Parliamentary Passage of Bill C-59: the  National Security Act, 2017 -  Strengthening Security and Protecting Rights: Overview of New Measures

The Government undertook a comprehensive review of Canada’s national security framework, aided by extensive public consultations. The consultations helped the Government identify the changes that were required to fix the problematic elements of the Anti-terrorism Act, 2015 (former Bill C-51) and strengthen the trust of Canadians in their national security and intelligence agencies.

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

A modernized Canadian Security Intelligence Service (CSIS) Act 

This update to the CSIS Act provides new legal authorities to allow CSIS to keep pace with modern technology and evolving threats, while ensuring that the rights of Canadians are protected. It improves the transparency and accountability regime under which CSIS operates - a consideration repeatedly emphasized during the consultation process. 

Once in effect, the CSIS Act will be amended to:

• establish in law an authorization regime for otherwise unlawful activities;
• provide an exemption for offences that may be triggered by establishing or maintaining a covert identity;
• establish a list of distinct measures that can be authorized under warrant to reduce threats in the current environment;
• clarify that a warrant would be required for any threat reduction measure that would “limit” a right or freedom protected by the Charter and that a warrant can only be issued if a judge is satisfied the measure is consistent with the Charter; and,
• create a new framework for the collections of datasets, which would require CSIS to seek authorization from the Intelligence Commissioner to collect Canadian information and the Federal Court to retain it.
• Establishing the Communications Security Establishment (CSE) Act
  

The Government has established the CSE Act to modernize and clarify CSE’s authorities, while providing greater accountability and transparency. With the CSE Act, CSE will retain its current authorities and will receive permission to perform additional activities.

Once the new legislation and increased accountability measures are in effect, CSE will be:

• permitted to use more advanced methods and techniques to gather intelligence from foreign targets, and to take action online to defend Canadian networks and proactively stop cyber threats before they reach our systems;
• better placed to support systems of importance to the Government of Canada, including designated private industry systems, upon request; and,
• permitted to assist the Department of National Defence and the Canadian Armed Forces with cyber operations.

Within strict legal parameters and with approvals required at the highest level of government, CSE will be permitted to take action online to disrupt foreign threats where Canadians’ interests are at stake.

Expanding Witness Protection Measures

The Criminal Code provides a range of measures to protect witnesses in criminal proceedings, including those who may be vulnerable to intimidation, such as police officers who have investigated serious criminal conduct, including organized crime and terrorist activity.

Former Bill C-51 introduced changes to the Criminal Code to improve the protection of witnesses and justice system participants.

Bill C-59 leaves those changes intact and, once in effect, will create a general power for the court to order the protection of witnesses testifying in recognizance with conditions or peace bond proceedings – an area that was not addressed in former Bill C-51.

Repealing Investigative Hearing Provisions

The investigative hearing provisions of the Criminal Code were first introduced into Canadian law in 2001. They expired in 2007 and were renewed in 2013. The provisions gave a judge the power, on application from a peace officer, to order a person to appear before the judge and to answer questions about a terrorism offence that has been or will be committed and to bring along anything in his or her possession relevant to the issue. The judge also had the authority to issue an arrest warrant for a person who refused to attend such a hearing.

The use of an investigative hearing was invoked once, but was not actually held. While the Supreme Court of Canada upheld its constitutionality in Application under s. 83.28 of the Criminal Code (Re), [2004] 2 SCR 248, the investigative hearing scheme has attracted criticism over the years as being an excessive and unnecessary law enforcement tool, and was not in force between 2007 and 2013. The investigative hearing provisions sunsetted on October 25, 2018 and were repealed through this legislation.

Improving Efficiency of Terrorist Listings

There are currently more than 50 listed terrorist entities under the Criminal Code. Currently, an individual or group listed as a terrorist entity has its funds immediately frozen, and potentially seized and forfeited.

The legislative changes to the Criminal Code terrorist entity listing regime were aimed at improving efficiency and effectiveness, and were largely procedural. For example, once in effect, they will grant Ministerial authority to modify the names and aliases of already listed terrorist entities, amend the de-listing process and the frequency of the listing review process, and better deal with mistaken identities.

Updating the Youth Criminal Justice Act

The Youth Criminal Justice Act (YCJA) recognizes that young persons have special guarantees of their rights and freedoms and contains a number of significant legal safeguards to ensure that young people are treated fairly and that their rights are fully protected. Youth aged 12 to 17 who commit criminal offences are dealt with under the YCJA.

The legislation, once in affect, will amend the YCJA to clarify that youth justice courts have exclusive jurisdiction to impose recognizances on youth and to ensure that youth protections apply in relation to recognizance orders (peace bonds and recognizance with conditions proceedings), including the right to counsel. In addition, the legislation provides for access to youth records for the purpose of administering the Canadian Passport Order, subject to the privacy provisions in the YCJA.