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Canada’s Anti-Terrorism Bill Fails Accountability Test

  • February 22, 2015
  • Clayton Rice, Q.C.

Canada has two intelligence agencies. The Canadian Security Intelligence Service (CSIS) is governed by the Canadian Security Intelligence Act, R.S.C. 1985, c. C-23. It was originally set up for intelligence gathering and not as an enforcement agency. It replaced the RCMP Security Service following the “barn burners” scandal in the 1970s. The Communications Security Establishment (CSE) is the federal government’s national cryptologic agency. It was established in 1946 as the Communications Branch of the National Research Council and was transferred to the Department of National Defence in 1975 by Order in Council. It is responsible for foreign signals intelligence (SIGNIT) and the protection of government electronic information and communication networks. They are at the centre of the storm over the Harper government’s new anti-terrorism legislation called Bill-C51 which would expand the powers of CSIS beyond anything in Canadian history.

On January 21, 2014, in the Straight, Travis Lupick published the concerns of Professor Ron Deibert of the Centre for Global Security Studies at the University of Toronto, Munk School of Global Affairs, in an article titled Cyberspace expert Ron Deibert raises the alarm on government surveillance in Canada: “We have very little oversight – any meaningful oversight, really – here in this country relative to that which exists in the United States. No oversight to speak of, a confusing and contradictory mandate for an organization (CSE) that operates in the shadows, and what little we know that has come to light suggests that they actually are spying on Canadians. There has really been no public discussion. Unless there is going to be some kind of huge revelation that is going to emerge, we’ll probably just keep muddling along like this, which is quite sad. I think it will be to our ruin, in the long run.”

On January 29, 2015, Kimberly Carlson of the Electronic Frontier Foundation published an article titled Canadian Government Continues to Expand State Powers While Leaving Privacy by the Wayside. Ms. Carlson referred to the premonition of retired Supreme Court of Canada Justice Frank Iacobucci who cautioned about: “…the ‘spillover effects’ that any rush to expand police powers would have on freedom of religion, association and expression; the possible ‘tainting’ of Canada’s Muslim community, and the risk of ‘overreaching’ by security intelligence agencies when sharing information in a global fight against terrorism.”

Ms. Carlson questioned the need for an expansion of anti-terrorism legislation in light of robust surveillance powers that already exist. In an article titled Canada Casts Global Surveillance Dragnet Over File Downloads in The Intercept dated January 28, 2015, Ryan Gallagher and Glenn Greenwald discussed new documents revealed by Edward Snowdon showing that CSE is already using invasive surveillance tools by daily tracking millions of worldwide downloads as part of its foreign intelligence spying and Five Eyes information sharing initiative. The Snowdon documents exposed the CSE program dubbed Levitation and contradicted CSE chief John Forster who, four months earlier, denied that Canadians were targeted by its surveillance activities. Ms. Carlson went on to state that the Snowdon documents revealed “…an overreaching surveillance state with little or no oversight.”

On January 30, 2015, the day after Bill C-51 was tabled in Parliament, the Privacy Commissioner of Canada, Daniel Therrien, released a statement expressing the same concerns: “I am…concerned that the proposed changes to information sharing authorities are not accompanied by measures to fill gaps in the national security oversight regime…Extending the jurisdiction of oversight bodies would be an important step towards the greater transparency that Canadians expect.” The next day, January 31, 2015, QMI Agency reported Mr. Therrien’s expanded concerns: “This Act would seemingly allow departments and agencies to share the personal information of all individuals, including ordinary Canadians who may not be suspected of terrorist activities, for the purpose of detecting and identifying new security threats. It is not clear that this would be a proportional measure that respects the privacy rights of Canadians.”

Also on January 31, 2015, Scoop Independent News stated in a press release: “The bill is published just two days after shocking new revelations exposed a government spy program called Levitation that monitors tens of millions of private downloads a day, with Canadians among the targets. They also collected millions of IP addresses of individual users, with a number of Canadian Internet addresses among the targets. Experts have warned that this type of mass surveillance is usually counter-productive, and can drown intelligence agencies in reams of useless data.” The press release drew attention to the initial response of many Canadians: “In just the past 24 hours, thousands of Canadians have called on Stephen Harper to end mass surveillance and improve oversight and accountability of spy agencies at https://OpenMedia.org/SpyOnUs.

