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At the @SenateCA national security and defence committee meeting, where they are doing clause-by-clause of Bill #C59. #cdnpoli #cdnnatsec
Part 1 of the Act, the new National Security and Intelligence Review Agency, has passed without amendment from the committee. #C59
Part 1.1, the Avoiding Complicity in Mistreatment
by Foreign Entities Act, has also passed without amendment. #C59
by Foreign Entities Act, has also passed without amendment. #C59
Onto Part 2, the Intelligence Commissioner. There are some amendments being discussed. One, to change the role of the IC to decide on the legality, and not the reasonableness, of a ministerial authorization is defeated. #C59
Now debating an amendment that would explicitly allow the Intelligence Commissioner to consult with other bodies in making their decisions (ie, the Privacy Commissioner) #C59
Debate is centering on whether or not it is a redundant motion. The mover, Senator McPhedran, argues that it will aid in their work, and that the current Commissioner of the CSE suggested it. #c59
Currently the act allows the IC access to all the information that the Minister had in making their authorization. There is concern that this amendment would grant IC access to information that the Minister did not have access to/take into account #c59
Does that mean that the IC would be going beyond just judging whether the decision of the Minister - based on the info available to them - was reasonable? #c59
Senator McPhedran argues that by granting this power to the IC would ensure they are not a rubber stamp. Further argues that it will allow the IC to ask reasonable questions about the record and clarifications. Impt based on what is at stake. #c59
Senator Gold argues that current wording provides the balance needed for the IC to provide meaningful oversight. #C59
Amendment is defeated #C59
Senator McPhedran moves an amendment that would allow the Intelligence Commissioner to refer an authorization back to the Minister with suggested conditions that would then make the authorization reasonable. #C59
So under this, the IC would not be imposing conditions on a ministerial authorization, but would rather have the option to refer an authorization back for reconsideration. #C59
Officials argue that IC already must lay out, in writing their reasons for approving or not approving, and that proposing conditions for approval goes beyond IC's role. #C59
Senator McPhedran says this clarifies what is already in the bill, and could aid in improving the process. By leaving discretion with commissioner, allows for a direct articulation of solution to the problem. #C59
Back from a brief break to consider the amendment. The proposed amendment carries 7 - 4. #C59
To clarify, from my understanding this applies explicitly to approving CSE Foreign Intelligence authorizations (section 13 of the CSE Act, p. 50) #C59
On to Part 3, the CSE Act. Senator Boisvenu is proposing an amendment regarding the dual-approval system for the CSE's proposed active and defensive cyber activities. #C59
He is proposing that decisions regarding all cyber activities fall under only the purview of the Minister of National Defence, and that consultation with other ministers would not be necessary. #C59
Senator Gold argues against this amendment, calling it dangerous. Cyber operations will often engage issues relating to other state actors, making it necessary that the Minister of Foreign Affairs be consulted (defensive) or sign off on (active) cyber operations. #C59
Amendment is defeated 6 to 5 #C59
And Part 3, the CSE Act, is carried
Parts 4 and 5 - on the CSIS Act and on SCIDA - are both carried without amendments. #C59
Onto Part 6, the Secure Air Travel Act (better known as the #NoFlyList) #C59
It looked like there would be amendment to Part 6, but was withdrawn. #C59
Part 6 carries without amendment. #C59
On to Part 7, regarding the Criminal Code of Canada. Senator McIntyre moving an amdendment #C59
Amendment to 83.221, which would replace "advocacy and promotion" to "counselling to commit" a terrorism offence.
