Part 1 - Craig Forcese

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PART 1 1 SECURITY OF CANADA INFORMATION SHARING ACT 2 Enactment of Act Enactment 2. The Security of Canada Information Sharing Act, whose text is as follows and whose Schedules 1 to 3 are set out in the schedule to this Act, is enacted: 3 An Act to encourage and facilitate information sharing between Government of Canada institutions in order to protect Canada against activities that undermine the security of Canada Whereas the people of Canada are entitled to live free from threats to their lives and their security; Whereas activities that undermine the security of Canada are often carried out in a clandestine, deceptive or hostile manner, are increasingly global, complex and sophisticated, and often emerge and evolve rapidly; Whereas there is no more fundamental role for a government than protecting its country and its people; Whereas Canada is not to be used as a conduit for the carrying out of activities that threaten the security of another state; 1 CCLA -Testimony/General Thoughts  SISA fails to include meaningful accountability or oversight mechanisms for national security information;  SISA vastly expands the scope and scale of information that may be shared across government institutions, in a manner that is not restricted to constitutional principles of necessity, proportionality, or minimal impairment; and  Rather than cure the deficiencies in existing, outdated privacy legislation, SISA introduces a new scheme that is opaque, circular and confusing, and inconsistent with democratic principles of transparency and accountability. 2 Committee Meeting - March 12 (Carmen Cheung)  “First, it is our submission that the security of Canada information sharing act is fundamentally flawed and should not be enacted. It endorses a radical conception of security unprecedented in Canadian law, and an unbounded scope of what it means to undermine Canadian security. Based on these expansive concepts, the act authorizes warrantless information sharing across government and dissemination outside of government. As the Privacy Commissioner has pointed out in his letter to this committee, such widespread and relatively unfettered access to personal information poses serious dangers for individual privacy. We and others have also suggested that such massive data collection and information sharing may not necessarily benefit security, either. Moreover, the act deepens an already serious deficit in national security accountability” 3 Hansard - 174 (February 18, 2015) (1650)  “Consequently, the Liberal Party is proposing to create this oversight body. We believe that there should be a committee composed of parliamentarians to provide appropriate oversight —and not just review —of the activities of various agencies, including CSIS, the Communications Security Establishment, the RCMP and the Department of National Defence.  Therefore, we propose the following: first, that the members of this committee be sworn to a lifetime oath of secrecy; second, that the members be unable to claim immunity based on parliamentary privilege with regard to the use of the communication of information that comes into their possession or knowledge as members of this committee; and third, that this committee should not be a parliamentary committee, but a committee of parliamentarians.”

Whereas protecting Canada and its people against activities that undermine the security of Canada often transcends the mandate and capability of any one Government of Canada institution; Whereas Parliament recognizes that information needs to be shared — and disparate information needs to be collated 4 — in order to enable the Government to protect Canada and its people against activities that undermine the security of Canada; Whereas information in respect of activities that undermine the security of Canada is to be shared in a manner that is consistent with the Canadian Charter of Rights and Freedoms and the protection of privacy; And whereas Government of Canada institutions are accountable 5 for the effective and responsible sharing of information; 6 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 Short title 1. This Act may be cited as the Security of Canada Information Sharing Act.

7 INTERPRETATION Definitions 2. The following definitions apply in this Act.

“activity that undermines the security of Canada” 8 « activité portant atteinte à la sécurité du Canada » 4 ICLMG TESTIMONY: p 4  The Bill effectively encourages these government departments to work together to “collate” a wide range of personal information and create secret files on individual Canadians simply because some unknown official finds their behaviour, lifestyle, opinions or associations to be suspicious or unusual. 5 Open Letter to Parliament: Amend C-51 or Kill it (National Post, 27 Feb 15)  “...no corresponding oversight or review mechanisms adequate to this expansion of the state’s new levels of information awareness. Concerns have already been expressed by the Privacy Commissioner, an Officer of Parliament, who has insufficient powers and resources to even begin to oversee, let alone correct abuses within, this expanded information sharing system. “ 6 Security of Canada Information Sharing Act Backgrounder  “The

Privacy Act,

and with it the Office of the Privacy Commissioner’s authority to investigate potential violations, will continue to apply to information shared under the proposed Act

.

