Fulfilling Commitments to Address Former C-51
The Government used the input provided by Canadians as part of its unprecedented consultation on national security to follow through on its commitment to amend the problematic elements of the Anti-terrorism Act, 2015 (former Bill C-51).
Canadians were clear in the consultation that they expect their rights and freedoms to be protected at the same time as their security.
The Government's proposed measures would provide the Government with the necessary means to address national security threats while ensuring these proposals are fully compliant with the Canadian Charter of Rights and Freedoms and respect Canadian values.
Overhauling the CSIS threat reduction warrant process and introducing new safeguards
The Government proposes to address concerns with the current open-ended warranted threat reduction regime by introducing enhancements that will clarify what type of activities the Canadian Security Intelligence Service (CSIS) could employ; and, introduce a range of new safeguards for CSIS's threat reduction measures to ensure compliance with the Canadian Charter of Rights and Freedoms.
These amendments would:
- establish the specific measures that CSIS could use under a threat reduction warrant;
- introduce new safeguards and accountability measures to ensure compliance with the Charter;
- clearly state that a warrant would be required for any threat reduction measure that would otherwise limit a right or freedom protected by the Charter or be contrary to any other Canadian law;
- ensure the threat reduction measures should only be used after the means available to the police and other agencies have been considered;
- add new prohibitions for greater certainty and to ensure public confidence.
Clarifying the information sharing process between federal institutions for national security purposes under the SCISA
The Government heard the concerns raised by stakeholders and Canadians with respect to the Security of Canada Information Sharing Act (SCISA) and is making some important legislative changes.
Namely, it proposes that:
- advocacy protest, dissent, and artistic expression activities be excluded from the definition of information that can be disclosed under the SCISA, unless any of these activities are carried out in conjunction with activities that undermine the security of Canada;
- the threshold for disclosing information be clarified to ensure disclosures meet specific requirements with respect to the utility, integrity and privacy impacts of the information;
- the title of the Act in English be amended to the Security of Canada Information Disclosure Act to better reflect that the Act only addresses information disclosure; and
- institutions will be required to maintain specific records of the disclosures made under the Act, which they will be required to provide to the new proposed National Security and Intelligence Review Agency on an annual basis.
In addition to the legislative changes, the Government is looking to bring more clarity regarding the institutions that are able to receive information under the Act by publishing an overview of the national security jurisdiction and responsibilities of each recipient institution and the positions and/or directorates that have been designated by the Head of the institution as delegates to receive information, where appropriate.
As well, the Government will establish a Centre of Expertise which will provide guidance to help ensure that all Government departments and agencies are properly supported in carrying out their responsibilities with regards to the sharing of information.
The Government believes that these changes better reflect that this Act only provides an authority to disclose, and not to collect information. Since the Act does not provide an authority to collect information, Government departments and agencies may only collect based on their existing authorities.
Amending the Secure Air Travel Act
The Government recognizes the frustration of parents who experience travel difficulties as a result of false name matches involving their child on a so-called “no fly” list.
While the Government works on a long-term solution, it is proposing an amendment to the Secure Air Travel Act (SATA) that would allow the Minister of Public Safety to inform parents that their child is not on the list, providing them assurance regarding their child's status.
The Government is also proposing to improve the fairness of the recourse process, which allows listed individuals to seek administrative remedy with regard to their SATA listing.
Under the current system, an individual remains listed if a decision by the Minister is not rendered within a 90-day period.
Under the new proposal, the individual's name will be removed from the SATA list if a decision on their recourse application is not rendered by the Minister of Public Safety within 120 days. There are cases when delays may be unavoidable resulting in there being insufficient information for a decision to be rendered, such as when agencies are waiting for information from partners or when the applicant has requested more time to respond to the case against him or her. As a result, it is proposed that the Minister may extend the set decision period if the Minister notifies the applicant of the extension within the first 120 day period.
The proposed legislation would also allow Public Safety to electronically screen air passenger information against the SATA list. These proposed legislative changes are an important first step towards building an effective approach to redress. By collecting basic passenger information from air carriers, false name matches would be prevented and threats posed by listed persons would be mitigated. Under the proposal, all information on cleared passengers would be destroyed promptly.
Amending the Criminal Code
Amendments are being proposed to the following elements of former Bill C-51:
- clarifying the scope of the Advocacy or Promotion of the Commission of a Terrorism Offence (Counselling);
- defining Terrorist Propaganda more clearly;
- increasing a threshold for a Recognizance with Conditions;
- requiring annual reporting on the number of Terrorism Peace Bonds entered into.
Counselling the Commission of a Terrorism Offence
Former Bill C-51 created a new offence of knowingly advocating or promoting the commission of terrorism offences in general. I f one does so knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed. Currently, the maximum punishment is five years' imprisonment. There has been no prosecution of this offence since it came into force in July 2015, and it has been criticized by legal experts for being unclear, too vague and overly-broad.
The Government committed to repealing the problematic elements of former Bill C-51, and introducing new legislation that keeps Canadians safe and protects their rights and freedoms. This included clarifying and narrowing overly-broad definitions, such as “terrorist propaganda”.
It is proposed that the offence be revised to avoid unclear concepts and terminology and, instead, use better known criminal law concepts. In this case, the new offence would be counselling another person to commit a terrorism offence, whether or not a terrorism offence is committed or a specific terrorism offence is counselled.
Defining Terrorist Propaganda more clearly
Terrorist propaganda material is currently defined as any writing, sign, visible representation or audio recording that advocates or promotes the commission of terrorism offences in general or counsels the commission of a terrorism offence. Former Bill C-51 created two new warrants in the Criminal Code that allow a judge to order the seizure and forfeiture of terrorist propaganda material, or the removal of “terrorist propaganda” when it is in electronic form and is made available to the public through a Canadian Internet service provider. The former Bill C-51's definition of “terrorist propaganda” has been criticized for being unclear, including by the May 2017 Report of the Standing Committee on Public Safety and National Security.
Since the language of “advocating or promoting the commission of terrorism offences in general” is being clarified in the revised counselling the commission of a terrorism offence, this problematic portion of the definition of “terrorist propaganda” would be replaced with the revised wording, focusing on the clearer concept of counselling of terrorism offences.
Increasing a threshold for a Recognizance with Conditions
A recognizance with conditions is a tool to assist law enforcement in disrupting terrorist plans to carry out a terrorist activity. A peace officer who believes on reasonable grounds that a terrorist activity may be carried out, and suspects that imposing conditions or arresting a person would prevent it, can go before a judge to seek to have a recognizance imposed on that person.
The proposed legislation would increase one of the thresholds for this tool by reverting back to the pre-Bill C-51 level. Under the proposed legislation, a recognizance would need to be “necessary to prevent” a terrorist activity instead of only “likely to prevent” it. Such a change would have the effect of strengthening the provision's compliance with the Charter.
Under the proposed legislation, the revised recognizance with conditions provision would be subject to a five-year sunset clause, providing for a possible Parliamentary debate and vote on extending the provision up to an additional five years.
Requiring Annual Reporting on the number of Terrorism Peace Bonds entered into
A terrorism peace bond is a protection order made by a court under the Criminal Code. It is used where there are reasonable grounds to fear that an individual may commit a terrorism offence. This Bill would create an obligation for the Attorney General of Canada to make an Annual Report to Parliament on the number of terrorism peace bonds entered into each year. This would allow for greater transparency and accountability. No specific changes to the terrorism peace bond itself are being proposed.
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