Month: February 2015

Bill C-51 Backgrounder #5: Oversight and Review: Turning Accountability Gaps into Canyons?

Canada’s system of national security “oversight” is imperfect. Its system 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 avertible security service scandals.

There is often a misunderstanding about the distinction between “oversight” and “review”.

In Canadian practice, oversight is usually an executive branch function. This system has not always worked – the Air India Commission suggested (and the government rejected) new centralized oversight systems for reconciling competing national security interests.

C-51 does not introduce new reforms in this area. The government instead points to judicial warrants authorizing the new CSIS powers – a form of oversight. But this is, at best, a partial form of oversight. CSIS will not always require warrants. Judges will issue warrants in secret proceeding in which only the government side is represented. Nor will they always know what is then done in their name. There is no formal “feedback” loop between CSIS and the judge concerning the execution of the warrant, a key concern where (as with CSIS warrants) the conduct is covert and the warrant never disclosed.

In these circumstances, accountability depends on review. “Review” is an audit of past performance, to ensure compliance with law and policy. CSIS’s review body is SIRC. The idea that SIRC review is adequate and enhanced review is needless red tape is simply wrong.

SIRC’s resource constraints and design mean that it is incapable of reviewing all of CSIS’s activities, or even CSIS’s conduct under all its existing warrants. A necessarily partial approach to review will be spread even thinner as CSIS’s powers expand.

More than this, SIRC (and other review bodies) are unnecessarily hamstrung by legal limitations that “stovepipe” their functions to specific agencies, and prevent them from “following the trail” when government agencies collaborate – an increasingly common practice that C-51 (and C-44) will unquestionably increase.

The Arar Commission recommended that “statutory gateways” be created allowing SIRC to share secret information and conduct joint investigations with Canada’s two other existing independent national security review bodies. The government has not acted on this report, or the Privacy Commissioner’s 2014 report that its powers were inadequate to review security information sharing – and information sharing is to be dramatically increased in C-51.

Meanwhile, not even SIRC reform would address the fact that Canada, alone among its “Five Eye” security partners, does not give parliamentarians access to secret information. As pointed out recently by four former prime minister’s (and others) a parliamentary review is not redundant – it can perform valuable “pinnacle” review by examining the entire security and intelligence landscape.

Other democracies have made parliamentary review work well with independent expert review bodies. They have also shown that parliamentary review powers contribute to a broader parliamentary competence in an area where it is essential: national security law.

Download the paper at the download site on the Social Science Research Network (SSRN).  Or use the mirror site (we shall not keep the paper on the mirror site up to date with additions).

[Please note that while SSRN catalogs this paper into its collection, “Under Review by SSRN” will appear as a watermark on this screen. The paper will nevertheless be available for download]

Bill C-51 Backgrounder # 4: The Terrorism Propaganda Provisions

Proposed s.83.222 of the Criminal Code creates a new concept of “terrorist propaganda”. It also allows judges to order deletion of “terrorist propaganda” from the internet.

We support the concept of deletion orders for “terrorist propaganda” in principle. We believe they can have a role as part of a balanced and evidence-based counter-radicalization strategy that aims both to reduce the supply of terrorist material and (even more importantly) the demand for it.

However, the details matter. We remain concerned about the breadth of the definition of “terrorist propaganda”. It includes cross-referencing to the new speech crime proposed by bill C-51. As we discuss in backgrounder #1, that new offence risks sweeping in too much speech that is not tied to violence or threats of violence.

We think instead the terrorist propaganda concept should be anchored to existing terrorist crimes, which capture already the vast range of actually dangerous speech.

Such an approach would ensure that deletion orders were appropriately focused on material proximately related to actual and threatened violence, as opposed to extremist and objectionable ideas that advocate the use of political violence for any number of causes, including ones that many would regard as “mainstream” (e.g., contesting the Assad regime in Syria).

The first part of this backgrounder will examine the definition of “terrorist propaganda” set out in bill C-51 and the procedures it contemplates for deletion of this material from the internet.

The second part will discuss consequential amendments that would add the broad new category of “terrorist propaganda” to the Customs Tariff that allows officials with the Canadian Border Service Agency to seize obscenity and hate propaganda at the border. The last part of this backgrounder will also discuss how the proposed deletion procedures will fit into what is known in the research literature about counter-radicalization programs.

This backgrounder will suggest that the focus of the “terrorist propaganda” should be drawn more narrowly in bill C-51 to include material that is already criminal – something it accomplishes in part by simply by listing material that counsels the commission of terrorist offences. The much broader and vaguer reference to material that advocates or promotes “terrorism offences in general” should be deleted from the bill.

[Note: We have posted this paper for immediate download on SSRN. While SSRN catalogues the paper for inclusion in its holding, this page will be watermarked “Under review by SSRN”. Readers will still be able to access the paper.]

Bill C-51: Brief Explainer Video

I have prepared a brief explainer video on the more concerning aspects of C-51.  If you have 15 minutes and don’t mind that I misspoke twice (and said C-59 rather than C-51), this may help viewers understand the broad contours of this complicated law.  (Or it may just be more confusing!)

