proceedings under Division 9 (Certificates and Protection of Information) of the Immigration and Refugee Protection Act, the Federal Court judge has the obligation to ensure the confidentiality of the information regarding the identity of the person or entity. The judge would need to fulfill this obligation while ensuring that the person named in a security certificate is reasonably informed of the case to meet. This could include, for example the provision of a summary of the information, without disclosing the identity of the entity who has provided assistance to CSE or any information from which the identity could be inferred.
Part 4: Canadian Security Intelligence Services Act Amendments
The ability to acquire, retain and analyze data is important to CSIS in exercising its mandate. Datasets, comprised of sets of personal information stored as an electronic record and characterized by a common subject matter, can include information that is not directly and immediately related to threats to the security of Canada. Analysis of these datasets nevertheless can be of significant assistance to CSIS in investigating such threats.
Recent Federal Court jurisprudence, Re X (2016), indicates that the existing provisions of the CSIS Act do not provide CSIS with the authority to collect and retain data that has no direct connection with a security threat. The Court indicated, however, that the Act is showing its age and suggested renewed consideration of the proper tools CSIS needs for its operations.
Proposed amendments at clauses 94, 96-97, and 107-108 would amend the CSIS Act to provide CSIS the authority to collect, retain and use datasets. Subsection 11.05(1) provides a general authority for CSIS to collect datasets that contain personal information that does not directly and immediately indicate activities representing a threat to the security of Canada. Where a dataset is publicly available, section 11.11 provides a general authority to retain and use it and to retain the results of its use. For datasets that are not publicly available, additional requirements apply.
If the personal information in a dataset predominately relates to Canadians or non-Canadians within Canada (“Canadian datasets”), sections 11.03, 11.07(2), 11.08, and 11.12(2) require that it can only be retained if it falls within a category authorized by the Minister of Public Safety and approved by the independent, quasi-judicial Intelligence Commissioner. Judicial authorization is required to retain any Canadian dataset, as provided under sections 11.12-11.15. If the personal information in a dataset relates to non-Canadians outside of Canada (“foreign datasets”), retention requires authorization by the Minister of Public Safety and Emergency Preparedness or the Minister’s designate and approval by the Intelligence Commissioner, as provided under sections 11.16-11.19.
Other safeguards apply to the authority to retain Canadian and foreign datasets. These include a requirement to delete any private information about physical or mental health and, for Canadian datasets, to delete any information subject to solicitor-client privilege, at section 11.1. The safeguards also include a requirement to remove information from foreign datasets that relates to Canadians and persons in Canada.
In addition to the requirements that apply in connection to retention, conditions apply to the use of Canadian and foreign datasets. Section 11.2 requires that use of these datasets through specific queries (in relation to a person or entity) or by exploitation (analysis of trends) must respect a “strictly necessary” standard, or be required to assist the Minister of Defence or the Minister of Foreign Affairs under existing section 16 of the CSIS Act (relating to information or intelligence about foreign states and about persons who are not Canadians or permanent residents of Canada). Foreign datasets also may be used to the extent that this is “strictly necessary” for the purpose of section 15 of the CSIS mandate (security clearances). Analogous standards apply to the communication and retention of the results of such use. Under subsection 11.24(3), CSIS must take reasonable measures to ensure that designated employees communicate information held in a dataset – or resulting from the querying or exploitation of a dataset – only in accordance with the CSIS Act. Use of datasets prior to authorization for retention is subject to a strictly-controlled exception in exigent circumstances, at sections 11.22-11.23, to preserve the life or safety of an individual or to gain intelligence of significant importance to national security that otherwise would be lost or diminished by the delay.
