Voices/Voix Case study
What Happened
Since the fall of 2014, the Harper government has introduced two significant bills to amend the Canadian Security Intelligence Service Act and other national security related legislation, identified as Bill C-51 and Bill C-44. At the time of writing, Bill C-44 has been passed by the House of Commons and is awaiting approval by the Senate while Bill C-51 (introduced in Parliament in January 2015) is entering its second reading in the House. The amendments proposed, especially through Bill C-51, represent the most sweeping changes to the powers of CSIS since its inception in 1984 and create far-reaching, vague and controversial changes to anti-terrorism legislation that potentially criminalize now lawful activity, create new vaguely defined speech crimes, and increase the scope for CSIS to engage in secret judicially-approved counter-terrorism actions in Canada as well as in foreign countries.
Background
In 1984, CSIS was created as a response to the McDonald Commission, which recommended a separation between national security policing and intelligence functions. National security intelligence would be limited to information gathering, and CSIS’ performance of its duties and functions would be subject to the review of the Security Intelligence Review Committee (SIRC). Unlawful disruption tactics, including barn burnings, property destruction, break-ins, thefts, and abusive investigation techniques by the RCMP were strongly condemned. In the aftermath of the McDonald Commission Report, the government created CSIS as a legally more constrained, domestic, civilian intelligence collection service. Indeed, later in that decade, an important reform removed the controversial area of “subversion” from the RCMP’s mandate.
In November 2001, in the aftermath of the 9/11 attacks in the United States, Parliament amended the Criminal Code of Canada, by creating the offense of terrorism and criminalizing specific acts involved in the proliferation of terrorism. At the same time, legislators attempted to carve out a zone for lawful protest through the exclusion of activities such as “advocacy, protest, dissent or stoppage of work,” barring they do not cause serious bodily harm through the use of violence, they do not endanger a person’s life, nor do they put the health and safety of the public at serious risk.
Two pivotal national security commissions of inquiry, the Air India Inquiry (2010) and the Arar Inquiry (2006), provided important recommendations which criticized national security investigations, as well as domestic and international information sharing by both the RCMP and CSIS. These inquiries revealed serious problems in intelligence collection and sharing, which had real and far reaching impact on the lives of Canadians, and called for much more robust oversight mechanisms for national security investigations. Similar cautions on the adverse impact of intelligence sharing were echoed by the Iacobucci inquiry regarding the deportation of three Canadian men who were subsequently tortured in Syria.
Despite the concerns raised by the McDonald Commission and subsequent case-specific national security inquiries, on January 30, 2015, the Harper government proposed sweeping changes designed to broaden the scope both of CSIS’ activity and the service’s legal authorization to actively disrupt suspected terrorist activities. These changes are part of a larger and more vague definition of threats to the security of Canada.
Summary of Bill C-51
The Bill is divided into five parts:
Part one enacts the Security of Canada Information Sharing Act, authorizing the disclosure throughout and within the government of Canada of information regarding activities that “undermine” Canadian security;
Part two enacts the Secure Air Travel Act, which creates listing mechanisms and prohibitions for persons who may pose a threat to air transportation or who may travel abroad to commit terrorism offenses;
Part three amends the Criminal Code in significant ways including the creation of propagation crimes criminalizing the expression of ideas related to terrorism and its propaganda;
Part four broadens the mandate of CSIS to operate both inside and outside of Canada (also in conjunction with Bill C-44) and to this end to be authorized to seek judicial authorization on a number of matters that may otherwise violate Canadian law and the Constitution; and
Part five relates to amendments to immigration security certificate legislation allowing, in part, the government to withhold information from the specially appointed, national security approved Special Advocates retained to represent a detained person in confidential and closed national security hearings.
Parliamentary Response to the Bill
The federal Liberal Party leader, Justin Trudeau, has declared that his party will support Bill C-51, while subsequently advocating for greater oversight, but the Bill will be opposed by the NDP and the Green Party.
Expert Response to the Bill
Legal scholars Craig Forcese and Kent Roach have provided extensive, in-depth and comprehensive analysis of the implications of Bills C-44 and C-51 and have published their findings online. They describe the implications of the new amendments as “radical” and “extremely concerning” and outline a number of serious operational and administration of justice concerns raised by the proposed amendments.
