Strengthening Security and Protecting Rights

The Government has undertaken a comprehensive review of Canada's national security framework, aided by extensive public consultation. Many important decisions needed to be made beyond addressing the problematic elements of the Anti-terrorism Act, 2015 (former Bill C-51) to ensure that the Government is effective in keeping Canadians safe.

The following proposed measures would strengthen Canada's ability to address new threats and safeguard Canadians' rights and freedoms.

Modernizing the CSIS Act

As the threats Canada faces have evolved, so too have the legislative landscape and the political environment in which we operate. The modernization of the CSIS Act will serve to address outdated legal authorities. It will also update and improve the transparency and accountability regime under which CSIS operates - a consideration repeatedly emphasized during the consultation process. 

The Government is proposing to amend the CSIS Act to:

  • support public confidence by enhancing transparency, introducing new safeguards and accountability measures, and by re-affirming compliance with the Charter;
  • modernize the CSIS Act to ensure that CSIS has updated legal authorities that are transparent and lawful, while having effective intelligence collection operations;
  • establish in law an authorization regime for otherwise unlawful activities;
  • provide an exemption for offences that may be triggered by establishing or maintaining 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;
  • require CSIS to seek authorization from the Federal Court to retain datasets that contain personal information that predominantly relates to Canadians (or persons within Canada) that are not publically available; and
  • introduce a robust authorization regime for foreign datasets. Foreign datasets relates to personal information of non-Canadians outside Canada.

Establishing the Communications Security Establishment (CSE) Act

The Government is proposing to create 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.

With new legislation and increased accountability measures, 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.

CSE will be better placed to support systems of importance to the Government of Canada, including designated private industry systems, upon request.

CSE will also be permitted to assist the Department of National Defence and the Canadian Armed Forces with cyber operations.

Within strict legal parameters and approvals 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.

This reform would leave those changes intact, and would 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 give 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 has the authority to issue an arrest warrant for a person who refuses to attend such a hearing.

The use of an investigative hearing was invoked once, but was not actually held. The Supreme Court of Canada upheld its constitutionality in Application under s. 83.28 of the Criminal Code (Re), [2004] 2 SCR 248. However, 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. It is proposed that the investigative hearing provisions be repealed.

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 present proposals to change the Criminal Code terrorist entity listing regime are aimed at improving efficiency and effectiveness, and are largely procedural. For example, they would grant Ministerial authority to modify the names and aliases of already listed terrorist entities, amending the de-listing process and frequency of the listing review process, as well as dealing 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 proposals related to the YCJA clarify that youth justice courts have exclusive jurisdiction to impose recognizances on youth and 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, including those relating to detention and release, right to counsel, and access to youth records.

Consulting on Intelligence and Evidence Reforms

Section 38 of the Canada Evidence Act (CEA) addresses national security information in legal proceedings, with a view to ensuring fairness and security. Currently, under section 38, the process for reviewing the national security information, and the judicial balancing of disclosure versus non-disclosure, takes place in the Federal Court even though, for example, the information may relate to a proceeding in a different court.

Under the proposed approach, the Government would conduct targeted consultations with the provinces and territories, Federal and Superior Court judges and others on proposals to amend the CEA and other statutes.

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