Section 11.24 obligates CSIS to establish record keeping requirements for the querying and exploitation of a Canadian or foreign dataset and the results of this use; it also obliges CSIS to establish such requirements for the exploitation of a publicly available dataset and for the results of querying and exploitation of such datasets. This information must be made available to the NSIRA. If the NSIRA is of the opinion that CSIS actions in querying or exploiting datasets may not be in compliance with the law, including the Charter, section 27.1 requires the Director to provide a copy of that report to the Chief Justice of the Federal Court. The Court is to review the information filed and determine if CSIS use of datasets complied with the law. The Court may issue a direction, make an order or take any other measure the Court deems appropriate.
In addition, clause 102, amending section 21 of the CSIS Act, would allow information incidentally collected under an existing section 21 warrant to be retained under judicial authorization and to be deemed a dataset that has been collected, but which then becomes subject to the other requirements of the Act for retention and use.
The proposed dataset measures could engage privacy interests protected by section 8 of the Charter.
The following considerations support the consistency of the dataset provisions with the Charter. The overall reasonableness of the datasets regime must be considered within the context in which it operates, namely intelligence gathering for national security purposes (not law enforcement). The new provisions give CSIS clear authority to collect datasets relevant to its mandate and subjects their retention and use to a number of accountability and review mechanisms. The initial collection authority requires CSIS to assess the privacy interests engaged by the datasets. During this assessment period, the datasets cannot be used except in exigent circumstances. The information in datasets is otherwise strictly segregated during this period, with access only by designated CSIS employees conducting the assessment. Retention of Canadian datasets requires judicial authorization. Retention of a foreign dataset requires Ministerial authorization. The distinction in the authorization approach to foreign datasets, as compared with that of Canadian datasets, is analogous to the established model for foreign information acquired by CSE, which is also addressed in Part 3 of Bill C-59. Control on retention is further strengthened by the approval role played by the independent, quasi-judicial Intelligence Commissioner.
Although dataset use is not subject to judicial pre-authorization, it is subject, where appropriate, to the requirement that the use of datasets be “strictly necessary” to enable CSIS to perform its intelligence gathering or threat reduction mandates. Information on use is made available to the NSIRA. If the NSIRA makes a finding or recommendation that CSIS actions in this use are contrary to statute or the Charter, the dataset measures provide that the Director must give this portion of the report to Federal Court, which then can consider the matter and provide a remedy. Key controls, including a judicial role and accountability requirements, are incorporated in the dataset provisions so as to limit impacts on privacy interests.
Threat Reduction Measures
Bill C-51, enacted by a previous Parliament (S.C. 2015, c. 20), provided a new power for CSIS to take measures to reduce threats to the security of Canada. This included a requirement, at existing subsection 12.1(3) of the CSIS Act, that “The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1.” Section 21.1 was also enacted under previous Bill C-51 to provide authority for such a warrant.
These provisions have been viewed as potentially giving authority for warrants that would authorize violations of the Charter or other Canadian law. Clauses 98 and 99 propose amendments to the Act’s threat reduction provisions to clarify that any threat reductions measures undertaken by CSIS must be Charter-compliant and also that, as authorized under warrant, they must comply with other Canadian law.
To this end, a new provision would be added, reciting that the Charter is part of the supreme law of Canada and that all threat reduction measures taken by the Service must comply with it. Further, the existing provision for judicial oversight of threat reduction measures would be strengthened by a warrant provision that clearly requires CSIS to obtain a warrant before taking any measures that would limit rights or freedoms under the Charter or otherwise be contrary to other Canadian law. Before a warrant could be issued, the judge would have to be satisfied that the measures authorized would be consistent with the Charter. These new provisions are found in subsections 12.1(3.1) to 12.1(3.4) of the CSIS Act.
To further strengthen Charter protections, the warrant provision at section 21.1 would also be amended, at clause 103. Pursuant to existing section 21.1, the judge must be satisfied of the reasonableness and proportionality of the measures. Subsection 21.1(1.1) would add a further requirement expressly restricting the measures that can be taken under warrant to those in a defined list.