The review functions of the Office of the Privacy Commissioner and the Office of the Auditor General of Canada will help maintain an appropriate balance between protecting the privacy of citizens and ensuring national security. In addition, the Security Intelligence Review Committee, the Office of the Communications Security Establishment Commissioner, and the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police will continue to perform review functions for their respective agencies, includ ing with respect to information practices.” 7 Committee Meeting - March 12 (Prof Forcese): “I would call it a national security act” 8 Amnesty International Committee Testimony: p 12  The proposed definition of security threats in this new Act is stunningly vast. Notably, for an Act which arises as part of an ‘anti-terrorism’ Bill, terrorism is only the fourth of nine security threats listed. Other threats on the list go far beyond any other Canadian legal definition of security threats, including concerns a bout Canada’s territorial integrity, as well as interference with diplomatic or consular relations, Canada’s economic or financial stability or critical infrastructure.

“activity that undermines the security of Canada” 9 means any activity, including any of the following activities, if it undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada: 10 11 (a) interference with the capability of the Government of Canada in relation to intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada; (b) changing or unduly influencing a government in Canada by force or unlawful means; (c) espionage, sabotage or covert foreign-influenced activities; (d) terrorism; (e) proliferation of nuclear, chemical, radiological or biological weapons; (f) interference with critical infrastructure; (g) interference with the global information infrastructure, as defined in section 273.61 of the National Defence Act; (h) an activity that causes serious harm to a person or their property because of that person’s association with Canada; and (i) an activity that takes place in Canada and undermines the security of another state.

For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.

“Government of Canada institution” « institution fédérale » “Government of Canada institution” means (a) a government institution — as defined in section 3 of the Privacy Act — other than one that is listed in Schedule 1; or (b) an institution that is listed in Schedule 2.

“people of Canada” « population du Canada » “people of Canada” means (a) the people in Canada; or 9 Committee Meeting - March 10 (Minister Blaney)  “Activity that undermines the security of Canada”... refers strictly to the sharing of already existing information between federal agencies and organizations - does not pertain to the mandate of CSIS  Does not include lawful protest, even if illegal because it does not undermine the security of Canadians Committee Meeting - March 12 (Joanna Kerr)  Term “lawful” struck from current anti-terrorism legislation after expert evidence so unlawful activity (such as trespassing or minor property damage) would not be conflated with terrorism 10 Open Letter to Parliament: Amend C-51 or Kill it (National Post, 27 Feb 15)  “Bill C-51 enacts a new security-intelligence information-sharing statute of vast scope with no enhanced protections for privacy and from abuse. The law defines “activities that undermine the security of Canada” in such an exceptionally broad way that “terrorism” is simply one example of nine examples, and only “lawful advocacy, protest, dissent and artistic expression” is excluded.” 11 Office of the Privacy Commissioner: 

“Recommendation 2:

The definition of “activities undermining the security of Canada” should be reviewed to ensure that it is not overly broad and includes only real threats to security. In the case of conflict between that definition and the jurisdiction of recipient institutions, it should be clarified that the former is not intended to expand the latter.

(b) any citizen, as defined in subsection 2(1) of the Citizenship Act — or any permanent resident, as defined in subsection 2(1) of the Immigration and Refugee Protection Act — who is outside Canada.

PURPOSE AND PRINCIPLES Purpose 3. The purpose of this Act is to encourage and facilitate the sharing of information among Government of Canada institutions in order to protect Canada against activities that undermine the security of Canada.

