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Minutes of Proceedings

42nd Parliament, 1st Session
Meeting No. 105
Thursday, April 19, 2018, 11:02 a.m. to 1:01 p.m.
Televised
Presiding
Hon. John McKay, Chair (Liberal)

House of Commons
• Jacques Maziade, Legislative Clerk
• Philippe Méla, Legislative Clerk
 
Library of Parliament
• Tanya Dupuis, Analyst
• Dominique Valiquet, Analyst
Department of Public Safety and Emergency Preparedness
• John Davies, Director General, National Security Policy
• Sophie Beecher, Director of Intelligence Policy, National and Cyber Security Branch
Department of Justice
• Douglas Breithaupt, Director and General Counsel, Criminal Law Policy Section
Canadian Security Intelligence Service
• Cherie Henderson, Director General, Policy and Foreign Relations
Communications Security Establishment
• Scott Millar, Director General, Strategic Policy, Planning and Partnerships
Pursuant to the Order of Reference of Monday, November 27, 2017, the Committee resumed consideration of Bill C-59, An Act respecting national security matters.

John Davies and Scott Millar answered questions.

The Committee resumed clause-by-clause consideration on Clause 2 of the Bill.

The Committee resumed consideration of the amendment of Peter Fragiskatos, — That Bill C-59, in Clause 2, be amended by adding after line 34 on page 12 the following:

“27.1 Despite any provision of this Act, the Review Agency must suspend an investigation if, in the Agency’s opinion, continuing the investigation would compromise or seriously hinder an ongoing criminal investigation or proceeding.”

The debate continued.

Glen Motz moved, — That the amendment be amended by adding after the word “if,” the following:

“after consultation with the appropriate department, the Agency is of the opinion that”

The question was put on the subamendment of Glen Motz and it was agreed to, by a show of hands: YEAS: 7; NAYS: 0.

The question was put on the amendment of Peter Fragiskatos, as amended, and it was agreed to, by a show of hands: YEAS: 7; NAYS: 1.

Matthew Dubé moved, — That Bill C-59, in Clause 2, be amended by replacing line 10 on page 16 with the following:

“activities during the previous calendar year, including

(a) the number of reviews and investigations it performed in accordance with each of paragraphs 8(1)(a) to (d) with respect to activities carried out by a department;

(b) its review of all the applications for warrants made by the Canadian Security Intelligence Service under section 21.1 of the Canadian Security Intelligence Service Act and the number of successful applications; and

(c) the find-”

After debate, the question was put on the amendment of Matthew Dubé and it was negatived, by a show of hands: YEAS: 1; NAYS: 7.

Matthew Dubé moved, — That Bill C-59, in Clause 2, be amended by adding after line 12 on page 16 the following:

“(1.1) In its report, the Review Agency must also include a review of the structure of the Communications Security Establishment and of the information provided in the Establishment's annual report, as well as its recommendations to the Establishment on specific information to be included in future annual reports of the Establishment, namely statistical information on the nature and scope of its activities.”

After debate, the question was put on the amendment of Matthew Dubé and it was negatived, by a show of hands: YEAS: 1; NAYS: 7.

Matthew Dubé moved, — That Bill C-59, in Clause 2, be amended by deleting lines 17 to 26 on page 16.

After debate, the question was put on the amendment of Matthew Dubé and it was negatived, by a show of hands: YEAS: 1; NAYS: 7.

The Chair ruled that the following ten (10) amendments were consequential to the previous amendment and therefore they were also negatived:

That Bill C-59, in Clause 73, be amended by deleting lines 3 to 9 on page 52.

That Bill C-59, in Clause 82, be amended by deleting lines 7 and 8 on page 82.

That Bill C-59, in Clause 89, be amended by deleting lines 7 to 14 on page 84.

That Bill C-59, in Clause 112, be amended by replacing lines 8 to 14 on page 114 with the following:

“112 The Security of Canada Information Sharing Act is repealed.”

That Bill C-59, in Clause 121, be amended by replacing line 33 on page 118 to line 5 on page 119 with the following:

“121 Subsection 295(5.05) of the Excise Tax Act is repealed.”

That Bill C-59, in Clause 122, be amended by replacing lines 6 to 11 on page 119 with the following:

“122 Subsection 4(3) of the Department of Fisheries and Oceans Act is repealed.”

That Bill C-59, in Clause 123, be amended by replacing lines 12 to 15 on page 119 with the following:

“123 Paragraph 107(4)(i) of the Customs Act is repealed.”