Additional new requirements would apply to all threat reduction measures – whether or not under a warrant – including a requirement, as part of the reasonable and proportional standard, that CSIS consider the foreseeable effects on the rights of third parties, including their right to privacy (subsection 12.1(2)). There is also a new requirement to consult, as appropriate, other federal departments and agencies in respect of their ability to reduce the threat.
The list of specifically prohibited threat reduction measures at subsection 12.2(1) would be expanded to include acts of torture or cruel, inhuman and degrading acts, detention of an individual, and causing the loss of or any serious damage to property that would endanger the safety of an individual.
The threat reduction provisions could potentially engage various Charter rights and freedoms, including freedom of expression (section 2(b)) and mobility rights (section 6).
The following considerations support the consistency of the threat reduction regime with the Charter. The new restrictions placed on what types of threat reduction measures may be pursued would significantly limit the potential for any measures to engage Charter protections. Whenever contemplated measures could limit rights and freedoms, their scope would be clearly restricted by section 21.1(1.1). Finally, the requirement of prior judicial authorization would apply and require judicial satisfaction of Charter compliance under a core standard of reasonableness and proportionality.
Framework for justifying CSIS activities
CSIS employees engaged in national security information and intelligence gathering, and those acting at their direction, may sometimes undertake conduct that would constitute offences if not otherwise permitted by law.
Bill C-59 would create a statutory authority for CSIS to engage in reasonable and proportional activities of this nature. The new authority would be similar in nature to section 25.1 of the Criminal Code, but adapted to the national security context. For police and other law enforcement officers, and persons acting at their direction, section 25.1 of the Criminal Code provides a limited statutory justification regime for “reasonable and proportional” activities that would otherwise constitute offences. That regime does not apply to CSIS employees or to those directed by them. Currently, CSIS relies on Crown immunity as a legal foundation for such activities.
Clause 101 would create the proposed national security justification regime. Sections 20.1(6)-20.1(7) provide for the designation of employees engaging in activities under the regime by the Minister of Public Safety. In emergency situations, temporary designations could be made by the CSIS Director or a designated senior employee, under subsections 20.1(8)-20.1(9). The classes of acts and omissions that could be justified under the regime must be determined in advance by the Minister and approved by the new independent, quasi-judicial Intelligence Commissioner, under subsections 20.1(3)-20.1(5).
Subsection 20.1(11) is the core provision that outlines the justification regime applicable to designated employees. The designated employee must be engaged in information and intelligence collection activity and believe on reasonable grounds that the commission of the act or omission is reasonable and proportional.
Analogous requirements apply to a designated employee directing another person to commit an act or omission that would otherwise constitute an offence (subsection 20.1(15)). Direction of such an act or omission must also be authorized by the Director of CSIS or a designated senior employee. Further, the person directed would be required to believe on reasonable grounds that the employee providing the direction has the authority to do so.
Specific categories of conduct that could never be justified are listed at subsection 20.1(18):
- intentionally or with criminal negligence causing death or bodily harm;
- wilfully attempting to obstruct justice;
- violating sexual integrity;
- acts of torture or cruel, inhuman and degrading acts;
- detention of an individual; and
- causing the loss of or any serious damage to property that would endanger the safety of an individual.
Subsections 20.1(21) and (22) also specify that nothing relieves an employee from a requirement to obtain a warrant, or authorizes the infringement of a right or freedom guaranteed by the Charter.
To further strengthen accountability and transparency, the justification regime includes reporting and review provisions, at subsections 20.1(23)-20.1(26). Designated employees must make a report to the Director or a designated senior employee about each instance where an act or omission that would otherwise be an offence was committed or directed by the employee. There must be a public annual report giving general information about the use of the justification regime. Notice must be given to the NSIRA about identified matters. As with other powers under the CSIS Act, the justification measures are subject to review by the NSIRA and to the power of the NSIRA to report on the activities taken under the measures.