12 Guiding principles 13 14 4. Information sharing under this Act is to be guided by the following principles: (a) effective and responsible information sharing protects Canada and Canadians; (b) respect for caveats on and originator control over shared information is consistent with effective and responsible information sharing; 12 Committee Meeting - March 10, 2015 (Blaney)  The security of Canada information sharing act, the first part of Bill C-51, is a response to the Air India commission and to many other requests. Mr. Chair, we are doing it to better protect Canadians. The legislation has adequate safeguards built in to protect the privacy of Canadians. We are not interested in giving privileges to the rights of terrorists over the rights of Canadians. 13 Committee Meeting - March 12 (Blaney)   “Left hand of the government needs to know what the right hand is doing” Before information is transferred, there has to be a risk and information has to be transferred to relevant department (“safeguards” for privacy)    Information gathering and transfer has to be done in accordance with the Charter “Are we going to let silos be used by terrorists to harm Canadians?” (Roxanne James) protesting without a municipal permit does not open someone up to being spied on, unless unlawful protest includes blowing up infrastructure - nothing directly pertaining to spying, relates only to information sharing not to law enforcement  (Paul Champ) two novel features of information sharing act - 1) expanded definition of the security of Canada (previous definition found in the CSIS act) and 2) turning government employees into spies by asking government departments to try and act to disrupt, prevent, identify and detect terrorist activities, even though many government employees don’t know anything about what a terrorist activity looks like (example provided is “what does a tax auditor know about terrorism”)  Serious consequences of information sharing - example of Algerian refugee who spent 5 years wrongfully imprisoned in US and abused asa 9/11 suspect because of erroneous sharing of information by Canadian government officials   (Barry Cooper) information sharing act a good start to addressing the tension between CSIS and the RCMP, information sharing is useful and even necessary (good first step but can be improved) (Chief Perry Bellegarde) overly broad definition of “activities that undermine the security of Canada” a euphemism for an excuse to spy on [first nations] when they exercise their collective and individual rights, clearly goes way beyond the current Criminal Code definition of terrorist - creates conditions for conflict by labelling people as threats 14 Committee Meeting 2 - March 12 (Profs Roach and Forcese)  Definition of threat to national security the broadest we have ever seen, don’t understand why it can’t be replaced with the definition from the CSIS act - if implemented, risk drowning 17 designated recipient institutions in information about terrorism AND illegal protests by diaspora groups and first nations and separatist groups   If everything is a security matter, nothing is - overbreadth threatens security Clause 6 of Part 1 should be removed

(c) entry into information-sharing arrangements is appropriate when Government of Canada institutions share information regularly; (d) the provision of feedback as to how shared information is used and as to whether it is useful in protecting against activities that undermine the security of Canada facilitates effective and responsible information sharing; and (e) only those within an institution who exercise its jurisdiction or carry out its responsibilities in respect of activities that undermine the security of Canada ought to receive information that is disclosed under this Act.

DISCLOSURE OF INFORMATION Disclosure of information 15 16 5. (1) Subject to any provision of any other Act of Parliament, or of any regulation made under such an Act, that prohibits or restricts the disclosure of information, a Government of Canada institution may, on its own initiative or on request, 17 disclose information to the head of a recipient Government of Canada institution whose title is listed in Schedule 3, or their delegate, if the information is relevant 18 to the recipient institution’s jurisdiction or responsibilities under an Act of Parliament or another lawful authority in respect of activities that undermine the security of Canada, including in respect of their detection, identification, analysis, prevention, investigation or disruption.

19 15 Hansard 23 Feb 15 (Duncan, 1610)  “What is most concerning to Canadians and experts, particularly legal experts, privacy experts, and anti-terrorism experts, as they go through the bill is the fact that the government has put together a lot of measures that go far beyond the measures to be expected in responding to terrorism threats. One such person is the Privacy Commissioner of Canada, who has warned that the act may allow departments and agencies to share the personal information of all individuals, including ordinary Canadians, who may be suspected of terrorist activities. He is deeply concerned. He says that the bill is not clear about whose information would be shared with national security agencies, for what specific purpose, and under what conditions, including applicable safeguards.” 16 Committee Meeting 2 - March 12 (Roxanne James)  Not information that has been collected covertly, information obtained by an agency through the course 17 ICLMG Testimony p 6  There are also very specific dangers associated with indiscriminate information sharing. As noted by Professors Roach and Forcese, “Improperly shared information may result in rumours and innuendo being reconceived as fact, and used to justify action, sometimes of a very troubling sort.” This can lead to damaged reputations, loss of employment, being barred from flying or crossing the border, and, in some cases, wrongful imprisonment and even torture. As two public inquiries found, in the wake of 911 fears four Canadians were detained and subjected to torture in foreign countries due in part to erroneous or improper information sharing by Canadian officials. 18 Office of the Privacy Commissioner Testimony:  “Equally problematic is that SCISA would authorize information sharing if “relevant” to the juris diction of the recipient institution, rather than “necessary” to its mandate or “proportional” to the national security objective to be acheived. We note that relevance is a much broader standard than that established elsewhere with respect to the collecti on of personal information” 

