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Minutes of Proceedings

42nd Parliament, 1st Session
Meeting No. 106
Monday, April 23, 2018, 3:30 p.m. to 5:33 p.m.
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 Justice
• Douglas Breithaupt, Director and General Counsel, Criminal Law Policy Section
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
Canadian Security Intelligence Service
• Cherie Henderson, Director General, Policy and Foreign Relations
Communications Security Establishment
• Scott Millar, Director General, Strategic Policy, Planning and Partnerships
• Charles Arnott, Manager, Strategic Policy
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.

The Committee resumed its clause-by-clause study of the Bill.

John Davies, Scott Millar, Charles Arnott and Cherie Henderson answered questions.

On Clause 50,

Sven Spengemann moved, — That Bill C-59, in Clause 50, be amended by replacing lines 13 to 17 on page 41 with the following:

“(3) Part 7 of the Public Service Employment Act applies to the Commissioner and to his or her employees. For the purposes of that Part, the Commissioner is deemed to be a deputy head, and his or her em-”

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 50, be amended by deleting line 30 on page 42 to line 5 on page 43.

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

Matthew Dubé moved, — That Bill C-59, in Clause 50, be amended by adding after line 10 on page 44 the following:

“13.1 In the course of his or her review of activities carried out under the Communications Security Establishment Act as set out in sections 14 to 21, the Commissioner may make any findings or recommendations that he or she considers appropriate, including findings and recommendations relating to

(a) the Communications Security Establishment's compliance with the law and any applicable ministerial directions; and

(b) the reasonableness, necessity and proportionality of any activity carried out by the Establishment.”

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 adding after line 22 on page 44 the following:

“15.1 The Commissioner must review whether the conclusions – made under subsections 35(1) and (4) of the Communications Security Establishment Act and on the basis of which a Defensive or Active Cyber Operation Authorization was issued under subsection 30(1) or 31(1) of that Act – are reasonable.”

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 50, be amended by replacing line 16 on page 45 with the following:

“(a) must, subject to conditions set by him or her, approve the authorization, amendment or”

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.

Julie Dabrusin moved, — That Bill C-59, in Clause 50, be amended

(a) by replacing line 18 on page 45 with the following:

“sions at issue are reasonable, and must set out his or her reasons for doing so; or”

(b) by replacing line 25 on page 45 with the following:

“isfied that the conclusions at issue are reasonable, and must set out his or her reasons for doing so;”

After debate, the question was put on the amendment of Julie Dabrusin and it was agreed to, by a show of hands: YEAS: 6; NAYS: 3.

Matthew Dubé moved, — That Bill C-59, in Clause 50, be amended by adding after line 21 on page 45 the following:

“(c) must request further information from the designated Minister before deciding whether or not to approve the authorization, amendment or determination.”

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.

Pierre Paul-Hus moved, — That Bill C-59, in Clause 50, be amended by replacing line 35 on page 45 to line 5 on page 46 with the following:

“person whose conclusions are being reviewed within 24 hours.”

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

Michel Picard moved, — That Bill C-59, in Clause 50, be amended by adding after line 14 on page 46 the following:

“Public Report

22.1 (1) The Commissioner must, each calendar year, submit to the Prime Minister a report with respect to the Commissioner’s activities during the previous calendar year. The report must include statistics, that the Commissioner considers appropriate, relating to the authorizations, amendments and determinations that were approved and not approved.

(2) The Commissioner must consult with the Director of the Canadian Security Intelligence Service and the Chief of the Communications Security Establishment in preparing the report in order to ensure that it does not contain information the disclosure of which would be injurious to national security, national defence or international relations or information that is subject to solicitor-client privilege or the professional secrecy of advocates and notaries or to litigation privilege.

(3) The Prime Minister must cause to be laid before each House of Parliament, on any of the first 15 days on which that House is sitting after a report is submitted under subsection (1), a copy of the report.”

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

Peter Fragiskatos moved, — That Bill C-59, in Clause 50, be amended by replacing line 22 on page 46 with the following:

“formation that is subject to any privilege under the law of evidence, solicitor-client privilege or”

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

Peter Fragiskatos moved, — That Bill C-59, in Clause 50, be amended by replacing line 1 on page 47 with the following:

“25 Despite any other Act of Parliament and any privilege under the law of evidence and subject to”

Debate arose thereon.

