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Canada’s Bill C-51: Therrien v. Harper

  • March 16, 2015
  • Clayton Rice, Q.C.

On March 5, 2015, the Privacy Commissioner of Canada, Daniel Therrien, released his office’s Submission to the Standing Committee on Public Safety and National Security of the House of Commons. The submission focused on the new Security of Canada Information Sharing Act (SCISA) that I described as a “bill within Bill C-51” in my previous post titled Canada’s Bill C-51: An Attack on the Rule of Law dated March 2, 2015. Here are the highlights of Mr. Therrien’s Submission on the issue of information sharing, at p. 1:

  • “If adopted in its current form, the Security of Canada Information Sharing Act would make available to 17 federal departments and agencies, which hold some responsibilities in relation to national security, potentially all personal information that any department may hold on Canadians. We reach this conclusion because, as will be explained later, the language used in SCISA to confer information sharing authorities is extremely broad. For instance, all the tax information held by the Canada Revenue Agency, which historically has been highly protected information, would be broadly available if deemed relevant to the detection of new security threats. As well, all information that departments hold about young persons that was obtained for a specific purpose could be further shared with these 17 departments and data mined with a view to identifying those at risk of being radicalized. As another example, in an effort to identify persons who may be engaged as foreign fighters abroad, the Canada Border Services Agency could be asked to provide information on all individuals, including tourists and business persons, who have traveled to countries that are suspected of being transit points to conflict areas.”

On the issues of oversight and review that have received much comment in the media, the Submission concluded that Bill C-51 exacerbates serious gaps in existing mechanisms and, “…does not facilitate sharing between review bodies.” With respect to affected individuals, “…the privacy regime provides no judicial recourse for improper collection, use or disclosure of their personal information.” The latter is critical because information sharing under SCISA will often occur secretly so individuals may not be able to challenge the disclosure or use of their information. Mr. Therrien further stated, at p. 4:

  • “Although there is currently some level of review, there are obvious gaps: 14 of the 17 agencies listed in Schedule 3 that will receive information for national security purposes are not subject to dedicated independent review or oversight. To fill that gap, the jurisdiction of one or more of the existing review bodies should be extended to include the 14, or a new expert review body with horizontal jurisdiction should be created to review the lawfulness and reasonableness of national security activities. While it is true, as mentioned in the government’s backgrounder to Bill C-51, that my Office has the mandate to review the personal information handling practices of all these agencies, the Privacy Act necessarily restricts what we can examine to ‘personal information’ as defined by the Act; we do not have jurisdiction to examine in general the lawfulness of the activities of national security agencies. That said, we do have authority to review compliance with privacy requirements, and I intend to play that role vigorously as it pertains to SCISA. I note, however, that our review may not be fully effective without some additional resources, as the Act will greatly increase information sharing both in volume and in terms of the complexity of the legal issues involved.”
  • “Effective review also requires that judicial recourse and remedies be available for aggrieved individuals. The Privacy Act currently provides no judicial recourse for complainants or indeed my Office in cases involving improper collection, use, disclosure or retention of personal information. All they have a right to is a report of non-binding recommendations by my Office with no further enforcement mechanism and no possibility for remedy. This is insufficient and it is reasonable, in the context of this Bill which so widely extends the scale of information sharing between departments and agencies, to give Canadians effective legal remedies in order to pursue their complaints beyond the issuance of my report. I would therefore reiterate the calls my predecessors have made to amend the Privacy Act by broadening the Federal Court review to all grounds beyond just denial of access which is currently the case.”

The fifth of five recommendations made by Mr. Therrien pertained to the issues of (a) review and (b) judicial recourse, at p. 5:

Recommendation 5:  Bill C-51 should be amended to ensure that all 17 agencies in Schedule 3 are subject to independent and effective review, by an expert body and by Parliamentarians; to remove impediments for information exchange between existing review bodies; and to amend the Privacy Act to allow for judicial recourse in cases involving collection, use or disclosure of personal information. The Bill should also include a mandatory period of review after three years.

Mr. Therrien concluded that Bill C-51, in its present form, “…would fail to provide Canadians with what they want and expect: legislation that protects both their safety and their privacy.”