On February 6, 2015, in an article published in the Toronto Star titled Mere oversight won’t fix Tory surveillance bill, Professor Michael Geist of the University of Ottawa, said that Bill C-51 puts much more at stake than lack of oversight of CSE programs such as Levitation: “…[T]hese programs point to the fundamental flaw in Canadian law, where Canadians are re-assured that CSE does not – in fact, it legally cannot – target Canadians. However, mass surveillance of a hundred million downloads every week by definition targets Canadians alongside Internet users from every corner of the globe…Given what we now know, better oversight of CSE is needed, but so too is a better law governing CSE activities.” Professor Geist went on to discuss substantive provisions that raise real privacy and civil liberties concerns. For example, the new CSIS disruption warrants provide for legal authority to break the law. “It shocks,” he said, “to see the government openly empowering CSIS to break the law with few limitations or restrictions.”

On February 13, 2015, the National Post carried an article titled Former CSIS officer warns new federal anti-terror bill will ‘lead to lawsuits, embarrassment’. Francois Lavigne, a former Mountie and CSIS officer, expressed alarm that Bill C-51 creates a cosy relationship between the RCMP and CSIS. “They’re not supposed to be,” he said. Mr. Lavigne spent years tracking targets without the powers contained in the new law: “I find it a little convenient that in the past few years that these radicalized people are the biggest threat to ever hit us,” he said. “There are more people dying because of drunk drivers or because of gang violence. If you give them (CSIS) more powers, if you lower the threshold, if you allow them to collect even more information, follow more people, detain people, inevitably it’s going to lead to lawsuits, to embarrassment. It’s not if it will happen. It’s when.”

Also on February 13, 2015, Professor Craig Forcese of the University of Ottawa and Professor Kent Roach of the University of Toronto published a hair-raising analysis of Bill C-51 in The Walrus titled Bill C-51: the Good, the Bad…and the Truly Ugly. Following a review of the provisions that restrict free speech and censor the Internet, they move on to discuss the new kinetic powers to be granted to CSIS. The agency will no longer be restricted to the passive intelligence gathering activities of the past. But the bill does little to limit these new powers. All the bill contains is the limitation in s. 12.2 that in taking measures to reduce a threat to the security of Canada, CSIS shall not cause death or bodily harm, pervert the course of justice or violate the sexual integrity of an individual. That leaves open a vast gamut of serious crimes such as robbery, extortion and identity theft to name a few. As Professors Forcese and Roach have said:

“These three items are a cut-and-paste job from Criminal Code provisions that authorize the police to, in limited circumstances, violate the law if officers abide by such stated conditions. But the analogy is imperfect. When the RCMP breaks the law in the course of a police investigation designed, ideally, to result in criminal charges, that behaviour will be tested in open court. When the system works as intended, everything comes to light, and police misconduct scuttles prosecutions. CSIS, however, faces no such prospect. Its activities come to light only when something goes seriously wrong, or when its investigations morph into criminal processes led by the RCMP.”

Furthermore, the bill would allow Federal Court judges to limit Charter rights including the right of Canadian citizens to return to Canada. There is no guarantee that such judicial decisions will be made public and there would be no democratic discussion. Warrant proceedings will be conducted in secrecy given the nature of terror cases. Only the judge and the government will be there. The targets, the people affected by illegal activity, will not be present and will probably never know what government agency acted against them. “The overall results,” Professors Forcese and Roach fear, “will be an opaque parliamentary debate on the merits of this law followed by a one-sided legal discussion about its application.”

The concern about secret proceedings is real because CSIS has a reputation for lack of candour in the Federal Court. Professors Forcese and Roach put the credibility problem this way: “Shelves already groan with review body reports and Federal Court decisions complaining that CSIS has distressingly, regularly failed to meet its duty of candour in closed-door proceedings.” I reviewed one example of this in a post titled Spies and Surveillance Warrants dated December 2, 2014, where I reviewed the judgment in X (Re), 2014 FCA 249. Leave to appeal has since been granted by the Supreme Court of Canada.

The Security Intelligence Review Committee (SIRC) is the independent, external body that reports to Parliament on CSIS operations. According to Professors Forcese and Roach it is underfunded, understaffed and in need of statutory revision: “In 2006, the Arar Commission underscored the urgent necessity of new legislative tools allowing SIRC to coordinate with other review bodies. But even now, the review bodies are ‘stovepipes’ by agency. Informal efforts to coordinate are rebuffed by the government. As we understand it, the government even has suggested that coordination would violate Canada’s criminal laws governing secrecy. SIRC needs more money, more people, and a more credible process of appointing committee members. It also requires a renewed government mandate, redrafted to reflect the emerging reality recognized years ago by the Arar Commission.”