“Recommendation 1

: Only information which meets the necessity standard, rather than the relevance standard, should be shared with the 17 agencies listed in the Schedule. Alternatively, a recipient department should be required to conduct an assessment of the reasonableness and proportionality of the collection in achieving their mandated national security objective.” 19 ICLMG Testimony p 5  SOCISA deputizes government officials across government to assume responsibility for the “detection, identification, analysis, prevention, investigation or disruption” of any activities that “undermine the security of Canada”.5 It is hard to say how officials in departments like the Canada

Further disclosure under subsection (1) (2) Information received under subsection (1) may be further disclosed under that subsection.

Further disclosure — other than under this Act 6. For greater certainty, nothing in this Act prevents a head, or their delegate, who receives information under subsection 5(1) from, in accordance with the law, using that information, or further disclosing it to any person, for any purpose.

No presumption 7. The act of disclosing information under this Act does not create a presumption (a) that the disclosing institution is conducting a joint investigation or decision making process with the recipient institution and therefore has the same obligations, if any, as the recipient institution to disclose or produce information for the purposes of a proceeding; or (b) that there has been a waiver of any privilege, or of any requirement to obtain consent, for the purposes of any other disclosure of that information either in a proceeding or to an institution that is not a Government of Canada institution.

Non-derogation 8. Nothing in this Act limits or affects any authority to disclose information under another Act of Parliament or a provincial Act, at common law or under the royal prerogative.

PROTECTION FROM CIVIL PROCEEDINGS No civil proceedings 9. No civil proceedings lie against any person for their disclosure in good faith of information under this Act.

Revenue Agency (or HRSDC, or Veterans Affairs, or Aboriginal Affairs) will discharge these new statutory duties or interpret the broad definition of “security of Canada” under SOCISA. With little or no experience in law enforcement or security intelligence, and with no control or oversight in the Act, these officials will be left to their own devices.

POWERS OF GOVERNOR IN COUNCIL Regulations 20 21 10. (1) The Governor in Council may, on the recommendation of the Minister of Public Safety and Emergency Preparedness, make regulations for carrying out the purposes and provisions of this Act, including regulations (a) respecting the manner of disclosure under section 5; (b) requiring records to be kept and retained in respect of that disclosure; and (c) respecting the manner in which those records are kept and retained.

Amendments to Schedules 1 and 2 (2) The Governor in Council may make an order adding the name of an institution to Schedule 1 or 2 or deleting one from either of those Schedules.

Amendments to Schedule 3

(3) The Governor in Council may make an order adding the name of a Government of Canada institution and the title of its head to Schedule 3, deleting the name of an institution and the title of its head from that Schedule or amending the name of an institution or the title of a head that is listed in that Schedule. An addition is authorized only if the institution has jurisdiction or responsibilities under an Act of Parliament or another lawful authority in respect of activities that undermine the security of Canada, including in respect of their detection, identification, analysis, prevention, investigation or disruption.

