Tackling the Government Green Paper on National Security: Part 3

October 26, 2016
This is our third in a series of responses to the federal government’s Green Paper on Canada’s current national security framework. The Green Paper generally argues in favour of the current national security framework and defends the changes made by Bill C-51. In these brief posts, CCLA will provide context for the discussion and dig deeper into the key issues raised in the consultation. We will discuss why there is no incompatibility between a strong commitment to national security and a strong commitment to our Charter rights and freedoms, and explain the concerns we raise in our Charter Challenge to the Anti-terrorism Act, 2015In the end, we hope this information helps you decide what position you would like to take on national security reform. 
This week, we discuss the creation by Bill C-51 of the Security of Canada Information Sharing Act (SCISA). This Act is one piece of the omnibus C-51 that is highlighted in our constitutional challenge to the Anti-Terrorism Act, 2015 (the “ATA, 2015”).
Make your voice heard!  In the next few months (until December 15), Canadians have the opportunity to take part in our country’s first online National Security Consultation, giving you a chance to inform the government of your views on how we should best address national security issues. There will also likely be consultation activities, yet to be announced, that extend into 2017. CCLA has been and will continue to be active in the consultation. Recently, our Executive Director and General Counsel Sukanya Pillay attended a roundtable discussion in Ottawa at the invitation of the Ministers of Public Safety and Justice, and staff members attended and spoke at the public consultation held by the Standing Committee on Public Safety and National Security (SECU) in Toronto. We are also preparing written submissions for both the SECU Committee and the government consultation.

The Security of Canada Information Sharing Act (SCISA)

The ATA, 2015 (Bill C-51 is now law) enacted the SCISA on the premise that more information sharing is needed to keep us safe and protect national security. CCLA has disputed this broad premise. In CCLA’s view, information sharing was always permitted, and our concerns revolved around what constitutional safeguards, and what lessons from the Arar and Air India Federal Commissions of Inquiry, were in place.

The SCISA makes information sharing easier among 17 government agencies, 111 departments, and even with foreign actors. The assumption behind the SCISA, explicitly stated in the Green Paper, is that information sharing is necessary, and that complex rules, including rules about protecting privacy, can “prevent information from getting to the right institution in time.”

CCLA has long stated that proper information sharing is necessary for effective national security. This is also consistent with the findings of the Arar and Air India Commissions of Inquiry. But ensuring there are adequate safeguards regarding reliability of the information, as well as strict caveats on use, accessibility, dissemination, retention and destruction of that information, is crucial. These safeguards are missing in the SCISA and absent in the Green Paper.

What Exactly Does SCISA do?

The SCISA authorizes exceptionally broad information sharing inside and outside of Canada. It provides for every federal institution (111 of them) to disclose information to 17 agencies deemed to have national security responsibilities, if it is related to “activities that undermine the security of Canada.” This includes information about individuals. The Green Paper defends the breadth of the definition by saying it provides “flexibility to accommodate new forms of threat that may arise.” But such a definition is overly broad and can capture protected information that ought not to be shared. To make matters worse, CCLA is very concerned about the lack of accountability. In this context, 14 of the agencies or departments receiving information have no effective review or oversight of any kind, and the accountability mechanisms affecting the other 3 are constrained. This amplifies concerns – particularly in the national security context – about the scope of information being collected and shared.

Why are caveats and restrictions on information sharing necessary?

Information sharing mistakes have resulted in serious and tragic consequences for several Canadians. Maher Arar is the most well-known. Mr. Arar was detained at JFK airport and then “rendered” to Syria where he was detained and tortured for almost a year, as a result of mistaken, erroneous information sharing by Canadian officials with US officials. Failures to properly share information in the national security context can also result in tragedy, as with the Air India terrorist bombing in 1985 in which all 329 people aboard perished. An inquiry later determined that, had information been properly shared by CSIS with the RCMP, the tragedy may have been avoided. 

What kinds of information does the SCISA allow to be shared?

SCISA casts a wide net capturing information on any activity that affects security. The Act provides a list of activities that might be covered, which includes espionage and terrorism, but also includes interfering with the economic or financial stability of Canada, interference with critical infrastructure, or activities that cause harm to a person or their property because of their association with Canada. It does not include advocacy, protest, dissent and artistic expression, which is good, but it is not clear where the lines will be drawn in practice. For instance, environmental activists protest pipelines — is that interference with infrastructure? Sometimes dissent devolves into violence, such as at the G20 in Toronto in 2010. Clearly smashing windows is illegal vandalism, but would it be a threat to security under the current definitions in the SCISA?