The Forcese-Roach analysis argues that the proposed amendments run counter to the rationale for CSIS’s formation and foster a more active, invasive and dangerous sphere of activity of CSIS that risks criminalizing lawful conduct, and justifying surveillance and disruption tactics towards Canadians for mere regulatory violations. In effect, these changes threaten a return to the very behaviours of the ’70s that the McDonald Commission so thoroughly condemned.
More than 100 Canadian professors of law and related disciplines have signed an open letter, which runs more than 4,000 words and is a detailed legal analysis that covers “some (and only some)” of the bill’s alleged defects, and calls for the government to scrap C-51 on the basis of “its potential impacts on the rule of law, on constitutionally and internationally protected rights, and on the health of Canada’s democracy.”
Public Response to the Bill
The public unveiling of Bill C-51 occurred at a press conference in late January at which Prime Minister Harper linked mosques to the radicalization of young Muslims. NDP leader Tom Mulcair charged that Harper had stepped over the line and that his comment was a form of Islamophobia. The National Council of Canadian Muslims (NCCM) and the Canadian Muslim Lawyers’ Association (CMLA) said in a press release that they are “deeply troubled” that Harper “implicated Canadian mosques as venues where terrorism is advocated or promoted” and demanded an apology.
In its briefing note, the CMLA takes the position that C-51 “grants the Government of Canada extraordinary, vague and unnecessary powers that pose a risk to the civil rights and privacy rights of Canadians,” which are “contrary to the recommendations of the Arar Inquiry, as echoed by the Privacy Commissioner’s 2014 report, especially with respect to information sharing, independent review and accountability.” The CMLA also goes on to point out that “while the extraordinary powers of Bill C-51 put the rights of all Canadians at risk, experience tells us that Canadian Muslims will be disproportionately affected.” The Canadian Association of Muslim Women in Law has further noted in a statement that “Bill C-51’s binaristic approach to ‘mainstream’ versus ‘extremist’ values reflects a fixation with, among other things, policing Muslims’ diverse and often divergent religious, cultural, and political practices.”
While recent opinion polls suggest that a majority of Canadians support Bill C-51, a significant percentage (69%) believe that greater oversight is needed. Former Canadian Prime Ministers Chrétien, Martin, Clarke and Turner, as well as five former Supreme Court justices, seven former Liberal solicitors general and ministers of justice, three past members of SIRC, two former Privacy Commissioners, and a retired RCMP watchdog have urged for a stronger oversight role of security intelligence in Canada in view of current Parliamentary debate on Bill C-51. Despite the government’s assurances that SIRC plays a robust oversight role, SIRC reviews past activities and does not engage in oversight as it is not involved in operational or political decision-making. Up until the office was cut in 2012, the office of the inspector general of CSIS acted as a watchdog, actively overseeing the activities of CSIS. Critics also note that SIRC’s limited resources further compromise its capacity to act as a check on the spy agency. The government has also stressed the oversight role of judges who must approve CSIS’ disruptive activities. However, judicial “threat disruption” warrants are only needed in cases where CSIS’ activity would be illegal or unconstitutional. All other activities would fall under the review of SIRC.
There has also been a relative dearth of any practical or expert opinion tendered by the government (or otherwise) that justifies the necessity or the effectiveness of the proposed measures of the Bill. Academics have raised questions as to whether the bill could be counter-productive to “effective policing, intelligence-gathering and prosecutorial activity,” and have instead called for evidence-based policy-making. In addition, critics have noted that the Code already prohibits direct incitements to terrorist acts, making the propagation provisions not just redundant, but over-broad.
Impact on Dissent within Canada
Serious concerns have also been raised about the impact of C-51 on Indigenous dissent, including land defenders and their allies, particularly given the Harper government’s existing track record of labelling pipeline opponents as “extremists” who have a “radical ideological agenda,” of using CSIS to surveil the Idle No More movement and First Nations activists Pam Palmater, Clifton Nicholas, and Cindy Blackstock, and of monitoring people trying to voice their concerns about fossil fuel developments. The Assembly of First Nations has also expressed concern about the potential impact of C-51 on First Nations dissent, fearing it could lead to the “unjust labelling of First Nations activists as ‘terrorists.’” In addition, the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association, the International Civil Liberties Monitoring Group, the Association des juristes progressistes, Amnesty International Canada, and Greenpeace are some of the concerned civil society organizations that have spoken out strongly against C-51.