Clause 100 would also establish separate exemptions applicable to CSIS employees and persons acting at their direction for particular offences. No employee would be guilty of an offence by reason only that the employee, in the course of their duties and for the sole purpose of establishing a covert identity, makes a false statement about the covert identity or takes specified actions in respect of a false document. The analogous exemption would apply to persons acting at the direction of a CSIS employee. A related exemption from section 368.1 of the Criminal Code would be provided for possession and other specified actions with instruments, devices or other things used to commit forgery.
The new justification regime has the potential to engage section 7 of the Charter’s guarantees of the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The following considerations support the constitutionality of the justification measures. The nature of any potential effects on Charter rights and freedoms would be limited by the listing of activities that could never be justified. The similar justification for law enforcement officers found at section 25.1 of the Criminal Code has existed for many years and has been upheld as constitutional. Notably, in R. v. Lising (2010) the British Columbia Court of Appeal found that the Charter did not require prior judicial authorization to ensure the constitutionality of the justification regime. The proposed justification regime is similarly narrow in scope. It incorporates the key limitations of the existing section 25.1 regime, as well as additional restrictions and accountability measures appropriate to the national security context.
Part 5: Security of Canada Information Disclosure Act
Bill C-59 proposes amendments to the Security of Canada Information Sharing Act, including to clarify the definition of “activity that undermines the security of Canada”, to clarify and strengthen the authority to disclose, and to increase accountability for activities carried out under the Act.
The Security of Canada Information Sharing Act enacted by Bill C-51, which would be renamed the Security of Canada Information Disclosure Act, takes a whole-of-government approach to the dissemination of information already in the possession of the Government of Canada where such dissemination would help respond to activities that undermine the security of Canada. The Act is intended to close gaps in legal authorities, and to facilitate the responsible disclosure of information within the federal government for national security purposes. To this end, Parliament enacted an express authority to disclose information in specified circumstances to those federal government institutions responsible for dealing with activities that undermine the security of Canada.
Clause 115(4) would amend section 2 of the Act to clarify that “advocacy, protest, dissent or artistic expression” are not by themselves “an activity that undermines the security of Canada”. They are only an activity of concern when carried on in conjunction with other activities that meet the definition. This makes clear that information solely about “advocacy, protest, dissent or artistic expression” would not be subject to disclosure under the Act.
Clause 118 would amend section 5 of the Act, which remains the key provision. Section 5 provides the authority for a Government of Canada institution to disclose information in its possession to another Government of Canada institution with jurisdiction or responsibilities in relation to activities that undermine the security of Canada. Clause 118 would strengthen the existing disclosure standard. It would improve upon and replace the existing “relevance” standard, with a new standard stipulating that a government institution may disclose information where satisfied that it would “contribute to the exercise of” the recipient’s jurisdiction or the carrying out of the recipient’s responsibilities. In addition, the amendment would impose a new obligation that when disclosing information the government institution be satisfied that the disclosure “will not affect any person’s privacy interest more than is reasonably necessary in the circumstances.” Finally, clause 118 would require a disclosing institution to inform the recipient as to the accuracy of the information being disclosed and the reliability of its manner of collection.
Clause 119 would impose a record-keeping obligation on disclosing institutions to require the creation and retention of records for each disclosure under the Act, and a further obligation to provide all such records to the NSIRA on an annual basis. Under section 39 of the National Security and Intelligence Review Agency Act, the NSIRA would be required to report annually on activities under the Security of Canada Information Disclosure Act, informed by the records provided to it by disclosing institutions. These reports would be made public through their tabling in Parliament by the Minister of Public Safety.
To the extent that any expressive activity may also constitute “an activity that undermines the security of Canada”, the disclosure within government of information concerning such an activity may potentially engage section 2(b) of the Charter.
