Questions and Answers: Fulfilling Commitments on Addressing Former Bill C-51

Overhauling the CSIS threat reduction warrant process

Should CSIS' warranted TRM mandate simply be repealed?

This approach would limit the range of techniques that Canadian Security Intelligence Service (CSIS) and the Government of Canada could employ against threats. Given the existing threat environment, it would be prudent to ensure that the Government can consider all possible options to address threats and to which CSIS is uniquely or best placed to respond.

Is CSIS getting more new powers to disrupt threats?

No, this legislative change seeks to ensure that CSIS threat reduction measures are compliant with the Charter. The proposal clearly defines the scope of CSIS's powers by establishing a specific list of threat reduction measures they are judicially authorized to use.

Why is legislation required?

The Government of Canada has introduced legislation that strengthens accountability with respect to national security, balancing collective security with rights and freedoms, as a top priority. Clarifying the legislation surrounding CSIS' threat reduction mandate will address Canadians' concerns that all CSIS activities must comply with the Charter.

How can Canadians be assured that CSIS is complying with the Charter?

These proposed amendments will clarify when CSIS must seek a warrant to take a threat reduction measure within a prescribed list of measures that can be authorized.

The Security Intelligence Review Committee (SIRC) conducted a review of all materials relating to the implementation of this new authority, received briefings on the implementation, and examined the threat reduction measures taken so far.

SIRC found that all measures undertaken to date complied with the CSIS Act, Ministerial Direction and internal policies and procedures.

Judicial oversight, review and many other safeguards have always ensured – and will continue to ensure – that our efforts to protect our fellow citizens are not only consistent with, but will strengthen, Canada's democratic tradition.

What are some Examples of Warranted TRM:

Some situations where warranted threat reduction measures could be used are:

• Intercepting and/or degrading equipment or weapons destined for terrorists;
• Modifying or removing threat-related content on an extremist website;
• Disabling or altering personal electronics used to support threat activities.

How many times has CSIS used TRM?

To date CSIS has only used its authority to take measures that do not require a warrant. CSIS has issued some two dozen approvals for threat diminishment measures since the mandate came into effect.

When there is a requirement for a warranted TRM, who decides the reasonable limit on the rights and freedoms of an individual?

In these circumstances, a Federal Court judge will determine whether the measure represents a reasonable limit on the right or freedom of an individual.

Can CSIS employees now detain or arrest as a means of TRM?

No, threat reduction authorities do not equate to police powers. The power to arrest, detain, and enforce the law remain the purview of our law enforcement partners. In fact, the proposed amendments to the CSIS Act include a prohibition on any act that would result in the detention of an individual.

What measures will be in place to ensure accountability?

Additional safeguards, oversight and reporting requirements have been introduced to ensure accountability is robust. SIRC's review of the Service's use of its new mandate was positive, reflecting the Service's deliberate and cautious approach to undertaking these measures.

Amending the Security of Canada Information Act (SCISA)

How do the Government's proposals address the privacy concerns raised in the consultation regarding the Security of Canada Information Act (SCISA)?

The Government is proposing to clarify the threshold for disclosing information, including consideration of the effect on people's privacy prior to disclosure. In addition, the proposal will require that any institution that discloses information under the Act, be required to maintain specific records of the disclosures, and be required to provide those records to the new proposed Intelligence and National Security Review Committee on an annual basis.

What is the value and need for SCISA?

To keep Canadians safe, federal government institutions must be able to disclose information in the interests of national security to other federal government institutions with a national security jurisdiction and responsibility.

The Security of Canada Information Sharing Act (SCISA) provides the legal authority for the disclosure of information to designated recipient federal institutions in limited circumstances pertaining to national security.

Prior to SCISA, many departments and agencies lacked a clear lawful authority to disclose information for national security purposes. The legal landscape made it challenging for federal institutions to determine the circumstances under which information could be disclosed.

In short, the Act provides an authority for all federal institutions, including those that were not previously able to disclose information, to disclose information to institutions with a national security jurisdiction and responsibilities.

It is important to note that just because an institution can disclose information, it does not mean that the Act allows institutions receiving information to collect that information. Institutions may only collect the information if they are authorized to under existing collection authorities.  The Act only addresses the disclosure of information and does not change existing collection authorities.

What is the new criteria that will serve as the threshold for information disclosure under the proposed SCIDA and how is it a higher threshold?

Under the proposal, the following three requirements must be met:

• Utility: The information must contribute to carrying out the recipient's national security jurisdiction or responsibilities;
• Integrity:  A statement on the reliability and accuracy of the information must be provided; and
• Privacy: Disclosure of the information must not affect any person's privacy interest more than is reasonably necessary in the circumstances.

Why is the Government proposing to change the name of the Act? What effect does this have?

The proposed SCIDA only provides an authority to federal institutions to disclose information to a designated recipient under the Act. It does not expand the collection authorities of recipients. It was clear in the consultation that many Canadians misunderstood the Act to allow recipients to broaden what they were allowed to collect. To clarify the purpose of the Act, “disclosure” has replaced “sharing”.