That Bill C-59, in Clause 124, be amended by replacing lines 16 to 23 on page 119 with the following:

“124 Subsection 241(9) of the Income Tax Act is repealed.”

That Bill C-59, in Clause 125, be amended by replacing line 24 on page 119 to line 3 on page 120 with the following:

“125 Paragraph 17(3)(c) of the Chemical Weapons Convention Implementation Act is repealed.”

That Bill C-59, in Clause 126, be amended by replacing lines 4 to 11 on page 120 with the following:

“126 Subsection 211(6.5) of the Excise Act, 2001 is repealed.”

Sven Spengemann moved, — That Bill C-59, in Clause 2, be amended by replacing lines 10 to 14 on page 18 with the following:

“(3) Part 7 of the Public Service Employment Act applies to the executive director and the Secretariat’s employees. For the purposes of that Part, the executive director is deemed to be a”

After debate, the question was put on the amendment of Sven Spengemann and it was agreed to, by a show of hands: YEAS: 8; NAYS: 0.

Sven Spengemann moved, — That Bill C-59, in Clause 2, be amended by deleting line 26 on page 19 to line 4 on page 20.

After debate, the question was put on the amendment of Sven Spengemann and it was agreed to, by a show of hands: YEAS: 7; NAYS: 0.

Julie Dabrusin moved, — That Bill C-59, in Clause 2, be amended by adding after line 36 on page 21 the following:

“General

54.1 Nothing in this Act is to be construed as limiting the power of any body or person that is authorized under an Act of Parliament to conduct a review or investigation in relation to any activity of a department.”

After debate, the question was put on the amendment of Julie Dabrusin and it was agreed to, by a show of hands: YEAS: 8; NAYS: 0.

Clause 2, as amended, carried by a show of hands: YEAS: 6; NAYS: 0.

On Clause 3,

Glen Motz moved, — That Bill C-59, in Clause 3, be amended by replacing line 13 on page 22 with the following:

“17.1.”

After debate, the question was put on the amendment of Glen Motz and it was negatived, by a show of hands: YEAS: 3; NAYS: 4.

The Chair ruled that the following amendment was consequential to the previous amendment and therefore it was also negatived:

That Bill C-59 be amended by adding after line 24 on page 26 the following new clause:

“17.1 The Minister of Public Safety and Emergency Preparedness, in collaboration with the Minister of Justice, must, within one year after the day on which this section comes into force, indicate to the new Agency the reporting relationships and respective responsibilities, in relation to national security matters, of the new Agency, the Canadian Security Intelligence Service, the Communications Security Establishment and other departments as defined in section 2 of the National Security and Intelligence Review Agency Act .”

Clause 3 carried on division.

By unanimous consent, Clauses 4 to 17 inclusive carried severally.

By unanimous consent, Clauses 18 to 37 inclusive carried severally.

On new Clause 37.1,

Glen Motz moved, — That Bill C-59 be amended by adding before line 11 on page 32 the following new clause:

“37.1 Subsection 64(1) of the Privacy Act is amended by striking out “or” at the end of paragraph (a), by adding “or” at the end of paragraph (b), and by adding the following after paragraph (b):

(c) to the National Security and Intelligence Review Agency if the Privacy Commissioner considers the information is necessary to the Agency in the exercise of its powers and the performance of its duties and functions under the National Security and Intelligence Review Agency Act.

At 11:49 a.m., the sitting was suspended.

At 11:51 a.m., the sitting resumed.

After debate, the question was put on the amendment of Glen Motz and it was negatived, by a show of hands: YEAS: 0; NAYS: 5.

Julie Dabrusin moved, — That Bill C-59 be amended by adding before line 11 on page 32 the following:

“37.1 Section 37 of the Privacy Act is amended by adding the following after subsection (4)

(5) The Privacy Commissioner may coordinate his or her activities under subsection (1) with those of the National Security and Intelligence Review Agency under any of paragraphs 8(1)(a) to (c) of the National Security and Intelligence Review Agency Act to avoid any unnecessary duplication of work.

37.2 Section 64 of the Act is amended by adding the following after subsection (2):

(3) The Privacy Commissioner may disclose or may authorize any person acting on behalf or under the direction of the Commissioner to disclose — to the extent that the Commissioner or the authorized person, as the case may be, considers necessary for the purpose of subsection 37(5) — information concerning the Commissioner’s activities under subsection 37(1) to the National Security and Intelligence Review Agency.”

After debate, the question was put on the amendment of Julie Dabrusin and it was agreed to, by a show of hands: YEAS: 9; NAYS: 0.