The following considerations support the consistency of the Act with the Charter. Clause 115(4) makes clear that only information concerning an expressive activity that otherwise comes within the definition of “an activity that undermines the security of Canada” could be disclosed. This would clearly narrow the scope of information about expressive activity that could potentially be disseminated within government. The disclosure of information about expressive activity taking the form of violence, directed towards violence, or being intimately connected to violence, would not be considered to limit section 2(b), as such activity falls outside the scope of the Charter’s protection. Information in the possession of the Government of Canada concerning any remaining expressive activity conducted “in conjunction with an activity that undermines the security of Canada” and attracting section 2(b) protection would be liable to disclosure within government for the compelling purpose of protecting the security of Canada. Only information contributing to that purpose would be authorized for disclosure.
The Act may also engage section 8 of the Charter, since it would continue to authorize the disclosure within government of information relevant to responding to activities that undermine the security of Canada. This could include information in which persons have a reasonable expectation of privacy.
The following considerations support the consistency of these powers with the Charter. The purpose of the Act is of the most compelling nature, namely to enable the disclosure within government of information relevant to responding to activities that undermine the security of Canada, in order to make it available to those government institutions mandated to address threats to the security of Canada. The Act does not grant any new authority to collect such information to any institution, and under Bill C-59 would continue to be limited to information that is already in the government’s possession. The Act therefore only potentially affects residual privacy interests that may have survived the initial lawful collection of the information under authorities outside of the Act.
Although the Act would continue to enable the disclosure of information without prior judicial or quasi-judicial authorization, proposed amendments would clarify and strengthen the disclosure authority in section 5. In particular, the disclosing institution would need to be satisfied that any disclosure of information would not affect privacy interests more than reasonably necessary in the circumstances, thus minimizing privacy impacts. Also, new accountability measures proposed in clause 119 and in the National Security and Intelligence Review Agency Act would enable the independent and external NSIRA to review activities under the Act for lawfulness and to report any findings of non-compliance to Parliament.
Part 6: Secure Air Travel Act Amendments
The Secure Air Travel Act (SATA) aims to ensure the security of air transportation and to prevent the travel of persons who intend to commit a terrorism act. The main impact of the proposed amendments to SATA would be to centralize the process for collecting passenger information to facilitate accurate screening of persons suspected of posing a threat to aviation security, while also enhancing respect for privacy interests.
Clauses 127 (subsections 6(2) and (3)) and 130 (paragraph 10.2(a)) of Bill C-59 would amend SATA to allow the Minister of Public Safety and Emergency Preparedness to collect information from air carriers or, in certain cases, operators of aviation reservation systems, about each person who is on board or expected to be on board an aircraft for any flight prescribed by regulation in order to screen passengers against the list established under SATA. The targeted information includes the surname, first and middle names, date of birth, gender and any other prescribed information.
Clause 127 (subsection 6(4)) would amend SATA to allow the Minister, the Minister of Transport or any other person or entity mentioned under paragraphs 10(b) to (f) of SATA to ask the air carriers or, in certain cases, operators of aviation reservation systems for information about the person who is on board or expected to be on board an aircraft. Subsections 6(5) and (6) would provide limitations as to what may be requested depending on whether the request comes from one of the Ministers or another person or entity.
Clause 134 would reverse the current rule regarding a deemed decision to keep a person on the SATA list, meaning that a person who applies to be removed from the list would now be deemed removed within 120 days of filing their application, unless the Minister takes one of the prescribed steps.
Section 8 of the Charter protects against “unreasonable” searches and seizures. As this Part of the Bill will apply to the collection, disclosure, and retention of personal information, it has the potential to affect privacy interests and therefore may engage section 8 of the Charter.
The following considerations support the consistency of these provisions with the Charter. The centralization of the screening process in order to identify listed persons would enhance the fulfilment of Parliament's pressing objective, which is to ensure the safety of air transportation. The centralized process would enhance the confidentiality of the list and the protection of privacy, since the list would no longer be transmitted systematically to airline companies in order for them to screen and identify listed persons. This would also ensure greater consistency in the screening process and could reduce the number of individuals erroneously identified as being listed and who, as a result, are delayed in their air travels.