Amending the Secure Air Travel Act

Can parents use the Ministerial disclosure to prevent delays at check-in?

A disclosure from the Minister of Public Safety that a child is not on the SATA list will not facilitate travel because that information will not be used to pre-clear individuals prior to the issuance of a boarding pass. However, we remain committed to developing a long-term solution through a redress system and have included a mechanism in the legislation to allow for the Minister to collect information to issue unique redress numbers that will allow the pre-flight verification of identity. These proposed legislative changes are an important first step towards building an effective approach to redress.

If parents can't use the disclosure to prevent delays, how does it support them?

It is understandably an unnerving situation when a parent experiences travel delays because their child seems to be affected by a false name match against the SATA list. Many parents ask if their child is listed. Disclosure to a parent would provide assurance to these families that a child is not on the SATA list. 

What is the status of the Government's work to create a redress system?

Last year the Government launched the Passenger Protect Inquiries Office to assist travelers who have experienced difficulties related to aviation security lists. At that time we committed to developing a long-term solution. The creation of an effective redress system is a complex undertaking and legislative changes are a step towards redress. 

Could the change in the recourse process present a safety risk?

Under the Government's proposal, the Minister will have 120 days to make a determination on the recourse application. Because there are cases when delays may be unavoidable and the Minister does not have sufficient information to make a decision, 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, it is proposed that the Minister may extend the set decision period by an additional 120 days if the Minister notifies the applicant of the extension within the first 120 day period.

Who would make the decision on whether the time period for a recourse decision could be extended?

The Minister must notify the individual within the first 120 day period that he or she does not have sufficient information on which to form a decision on a recourse application. This authority is meant to be exceptional. Following a maximum additional period of 120 days, the individual will be deemed to be removed from the list if a decision has not been taken. At that point, if the decision is made to keep the individual on the SATA list, he or she may appeal the decision to a Federal Court judge.

Amending the Criminal Code

What amendments are being proposed to the Anti-terrorism Act, 2015?

The proposed legislation would amend the following provisions:

• Advocacy or promotion of the commission of terrorism offences (by clarifying the scope)
• Terrorist Propaganda (by clarifying the definition)
• Recognizance with Conditions provisions (by raising one of the thresholds)
• Terrorism Peace Bonds (by requiring annual reports on the number entered into)

In addition, the Investigative Hearings provisions are being repealed entirely.

Why are they being proposed?

Our Government made a commitment to repeal the problematic elements of former Bill C-51. The proposed changes deliver on that commitment, and increase accountability and transparency and respect for the Charter.

What specific changes are being proposed to the advocacy or promotion of terrorism offence?

The Bill proposes to redefine the offence of advocating or promoting the commission of terrorism offences in general, currently set out in section 83.221 of the Criminal Code, as one of counselling the commission of a terrorism offence, whether or not a terrorism offence is committed and whether or not a specific terrorism offence is counselled.

What changes would this bill make with respect to terrorist propaganda?

The Bill would amend the definition of terrorist propaganda for the two warrants that were created in the Criminal Code as a result of former Bill C-51. One of those warrants allows a judge to order the seizure and forfeiture of terrorist propaganda material in printed or audio-recording format. The other allows for 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 proposed change would amend the terrorist propaganda definition to delete ‘advocates or promotes the commission of terrorism offences in general' from the definition, and the definition would instead include all forms of counselling a terrorism offence.

What changes would be made to the “recognizance with conditions provisions?”

The recognizance with conditions currently applies to situations where police are of the view that a person is connected in some way to a terrorist activity and that conditions being imposed on that individual are "likely" to prevent it from happening. One of the thresholds for a peace officer to obtain the recognizance with conditions would be restored to the way it was before former Bill C-51 was enacted. In other words, it would replace the concept of likely to prevent with the concept of necessary to prevent. Also, a sunset clause would continue to apply.

The terrorism peace bond is also a preventative tool that allows conditions to be imposed, but it applies where police have more detailed information and are of the view that a particular individual may commit a specific terrorism offence. Investigative hearings would also be repealed.

How is the law related to terrorism peace bonds being reformed?

The terrorism peace bond is also a preventative tool that allows conditions to be imposed, but it applies where police have more detailed information and are of the view that a particular individual may commit a specific terrorism offence. A peace bond is a protection order made by a court under section 810.011 of the Criminal Code. It is used where an individual (the defendant) appears likely to commit a criminal offence, but there are no reasonable grounds to believe that an offence is about to be committed. 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.

Do our closest allies have similar laws in place?

In the UK, the Terrorism Act 2006 created the offence of direct or indirect encouragement to commit acts of terrorism, and indirect encouragement of terrorism is defined to include glorification of terrorism. In 2014, Australia created a new offence of advocating the doing of a terrorist act or the commission of a terrorism offence, while being reckless as to whether another person will engage in a terrorist act or commit a terrorism offence.

The terrorist propaganda measures, recognizance with conditions and peace bond provisions are generally consistent with counter-terrorism laws in countries such as the United Kingdom and Australia.