Professors Forcese and Roach argue that some provisions of the new bill are good. Security issues in Canada must be addressed by law and not through extrajudicial government power. Putting programs such as the “no fly” list on firmer legal footing is sound. Although terrorism peace bonds and preventative detention may be necessary evils, their use must be “closely constrained, and carefully overseen.” It is, in the end, the question of accountability that remains of paramount concern: “…[W]ithout a redoubled investment in our tattered accountability system, the overall package is an ugly one to anyone concerned about civil liberties, and should also provoke deep unease for those looking for a workable, rational approach to security.”

One of the aspects of Bill C-51 that has been universally condemned by the commentators is what Professors Forcese and Roach call total information awareness that they describe as “excessive and unbalanced”. In an article titled “Total Information Awareness”: The Disastrous Privacy Consequences of Bill C-51, dated February 19, 2015, Professor Geist stated that the privacy concerns come down to three linked issues:

  • First, the bill permits information sharing across government for an incredibly wide range of purposes, most of which have nothing to do with terrorism.
  • Second, the scope of sharing is remarkably broad: 17 government institutions with the prospect of cabinet expansion as well as further disclosure “to any person, for any purpose.”
  • Third, the oversight over public sector privacy has long been viewed as inadequate. In fact, calls for Privacy Act reform date back over three decades. The notion that the law is equipped to deal with this massive expansion in sharing personal information is simply not credible.

The scope of information sharing is breathtaking given the myriad of non-terrorism purposes. The Security of Canada Information Sharing Act (a bill within the bill) presently identifies the following government institutions and departments in Schedule 3:

  • Canada Border Services Agency
  • Canada Revenue Agency
  • Canadian Armed Forces
  • Canadian Food Inspection Agency
  • Canadian Nuclear Safety Commission
  • Canadian Security Intelligence Service
  • Communications Security Establishment
  • Department of Citizenship and Immigration
  • Department of Finance
  • Department of Foreign Affairs, Trade and development
  • Department of Health
  • Department of National defence
  • Department of Public Safety and Emergency Preparedness
  • Department of Transport
  • Financial Transactions and Reports Analysis Centre of Canada
  • Public Health Agency of Canada
  • Royal Canadian Mounted Police

Professor Geist concluded by describing the proposed bill as a case of woeful oversight: “Since the enactment of the Privacy Act in 1983, every federal privacy commissioner has urged the government of the day to strengthen it. Those calls have grown louder over the past decade as PIPEDA places tougher obligations on the private sector than the government places on itself. The law as it currently stands has weak annual reporting requirements from government agencies, does not provide much protection to Canadians from abusive treatment by foreign states, does not give the Privacy Commissioner order-making power, does not provide redress in cases involving harm, does not prevent over-collection of personal information, does not protect against surveillance where the data is not recorded, and does not feature security breach disclosure requirements. The expansion on information sharing without addressing the oversight and safeguards of the Privacy Act should simply be a non-starter.”

On February 19, 2015, The Globe and Mail published an extraordinary letter to the Editor titled A close eye on security makes Canadians safer signed by twenty-two prominent Canadians including four former Prime Ministers, five former justices of the Supreme Court of Canada and seven former cabinet ministers. They all share the view that, “…the lack of a robust and integrated accountability regime for Canada’s national security agencies…poses serious problems for public safety and for human rights.” The letter concluded by expressing concerns about potential human rights abuses that can occur in the name of national security:

“Protecting human rights and protecting public safety are complementary objectives, but experience has shown that serious human rights abuses can occur in the name of maintaining national security. Given the secrecy around national security activities, abuses can go undetected and without remedy. This results not only in devastating personal consequences for the individuals, but a profoundly negative impact on Canada’s reputation as a rights-respecting nation. A strong and robust accountability regime mitigates the risk of abuse, stops abuse when it is detected, and provides a mechanism for remedying abuses that have taken place. In the years since the Arar inquiry, international human rights experts – including the UN Committee against Torture – have called on Canada to improve oversight of its national security agencies.

National security agencies, like all government institutions, must be accountable to the public. Accountability engenders public confidence and trust in activities undertaken by the government, particularly where those activities might be cloaked in secrecy. Independent checks and balances ensure that national security activities are protecting the public, and not just the government in power. Oversight and review mechanisms are necessary to make sure that powers are being exercised lawfully, and that government officials are not called upon to undertake activities that might expose them or Canada to legal liability either at home or abroad.”

But the government remains intransigent. On February 20, 2015, The Globe and Mail reported that the Prime Minister sees no need for more oversight: “We’re not going to move to a model where politicians do the oversight.” Mr. Harper noted that many additional powers in the legislation require judicial authorization – an argument the Conservatives have repeatedly used in defending their approach. But Mr. Harper has never told Canadians how judges are supposed to oversee Communications Security Establishment and total information awareness. That is a mystery.

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