Craig Forcese

Bill C-51 Backgrounder # 3: Sharing Information and Lost Lessons from the Maher Arar Experience

This is the third of a series of independent “backgrounder” documents that we shall author on Bill C-51, the Anti-terrorism Act 2015. All of these documents are archived at http://www.antiterrorlaw.ca.

The proposed Security of Canada Information Sharing Act in Bill C-51 declares a legitimate government interests in sharing information about security threats. Yet after close textual review, we conclude that the proposed law is both excessive and unbalanced. Why do we reach such strong conclusions?

The Act will relax constraints on the flow of information about “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 comes very close to a carte blanche, authorizing a “total information awareness” approach and a unitary view of governmental information holding and sharing. In that respect, we consider it a radical departure from conventional understandings of privacy.

The proposed legislation is unbalanced because it authorizes information sharing without meaningful enhanced review. While the bill pays lip-service to accountability, it does not incorporate an accountability regime matching its scope. Even as it erodes privacy, it fails to learn from the lessons of the Arar and Iaccobucci commissions of inquiry about the injustice that may stem from poorly governed information sharing.

The claims in the government’s backgrounder that the existing accountability institutions, including the Privacy Commissioner, are equipped for this task is not convincing to anyone familiar with the Arar report.

[NB: We have posted this paper for immediate download on SSRN. While SSRN catalogues the paper for inclusion in its holding, this page will be watermarked “Under review by SSRN”. Readers will still be able to access the paper.  We plan to upload revised editions as we add details and refine points. We have also posted to a “mirror” site, but will not update the paper here.]

Bill C-51 Backgrounder #2: The Canadian Security Intelligence Service’s Proposed Power to “Reduce” Security Threats through Conduct that May Violate the Law and Charter

If bill C-51 passes, CSIS will be expressly authorized to “take measures, within or outside Canada, to reduce” very broadly defined “threats to the security of Canada”. Where authorized by Federal Court warrant, these “measures” may “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms” or may be “contrary to other Canadian law”.

The CSIS changes are dramatic, even radical. In 1984, parliamentarians granted CSIS a very broad mandate – found in the definition of “threat to the security of Canada” in s.2 of its Act – but were careful to accord it very limited powers. It has been an intelligence service – it collects and analyzes information and supplies assessments to the government.

That will change in Bill C-51.

The government proposes radically restructuring CSIS and turning it into a “kinetic” service taking physical action well beyond intelligence collection — and competent to act beyond the law and even the constitution. We doubt the legality of this proposal for a number of reasons explored in detail in our backgrounder.

Moreover, the proposal is a rupture from the entire philosophy that animated the CSIS Act when it was introduced 30 years ago. The bill amounts to an open-ended authorization of clandestine powers whose proper and reasonable application will depend on perfect government judgment, tempered (in some cases) by superb judicial judgment in a problematic, secret proceeding. It violates, therefore, a cardinal principle we believe should be embedded in national security law: any law that grants powers (especially secret, difficult to review power) should be designed to limit poor judgment, not be a law whose reasonable application depends on excellent judgment.

But whatever the truth as to whether these powers are constitutional or necessary, their introduction is irresponsible without a redoubled investment in our tattered accountability system. Anyone who has worked on accountability in the security sector knows that there is another core maxim in this area, when dealing with powerful, covert state agencies: “trust but verify”. We do not believe that that standard can be met at present, even without the new powers.

Our background paper has two primary sections. In part I, we lay the factual foundation, describing what Bill C-51 (and the earlier Bill C-44, now before the Senate) would do to CSIS’s powers. We raise legal doubts about these new powers, focusing first on concerns about the scope of the new powers and second on the Federal Court warrant regime. We also briefly examine the question of CSIS accountability. Here, we raise (but do not address in full) broader questions of accountability that will figure prominently in a separate paper on this topic.

In part 2, we name and briefly discuss a number of administration of justice and operational quandaries we see as possibly arising in relation to the new powers.

To read our full analysis, visit the download site at SSRN (Social Science Research Network).  (We have made this paper immediately available for download.  Note: a watermarked “under review” note on the SSRN page will appear during the period in which SSRN catalogues our uploaded file into its holdings.)

For ease of reference, you may also find useful to review our consolidated version of the CSIS Act, incorporating bill C-44 and bill C-51 amendments.

(We have also posted our full backgrounder to a “mirror site”, here.  The version on our download site will be updated into subsequent editions, adding further detail, footnoting and correcting things like typos.  The mirror site version constitutes our first edition.)

Bill C-51: Backgrounder #1: The New Advocacy or Promotion of Terrorism Offence

In Bill C-51, the Canadian government wants to jail people who, by speaking, written, recording, gesturing or through other visible representations, knowingly advocate or promote the commission of terrorism offences in general, while aware of the possibility that the offences may be committed.

This offence raises many serious issues, and should (at best) be considered extremely concerning. The scope of the new offence is not clear and the offence is sweeping in its criminalization of advocacy and promotion of “terrorism offences in general”, because terrorism offences themselves are sweeping.

We have serious doubts whether it is consistent with the Charter. We have no doubts that it is capable of chilling constitutionally-protected speech, and ultimately proving an offence that undermines more promising avenues of addressing terrorism.

The backgrounder contains our full legal analysis.

Click here to access the download site.