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.)