Sen. McIntyre argues that "counselling" is too narrow, and would only apply if a person is counselling a specific person to commit a terrorism offence. #C59
His amendments would maintain "counselling" but add clauses that, for example, counselling is still a crime whether not the person counselling the offense knows the individual who carries out the offence. #C59
(I don't have the full wording of the proposed amendment) #C59
Sen. Gold argues against, stating that the amendment proposed is not necessary, since counselling does not require that a particular person is counselled, or that the person counselling knows the person who committed the offense. #C59
Also argues that this could undermine counselling offenses in other parts of the Criminal Code that do not include this new, specific wording. #C59
Sen. McIntyre responds that, despite arguments from the Minister and others, the provision as currently worded would exclusively pertain to one who counsels a specific individual to commit an offense. #C59
The proposed amendment carries, 6 to 5. #C59
Part 7 (Criminal Code), as amended, carries. #C59
Part 8, Youth Criminal Justice Act, carries #C59
Part 9, Review: Sen. Dagenais is proposing that review of the provisions of Bill C-59 be reviewed after 4 years, as opposed to six years, which is currently proposed in the bill. #C59
Senator McPhedran argues in favour, stating that starting the review in 4th year would give enough time to have a thorough and comprehensive review, including adequate outreach and consultation beyond government bodies
A subamendment proposed by Sen. Griffin, to add information sharing as one of the areas to be considered by the review. Sub-amendment carries #C59
To clarify, the amendment also proposes to list the areas that "must" be included in the review. #C59
Sen. Gold argues that this list is too limited and incomplete #C59
(As I understand it, proposed amendment won't limit what can be studied, but includes a list of what must be there, among others. It would be great to have more things listed, but this will not actually limit the work of the committee. Impt thing here is review at 4 yrs) #C59
The amendment carries, and Part 9 as amended carries #C59
Part 10, Coming Into Force. Sen. Gold moving an amendment. #C59
Amendment that a schedule be created listing the Deputy Heads to whom directions regarding avoiding complicity in foreign mistreatment have been issued. #C59
Amendment carries. And Part 10 carries #C59
But next step for #C59 is to go back to the full Senate for third reading.
The committee missed an opportunity today to take clear action to protect rights and liberties of people both in Canada and abroad. #C59
Committee also invites the government to re-examine a possible role for the Intelligence Commissioner in the approval of authorizations of the CSE's active and defensive cyber operations (Sen. Gold) Carries #C59
Observation 3: Recommend that the responsible ministers issue public guidance on definiton/use of publicly available information (Sen. Gold). Carries #C59
Observation 4: Recommending greater cooperation between NSIRA, the Privacy Commissioner and the NSICOP. Debate about mandating cooperation between Privacy Commissioner and NSIRA (put on hold) #C59
Observation 5: Committee invites government to allow Privacy Commissioner to share information with the NSICOP. #C59
Observation 6 (from Sen. Gold): Committee invites government to consider adding special advocates to the No Fly List review process #C59
Quite a bit of debate on this, with Conservative senators opposing the creation of special advocates, and concern that the government would incur costs and be paying fees for an advocate for the defendant. #C59
Sen. McPhedran: Keep in mind already a proven process in regards to security certificates. We are not creating new rights, but that we have a state with enormous resources, and needs a threshold of fairness to be credible. #C59
Conservative senators are opposed, likening the special advocate to a system where the government is paying the legal fees for people challenging their listing on a No Fly List List
(This is a complete mischaracterization of the special advocate system. These are not lawyers for the defendant, but a way to try and ensure that a defendant has access to the information used against them...
...We see special advocates system as insufficient, but it definitely is not what the Conservatives are framing it as). #C59
The Observation carries
Observation 7: Calls on government to evaluate whether existing provisions of the law are sufficient in combatting terrorism & extremism online. Carries #C59
Observation 8: Calls for the Senate to study the issue of intelligence to evidence. Carries #C59
Next observation: Calling on government to issue clarification & best practices on prosecution of counselling a terrorism offence. Carries #C59
Next observation proposed by Sen. McPhedran: Suggest that CSIS have to seek a warrant if a threat reduction measure implicates a charter right, adn that threat reduction activities be reported to the NSICOP. #C59
CSIS official states that this was considered, but that "implicates a charter right" is viewed as being too broad (vs. the current language of "limits a charter right"). #C59
Final version of recommendation is that threat reduction powers should be reviewed by NSIRA and reported on to NSICOP. Carries. #C59
Observation: That NSIRA and Privacy Commissioner cooperate on a report on information disclosure, and it be provided to the NSICOP. #C59
Postponed, as committee returns to Observation #4: The govt should review what role the PrivacyCommissioner might play in reviews by NSIRA and NSICOP. Carries. #C59
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