Does the new Security of Canada Information Sharing Act (SCISA) violate my Charter rights and freedoms?

There are many ways in which CCLA is concerned your Charter rights may be violated by the SCISA. In our challenge to C-51we note that there may be section 7 violations to the liberty and security of the person due to potentially prejudicial impacts from expanded information sharing. In particular, since the reasons for sharing information are so broad — “activity that undermines the security of Canada” is a definition in itself that we think is unconstitutionally vague — it is unclear how the executive branch will determine what information is being appropriately or inappropriately shared. And since sharing happens with no effective oversight and little review, it will probably remain unclear for the average citizen. In fact, we would argue that the secrecy the program operates under renders defence against illegal sharing illusory — in other words, if you don’t know what is being shared, or who it’s being given to, you can’t complain if something goes wrong because you’ll never know information sharing caused the problem in the first place. CCLA has also argued that flaws in the SCISA engage section 8 of the Charter, which protects against unreasonable search and seizure. Since it lacks review and demonstrable checks and balances, the disclosures the Act allows are inherently unreasonable.

The Green Paper actually adds confusion about the way the SCISA will be interpreted in action, rather than clarifying matters. For example, in one place (p. 27), it says information can be shared without worrying about violating the Privacy Act because the SCISA is a “lawful authority” that falls under an exemption to allow sharing. Why is this confusing? Because in the Act itself, it says it is subject to other acts that “prohibit or restrict” the disclosure of information. So, is it, or is it not, subject to the Privacy Act? We certainly think it should be.

In the Privacy Commissioner of Canada’s most recent annual report, he did in fact engage in a review of activities under the SCISA. His investigation raised a range of concerns, including a lack of privacy impact assessments for departments receiving information and poor instructions to front line staff making the decisions about what information to flag for their supervisors to consider sharing. So the concerns CCLA expressed from the beginning about lack of built-in safeguards and checks and balances are already revealing themselves as valid mere months after passage of the Act.

Consider scenarios where information might be shared . . .

In its Green Paper, the government presents several scenarios in which the SCISA may assist national security authorities in addressing a national security threat. These scenarios highlight the challenges faced by national security authorities, but they often fail to capture the problematic elements of the new provisions. To illustrate this problem, it is worth considering alternative scenarios where the new law might undermine Charter rights and freedoms. Note that the following scenarios draw directly on those in the Green Paper, but while the Green Paper versions show how effective information sharing might be in these situations, our version explores what might happen if it goes wrong:

  • An individual applies for a passport and states on the form that he is travelling to Germany in a month. The clerk at the passport office, who is an avid news reader, recognizes the name of one of the referees named on the application as being the same as someone recently mentioned in the paper who expressed sympathy for a violent viewpoint. The referee, when contacted, mentions that he attends the same mosque as the passport applicant. The clerk is not sure whether the referee is in fact the same person interviewed, and (even if he is) is not sure whether he gained his views through attending that mosque. Nevertheless, the clerk feels that there is less risk if he reports his concern than if he doesn’t. When CSIS investigates by speaking with neighbours and friends of the applicant, they learn his referee is not in fact the same person, and further that he is flying to be with a dying relative. Relations with the local neighborhood are soured when it becomes known that this upstanding, peaceful member of the community was investigated.
  • A national park is located near a natural gas pipeline, a critical infrastructure site. An official in the park notices a group gathering to protest near the pipeline. While most of the group is peaceful, one member is banging his sign on the pipe, making a clanging noise to punctuate the group’s chant. The official knows that protest is exempt from information sharing under the SCISA, but she worries that more people may begin also banging on the pipe, and she’s unsure of whether it would constitute a risk to infrastructure if they did, and whether she should report the protest.

Is the SCISA necessary?

The Green Paper argues that the SCISA is necessary to enable timely information sharing across government. However, shortly after C-51 was passed into law, it was revealed that CSIS itself believed that said “significant improvements” to the sharing of national security information were possible within the “existing legislative framework.” This revelation confirmed CCLA’s position that this law was unnecessary (see, for example, Sukanya Pillay’s initial op-ed on the topic, available below). Instead of examining options for creating a framework of legal authorities within the existing laws, however, C-51 introduced the SCISA, creating an incredibly wide range of information sharing powers and spreading them across all of government with inadequate guidelines.

We must remember the Air India and Arar tragedies and learn from our mistakes. The National Security Consultation provides Canadians with an ideal opportunity to demand that our government heed the lessons of the past and make sure Canada’s information sharing practices are guided by principles of necessity, proportionality, and accountability.

Additional Resources

C51 submissions

Op-eds

Other posts in this series