This article responds to the Canadian government’s 2016 consultation on national security law and policy. It outlines a series of concerns, both with laws enacted in 2015 (and especially bill C-51) and some interpretations of C-51 and other laws in the consultation documents. It urges the need for a systematic and contextual understanding of the many issues raised in the consultation. For example, information sharing and increased investigative powers should not be discussed without attention to inadequate review and accountability structures. Similarly CSIS’s new disruption powers need to be understood in the context of the intelligence and evidence relationship. The article proposes concrete and significant changes to the current legal and policy regime motivated both by civil liberties and security-based concerns.
As I write this, bill C-22 is being debated in the House of Commons, on second reading. Once that debate concludes, the bill will be referred to the relevant House of Commons committee — presumptively, the Standing Committee on National Security and Public Safety (SECU). For those interested in the issue of the parliamentary role in national security “oversight” (as it is usually called — although for technical reasons it is better described as “review” or “scrutiny”), I have assembled assorted resources here for ease of reference:
The Evolution of the Idea
- The 1981 McDonald Commission report on reform of Canadian security & intelligence and its proposal for a parliamentary body charged with a scrutiny role (at p.896 forward).
- The 2011 EU study of comparative parliamentary oversight bodies.
- The UK Intelligence and Security Committee (website) (governing legislation, Part 1; Schedule 1)
- The Australian Parliamentary Joint Committee on Intelligence and Security (website) (governing legislation, Part 4; Schedule 1)
- The New Zealand Intelligence and Security Committee (legislation)
- The 2004 Martin government discussion paper on a Canadian national security committee of parliamentarians.
- The 2004 report of the interim committee of parliament on the topic.
- The Martin government bill (C-81) (died on order paper)
- The Hugh Segal private member’s bill (S-220) (died on order paper)
- The Joyce Murray private member’s bill (C-660) (defeated on second reading)
- Working Paper: Forcese and Roach, Bridging the National Security Accountability Gap: A Three-Part System to Modernize Canada’s Inadequate Review of National Security (March 31, 2016).
- Opeds: Atkey, Forcese, Roach, Making the spies accountable: real change or illusion? Globe and Mail (Sept 12 2016)
- Blog postings: Forcese, Knee Jerk First Reaction: Bill on National Security Committee of Parliamentarians (June 16 2016)
And of course, to understand how parliamentary scrutiny fits into the “big picture” (of bill C-51, etc), you really should read that big, but very affordable book, written with verve: Forcese & Roach, False Security: The Radicalization of Canadian Anti-terrorism (Irwin Law, 2015).
Video primers (covering off some of the same terrain as our analyses)
As a follow up on our book (and particularly ch 12 and our recommendations in ch 14), Kent and I are releasing for comment our draft working paper on reformed national security review (sometimes called “oversight”). In the paper, we urge that Canada’s reformed national security accountability review structure be built on the model of a three-legged stool: first, a properly resourced and empowered committee of parliamentarians with robust access to secret information, charged primarily with strategic issues, including an emphasis on “efficacy” review; second, a consolidated and enhanced expert review body – a “super SIRC” – with all-of-government jurisdiction, capable of raising efficacy issues but charged primarily with “propriety” review; third, an independent monitor of national security law, built on the UK and Australian model, with robust access to secret information and charged with expert analysis of Canada’s proposed or actual anti‑terrorism and national security legislation.
The paper may be downloaded from the SSRN website (at this time, the “under review” stamp just means it is being integrated into the SSRN permanent collection). Please share widely as we wish to attract a large audience of interested citizens, experts and stakeholders. As noted at the paper’s beginning, we intend to publish a final version (with TSAS), and welcome comments aimed at strengthening the paper.
Over the summer and into the Fall, Kent Roach and I focused on writing our book False Security: The Radicalization of Anti-terrorism, and then speaking about the ideas in it at various fora. Like others, we await with interest the new government’s plans on next steps in Canadian anti-terror and national security law. I wrote up a short piece on what we know now (comparatively little, but better than nothing).
The original purpose of this blog was to supplement my regular national security law blog and present work that Kent and I did through 2015 on Bill C-51. I also discovered something called twitter, something I nominally joined years ago and did not understand. But since 2014, I have done my best to push out things that catch my eye in my areas of research interest from @cforcese.
All of this is to say that we have not invested much time in beautifying this platform or giving it flash and dazzle because it was always intended as a temporary feature.