The Chair ruled that the following amendment was consequential to the previous amendment and therefore it was also adopted:

That Bill C-59, in Clause 38, be amended by replacing line 11 on page 32 with the following:

“38 The schedule to the Act is amended”

Clause 38, as amended, carried by a show of hands: YEAS: 5; NAYS: 0.

Clauses 39 and 40 carried severally.

On Clause 41,

Matthew Dubé moved, — That Bill C-59, in Clause 41, be amended by adding after line 10 on page 33 the following:

“(3) If the National Security and Intelligence Review Agency is of the opinion that the matter referred to it under subsection (2) does not relate to national security, it shall refer the matter back to the Commission for review.”

After debate, the question was put on the amendment of Matthew Dubé and it was negatived on the following recorded division:

YEAS: Blaine Calkins, Matthew Dubé, Pierre Paul-Hus — 3;

NAYS: Julie Dabrusin, Pam Damoff, Peter Fragiskatos, Glen Motz, Michel Picard, Sven Spengemann — 6.

Clause 41 carried by a show of hands: YEAS: 6; NAYS: 0.

On Clause 42,

Matthew Dubé moved, — That Bill C-59, in Clause 42, be amended by adding after line 16 on page 33 the following:

“(4.2) If the National Security and Intelligence Review Agency is of the opinion that the complaint referred to it under subsection (4.1) does not concern an activity that is closely related to national security, it shall refer the complaint back to the Commission to be dealt with.”

After debate, the question was put on the amendment of Matthew Dubé and it was negatived, by a show of hands: YEAS: 1; NAYS: 6.

The Chair ruled that the following amendment was consequential to the previous amendment and therefore it was also negatived:

That Bill C-59, in Clause 43, be amended by adding after line 22 on page 33 the following:

“(2.2) If subsection 45.53(4.2) applies, the Commission shall investigate the complaint.”

Peter Fragiskatos moved, — That Bill C-59, in Clause 42, be amended by adding after line 16 on page 33 the following:

“(4.2) The Commission shall notify the Commissioner if it refers a complaint to the National Security and Intelligence Review Agency. After doing so, it shall also notify the complainant of the referral.”

After debate, the question was put on the amendment of Peter Fragiskatos and it was agreed to, by a show of hands: YEAS: 8; NAYS: 0.

Clause 42, as amended, carried.

On Clause 43,

Peter Fragiskatos moved, — That Bill C-59, in Clause 43, be amended by replacing lines 23 to 27 on page 33 with the following:

“(3) Subject to subsection (3.1), if the Commission discontinues an investigation of a complaint, the Commission shall give notice in writing of the discontinuance and the reasons for it to the complainant and the Commissioner.

(3.1) If the investigation of a complaint is discontinued under subsection (2.1), the Commission shall give to the Commissioner notice in writing of the investigation’s discontinuance and the referral of the complaint to the National Security and Intelligence Review Agency. After doing so, the Commission shall give notice in writing of the discontinuance and the referral to the complainant.”

After debate, the question was put on the amendment of Peter Fragiskatos and it was agreed to, by a show of hands: YEAS: 6; NAYS: 0.

Clause 43, as amended, carried.

By unanimous consent, Clauses 44 to 49 inclusive carried severally.

On new Clause 49.1,

Michel Picard moved, — That Bill C-59 be amended by adding after line 11 on page 39 the following new clause:

“PART 1.1

Avoiding Complicity in Mistreatment by Foreign Entities

Avoiding Complicity in Mistreatment by Foreign Entities Act

49.1 The Avoiding Complicity in Mistreatment by Foreign Entities Act, whose text is as follows and whose schedule is set out in the schedule to this Act, is enacted as follows:

An Act respecting the disclosure of and request for information that would result in a substantial risk of mistreatment of an individual by a foreign entity and the use of information that is likely to have been obtained as the result of mistreatment of an individual by a foreign entity

Whereas a fundamental responsibility of the Government of Canada is to protect Canada’s national security and the safety of Canadians;

Whereas Parliament recognizes that information needs to be disclosed, requested or used in order to enable the Government to fulfil that responsibility;

Whereas that responsibility must be fulfilled in accordance with the rule of law and in a manner that safeguards the rights and freedoms of Canadians and that respects the Canadian Charter of Rights and Freedoms;

Whereas Canada is a party to a number of international agreements that prohibit torture and other cruel, inhuman or degrading treatment or punishment, including the Geneva Conventions, the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

