Tackling the Government Green Paper on National Security: Part 2

October 5, 2016
This is our second 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 amendments made by Bill C-51 to the Canadian Security Intelligence Act (“CSIS Act”) drastically expanding the Canadian Security Intelligence Service’s (CSIS) powers. These provisions are among those highlighted in our constitutional challenge to the Anti-Terrorism Act, 2015 (the “ATA, 2015”).
Make your voice heard!  The first online National Security Consultation  is over, but we now have a new national security bill before Parliament, Bill C-59.  There will likely be consultation activities, yet to be announced, in the fall of 2017. CCLA has a C-59 campaign and will to be active in any and all consultations. See our detailed submission in response to the Green Paper here! 

The CSIS Act Amendments

The ATA, 2015 expands the duties of CSIS beyond information gathering to police-like powers – both in Canada and abroad. When CSIS has reasonable grounds to believe that a particular activity constitutes a “threat to the security of Canada”, the new provisions allow CSIS to take “measures” to reduce the threat, so long as the measures are reasonable and proportional to the threat and so long as the measures do not cause death or bodily harm, obstruct justice, or violate the sexual integrity of an individual.  The CSIS amendments also permit Federal Court judges to grant CSIS warrants to sanction measures that would otherwise be a breach of the law or the Charter.

Despite this statutory language, the present Government has committed to ensuring that all CSIS activities comply with the Charter.

Do the new CSIS Amendments violate my Charter rights and freedoms?

Yes, the new amendments create several new threats to our Charter rights and freedoms.

CCLA expects the government to make good on its guarantee to ensure that all CSIS warrants comply with the Charter.  This guarantee, if it is to be meaningful, must include a repeal of the new provision authorizing violations of the Charter via warrant.

Yet, even without a provision flagrantly suspending the Charter via warrant, the CSIS amendments will undermine Charter rights and freedoms.  When CSIS was created in 1984, it was given an extremely broad mandate: to address threats to the security of Canada.  Because of this almost limitless mandate, CSIS was also carefully restricted to intelligence-gathering operations.  By giving CSIS police-like powers to “disrupt” perceived security threats – a role that is already carried out by Canada’s national police force, the RCMP – the CSIS amendments remove these longstanding protections against a covert and largely unchecked security intelligence agency intervening in everyday policing matters.

While the CSIS Act’s language of “measures” may sound harmless, it provides CSIS with a very large sphere in which to operate.   When CSIS does not have reasonable grounds to believe it requires a warrant, the only checks on its power are internal, often secret or at least opaque, government controls.  At present, these government controls, such as after the fact reviews by the Security Intelligence Review Committee, are woefully inadequate at providing the transparency and accountability required of an agency with police-like powers.

When CSIS has reasonable grounds to believe that its “measures” will contravene Canadian law (or, at present, a right or freedom guaranteed by the Charter), they may still act if authorized by a warrant. Usually during a warrant process, a judge assesses the possible rights infringement that may occur if the activities proposed are allowed to take place and weighs that infringement against public good. With these warrants, the legislation currently allows CSIS to ask a judge for a warrant to essentially ignore the Charter. That is unprecedented in Canada. The warrant process also allows judges to order any person to provide assistance to CSIS if their assistance may reasonably be considered to be required to give effect to a warrant.  These judicial orders can involve a range of government actors and even private individuals in carrying out covert “measures”.

Despite the exceptional powers authorized by this new warrant process, the warrant application occurs in secret and without representation for the target of the warrant.  Individuals who are subject to measures authorized by such warrants may never know of the warrant, and therefore will not be in a position to challenge the warrant or the reasons upon which the warrant was authorized.

As a result, judges will be unable to test CSIS’ evidentiary basis for a warrant, or to test the alleged scope of CSIS’ operations, through the adversarial process.  Instead, the CSIS Act amendments make the judiciary – sworn to uphold the law and to provide a sober check on government power complicit in a warrant scheme that does not adequately respect the right of all Canadians to life, liberty, and security of their person.  This secretive warrant process for covert police-like activity is simply incompatible with bedrock Charter rights and freedoms, such as due process, the right to a fair trial, and the presumption of innocence.

Consider scenarios where CSIS could act with and without a warrant . . .

In its Green Paper, the Government presents several scenarios in which the new terrorism provisions 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 provision might undermine Charter rights and freedoms:

  • Through its covert intelligence gathering activities, CSIS comes to believe that an individual has become radicalized. CSIS informs the individual’s family, friends, and prominent members of the community that the individual is considered a terrorist threat.  The individual loses his job and becomes isolated from his family.  CSIS then learns that the information upon which it was relying is false – the man is not a security threat.
  • CSIS believes that an environmentalist group may have been responsible for sabotaging a pipeline project. The group has not been charged with a crime because there is insufficient evidence tying the group to the sabotage.  Through the warrant process, CSIS receives authorization to install malware on, and thereby destroy, the groups’ computers.  To achieve this goal, the judge also grants CSIS an order enlisting the Communications Security Establishment and a private tech firm in the installation of the malware.  The malware attack is successful and the environmentalist group disbands.  Shortly after the attack, the RCMP provides CSIS with evidence exonerating the environmentalist group.

Are the CSIS amendments necessary?

The Government Green Paper argues that because the RCMP and CSIS have “different priorities, different approaches, access to different information and a different international presence”, there are crime-prevention situations where CSIS is better placed to disrupt security threats as compared to the RCMP.   The CSIS Act amendments are intended to achieve this goal.

This justification rings hollow, and will continue to ring hollow, until the government is able to provide the Canadian public with sufficient evidence and transparency to support these claims.  On their face, the CSIS Act amendments serve to undermine a crucial long-term national security goal: the criminal prosecution of individuals committing terrorist offences.  For instance, CSIS’ new “disruption” powers have the potential to interfere with ongoing RCMP investigations and to create unnecessary friction between two agencies with different mandates.  Because CSIS does not share the RCMP’s institutional concerns regarding terrorist prosecutions, it is more likely to taint potential evidence or otherwise undermine criminal investigations of terrorist threats via pre-emptive “disruptive” actions – a difficulty that is exacerbated by a law passed in 2015 that privileges CSIS’ human informants, thereby allowing them to avoid testifying in terrorism prosecutions.

It bears noting that the Government justification for the CSIS Act amendments was already contemplated and rejected by two of the most comprehensive government-led reviews of Canada’s national security framework: the Air India and Arar Commissions of Inquiry. Both Commissions of Inquiry recommended an alternative approach to addressing national security threats, one that is consistent with our Charter rights and freedoms: a clearer demarcation of mandates and powers of agencies; better coordination between agencies; and increased accountability measures in the national security realm.  The National Security Consultation provides Canadians with an ideal opportunity to demand that our government heed the national security recommendations forwarded by its own Commissions of Inquiry.

Other posts in this series