But the issue of C-51 and its aftermath has not gone away, and so we have decided to keep this blog live into 2016. I will continue blogging on national security law writ large on my regular blog, but we will also post on anti-terror law developments on this site.
First up, as the teaching term ends and we have some time: we have decided to prepare a “best practices” annotated draft bill for enhanced accountability in national security law, taking a stab at crafting a meaningful parliamentary review committee and also enhanced expert review by our existing review body. As we argue in False Security, neither should proceed without the other.
We will post that document for comment and reaction here, when ready.
Details for our Thurs Oct 8 evening book launch of False Security: The Radicalization of Canadian Anti-terrorism are here. The event will be held at University of Toronto, co-presented by Irwin Law Books and Walrus Magazine. The moderator will be Jon Kay, editor of the Walrus. It is not intended as a simple “talking heads panel” with the authors. We have a full roster, and aim to make this interactive and “town hally”:
Ron Atkey P.C., Q.C., first Chair of the Security Intelligence Review Committee
Joe Fogarty, former UK government security liaison to Canada
Sukanya Pillay, General Counsel, Canadian Civil Liberties Association
Craig Forcese, Author and Associate Professor of Law, University of Ottawa
Kent Roach, Author and Professor of law, University of Toronto
Moderator: Jonathan Kay, The Walrus Foundation
After working flat out for now more than six months, we are on the brink of releasing our full book on Bill C-51 (and the other recent security laws). This is a big book that goes well beyond and does much more than recast the backgrounders on this website. It is as much about how Canada is getting security wrong as it is about how recent laws are jeopardizing rights. Some may regard the title (over which we mulled for much time) as provocative. We regard it as measured, honest and accurate. Our readers can be the judge.
The book is available for advance purchase from the publisher and on Indigo-Chapters. As a free extract, we have also posted the Preface and Chapter 1 on line here and here or through the publisher’s website.
Despite its length (much longer than we originally planned), we worked with the publisher to price the book at as accessible a price point as possible — much lower than for a conventional work of this nature. And we worked hard to meet rigorous academic and legal analysis standards. But we set out to write a book that it is also a rewarding read for readers without a background in law or security but who are interested in really getting into the details behind all the smoke and rhetoric over anti-terrorism in Canada. Put another way, we hope that people will read this book — and no, we don’t expect to make money, or really care if we make a dime. (In any event, royalties for this kind of book usually are enough to pay for a nice gourmet pizza for our families.)
This has always been a project in active citizenship and we believe that we are duty-bound as handsomely paid law professors to contribute to an informed citizenry, able to parse complex issues. An open society needs an open law, and national security in a democracy depends on informed consent.
We have tried to frame the basis for our conclusions as transparently as possible — so people can trace our sources to test why we take the views that we do. See our Preface, linked above, for what we have tried to do with this book, who we are, the perspectives we bring, and how we have found our facts.
Of course, there will be people who will disagree with us. We do not have all the answers. So let us start the polite, informed and thorough discussion between people of good faith that we never had during the C-51 debates; a discussion about how we can achieve REAL security in a rights-observing country. This is as grave an issue as any a society might encounter, and it should never be fodder for slogans and partisan positioning.
A shout out to our publisher who has, from day 1, also joined us in this vision of civic duty. More than anything else, we hope that this book sells well so that publishers willing to support these kind of efforts are able to make ends meet, and continue to play their vital role.
Thank you to the many people who have written to us over the months with their questions, comments and insights. We have not been able to respond to all, but have responded to many.
As we did throughout this project, we always welcome polite, dignified and substantive comments, with apologies again if we cannot respond to all such missives. After all: classes start this week!
Roach and I have published a brief article in the Canadian Privacy Law Review on C-51’s information-sharing law, updating our observations from prior backgrounders to incorporate amendments made to the provisions by the House of Commons during the legislative process. The paper can be downloaded here. The abstract is as follows:
The Security of Canada Information Sharing Act (the “Act”) contained as Part I in Bill C-51 is based on the concept of “activities that undermine the security of Canada”. This is a new and astonishingly broad concept that is much more sweeping than any definition of security in Canadian national security law. In important respects, it comes close to a “total information awareness” approach or, at least, a unitary view of governmental information holding and sharing. In that respect, we consider it a radical departure from conventional understandings of both national security interests and privacy.