Key Changes Proposed by Bill C-51
1. Information Sharing
The bill provides authorization for the Canadian government to share broadly and internally information regarding activities that “undermine” national security. While the bill excludes “lawful advocacy, protest, dissent and artistic expression”, “terrorism” is only one of nine examples of activities that “[undermine] the security of Canada.” The vagueness of what may undermine national security, particularly with respect to “interference with critical infrastructure,” leaves open broad parameters for collecting information on people who have not committed criminal acts, who have committed regulatory or administrative offenses, who are viewed as politically subversive or whose activities may be construed as being connected to a cause that is lawful but politically contentious.
2. Propagation and Other New Crimes
One of the more controversial aspects of Bill C-51 is its enactment of “propagation crimes” which make it an offense to advocate and promote the commission of “terrorism offenses in general.” This new offence is broader in scope than existing terrorism offences in the Criminal Code in that the speaker’s purpose or intent does not matter, and unlike other propagation offences in the Code, one can be charged for communications made in private. Because the scope of terrorism offenses is already extremely broad (relating to 14 already delineated terrorism-related offences in the Code), the number of measures that may be construed as falling within the ambit of terrorism and the facilitation of terrorism – as well as crimes that may propagate a message that advocates terrorism – have serious and far reaching effects that would curtail legitimate free expression.
The bill also lowers the Code’s threshold for preventative detention by allowing law enforcement to arrest and detain an individual if they suspect that a terrorist act “may be carried out.” The current standard in the Code is “will be carried out.” Evidentiary thresholds required to obtain terrorism peace bonds are similarly lowered from a standard of “will commit” an offence to “may commit” a terrorism offence.
3. New Powers for CSIS
The new amendments authorize an active role for CSIS, which experts have called “kinetic” as opposed to its previous role of more passive information collection and advising. The amendments will also now allow for foreign CSIS activities. While CSIS must abide by Canadian laws, it has the mandate to seek special authorization from the Court to engage in disruption tactics either at home or abroad, which may encompass limitless activities, which may never be publicly known. In the past, the Federal Court of Canada has also criticized CSIS for misrepresenting facts in obtaining a secret authorized warrant, which was used for unauthorized foreign spying. These provisions run the risk of, in effect, legalizing activities akin to the RCMP Security Service wrongdoings of the 1970s, which led to the demise of the Security Service and the creation of CSIS.
In addition, the amendments authorize CSIS to take measures to reduce “threats to the security of Canada.” The threat disruption measures may violate Canadian law or the Canadian Charter of Rights and Freedoms if a Federal Court judge has approved the violations in advance in a warrant. As critics have noted, this is a dramatic departure in that judicial search warrants are normally issued to prevent Charter violations, other legal Charter rights are absolute, and rights that do have internal limitations are subject to close judicial scrutiny that balances the scope of the legislation against the nature of the protected right. While all Charter rights can be subject to the reasonable limits clause of the Charter, this legislation calls for a constitutional departure in that it pre-authorizes a violation of a right in the context of warrant proceedings that are done in secret.
4. Air Transportation Security
Bill C-51 empowers the Minister of Public Safety to put Canadians who “may” cause a threat to air transportation or who “may” engage in terrorism abroad on a no-fly list. A standard based on suspicion and speculation raises concerns about mistaken identity, racial profiling, bias or unfounded associations that may lead to listing on a no-fly list. Similarly, delisting procedures are opaque and have been criticized as being procedurally unfair by virtue of the fact that listed persons may not be aware of their listing or, if so informed, they may not know the basis of their listing.
5. Security Certificate Amendments
Individuals named on a no-fly list can appeal the minister’s decision to a judge of the Federal Court, however the process borrows from the Immigration and Refugee Protection Act’s security certificate regime. At the request of the minister, the Court can hold part of the delisting hearing in secret, meaning that the individual challenging his/her designation and his/her lawyer can be excluded from the court and not be privy to the evidence presented against them.