20 Hansard, Feb 18 2015 (1535, Blaney)  “Contrary to dire suggestions by some members of the opposition, who should certainly read the bill before fearmongering, there are robust safeguards in place to protect the liberties of Canadians, such as review by the Privacy Commissioner, the Auditor General and various other oversight bodies.” 21 Prof Forcese, Committee Meeting 2 - March 12, 2015:  “More than this, SIRC and other review bodies are unnecessarily hamstrung by legal limitations that stovepipe their functions to specific agencies and prevent them from following the trail when government agencies collaborate, an increasingly common practice that Bill C-51 will unquestionably increase.  As Professor Roach mentioned, the Arar commission recommended that statutory gateways be created, allowing SIRC to share secret information and conduct joint investigations with Canada's two other existing, independent national security review bodies. The government has not acted on this report. A few paragraphs of legislative language would go a long way to curing this problem. I underscore and double-underline these are concerns that SIRC itself has voiced. That message about limited power should not be lost.  As a supplement, not a replacement, we also support a special security committee of parliamentarians. It can perform a valuable, pinnacle review —a review, not command and control oversight —by examining the entire security and intelligence landscape. Someone needs to see the forest, not just the individual trees. Our allies have made parliamentary review work with expert SIRC-like review. We look in particular to the Australian example. The existence of such a committee would also contribute to a meaningful and informed parliamentary review of the effects of this far-reaching legislation after, as Professor Roach has suggested, a few years of its operation.”

Related Amendments

R.S., c. E-15

Excise Tax Act

3. Section 295 of the Excise Tax Act is amended by adding the following after subsection (5.04): Threats to security (5.05) An official may provide to the head, or their delegate, of a recipient Government of Canada institution listed in Schedule 3 to the Security of Canada Information Sharing Act (a) confidential information, if there are reasonable grounds to suspect that the information would be relevant to (i) an investigation of whether the activity of any person may constitute threats to the security of Canada, as defined in section 2 of the Canadian Security Intelligence Service Act, or (ii) an investigation of whether any of the following offences may have been committed: (A) a terrorism offence as defined in section 2 of the Criminal Code, and (B) an offence under section 462.31 of the Criminal Code, if that investigation is related to a terrorism offence as defined in section 2 of that Act; and (b) information setting out the reasonable grounds referred to in paragraph (a), to the extent that any such grounds rely on information referred to in that paragraph.

R.S., c. F-15

Department of Fisheries and Oceans Act

4. Section 4 of the Department of Fisheries and Oceans Act is amended by adding the following after subsection (2): Security of Canada Information Sharing Act (3) In carrying out activities in relation to the maritime domain, the Minister may receive information that (a) relates to activities that undermine the security of Canada, as defined in section 2 of the Security of Canada Information Sharing Act; and (b) is relevant to his or her support of a Government of Canada institution, as defined in that section, that has jurisdiction or responsibilities under an Act of Parliament or another lawful authority in respect of those activities, including their detection, identification, analysis, prevention, investigation or disruption.

R.S., c. 1 (2nd Supp.)

Customs Act

5. (1) Subsection 107(4) of the Customs Act is amended by striking out “or” at the end of paragraph (g), by adding “or” at the end of paragraph (h) and by adding the following after paragraph (h): (i) is disclosed in accordance with the Security of Canada Information Sharing Act.

(2) Paragraph 107(5)(j) of the Act is replaced by the following: (j) an official of the Department of Citizenship and Immigration solely for the purpose of administering or enforcing (i) the Citizenship Act or the Immigration and Refugee Protection Act, if the information relates to the movement of people into and out of Canada, or (ii) the law of Canada respecting passports or other travel documents;

R.S., c. 1 (5th Supp.)

Income Tax Act

6. (1) The portion of subsection 241(9) of the Income Tax Act before paragraph (c) is replaced by the following: Threats to security (9) An official may provide to the head, or their delegate, of a recipient Government of Canada institution listed in Schedule 3 to the Security of Canada Information Sharing Act (a) publicly accessible charity information; (b) taxpayer information, if there are reasonable grounds to suspect that the information would be relevant to (i) an investigation of whether the activity of any person may constitute threats to the security of Canada, as defined in section 2 of the Canadian Security Intelligence Service Act, or (ii) an investigation of whether any of the following offences may have been committed: (A) a terrorism offence as defined in section 2 of the Criminal Code, and (B) an offence under section 462.31 of the Criminal Code, if that investigation is related to a terrorism offence as defined in section 2 of that Act; and (2) The definition “designated taxpayer information” in subsection 241(10) of the Act is repealed.

