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Senators look for tweaks to national security bill

The Senate’s Conservative whip says his party isn’t interested in obstructing Bill C-59 as it moves through the Red Chamber.

Senators are looking at ways to change the Liberals’ landmark national security reform bill, but it won’t get a particularly rough ride, says the opposition Conservative group.

The Senate’s National Security and Defence Committee finally began its study of Bill C-59 on April 10, before the Chamber rose for a two-week Easter break. Committee scrutiny of the legislation, first introduced in the Senate in June, was set aside in favour of looking at the government’s gun bill, C-71—which came to the Senate in September—first.

The committee’s study resumed this week on April 29 and May 2, with 19 witnesses scheduled to provide their insights and feedback on the legislation.

The bill is aimed at fulfilling the Liberals’ election promise to scrap “problematic elements” of the controversial anti-terrorism legislation passed in 2015 by the then-Conservative government of Stephen Harper, known then as C-51. At the time, the Liberals said they voted in favour of the bill with the intention of making changes to it if elected. They said those changes would “better [balance] our collective security with our rights and freedoms.”

The bill stemmed from Harper-era legislation, “so generally we are supportive of it,” said Conservative Senator Don Plett (Landmark, Man.), the official opposition whip in the Senate and a member of the committee. The opposition does have “a few concerns” with some measures in the bill, but none that are big enough to delay its passage, Sen. Plett said, adding that “we will not in any way try to obstruct or delay the passage of this bill.”

C-59 is a broad, nine-part bill that rolls back controversial elements of its predecessor, such as the lowering of the threshold for preventative arrests, but also codifies new tools to collect citizens’ electronic data. It establishes new oversight bodies, in the form of the National Security and Intelligence Review Agency (replacing existing oversight bodies for the Canadian Security Intelligence Service as well as Communications Security Establishment) and a new intelligence commissioner tasked with approving CSIS and CSE activities in advance.

It also makes changes to the Communications Security Establishment Act, expanding the agency’s mandate and providing for more proactive, offensive activities.

“We very much support a thorough review of the legislation, but in our opinion the legislation somewhat weakens the provisions in Canadian law which protect Canadians from the threat of terrorism,” Sen. Plett told The Hill Times. “And we believe it will make it a little bit more difficult for law enforcement and security to prevent attacks on Canadian soil, and that is a bit of a problem that we have.”

For Conservative Senator Paul McIntyre (New Brunswick), the biggest red flag comes in Part 7 of the bill, which seeks to make Criminal Code changes.

A particular sticking point for him and other Senators is changing “the offence of advocating or promoting terrorism offences in general…to one of counselling the commission of a terrorism offence.”

Sen. McIntyre said he thinks making the change “will be tougher for the Crown to bring charges against those who openly advocate terrorism.”

The Criminal Code currently reads: “Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general—other than an offence under this section—while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.”

Bill C-59 proposes to change this to: “Every person who counsels another person to commit a terrorism offence without identifying a specific terrorism offence is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.”

Appearing before the Senate committee on April 10, Public Safety Minister Ralph Goodale (Regina-Wascana, Sask.) responded to Senators’ concerns directly, saying that the “counselling” offence “is one that is familiar in the criminal law and the various elements that constitute the offence are well-known to police and prosecutors. In our judgment, it is more likely that police will be able to find evidence and prosecutors will be able to charge with the change in the language that we are proposing in Bill C-59.”

A practising lawyer for 45 years, Sen. McIntyre said the proposed change hit him hard, but he didn’t get the sense from the minister that he’d be too open to having it amended by the Senate.

Independent Senator Marc Gold (Stadacona, Que.), who is sponsoring the bill in the Senate, said he expects to see amendment attempts made on this part of the bill.

The way the Criminal Code is currently written is unconstitutional, Sen. Gold—a constitutional law expert—said, and the new language in the bill would survive a constitutional challenge.

“However, there is reason to believe that there are some alternatives in the middle that would equally be constitutional, but broader than the current counselling offence,” he said.

Independent Senator Marilou McPhedran (Manitoba), a committee member, told The Hill Times she has her eyes on potential changes to Part 6 of the bill, which makes changes to the Secure Air Travel Act to help ease the plight of people, especially children, with the same names as those on a no-fly list.

The changes are generally well-received across party lines, but some are calling for tweaks, including Sen. McPhedran who wants to see a special advocate put in place for people appealing their inclusion on the no-fly list. The role exists and is used in immigration hearings, she said, where the “special advocate acts as a conduit, essentially, between the person who is caught up in the process and all of the secret info that’s being held by the state.”

Sen. McPhedran said she appreciates that these aren’t typical court cases and serious issues for national security, but that it’s a “workable compromise” to find a balance between security and an individual’s rights when the government already knows the system works. However, she said if it came down to it, she wouldn’t insist on her amendments, and would rather see the bill’s approval take priority.

During the meeting, Mr. Goodale said he was “happy to consider suggestions for improvements” as the study goes along. “So far we’ve had over 40 amendments to the legislation, so I think that indicates an openness on the part of the government.”

As the bill’s sponsor, Sen. Gold said he doesn’t feel any pressure on the timing of the bill, which is subject to an agreement struck by the leaders of the different groups in the Chamber regarding the dates to wrap up committee study and third-reading votes on 10 pieces of government legislation.

Bill C-59 has to be reported back to the Senate by May 16, with a third-reading vote held on May 30, according to that agreement. After it passes the Senate, any amendments the Upper Chamber agrees to will be sent back to the House for consideration.

And while Sen. Gold said he doesn’t know what the government’s appetite for amendments will be, he said he thinks the bill is a good one that removes the “constitutional dangers” set out by its predecessor.

“Both CSIS and CSE, and frankly all our other agencies, desperately need this bill to clarify what they can do and what they can’t do so that they can get on with the job of protecting us,” he said. “And I know that anyone who has seriously looked at this bill and taken off partisan lenses understands this really well.”

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