About the Issue
Canada has a myriad of agencies engaged in national security activities including the CSIS, the RCMP, the CSEC, the CBSA, and others. CCLA has fought for decades to ensure that the powers employed by such agencies comport with strict accountability measures, and that these powers are not so elastic they result in serious mistakes and harms to innocent individuals. The errors and harms revealed by the findings of three federal Commissions of Inquiry presided over respectively by Justice O’Connor (the Arar Inquiry) in 2006, Justice Iacobucci (the Almalki, El Maati, Nureddin Inquiry) in 2008, and Justice Major (the Air India Inquiry) 2010, starkly reveal the need for effective accountability and oversight of these agencies – a need that continues to be unmet. In the fall of 2014, Justice Mosley released a scathing decision in the Federal Court finding that CSIS had obtained warrants to spy on Canadians overseas without disclosing it would be tasking its Five Eyes Partners (US, UK, Australia, New Zealand) to assist. Edward Snowden’s ongoing disclosures since 2013 have revealed governments across the globe are engaged in secret surveillance of our communications, and Canada is no exception.
In fall of 2014 and 2015 Canada released new anti-terror bills which create new powers, particularly enhancing the powers of CSIS to engage in activities previously restricted to the RCMP, and broader powers for CSIS to act overseas notwithstanding the laws of such overseas jurisdictions.
Why This Matters
State policing and intelligence agencies must be subject to strict limits, accountability mechanisms, and oversight. Without such limits, the agencies can run afoul of the rights and freedoms of innocent individuals, resulting in serious rights abuses and simultaneously, threatening the very democratic foundations of the state. Secret powers and unaccountable powers are incompatible with democracy.
The rights to privacy and due process are clearly implicated by unaccountable state powers exercised in the name of national security and counter-terrorism. The Edward Snowden revelations have alerted Canadians to the threat to their privacy rights. The Supreme Court of Canada thirty years ago recognized privacy as right that lies at the heart of democracy – it is a right that must be recognized in order for other rights such as freedom of expression and thought – to be fully manifested. Mass surveillance of individuals enabled by new technologies and the internet, including demands made to telecommunications companies to hand over subscriber information, the collection of troves of information generated by ordinary Canadians and treating all Canadians as potential suspects can and does result in unjustifiable harms. CCLA has long argued that violations of Charter rights does not keep us safer, but results in errors and mistakes and as such is both inefficient and a threat to democracy and rule of law.
CCLA has challenged over-broad provisions and powers in anti-terror laws from 2001 to 2015 and we will continue to do so. We have consistently fought against the introduction and normalization of exceptional powers such as preventive detention, and law enforcement powers for CSIS – arguing that the existing powers in the Criminal Code are strong, far-reaching and enable Canadian police to effectively conduct lawful surveillance, to effect arrests to prevent crimes including terrorist acts from being committed, and to collect evidence that can hold up in court to ensure convictions of the guilty. CCLA has intervened in many cases at all levels of courts including the Supreme Court of Canada to argue against unjust practices in the Security Certificate regime, and overbroad provisions that in our view, did not comport with Canadian safeguards of due process and fundamental justice. Going forward we will continue to fight for compliance with the Canadian Charter of Rights and Freedoms and for effective accountability and oversight mechanisms which we believe are prerequisites to national security.
CCLA continues to hold and participate in public engagement opportunities and conferences, including one in which NSA whistleblower Edward Snowden came (virtually) to Canada so that ordinary Canadians could hear about these issues for themselves and ask the questions that need to be heard.
CCLA has also joined with partner civil liberties organizations internationally in a proceeding in the United Kingdom challenging the practices of international surveillance that impacts Canadians. Here in Canada, CCLA has launched a challenge of federal privacy legislation that we believe unlawfully permits the government to obtain personal information of ordinary Canadians from telecom providers. (Read about our PIPEDA challenge here].
CCLA has made a significant contribution to the observance of civil liberties in national security work.
We have made submissions to protect privacy and the rights of Canadians domestically and internationally. We have repeatedly been asked by the Federal Privacy Commissioners of Canada to provide submissions on new anti-terror legislation or practices which we continue to do. We have and will continue to call for implementation of Justice O’Connor’s recommendations regarding oversight and accountability of national security agencies, particularly with respect to information sharing. We have weighed in on information sharing between Canada and the US with the implementation of the Canada-US Security Perimeter which has been rolled out since 2011 without Parliamentary debate, and which is resulting in increased information sharing and policing between the two countries.
CCLA’s work is spurring a national conversation about the importance of privacy – and the risks posed by sophisticated state surveillance. We regularly speak about mass surveillance in the national media, bringing a human rights perspective to stories about CSIS, CSEC and the RCMP. Moreover, in the wake of the Snowden revelations, CCLA hosted two major conferences on privacy. These events brought together academics, lawyers, technology experts, students and members of the public to better understand the privacy challenges we face as Canadians. We are committed to creating opportunities like these – allowing experts and ordinary Canadians to explore strategies for protecting our privacy and improving accountability in a time of unprecedented change.
In January 2015, the federal government introduced Bill C-51, omnibus anti-terror legislation that creates a host of new powers that CCLA believes is unnecessary and constitutes a threat to civil liberties. The Criminal Code and other laws already allow for police arrests where there is suspicion of an imminent crime, for criminalization of threats and conspiracy to commit a crime, and for preventive detention. We are particularly concerned about the blurring of distinctions between CSIS – created to be an intelligence-gathering entity – and the RCMP which is a law enforcement agency— the MacDonald Commission had mandated the division of powers between CSIS and the RCMP to guard against the abuses that occur by blurring these distinctions. A wholesale reversal on this is concerning. CCLA is also concerned about threats to freedom of speech and certain over-broad provisions in Bill C-51 that may criminalize legitimate speech, and about new powers of arrest and detention that appear unnecessary given our existing laws and accordingly excessive and prone to mistakes and abuses. We remain concerned that Bill C-51 continues to introduce new state powers without any commensurate accountability provisions
In late 2014, the federal government introduced Bill C-44 – new legislation that would give CSIS greater powers to engage in intelligence-gathering activities outside of Canada. CCLA has made written submissions to Parliament indicating our core concerns about the bill, and specifically the lack of any. meaningful oversight for Canada’s national security activities. Together, CSIS and CSE (Canada’s electronic eavesdropping agency) command an annual budget of $1 billion. Yet their operations remain largely shrouded in secrecy.
Amended Notice of Application Affidavit Michael Bryant Affidavit Lester Brown Affidavit Ben Green Affidavit Sean McDonald Affidavit Sara Bannerman Affidavit Zeynep Tufekci
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