Whereas torture is an offence under the Criminal Code, which Act also prohibits aiding and abetting the commission of torture, counselling the commission of torture, conspiring to commit torture, attempting to commit torture and being an accessory after the fact to torture;

And whereas torture and other cruel, inhuman or degrading treatment or punishment of individuals are an affront to Canadian values and are opposed by the Government of Canada in the strongest terms;

Now therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

1 This Act may be cited as the Avoiding Complicity in Mistreatment by Foreign Entities Act.

Definitions

2 The following definitions apply in this Act.

appropriate Minister means

(a) with respect to a department named in Schedule I to the Financial Administration Act, the Minister presiding over the department;

(b) with respect to a division or branch of the federal public administration set out in column I of Schedule I.1 to the Financial Administration Act, the Minister set out in column II of that Schedule;

(c) with respect to a corporation named in Schedule II to the Financial Administration Act, the Minister designated as the appropriate Minister by order of the Governor in Council made under that Act;

(d) with respect to a parent Crown corporation as defined in subsection 83(1) of the Financial Administration Act, the appropriate Minister as defined in that subsection; or

(e) with respect to the Canadian Forces, the Minister of National Defence. (ministre compétent)

department means a department named in Schedule I to the Financial Administration Act, a division or branch of the federal public administration set out in column I of Schedule I.1 to that Act, a corporation named in Schedule II to that Act, a parent Crown corporation as defined in subsection 83(1) of that Act or the Canadian Forces. (ministère)

deputy head means

(a) with respect to a department named in Schedule I to the Financial Administration Act, the deputy minister of that department;

(b) with respect to the Canadian Forces, the Chief of the Defence Staff;

(c) with respect to the Royal Canadian Mounted Police, the Commissioner of the Royal Canadian Mounted Police;

(d) with respect to the Canadian Security Intelligence Service, the Director;

(e) with respect to the Canada Border Services Agency, the President;

(f) with respect to the Communications Security Establishment, the Chief; and

(g) with respect to any other portion of the federal public administration, the person designated by order of the Governor in Council to be the deputy head of that portion of the federal public administration for the purposes of this Act. (administrateur général)

mistreatment means torture or other cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed at New York on December 10, 1984. (mauvais traitements)

review body means

(a) the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police established by subsection 45.29(1) of the Royal Canadian Mounted Police Act;

(b) the Commissioner of the Communications Security Establishment appointed under subsection 273.63(1) of the National Defence Act; or

(c) the Security Intelligence Review Committee established by subsection 34(1) of the Canadian Security Intelligence Service Act. (organisme de surveillance)

Directions

3 (1) The Governor in Council may, on the recommendation of the appropriate Minister, issue written directions to any deputy head in respect of

(a) the disclosure of information to any foreign entity that would result in a substantial risk of mistreatment of an individual;

(b) the making of requests to any foreign entity for information that would result in a substantial risk of mistreatment of an individual; and

(c) the use of information that is likely to have been obtained through the mistreatment of an individual by a foreign entity.

(2) The Governor in Council must issue written directions in respect of the matters referred to in subsection (1) to the following deputy heads:

(a) the Chief of the Defence Staff;

(b) the Deputy Minister of National Defence;

(c) the Deputy Minister of Foreign Affairs;

(d) the Commissioner of the Royal Canadian Mounted Police;

(e) the Director of the Canadian Security Intelligence Service;

(f) the President of the Canada Border Services Agency; and

(g) the Chief of the Communications Security Establishment.

(3) Directions are not statutory instruments within the meaning of the Statutory Instruments Act.

4 The Governor in Council may, by order, amend the schedule to add a reference to each deputy head to whom directions have been issued under section 3 or to delete any such reference if the directions that were issued to the deputy head have been repealed or if the deputy head’s position has ceased to exist or has changed name.

Deputy Heads

5 Every deputy head to whom directions have been issued under section 3 must, as soon as feasible after receiving them, make them available to the public.

6 Every deputy head to whom directions have been issued under section 3 must, as soon as feasible after receiving them, provide a copy of the directions to the National Security and Intelligence Committee of Parliamentarians and, if applicable, to the relevant review body.

7 (1) Every deputy head to whom directions have been issued under section 3 must, before March 1 of each year, submit to the appropriate Minister a report in respect of the implementation of those directions during the previous calendar year.