In this article, we first discuss what is at stake in information sharing and argue that the new Act does not give adequate attention to the risks that information sharing presents to privacy or that the sharing of unreliable information can cause injustice. In the second part, we critically examine the new concept of activities that “undermine the security of Canada”, which plays a central role in the new information sharing act.
In the third part, we examine the most important operative section of the Act. Finally, in the last part, we argue that when the broad information sharing Act becomes law, accountability reform and, in particular, revamped independent review with a whole of government mandate and power will be imperative to counteract the risks of information sharing discussed in the first part of this article.
Reproduced with permission of the publisher LexisNexis Canada Inc. from Canadian Privacy Law Review, Vol. 12, No. 7, June 2015.
I have posted a digest on some of the alarming positions about the reach of the proposed CSIS powers taken by the government during the final Commons committee hearing, in which all opposition amendments were defeated.
Senate Standing Committee on National Security and Defence
April 2, 2015
Study of Bill C-51 (Antiterrorism Act 2015)
Thank you for allowing me to appear again before this Committee. Professor Forcese and I have produced over 200 pages of detailed analysis of parts 1, 3 and 4 of Bill C-51. It is a complex omnibus bill that would add two new security laws and amend another 15 existing, including most notably the Criminal Code and CSIS Act. We have provided and also published to antiterrorlaw.ca a table proposing many carefully considered amendments. We will not have time today to go into them but would welcome any questions on them.
In the Commons, the government has made a few amendments, but they do not alleviate our concerns that the bill will have major implications for rights and unintended but harmful effects for security, particularly criminal investigations and terrorism prosecutions. The amendments also do not respond to the fact that the bill ignores or contravenes major parts of the 2006 recommendations of the Arar Commission, the 2010 recommendations of the Air India Commission and 2011 recommendations of the special Senate committee chaired by Senator Segal. The bill’s radical rejection of the evidence compiled by these commissions in large part explains the persistence of our critique of the bill.
Need for Parliamentary Review and Sunsets
Bill C-51 combined with Bill C-44 drastically changes Canada’s security laws. It encourages CSIS to have a firmer foreign footprint and the two bills may have the unintended effects of making terrorism prosecutions, including prosecutions for the 4 new terrorist fighter offences that Parliament wisely added to the Criminal Code in 2013, more difficult. We have genuine concerns that C 51 will threaten rights and freedoms without making us safer and that combined with C 44, that the radical changes it makes may even make us less safe.
The Senate, as the chamber of sober second thought, is the last chance to change this bill. Because of the unanticipated effects of the bill as well as the dynamic threat environment, we would urge that the Senate to require a three year Parliamentary review of this complex bill- a review that should have access to secret information that will be relevant on to understanding the effects of the bill on information sharing, no fly lists and the RCMP and CSIS relationship and the downstream effect on terrorism prosecutions. This review will be most meaningful if the entire bill is subject to a 4 year sunset.
Information Sharing Act
Part I of the Bill recognizes, as the Arar Commission did, the need for information sharing. At the same time, it goes well beyond terrorism by introducing a novel concept of activities that undermine the security of Canada. This concept is the broadest definition of national security interests that we have seen.
We welcome the exemption of all forms of protest- not just as originally proposed only lawful protests. Nevertheless the government has not adequately explained why such a broad definition of security is necessary and why existing definitions of threats to the security of Canada in the CSIS Act cannot be used.
The Maher Arar story has warned us about the dangers of sharing information- intelligence which may be less than reliable, but s.6 of the proposed Information Sharing Act seems to forget these lessons in authorizing further sharing of information “to any person, for any purpose” so long as it is in accordance with existing law, law which itself is highly permissive of information sharing. The government’s proposed amendment in our view simply reaffirms that the new act itself does not justify further sharing, but that such sharing is allowed so long as it is accordance with existing law which includes wide exemptions for example under s.8 of the Privacy Act. This sort of information sharing must at least be matched as the Arar Commission recommended by commensurate independent review. There is no judicial review of information sharing in Part I- indeed as the Privacy Commissioner has indicated – there is no review for 14 of the 17 recipient departments. There is only stove piped or siloed review for the other three.
Finally, we note that the new information sharing act does not include the Air India Commission’s recommendation for mandatory information sharing subject to enhanced oversight by the Prime Minster’s National Security Advisor. We note that a Senate Committee chaired by Senator Segal echoes this recommendation in 2011.