Julie Dabrusin moved, — That the amendment be amended by replacing, in the French version, the word “mais” with the word “et”.

After debate, the question was put on the subamendment of Julie Dabrusin and it was agreed to, by a show of hands: YEAS: 9; 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: 8; NAYS: 0.

Matthew Dubé moved, — That Bill C-59, in Clause 50, be amended by adding after line 17 on page 47 the following:

“Report to Parliament

27 (1) The Commissioner must, within such time as is reasonably practicable after the end of each year, prepare a report relating to the activities of the office of the Intelligence Commissioner during the preceding year that includes the number of authorizations, amendments and determinations that the Commissioner approved or did not approve in application of section 13.

(2) The Commissioner must provide the report referred to in subsection (1) to the designated Minister, who shall have it tabled before both Houses of Parliament.”

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.

Pierre Paul-Hus moved, — That Bill C-59, in Clause 50, be amended by adding after line 17 on page 47 the following:

“Annual report

27 (1) The Commissioner must, each calendar year, submit to the Minister a report with respect to his or her activities during the previous calendar year.

(2) The Minister must cause to be laid before each House of Parliament, on any of the first 15 days on which that House is sitting after a report is submitted under subsection (1), a copy of the report.”

After debate, the question was put on the amendment of Pierre Paul-Hus 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 adding after line 17 on page 47 the following:

“Report to Parliament

27 (1) As soon as feasible after the end of each year, the Commissioner must prepare and submit to the Minister designated under section 3 a report relating to the activities of the office of the Commissioner during the preceding year that includes his or her recommendations, if any, respecting changes to this Act that the Commissioner considers advisable.

(2) The Minister must cause the report to be tabled before each House of Parliament within the first 15 days on which that House is sitting after the Minister receives it.”

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 adding after line 17 on page 47 the following:

“REPORT TO PARLIAMENT

27 (1) The Commissioner must, within such time as is reasonably practicable after the end of each year, prepare a report relating to the conduct of the office of the Intelligence Commissioner during the preceding year that includes his or her recommendations, if any, for proposed changes to this Act that the Commissioner considers advisable.

(2) The Commissioner must provide a copy of the report referred to in subsection (1) to the Speaker of the Senate and the Speaker of the House of Commons, who shall each table the report in the House over which he or she presides.”

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, Glen Motz, Pierre Paul-Hus — 4;

NAYS: Julie Dabrusin, Pam Damoff, Peter Fragiskatos, Michel Picard, Sven Spengemann — 5.

Clause 50, as amended, carried.

By unanimous consent, Clauses 51 to 60 inclusive carried severally by a show of hands: YEAS: 5; NAYS: 0.

On new Clause 60.1,

Glen Motz moved, — That Bill C-59 be amended by adding before line 1 on page 50 the following new clause:

“60.1 (1) Subsection 38.04(5) of the Canada Evidence Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):

(e) if he or she considers it appropriate in the circumstances, may appoint a special advocate from among the persons on the list established by the Minister of Justice under subsection 85(1) of the Immigration and Refugee Protection Act.

(2) Section 38.04 of the Act is amended by adding the following after subsection (5):

(5.1) A special advocate’s role is to protect the interests of a participant in a proceeding. He or she may challenge the relevance, reliability and sufficiency of information or other evidence that is provided by the Attorney General of Canada and is not disclosed to the participant in a proceeding, and the weight to be given to the information or evidence.”

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

Glen Motz moved, — That Bill C-59 be amended by adding before line 1 on page 50 the following new clause:

“60.1 Section 38.01 of the Canada Evidence Act is amended by adding the following after subsection (4):

(4.1) The person presiding at a proceeding referred to in subsection (2) or (4) may, if he or she believes that it would be in the interest of the proper administration of justice, exercise the powers of a judge in the same manner and to the same extent as if the person were a judge of the Federal Court.

(4.2) Subsection (4.1) does not apply in respect of a proceeding under Part III of the National Defence Act.”