(2) Every deputy head must, as soon as feasible after submitting a report under subsection (1), make a version of it available to the public that does not contain information

(a) the disclosure of which would be injurious to national security, national defence or international relations or compromise an ongoing operation or investigation; or

(b) that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

Appropriate Ministers

8 (1) As soon as feasible after receiving a report under section 7, the appropriate Minister must provide a copy of it to the National Security and Intelligence Committee of Parliamentarians and, if applicable, to the relevant review body.

(2) The copy must not contain any information that the Committee or the relevant review body is not entitled to receive.

Coordinating Amendments

49.2 On the first day on which both sections 2 and 49.1 of this Act are in force,

(a) section 8 of the National Security and Intelligence Review Agency Act is amended by adding the following after subsection (2.1):

(2.2) In the course of its review of activities carried out by departments, the Review Agency must, each calendar year, review the implementation of all directions issued under the Avoiding Complicity in Mistreatment by Foreign Entities Act.

(b) the definition review body in section 2 of the Avoiding Complicity in Mistreatment by Foreign Entities Act is repealed;

(c) section 6 of the Avoiding Complicity in Mistreatment by Foreign Entities Act is replaced by the following:

6 Every deputy head to whom directions have been issued under section 3 must, as soon as feasible after receiving them, provide a copy of the directions to the National Security and Intelligence Committee of Parliamentarians, the National Security and Intelligence Review Agency and, if applicable, the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police.

(d) section 8 of the Avoiding Complicity in Mistreatment by Foreign Entities Act is replaced by the following:

8 (1) As soon as feasible after receiving a report under section 7, the appropriate Minister must provide a copy of it to the National Security and Intelligence Committee of Parliamentarians, the National Security and Intelligence Review Agency and, if applicable, the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police.

(2) The copy must not contain any information that the Committee, the Agency or the Commission is not entitled to receive.”

Pierre Paul-Hus moved, — That the amendment be amended by deleting paragraph 3(1)(c).

The question was put on the subamendment of Pierre Paul-Hus and it was negatived on the following recorded division:

YEAS: Blaine Calkins, Glen Motz, Pierre Paul-Hus — 3;

NAYS : Julie Dabrusin, Pam Damoff, Matthew Dubé, Peter Fragiskatos, Michel Picard, Sven Spengemann — 6.

After debate, the question was put on the amendment of Michel Picard and it was agreed to on the following recorded division:

YEAS: Julie Dabrusin, Pam Damoff, Matthew Dubé, Peter Fragiskatos, Michel Picard, Sven Spengemann — 6;

NAYS: Blaine Calkins, Glen Motz, Pierre Paul-Hus — 3.

On Clause 50,

Matthew Dubé moved, — That Bill C-59, in Clause 50, be amended by replacing lines 1 and 2 on page 40 with the following:

“4 (1) The Governor in Council is to appoint, on the recommendation of the Prime Minister and after the approval of the appointment by resolution of the Senate and the House of Commons, a retired judge of a”

After debate, the question was put on the amendment of Matthew Dubé and it was negatived, by a show of hands: YEAS: 1; NAYS: 5.

Matthew Dubé moved, — That Bill C-59, in Clause 50, be amended by replacing line 2 on page 40 with the following:

“of the Prime Minister, is to appoint a judge, or a retired judge, of a”

After debate, the question was put on the amendment of Matthew Dubé and it was negatived, by a show of hands: YEAS: 4; NAYS: 5.

Matthew Dubé moved, — That Bill C-59, in Clause 50, be amended by replacing lines 6 to 8 on page 40 with the following:

“(2) A person who has served a term as Commissioner is not eligible to be reappointed for an additional term.

After debate, the question was put on the amendment of Matthew Dubé and it was negatived, by a show of hands: YEAS: 1; NAYS: 8.

Matthew Dubé moved, — That Bill C-59, in Clause 50, be amended by replacing line 10 on page 40 with the following:

“functions on a full-time basis.”

The Chair ruled the proposed amendment inadmissible because it infringed on the financial initiative of the Crown, as provided on page 772 of House of Commons Procedure and Practice, Third Edition.

Pursuant to the order adopted by the Committee on Tuesday, May 3, 2016, the following amendment, submitted by Elizabeth May for the consideration of the Committee, was deemed moved:

That Bill C-59, in Clause 50, be amended by replacing line 10 on page 40 with the following:

“functions on a full-time or part-time basis.”

The Chair ruled the proposed amendment inadmissible because it infringed on the financial initiative of the Crown, as provided on page 772 of House of Commons Procedure and Practice, Third Edition

At 1:01 p.m., the Committee adjourned to the call of the Chair.



Jean-Marie David
Clerk of the Committee