The proposed amendments would establish additional rules to protect privacy interests. With regard to the information collected under subsections 6(2) and (3), the Minister could only disclose such information in order to obtain assistance in identifying listed persons who are on board or are expected to board an aircraft if it relates to a person the Minister has reason to believe is a listed person (paragraph 10.3(1)(a)). Under subsection 10.3(2), the Minister could again only disclose information provided under subsections 6(2) and (3) for the purpose of ensuring transportation security or preventing travel to commit a terrorist act if the information relates to a listed person.
With regard to other information obtained under SATA, section 11 would only authorize the Minister to disclose information in order to ensure transportation security or to prevent the travel of a person who intends to commit a terrorist act. Additionally, section 12 would authorize the Minister to enter into a written agreement with a foreign state or international organization relating to the disclosure of any information he or she is permitted to disclose under subsection 10.3(2) and section 11.
Clause 134 would enhance the reasonableness and fairness of the administrative process for those who consider they have been listed in error by making recourse to correct the situation more efficient and transparent.
Lastly, clause 136 would enact a new section 18 to require the destruction of any document or record containing information collected under subsections 6(2), (3) and (4) unless the information is reasonably required for the purposes of SATA. This information must otherwise be destroyed within seven days after the day on which the flight departs or the flight is cancelled.
Part 7: Criminal Code Amendments
Counselling commission of terrorism offence
Clause 143 would amend the existing offence of advocating or promoting the commission of terrorism offences in general, to create a more targeted general counselling offence for terrorism offences, whether or not a specific terrorism offence is committed or a specific terrorism offence is counselled.
Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Because the revised offence gives rise to the possibility of imprisonment, it engages the section 7 right to liberty and so must respect the principles of fundamental justice. These principles require that laws not be arbitrary, overbroad or grossly disproportionate.
The following considerations support the consistency of the offence with section 7. The offence of counselling requires that the statements, when viewed objectively, actively encourage the commission of a terrorism offence described in them. Courts are familiar with the term “counsel” in the context of criminal law such that the term is not vague. The Supreme Court of Canada has interpreted the act of counselling to be the deliberate encouragement or active inducement of the commission of a criminal offence. Further, the accused must either have intended that the offence be committed or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was likely to be committed as a result of the accused’s conduct. Clarifying that the offence targets the counselling of the commission of a terrorism offence ensures that the offence is carefully tailored to the government’s objective of deterring and punishing conduct that poses a real risk of harm to Canadians.
The revised offence has the potential to affect freedom of expression as protected by section 2(b) of the Charter, to the extent that it prohibits communications by a person. However, expression taking the form of violence, directed towards violence, or being intimately connected to violence is not protected by section 2(b). The Supreme Court in R. v. Khawaja (2012) was clear that this includes threats of violence. The statements covered by this revised offence can, in many cases, be considered as falling within the violence exception to the freedom of expression guarantee. For any other statements that may be caught by the offence, the prohibition may be viewed as a proportional response to the objective of addressing the threat posed by the terrorism offences.
Clause 144 would amend the definition of terrorist propaganda in subsection 83.222(8) to reflect the wording of the new counselling offence in section 83.221. The ability of a judge to issue a warrant authorizing seizure of any publication where the judge is satisfied that there are reasonable grounds to believe that the publication is terrorist propaganda would remain in the Criminal Code.
The provisions could potentially engage expressive activity since the provisions capture any writing, sign or visible representation that meets the definition of “terrorist propaganda”. However, since the definition of “terrorist propaganda” will be restricted to writings, representations or signs that counsel the commission of a terrorism offence, the material to which the provision would apply can, in many cases, be considered as falling within the violence exception and so outside the otherwise broad protection for freedom of expression provided by section 2(b) of the Charter. For any other statements that may be caught by the offence, the prohibition may be viewed as a proportional response to the objective of addressing the threat posed by the terrorism offences.