The next day, March 6, 2015, Mr. Therrien’s opinion titled Without big changes, Bill C-51 means big data appeared in The Globe and Mail. He cautioned: “All Canadians – not just terrorism suspects – will be caught in this web. Bill C-51 opens the door to collecting, analyzing and potentially keeping forever the personal information of all Canadians in order to find the virtual needle in the haystack.” On the same day, The Globe and Mail ran an article by Daniel LeBlanc titled Anti-terror bill powers ‘excessive,’ Canada’s Privacy Commissioner says, emphasizing Mr. Therrien’s view that the legislation fails to strike an appropriate balance between safety and privacy: “The end result is that national security agencies would potentially be aware of all interactions that all Canadians have with their government. That would include, for example, a person’s tax information and details about a person’s business and vacation travel.”

Also on March 6, 2015, the Ottawa Citizen published an article by Lee Berthiaume titled All Canadians would be trapped in anti-terror legislation’s web, warns privacy commissioner quoting Mr. Therrien as saying: “…the scale of information sharing being proposed is unprecedented, the scope of the new powers conferred by the Act is excessive, particularly as these powers affect ordinary Canadians, and the safeguards protecting against unreasonable loss of privacy are seriously deficient.” The Toronto Star ran a concurrent article by Jim Bronskill titled Privacy watchdogs say anti-terrorism bill unduly exposes personal info drawing attention to the lack of judicial recourse: “Therrien said while he can look into complaints about information exchanges, all he can do is make recommendations to the government if he finds a practice to be unauthorized or illegal. Canadians would not be able to ask a court to review the information-sharing made possible by the bill, he added. ‘There is no judicial review of these activities and I think that is something that is clearly a flaw in the system’.”

Acting Manitoba ombudsman Mel Holley supported Therrien’s concerns as did Alberta Privacy Commissioner Jill Clayton who released a letter to the chair of the Standing Committee on Public Safety and National Security on March 6, 2015, stating that the Bill challenges fundamental rights and freedoms on several fronts but focusing on its mandate for unregulated and intrusive sharing of the personal information of ordinary Canadians.

The simmering criticism of Bill C-51 coincided with the RCMP’s release of the video of Michael Zehaf-Bibeau talking jihadist gibberish to himself in his car before his shooting rampage on Parliament Hill on October 22, 2014. RCMP Commissioner Bob Paulson denied before the House Committee that the timing of the release of the video was intended to influence public opinion.  Although I found the Commissioner’s denial wanting for credibility, he conceded that Canada’s present terrorism laws were adequate to prosecute Zehaf-Bibeau. In an article in the Ottawa Citizen dated March 7, 2015, titled Boost in anti-terror staffing ‘unprecedented’, says RCMP chief, Ian MacLeod reported: “Based on the video of Zehaf-Bibeau’s released Friday and his actions, Paulson told MPs he believes Zehaf-Bibeau was clearly involved in a terrorist activity as defined by the Criminal Code. ‘If Zehaf-Bibeau had not been killed but rather taken into custody, we would have charged him with terrorist offences. The RCMP believes on the evidence that Zehaf-Bibeau was a terrorist. It’s not relevant to us or our investigation what kind of a terrorist Zehaf-Bibeau was, or if he was particularly intelligent, sophisticated, influential or personally disciplined terrorist. To us it all turns on the evidence we collect which we compare against the statute.’ What’s more, there are no impediments in current criminal law hampering the RCMP’s ability to investigate the case, he said.”

On March 8, 2015, the Toronto Star’s op-ed column titled Anti-Terrorism Act threatens rights: Editorial had this to say: “…[A]s the Star has argued, the bill is overly broad, and overly subjective. It is a threat to civil rights including freedom of speech, privacy and security of the person. Critics fear, justifiably, that it will end up unleashing the security forces on everyone from critics of Ottawa’s foreign policy to First Nations, Quebec sovereigntists, environmentalists and hacktivists. Government reassurances aren’t reassuring. If passed as is, it will tip the balance firmly toward security and away from civil rights. Some spirited pushback is in order.”

Throughout the week, Professor Kent Roach of the University of Toronto and Professor Craig Forcese of the University of Ottawa continued their devastating assault on the bill in backgrounders and analysis posted at antiterrorlaw.ca. In a comment dated March 9, 2015, in the National Post titled Roach & Forcese: A parliamentary review is not redundant red tape they said: “Canada’s system of national security ‘oversight’ is imperfect. Its systems of national security ‘review’ is frayed, perhaps to the breaking point. The government’s antiterrorism law, Bill C-51, will accelerate this pattern. Without a serious course correction, we risk the prospect of avertable security service scandals.”