Save Air Travel Act
There is judicial review for the no fly list, but no provision for special advocates to be able to see and challenge the secret information- often intelligence- that fails to meet evidentiary standards used to remove a person’s ability to fly. The IRPA amendments also will make it more difficult for special advocates to perform their constitutionally required role. Adversarial or independent review should not be seen as the enemy of security or of the dedicated people who work hard to keep us safe. We all understand that we do better work if we know that our worked by closely examined and, if necessary, criticized by others.
Bill C-51 still an overbroad offence with respect to advocacy or promotion of “terrorism offences in general”. It has no defences for legitimate expression of political or religious thought. The Minister of Justice has correctly noted in his testimony to the committee that the advocating genocide has no defences but genocide involves mass violence whereas terrorism offences in general could include financing of the non violent activities of a listed terrorist group. The Minister defends the knowledge requirement with reference to the Hamilton judgment on counselling but this new offence is designed to be broader than counselling. We still maintain that the higher
willful fault requirement and good faith defences are necessary because the offence is designed to be broader than counselling offences. We also maintain that s.83.22(2) (instructing terrorist activity) makes that offence a better tailored but still broad alternative to the proposed offence. The new speech crime in our view violates freedom of expression because it reaches well beyond the sort of speech that threatens actual violence and the ability of existing offences to capture much terrorist propaganda is relevant to its proportionality.
This unclear new offence harms and chills freedom of expression, but may also impede our ability to work with those who may hold radical views- who may advocate, for example, sending funds to a listed terrorist group- but who, with multidisciplinary intervention of the type contemplated in recent UK legislation, may be persuaded to resile from violence. The decision not to tie to the offence to the established and constitutional concept of terrorist activities opens up the possibility of prosecuting those who advocate sending money to a terrorist group or even reporters who knowingly reprint a plea by another person urging people to join foreign terrorist fights while aware of the possibility that someone might do so as a result.
My colleague Professor Forcese will continue with our joint submission
Thank you. I appreciate the opportunity to once again appear before this committee.
I am happy to address in questions peace bonds and preventive detention, which we generally support with provisos. I wish, however, to focus most of my comments on the very concerning CSIS Act amendments.
We begin by underscoring the security consequences of the new powers. We must all worry about by the long-standing “deconfliction” difficulties between police and CSIS operations.
We run a considerable risk that the new CSIS powers may end up overlapping, affecting and perhaps even tainting a subsequent police criminal investigation into terrorist activity. We worry whether our most successful anti-terror tool – criminal law – will be degraded by CSIS operations that muddy waters. Any veteran of the Air India matter must be preoccupied by the possibility.
We do not have time to raise other security implications, of the sort that SIRC itself raised in 2009 when it reviewed CSIS’s existing, much more banal disruption practices.
But even if the government thinks that all the security downsides are worth the risk, we can meet the government’s stated security objective without opening the door so wide to possible mistakes by a covert agency. The government says it needs these powers so that CSIS can warn families that a child is radicalizing, something the Service does already. But the bill reaches much, much further. There is a mismatch between government justifications and the actual text of the law.
We beseech you to amend the bill to remove any reference to the Charter being contravened by CSIS. The government persists in its novel legal theory that this is just a variation on what already happens. In Minister Blaney’s words “nothing new under the sky”. But this is more than new, it is radical, and, as the Canadian Bar Association points out, it is untenable. I wish to underscore, given Minister Blaney’s comments, that the CBA is an accomplished 119 year organization representing 37,000 lawyers, judges, notaries, law teachers and law students. So let me be specific on the government’s flawed legal logic:
- The new proposed warrant power is very different from search and arrest warrants — those are tied to Charter rights that have qualifying language in the right itself (Section 8 of the Charter only guards against unreasonable searches and seizures. Section 9 only protects against arbitrary detention). A search or an arrest warrant exactly satisfies this qualifying language, and therefore a government acting under such a warrant does not breach the Charter.
- In comparison, most other Charter rights are not imbued with built in qualifying language. There is no concept of permissible free speech, or arbitrary cruel and unusual treatment, or appropriate mobility rights to enter or leave the country or limited habeas corpus.