The bill also amends the Immigration and Refugee Protection Act, authorizing the government and CSIS to withhold information in cases where individuals are held on security certificates. In the context of security certificates, the Supreme Court of Canada has already deemed secret trials unconstitutional and to this end has upheld the implementation of a Special Advocate role for assisting the concerned detainee by advocating on his behalf in closed court sessions. Lawyers have criticized this regime as being unfair and one-sided. Despite such criticism and the delicate balance that the Court has recognized in the role of Special Advocates, the government is seeking to completely side-step Special Advocates upon a confidential request by the Minister to the Federal Court. Again this is a blatant attempt by the Harper Government to undermine the judicial critiques of earlier CSIS and Communications Security Establishment (CSE) actions.
Important Dates
1981: McDonald Commission publishes its final report and recommends that national security policing and intelligence functions be separated.
1984: Parliament passes the Canadian Security Intelligence Service Act creating CSIS. The agency would be overseen by the CSIS inspector general’s office and reviewed by the newly created Security Intelligence Review Committee.
2001: Parliament passes the Anti-Terrorism Act (2001).
2012: Harper government shuts down the office of the CSIS inspector-general.
January 30, 2015: Bill C-51 is introduced in the House of Commons.
February 23, 2015: Bill C-51 passes second reading in the House of Commons with a vote of 176-87. The Bill is now in committee.
Implications and Consequences
Democracy and Equality: Muslim communities in Canada feel that the new amendments are targeting them as purveyors of terrorism or terrorist ideas. The implementation of the amendments has tremendous potential for being disproportionately wielded against Muslims as implied by Harper’s statement on mosques in Canada as being linked to the promotion of terrorist ideas.
Democracy and Dissent: Groups in Canada, including Indigenous organizations, environmental groups and activists engaged in political dissent will likely find themselves targeted, on watchlists, and the subject of national security surveillance and information sharing based on non-criminal peaceful activities. The use of such information may be subject to abuse, improper sharing, more invasive monitoring or active disruption activities not based upon any discernible threat to national security.
Democratic Process: The government’s attempt to fast-track the bill at the committee stage by limiting days devoted to expert testimony compromises the capacity to engage in thorough parliamentary scrutiny and review. Given the scope and scale of the proposed reforms, public scrutiny is essential in order to strike a balance between civil liberties and national security.
Freedom of Expression: The articulation of “propagation crimes” of terrorism in the context of an already vague and expansive definition of terrorism will criminalize certain forms of lawful expression opining on issues relating to terrorism. The impact of such provisions may have the effect of seriously chilling lawful speech and activity in Canada.
Abuse of Power: The creation of virtually limitless powers of CSIS to conduct both domestic and foreign activities that may receive judicial authorization to violate the law places inordinate pressure on the Courts and CSIS to self-regulate. In such an environment, after the fact review cannot prevent abuse. The abuse, strikingly, may be mandated by judges. Indeed even historical scrutiny may be prevented by these provisions.
Arbitrariness: The definition of propagation offenses and the scope of activities that CSIS may investigate as a basis for creating lists to prohibit activity expands the scope of surveillance and criminalization of otherwise lawful activity. How one is listed and how one becomes delisted is mired in the confusing and vague language of the new amendments.
Procedural Fairness: The Minister may collect information and place individuals on lists for air transportation security without notice to the person. Delisting after the fact becomes very difficult if not impossible where the basis of the listing may also be shrouded in national security privilege.
Procedural Fairness: CSIS’s right to seek judicial authorization for virtually any activity to disrupt activities that may “undermine” national security may be done without notice to the concerned person. The objects of surveillance of disruption may never become aware of CSIS’s role nor have the opportunity to challenge abuse of process of unlawful conduct of CSIS.
Procedural Fairness: Allowing the Minister to circumvent Special Advocates in Security Certificate proceedings undermines the integrity of the entire regime, which is already highly contentious and criticized based on its pervasive use of evidence not disclosed to the concerned person.
Rule of Law: By allowing CSIS and Federal Court judges to become the mechanism for authorizing and implementing activities that are without control, fetter or effective oversight directly undermines the entire Canadian legal system and the expectation of being treated in accordance with and under protection of the law.
Democracy: The proposed amendments threaten the most fundamental civil liberties that are identified under the Charter, freedom of expression, security of the person, freedom from unlawful search and freedom from arbitrary arrest. Where such violations may be systemically authorized, particularly in a manner with differential and adverse impact on specific communities, democratic freedoms and minority protections will be eroded.
Sources
Canadian Security Intelligence Service Act R.S.C., 1985, c. C-23
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