After debate, the question was put on the amendment of Glen Motz and it was negatived, by a show of hands: YEAS: 3; NAYS: 5.

By unanimous consent, Clauses 61 to 72 inclusive carried severally 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.

By unanimous consent, Clauses 73 to 75 inclusive carried severally.

On Clause 76,

Matthew Dubé moved, — That Bill C-59, in Clause 76, be amended by adding after line 27 on page 53 the following:

“Whereas the protection of Canada's national security and of the security of Canadians is a fundamental responsibility of the Government of Canada;

Whereas it is essential, to discharge that responsibility, for Canada to have a communications security establishment;

And whereas it is important that the communications security establishment exercise its powers and perform its duties and functions in accordance with the rule of law and in a manner that respects the Canadian Charter of Rights and Freedoms;

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

Debate arose thereon.

Julie Dabrusin moved, — That the amendment be amended by replacing the words “exercise its powers and perform its duties” with the words “carry out its activities”.

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

The question was put on the amendment of Matthew Dubé, as amended, and it was agreed to, by a show of hands: YEAS: 9; NAYS: 0.

Matthew Dubé moved, — That Bill C-59, in Clause 76, be amended by adding after line 18 on page 55 the following:

intercept has the same meaning as in section 183 of the Criminal Code. (intercepter)”

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.

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 76, be amended by replacing lines 25 and 26 on page 55 with the following:

“frastructure or is available to the public on request, by subscription or by purchase. It does not include information that has been published or broadcast only to a selected audience or information that has been purchased illegally. (information

Debate arose thereon.

Matthew Dubé moved, — That the amendment be amended by adding after the word “illegally” the following:

“or for information an individual has a reasonable expectation of privacy”.

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

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

Matthew Dubé moved, — That Bill C-59, in Clause 76, be amended by replacing line 26 on page 55 with the following:

“request, by subscription or by purchase. It does not include information that has been published or broadcast only to a selected audience, information that has been purchased illegally or information in respect of which an individual has a reasonable expectation of privacy. (information

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

YEAS: Matthew Dubé — 1;

NAYS: Blaine Calkins, Julie Dabrusin, Pam Damoff, Peter Fragiskatos, Glen Motz, Michel Picard, Sven Spengemann — 7.

Pam Damoff moved, — That Bill C-59, in Clause 76, be amended by replacing line 26 on page 55 with the following:

“request, by subscription or by purchase. It does not include information in respect of which a Canadian or a person in Canada has a reasonable expectation of privacy. (information

After debate, the question was put on the amendment of Pam Damoff and it was agreed to, by a show of hands: YEAS: 6; NAYS: 2.

Matthew Dubé moved, — That Bill C-59, in Clause 76, be amended by replacing line 31 on page 57 with the following:

struments Act. However, they must be published in the Canada Gazette.”

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.

Sven Spengemann moved, — That Bill C-59, in Clause 76, be amended by deleting lines 13 to 19 on page 58.

After debate, the question was put on the amendment of Sven Spengemann and it was agreed to, by a show of hands: YEAS: 5; NAYS: 0.

Sven Spengemann moved, — That Bill C-59, in Clause 76, be amended by deleting line 28 on page 59 to line 5 on page 60.

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

Matthew Dubé moved, — That Bill C-59, in Clause 76, be amended by replacing line 3 on page 62 with the following:

“directed at a Canadian or at any person in Canada and must not infringe a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms.”

Debate arose thereon.

At 5:14 p.m., the sitting was suspended.

At 5:17 p.m., the sitting resumed.

Julie Dabrusin moved, — That the amendment be amended by deleting the words “a right or freedom guaranteed by”.

After debate, the question was put on the subamendment of Julie Dabrusin and it was agreed to on the following recorded division:

YEAS: Julie Dabrusin, Pam Damoff, Peter Fragiskatos, Michel Picard, Sven Spengemann — 5;

NAYS: Blaine Calkins, Matthew Dubé, Glen Motz — 3.

The question was put on the amendment of Matthew Dubé, as amended, and it was agreed to, by a show of hands: YEAS: 7; NAYS: 0.

At 5:33 p.m., the Committee adjourned to the call of the Chair.



Jean-Marie David
Clerk of the Committee