Reviewing Bill C-59, An Act Respecting National Security Matters 2017: What’s new, what’s out, and what’s different from Bill C-51, A National Security Act 2015?

Résumé

In 2015, Canada’s national security law landscape received some long-overdue attention in the form of Bill C-51, the Anti-Terrorism Act 2015. It was the culmination of a series of smaller initiatives that had given attention to national security law in Canada, but also a direct response to two terrorist attacks that left two Canadians dead in October 2014. Bill C-51 did indeed reinvigorate discussions around national security law in Canada, but in so doing it became a lightning rod for criticism. Bill C-59, An Act Respecting National Security Matters 2017 was not passed until June 2019, but it was nevertheless a direct response to Bill C-51 and the criticisms it faced. Yet for the most part, Bill C-59 amended but did not repeal the important new powers found in Bill C-51, even the most controversial powers; instead, Bill C-59 can be seen, in part, as a technical-legal Bill that largely entrenched the powers first conceived of in Bill C-51 by putting them on firmer legal (constitutional) footing. But Bill C-59 was also much more than a series of legal/constitutional improvements: its legislative scope went much further afield from the Bill C-51 regime, amending the authorities of agencies—like the Communications Security Establishment—that had been untouched by Bill C-51, while also greatly expanding national security oversight and review through the creation of important new bodies. The purpose of this paper is to compare these two important pieces of national security legislation with a view to explaining what these legislation reforms did, why the reforms were undertaken, and to identify the relative strengths and weaknesses of the most controversial of the reforms under each Bill. The idea is to offer an overview and comparison of these important national security legislative initiatives and, in so doing, explain where Canada stands today, in the wake of this massive legislative overhaul. But by identifying what has already been addressed, this also allows us to identify next-steps and, in particular, where should be the focus of future legislative reforms in the area of national security. Three recommendations then flow from this conclusion: first, national security legislation must be reformed with greater consistency than has happened in the past; second, as an immediate matter of priority, Canada must address its “intelligence-to-evidence” problem, that is the system by which it converts—or fails to convert—raw intelligence into the sort of evidence usable by courts of law; and third, enforcement of Canada’s national security laws must now take priority, in particular by prosecuting returning foreign fighters and far right extremists where their activities meet the threshold of a terrorism offence, as well as terrorist financing to a greater degree than Canada has seen to date.