- Such rights can only be trumped under s.1 of the Charter (or if the government uses the s.33 notwithstanding clause, which it is not doing in C-51)
- But we must underscore: s.1 issues simply aren’t dealt with through the peculiar mechanism of a warrant. But now, for the first time, judges are being asked to bless in advance a violation of any or all our Charter rights, in a secret hearing, not subject to appeal, and with only the government side represented. What the government proposes now is a “constitutional breach warrant”. It is a radical, idea that contorts basic constitutional understandings and the role of the courts. It has correctly been compared to a stealth use of the notwithstanding clause, in which judges and not Parliament are being asked to do the dirty work of abrogating rights.
On Monday, the Minister repeatedly referred to s.25.1 of the Criminal Code as precedent. It is not. It does not authorize police officers to breach the Charter. It applies only to criminal investigations, and not the much vaster concept of security in the CSIS Act. More than this, s.25.1 has checks and balances absent from C-51. The police must report when they break the law, publicly. And they must, where the breach of the law is more than minor, also notify the target, after the passage of a period of time.
The Minister also suggested that the new CSIS powers simply replicate those deployed by allied agencies. We are not experts in foreign law. But we have now spoken to four law professors in the UK, two in Australia and several in the United States, some of whom have also then spoken to security service personnel. I would also point to a report in Le Devoir on March 14. The story recorded the views of foreign embassy officials from governments the Minister says have C-51 style powers. The resulting responses do not bear out the Canadian government’s claim that foreign services have the power to break domestic law or constitutions. Accordingly, I hope that this committee will ask the Minister to produce his study – which would not be solicitor client privileged – detailing the basis for his claim. If made available to us, we would happily share with international colleagues for peer review.
In sum, the new CSIS powers amount to an unprecedented constitutional adventure with serious security downsides. With a simple line or two, this committee could eliminate the notion that our covert service will be violating the Charter. It could add new, and reasonable limits on CSIS’s powers, including, for instance, an emphatic bar on detention – we cannot risk a parallel system of detention by a covert agency able to act against people who have committed no crime. But as the government itself acknowledged in clause-by-clause, the limit on “law enforcement powers” language added on the Commons side does not close the door to detention. It also publicly acknowledged that the bill does not close the door even to rendition. Rendition, as you know, is the term used to describe a person being kidnapped from one jurisdiction and taken to another, sometimes for trial and sometimes for abusive interrogation.
No country’s laws should ever grant this much discretion to a covert service.
Review and Accountability
And especially a covert service that is presently subject to only modest review. And so I will end with observations on SIRC and also on this legislative process.
Whatever the truth as to whether these new C-51 powers are constitutional or necessary, their introduction is breathtakingly irresponsible without a redoubled investment in our outmatched and outdated accountability system.
SIRC is no longer state of the art. It is no longer, to paraphrase the minister, the envy of the world. Its constraints and design mean that it is capable of reviewing only a small aspect of CSIS’s activities. We are only repeating concerns that SIRC itself has voiced. It has already told you that it is concerned about its ability to keep pace.
More than this, SIRC (and other review bodies) are unnecessarily hamstrung by legal limitations that prevent them from “following the trail” when government agencies collaborate – an increasingly common practice that C-51 will unquestionably increase.
A few paragraphs of legislative language could create new powers by review bodies to collaborate, as a stepping stone to a broader rethink of national security review.
And finally, I will hold out to you the precedent of the original enactment of the CSIS Act. On Monday, Minister Blaney seemed to suggest that the BC Civil Liberties Association and other groups raising concerns in 1983 about the original CSIS bill were, in his words, “fear mongering” and so were not credible on this bill. He misunderstands history. The first CSIS bill was introduced in 1983. It ignited stern concern from civil liberties groups, including the concern cited by the minister from the BCCLA. But the government in 1983 listened to many of those concerns. It let the 1983 CSIS bill die on the order paper, because of these concerns. Instead, your predecessors established a special senate committee. It worked through the summer, hearing many witnesses, and making recommendations to create (in the Senate committee’s words) “a more appropriate balance between collective and individual security.” Among those were stronger warrant provisions and wider powers of review for SIRC. Almost all the senate changes – more than 40 – were accepted by the government, which then tabled a new, improved bill. That bill became the CSIS Act, which has endured for 30 years. We owe those who improved the flawed 1983 bill a debt of gratitude.
And if we were capable of such deliberation then, surely we are no less able now.
We thank you for your interest and for your work.
* Professor of Law, University of Toronto
** Associate Professor of Law, University of Ottawa
I have posted a list of “a Baker’s Dozen of Hard Questions on Security Raised by C-51” on my regular national security law blog, in case reader of this feed are interested.