Roach and Forcese went on to emphasize that the Security Intelligence Review Committee (SIRC) has inadequate powers for a post-9/11 world: “In 2013, then SIRC Chair Chuck Strahl candidly and colourfully told the Senate that ‘the trail is not going to stop nicely and neatly at CSIS’s door…Other agencies…are working closely with CSIS, and increasingly we’re going to need some way of chasing those threads. Otherwise, we’ll have to tell parliamentarians that, as far as we can tell, everything looks great in CSIS country, but we don’t know what happened over that fence; you’re on your own.’ …[N]ot even SIRC reform would address the fact that Canada, alone among its ‘Five Eyes’ security partners, does not give parliamentarians access to secret information.”

On March 12, 2015, Roach and Forcese continued their attack in an op-ed column in the New York Times titled Canada’s Antiterror Gamble. After emphasizing that Bill C-51 takes “a breathtakingly broad view of national security” they level a blow at the government’s often toted safeguard of judicial warrants:

“…[T]his safeguard is imperfect. C.S.I.S. warrant proceedings are secret and one-way: The target of the requested warrant is not represented. Such proceedings always run the serious risk of wrongly penalizing an innocent person. This trade-off may have been (barely) acceptable when requests were limited to surveillance. But Bill C-51 could see Canadian Federal Court judges asked to authorize lawbreaking or unconstitutional behaviour by a covert agency whose mandate would extend beyond spying.

If foreign governments have thus far eschewed commenting publicly on the proposed legislation, two features should stand out for the international community. Bill C-51 would permit C.S.I.S. interventions beyond Canada’s borders. And it would even empower Canadian courts to authorize C.S.I.S. conduct that violates ‘any other law, including that of any foreign state’.

Polite Canadian judges might be reluctant to authorize C.S.I.S. breaches of foreign statutes. But where international operations are concerned, judicial reticence may not matter. Bill C-51 would only require warrants in cases of potential violation of Canadian law or its national Charter, which almost never apply outside the country. Thus there would be little judicial oversight of C.S.I.S. activities abroad.”

Concerns about warrants authorizing violations of the law were also expressed by former Conservative MP and SIRC chair Ron Atkey in his appearance before the House Committee on March 12, 2015. Atkey said the legislation should include a beefed up SIRC and a form of parliamentary oversight. In an article titled Proposed CSIS powers a ‘constitutional mess,’ former watchdog warns, Kady O’Malley of CBC News reported: “…Atkey warned MPs that the provision to allow CSIS agents to apply for Federal Court authorization for measures that could potentially contravene a Charter right is a ‘major flaw’ in the proposed legislation. ‘That provision, in my view, is clearly unconstitutional , and will be struck down by the courts,’ he told the committee.” Professor Michael Geist of the University of Ottawa also continued his criticism of the bill in a post dated March 12, 2015, titled Why The Anti-Terrorism Bill is Really an Anti-Privacy Bill: Bill C-51’s Evisceration of Privacy Protection in which he again focused on the unprecedented information sharing provisions.

Then the Conservatives attempted to muzzle criticism at the same time that a coast-to-coast national protest day was being organized for March 14, 2015. On March 12, 2015, Ms. O’Malley of CBC News reported that the House Committee was not planning to give Mr. Therrien the opportunity to be heard in an article titled Bill C-51: Privacy watchdog Daniel Therrien blocked from committee witness list. The preceding day, a spokeswoman for the Privacy Commissioner told the CBC: “At this point, we have not been invited.” Ms. O’Malley described the events this way: “It is not clear how Therrien ended up not making it onto the final witness list, as the selection process takes place behind closed doors. His name was near the top of the proposed witness list provided to CBC News by the New Democrats and the Liberals. During Tuesday’s meeting, New Democrat MP Randall Garrison attempted to get unanimous consent for a motion to add a one-hour session with Therrien to the meeting schedule, but he was rebuffed by the Conservatives. Public Safety Minister Steven Blaney stated, in response to a question, that his office had ‘consulted’ with the Commissioner on the bill. The Minister said he intends to meet with Therrien. ‘As you know, this bill is about the protection of the rights and freedoms of Canadians and their privacy,’ he said.”

Really, Mr. Blaney. This is how your government protects the rights of Canadians?

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