1995, c. 25

Chemical Weapons Convention Implementation Act

7. Subsection 17(3) of the Chemical Weapons Convention Implementation 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) in the case where the information or documents are disclosed in accordance with the Security of Canada Information Sharing Act.

2002, c. 22

Excise Act, 2001

8. Section 211 of the Excise Act, 2001 is amended by adding the following after subsection (6.4): Threats to security (6.5) An official may provide to the head, or their delegate, of a recipient Government of Canada institution listed in Schedule 3 to the Security of Canada Information Sharing Act (a) confidential information, if there are reasonable grounds to suspect that the information would be relevant to (i) an investigation of whether the activity of any person may constitute threats to the security of Canada, as defined in section 2 of the Canadian Security Intelligence Service Act, or (ii) an investigation of whether any of the following offences may have been committed: (A) a terrorism offence as defined in section 2 of the Criminal Code, and

(B) an offence under section 462.31 of the Criminal Code, if that investigation is related to a terrorism offence as defined in section 2 of that Act; and (b) information setting out the reasonable grounds referred to in paragraph (a), to the extent that any such grounds rely on information referred to in that paragraph.

Coordinating Amendment 2014, c. 39 9. On the first day on which both section 254 of the Economic Action Plan 2014 Act, No. 2 and section 2 of this Act are in force, Schedule 3 to the Security of Canada Information Sharing Act is amended by replacing the reference to “Chief Public Health Officer” in column 2 with a reference to “President of the Public Health Agency of Canada”.

Coming into Force Order in council 10. (1) Sections 2, 3 and 5 to 8 come into force on a day to be fixed by order of the Governor in Council.

Order in council (2) Section 4 comes into force on a day to be fixed by order of the Governor in Council.

SCHEDULE

(Section 2)

SCHEDULE 1

(Section 2 and subsection 10(2))

EXCLUDED INSTITUTIONS SCHEDULE 2

(Section 2 and subsection 10(2))

ADDITIONAL INSTITUTIONS Office of the Communications Security Establishment Commissioner

Bureau du commissaire du Centre de la sécurité des télécommunications

SCHEDULE 3

(Subsections 5(1) and 10(3))

RECIPIENT GOVERNMENT OF CANADA INSTITUTIONS AND THEIR HEADS

Column 1 Column 2 Recipient Institution

Canada Border Services Agency

Agence des services frontaliers du Canada

Canada Revenue Agency

Agence du revenu du Canada

Head

President of the Canada Border Services Agency Commissioner of Revenue Chief of the Defence Staff Canadian Armed Forces

Forces armées canadiennes

Canadian Food Inspection Agency

Agence canadienne d’inspection des aliments

President of the Canadian Food Inspection Agency Canadian Nuclear Safety Commission

Commission canadienne de sûreté nucléaire

Canadian Security Intelligence Service

Service canadien du renseignement de sécurité

President of the Canadian Nuclear Safety Commission Director of the Canadian Security Intelligence Service Communications Security Establishment

Centre de la sécurité des télécommunications

Department of Citizenship and Immigration

Ministère de la Citoyenneté et de l’Immigration

Chief of the Communications Security Establishment Minister of Citizenship and Immigration Department of Finance

Ministère des Finances

Department of Health

Ministère de la Santé

Minister of Finance Minister of Health Department of Foreign Affairs, Trade and Development

Ministère des Affaires étrangères, du Commerce et du Développement

Minister of Foreign Affairs

Department of National Defence

Ministère de la Défense nationale

Department of Public Safety and Emergency Preparedness

Ministère de la Sécurité publique et de la Protection civile

Minister of National Defence Minister of Public Safety and Emergency Preparedness Minister of Transport Department of Transport

Ministère des Transports

Financial Transactions and Reports Analysis Centre of Canada

Centre d’analyse des opérations et déclarations financières du Canada

Director of the Financial Transactions and Reports Analysis Centre of Canada Public Health Agency of Canada

Agence de la santé publique du Canada

Chief Public Health Officer Royal Canadian Mounted Police

Gendarmerie royale du Canada

Commissioner of the Royal Canadian Mounted Police

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