CSIS was created in response to the McDonald Commission, which undertook a lengthy investigation into Canadian security scandals that took place in the 1970s (you may recall the infamous barn burning incident). Following the Commission’s recommendations, Canada separated the agencies responsible for intelligence collection activities from those responsible for law enforcement, collection of evidence and prevention of crimes. This division of responsibilities recognized that the two goals sometimes conflict, and that doing both puts a lot of power and strong incentives for abuse in the hands of one potentially fallible agency.
In 2015 this line was blurred again when CSIS was given a new set of “threat disruption powers” under Bill C-51, allowing them to not just collect intelligence, but act on it, suddenly allowing CSIS agents, for example, to interrupt a money transfer, or plant a forged document. The only limits placed on CSIS: they were forbidden to kill; to obstruct or pervert the course of justice; or to violate a person’s sexual integrity. C-51 also allowed CSIS to apply to court for a warrant allowing them to violate Charter rights. CCLA identified these Charter-violation warrants as a major problem in our C-51 challenge—during a normal warrant process, the job of a judge is to make sure government actions uphold, not violate, the Charter.
Disappointingly, C-59 doesn’t get rid of these new powers, but it does provide some clarity as to what CSIS can’t do on its own initiative as well as to what it can do with a judicial authorization. CSIS is now expressly prohibited from engaging in torture (which they were already prohibited from doing under international law), detaining anyone, and endangering an individual’s safety by causing the loss or serious destruction of property.
In addition, CSIS is prohibited from undertaking any action on its own initiative that would impose a limit on a right protected by the Charter. While these are reasonable prohibitions, they leave a great deal of scope for CSIS to act in rights-infringing ways. Can CSIS impersonate a journalist to gain credibility with a target? Can they fake an online profile to undermine an individual’s reputation? Probably, as such things are not clearly prohibited by any exceptions in C-59, nor would they clearly be considered a Charter violation. CSIS can do even more if they convince a judge that a particular activity is reasonable, proportionate, Charter-consistent and required to reduce a security threat. Bill C-51 left the list of possible activities that could be undertaken with judicial approval open to the imagination of the CSIS agents seeking to carry them out. Bill C-59, by contrast, attempts to limit this open-endedness by providing a specific list of threat disruption measures, but the new list remains quite broad and could even include problematic activities such as the disruption of a foreign election. These warrant requests from CSIS all happen in secret, with no adversarial process, and no public scrutiny.
When these powers were introduced in Bill C-51, there was never a meaningful public justification from the government about why they were necessary. C-59 provides an important opportunity for the public to discuss whether we think our intelligence agency actually needs these powers, and for the government to explain why they think disruption powers are necessary and proportionate.