“Day of Action” protests were held across Canada this past weekend to oppose the Conservative Government of Canada’s proposed Bill C-51, known as the Anti-terrorism Act, 2015. The protests were held in several cities, including Vancouver, Toronto and Montreal. Many critics are concerned about the measures in Bill C-51 that expand information gathering and sharing by government agencies and intelligence services as well as new powers transforming Canada’s spy agency from an intelligence gathering agency into an agency that may actively disrupt perceived security threats.
As described in previous posts for the Privacy Tracker, Bill C-51 proposes sweeping changes to information sharing among government agencies and intelligence services agencies, revisions to how Canada’s “no-fly” list operates, and, as will be described in this post, provides the Canadian Security Intelligence Services Agency (CSIS) with controversial new powers, including the power to obtain a warrant authorizing what would be otherwise unconstitutional measures to combat security threats.
Is the Government Only Listening to the Polls?
Daniel Therrien, Canada’s new Privacy Commissioner, who was appointed by Canada’s Conservative Government, has expressed concern regarding Bill C-51. In a disturbing snub to the Government’s own appointment, Mr. Therrien has not been invited to speak to the House of Commons Public Safety Committee studying Bill C-51. The Commissioner has, however, issued a report to Parliament and has published an important statement in one of Canada’s national newspapers.
Commissioner Therrien is not alone in expressing concern. Four former Prime Ministers of Canada, five former Supreme Court of Canada judges, several former Ministers of Justice, former Privacy Commissioners and others have joined in opposition to the proposed legislation. An Angus Reid poll initially suggested that the Government of Canada had overwhelming public support for the Bill; however, a more recent EKOS Research poll suggest that support has dropped, although it is still supported by the majority of Canadians.
Origins of the Canadian Security Intelligence Service
A bit of history is necessary to understand the significance of the proposed revisions to the mandate of CSIS and why the additional powers proposed for that agency have been met with concern.
Until 1984, Canadian intelligence services were conducted by a special Security Service of the Royal Canadian Mounted Police (RCMP). However, the conduct of the Security Service came into question following allegations that it had engaged in breaking the law in conducting its intelligence activities. In one scandal, it was determined that the RCMP had broken into the offices of the Parti Quebecois (the separatist political party) and stolen membership lists. The Liberal government of the day established a Royal Commission to investigate. The MacDonald Commission ultimately recommended that security intelligence be separated from policing.
In 1984, CSIS was created to be an intelligence gathering agency. Although many of its members were drawn from the RCMP’s Security Service, CSIS was established an intelligence gathering agency and not a police or law enforcement agency. CSIS’s mandate is contained in s. 12 of the CSIS Act. Section 12 states that the agency is to collect, analyse and retain information and intelligence regarding activities that may be suspected of constituting threats to the security of Canada. The collection must be limited to that which is “strictly necessary.” Furthermore, the agency must have “reasonable grounds to suspect” that the activities about which it gathers information are threats to the security of Canada.
Transforming CSIS
The provisions of Part 4 of Bill C-51 propose to radically change the mandate of CSIS from an intelligence service to an agency that may use its information-gathering powers to take disruptive action. The Government of Canada proposes to expand the mandate of CSIS through new s. 12.1. This section wold permit CSIS to “take measures, within or outside Canada,” to reduce a threat to the security of Canada. The amendments provide that any “measures” CSIS takes must be proportional in the circumstances. There are certain measures that are off-limits. The measures that CSIS may not employ are:
- Causing, intentionally or by criminal negligence, death or bodily harm to an individual;
- Willfully attempting in any manner to obstruct, pervert or defeat the course of justice, and
- Violating the sexual integrity of an individual.
Critics have voiced concern that the term “measures” is vague and undefined. The limits against killing, the perversion of justice and rape have been criticized as being too narrow. Perhaps even more concerning for critics is the fact that the Government of Canada proposes allowing CSIS to apply for judicial authorization to permit measures that would contravene a right or freedom guaranteed by Canada’s Charter of Rights and Freedoms, which is part of Canada’s Constitution, or the violation of any other Canadian law.
The proposed warrant power to commit what would otherwise constitute an illegal activity is not unbridled. A judge hearing a warrant application must, under s. 21.1(3), be satisfied that the measures are reasonable and proportional in the circumstances having regard to the nature of the threat, the nature of the measures and the reasonable availability of other means to reduce the threat. It would not be accurate, therefore, to say that there is no judicial oversight.
Permitting CSIS to obtain a warrant to sanction activity that would otherwise be a breach of the law is not entirely new. Section 21 of the CSIS Act already contains a provision that enables CSIS to seek the authority of a warrant to engage in investigative methods that would otherwise constitute a crime or would violate the right to be free from unreasonable search and seizure. However, the difference between information gathering and taking action to interfere with activities that are perceived threats is a difference not merely of degree but of kind for critics.
Privacy Implications
From a privacy perspective, concerns with respect to the proposed amendments contained in Part 4 of Bill C-51 stem from the vast information sharing proposed under the Security of Canada Information Sharing Act discussed in a prior post and the new powers to CSIS to become more than intelligence gathering institution. Although CSIS is only permitted “to collect” information that is strictly necessary, there is no limited retention provision in s. 12 of the CSIS Act. On the contrary, the Supreme Court of Canada held in Charkaoui (Re), 2008 SCC 38, that nothing in s. 12 requires CSIS to destroy the information that it collects (at para. 38). It is questionable, therefore, whether CSIS would be required to destroy information that is shared with it under the proposed Security of Canada Information Sharing Act by other government agencies. Indeed, there is more than a hypothetical risk that the limited collection principle in s. 12 of the CSIS Act is being practically eviscerated. As discussed in a prior post, s. 6 of the Security of Canada Information Sharing Act seemingly would permit the use of that information for any purpose once received.
Privacy Commissioner Daniel Therrien has warned that this means that “government institutions involved in national security would have virtually limitless powers to monitor and, with the assistance of Big Data analytics, to profile ordinary Canadians, with a view to identifying security threats among them.” One might go further. In combination with the new powers granted to CSIS, it may also mean that CSIS could take measures to disrupt perceived threats, including measures that would otherwise be contrary to Canada’s laws.
Supporters of the proposed laws say this is necessary to ensure timely intervention in threats to Canada. However, others are deeply concerned that the lack of oversight (even by Parliamentarians) means that CSIS and other government agencies will be insufficiently accountable for their activities. Parliament is on recess this week. The story is not over.