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