Recognizance with conditions and preventive arrest
Clause 146 would amend the recognizance with conditions provision in section 83.3 of the Criminal Code to require that a peace officer suspect on reasonable grounds that the recognizance “is necessary” to prevent the carrying out of a terrorist activity. This would change that part of the threshold back to what it had been previous to Bill C-51.
The subsection regarding arrest without a warrant would require a peace officer, before arresting a person without a warrant, to suspect on reasonable grounds that the detention of the person in custody “is necessary” to prevent a terrorist activity. The effect of this amendment would be to revert to the threshold for preventative arrest as it had been prior to Bill C-51.
A person subject to a recognizance is required to keep the peace and be of good behaviour and to comply with any other reasonable conditions imposed by the judge, including the requirement to remain within a specified geographic area or to surrender his or her passport. A breach of the conditions in a recognizance may be punishable by a term of imprisonment. The recognizance can be for a period of up to 12 months, unless the person has previously been convicted of a terrorism offence, in which case the recognizance may be for up to two years.
A law that imposes restrictions or prohibitions affecting one’s ability to move freely – including a recognizance – has the potential to engage the right to liberty protected by section 7 of the Charter. As well, any criminal prohibition that gives rise to the possibility of imprisonment engages the section 7 right to liberty. Any deprivation of liberty must accord with the principles of fundamental justice, which include the principles against arbitrariness, overbreadth and gross disproportionality. They also include the principle that laws not be vague in the way that they are written.
The following considerations support the consistency of the revised scheme with section 7 of the Charter. The purpose of the recognizance scheme is to allow law enforcement to take preventive measures earlier in the investigative process against terrorist acts and to protect the security of Canadians. The threshold that must be met by a peace officer for a judge to issue a recognizance order is proof on a balance of probabilities that there are (a) reasonable grounds to believe that a terrorist activity may be carried out and (b) reasonable grounds to suspect that the recognizance is necessary to prevent the carrying out of that activity. These terms are well understood in Canadian criminal law and courts are capable of interpreting and applying the provisions in a Charter-consistent manner. The pressing preventive objective of the scheme, along with the burden that must be met by the peace officer in order for the order to be made, mean the scheme is carefully tailored to capture only those individuals who pose a real threat of committing (including by participating in) a terrorist activity.
Similarly, imposing a threshold of “necessity” for preventive arrest without a warrant mirrors the test for the issuance of the recognizance and ensures that only those individuals who pose a substantial risk of committing a terrorist activity are arrested without a warrant.
Witness protection measures
Clause 154 would amend the Criminal Code to indicate that a court may order any of the testimonial aids, publication bans or other measures in sections 486-486.5 and 486.7 to protect a witness or participant in a recognizance with conditions or peace bond hearing. The Criminal Code already provides this range of measures to protect witnesses in criminal proceedings, including proceedings involving national security or intelligence information or criminal intelligence information. These include provisions allowing for non-disclosure of a witness’s identity, orders permitting a witness to testify behind a screen, or the exclusion of the public from the court room.
This amendment would permit the use of these measures in hearings regarding peace bonds or recognizances, including peace bond hearings that do not involve national security or organized crime. In addition to facilitating the truth-seeking function of these processes, this is a safety enhancing measure for those who will benefit from the expanded availability of witness protection measures.
Section 2(b) of the Charter protects freedom of expression, including the open court principle. Under this principle, there is a presumption that court proceedings are open to both the public and the media. The use of a witness protection measure that limits the openness of, or access to, court proceedings could engage section 2(b).
The following considerations support the consistency of any measures restricting access to court proceedings with the Charter. Except where such measures are mandatory, such as where the victim is under the age of 18 years (subsection 486.4(2.2)), the decision as to what, if any, measures should be taken to protect witnesses would be left to the discretion of the court. In deciding whether to permit the use of witness protection measures, the court would have to balance the competing interests at stake and be of the opinion that the order is in the interest of the proper administration of justice. In determining whether to make an order, the court shall consider a number of factors including: the right to a fair and public hearing; the nature of the offence; whether the witness needs the order to protect their security or identity; whether effective alternatives to the making of the proposed order are available; and the negative versus beneficial effects of the proposed order. Any order by the court would also have to take into consideration the judgments of the Supreme Court in Dagenais v. Canadian Broadcasting Corp. (1994) and R. v. Mentuck (2001), which govern the discretionary imposition of measures that may interfere with the open court principle, such as a publication ban.
Witness protection measures are designed to facilitate the truth-seeking function of the Court and to encourage witnesses to come forward without fear of recrimination. This may be particularly important in cases involving threats to national security and terrorism, although they also would apply in cases that do not involve national security or organized crime, for example in cases of domestic violence.
Section 7 of the Charter may also be implicated by the use of witness protection measures in hearings for recognizance orders or peace bonds, since these hearings can lead to a restriction on the defendant’s liberty, as explained above. Any deprivation of the right to liberty must accord with the principles of fundamental justice, which include the right to a fair hearing, the opportunity to know the case one has to meet, the opportunity to present evidence and the right to a decision on the facts and the law.
The following considerations support the consistency of these witness protection measures with section 7. The use of witness protection measures is meant to protect the safety and security of witnesses, including persons who work in the area of national security. This facilitates the proper administration of justice by enabling a court to make a determination regarding a peace bond or recognizance on the basis of a full and complete record. The defendant would still be able to cross-examine the witness to test the reliability of their evidence to ensure that the Crown has met its burden of proof in the case. The court would retain the discretion to ensure that the individual’s right to a fair hearing is protected when deciding whether to grant a request for various witness protection measures.
Part 8: Youth Criminal Justice Act Amendments
Bill C-59 would make a number of amendments to the Youth Criminal Justice Act (YCJA) to ensure that all youth who are involved in the criminal justice system due to terrorism-related conduct are afforded the enhanced procedural and other protections that the YCJA provides. Consistent with Canada’s international human rights law obligations under treaties such as the United Nations Convention on the Rights of the Child, the YCJA recognizes that young people lack the maturity of adults, and incorporates principles and measures that are consistent with this reduced level of maturity. The YCJA encourages the use of measures outside of the formal court system for less serious offences in recognition of the fact that such measures are often the most appropriate and effective way to respond to youth offending. Where formal charges are pursued and a young person is found guilty of an offence, the YCJA provides for flexibility in sentencing, including the option of reprimanding the young person, and imposes limits on the retention and use of criminal records.
Clause 167 would amend the YCJA to specifically permit access to youth records for the purpose of administering the Passport Program. The Canadian Passport Order contemplates that passports can be denied or revoked in certain instances of criminality or national security concerns. For example, section 10.1 of the Canadian Passport Order provides that the Minister of Public Safety and Emergency Preparedness may decide to deny or revoke a passport if there are reasonable grounds to believe that it is necessary to prevent the commission of a terrorism offence, or for the national security of Canada or a foreign country or state.
Section 8 of the Charter protects against “unreasonable” searches and seizures. Because the disclosure of youth criminal justice records has the potential to interfere with a youth’s privacy interests, it may engage section 8.
The following considerations support the consistency of these powers with the Charter. The new provision would specify that youth record information could be shared solely for the purpose of administering the Canadian Passport Order. This limited purpose strikes an appropriate balance between any privacy interests at stake and the state interest in protecting the safety and security of Canadians, as well as the integrity of the passport program. It would also enable Canada to participate more effectively in the global fight against terrorism, notably travel by youth for purposes of engaging in terrorist activities.
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