March 2015 C-51 protest (Photo by Jeremy Board)
The Liberal government’s centerpiece national security legislation, a response to the widely unpopular and much-criticized C-51 anti-terrorism bill introduced by the Harper Conservatives, is raising its own serious concerns from human rights and civil liberties advocates.
On September 19, 41 organizations, including the International Civil Liberties Monitoring Group (ICLMG), the Canadian Civil Liberties Association, the National Council of Canadian Muslims and the Ligue des droits et libertés, published an open letter expressing grave concerns with Bill C-59, the National Security Act, 2017.
Public Safety Minister Ralph Goodale introduced the legislation in June, stating, "Governments have no greater responsibilities than keeping their citizens safe and safeguarding their rights and freedoms. These are the fundamental obligations that underpin the new national security legislation.”
While the planned legislation is “a substantial undertaking that aspires toward balanced policy-making,” said the civil liberties groups in their letter to Goodale, Justice Minister Jody Wilson-Raybould and Immigration Minister Ahmed Hussen, “it is not the fundamental change needed to undo C-51’s legacy, nor to fully realize and respect that human rights must sit at the core of our national security framework.”
The feeling was echoed a few days later, on September 26, when three experts in the field—Micheal Vonn of the British Colombia Civil Liberties Association, Paul Champ of Champ and Associates, and Tamir Israel of the Canadian Internet Policy and Public Interest Clinic—spoke at an ICLMG-organized event in Ottawa on how Bill C-59’s will impact human rights. “The tinkering is proving as unsatisfactory as we feared it would,” said Vonn.
Over 150 pages, the bill modifies several existing laws and creates an entirely new act governing the Communications Security Establishment (CSE), Canada’s secretive surveillance and data collection agency. It would be difficult to cover all the intricacies and nuances of C-59, but we (at ICLMG) thought five in particular would be of special concern to Monitor readers.
Among the major problems with the omnibus Bill C-51 were its provisions, in the new Security of Canada Information Sharing Act(SCISA), allowing government departments to more easily share personal information with nearly 20 departments, from the Canadian Security Intelligence Service (CSIS) to Health Canada, if they believe a person’s actions “undermine” national security.
As Vonn pointed out at the panel discussion in Ottawa, this new law broadened the scope of what was considered a threat to national security to include actions that would impact Canada’s economy, its financial system and its critical infrastructure. Indigenous activists and environmental groups rightly worried this definition would capture protests against pipelines, highway occupations or other minor disruptions.
The Liberals have somewhat scaled back this part of C-51 in a renamed Security of Canada Information Disclosure Act, but the reforms do not go far enough. The reworded legislation would still disproportionately affect Muslim and Arab communities, Indigenous land and water protectors, and political and environmental activists.
Given that the government, under Harper or Trudeau, has never convincingly explained why these information-sharing provisions are necessary, the most logical solution would be to take them off the books entirely.
Over the past several years, both CSIS and CSE have been caught overstepping legal boundaries in their surveillance of Canadians. This includes a Federal Court ruling in November 2016 that said CSIS had violated the law for over a decade by holding on to private information on Canadians that had nothing to do with the service’s investigations.
It was a shocking revelation that made national headlines, and there were expectations that this kind of collection and retention of personal information would be banned in the Liberal security reforms. Instead, Bill C-59 legitimizes this troubling conduct by Canada’s spy agencies, making it legal if regulated by new authorizations.
CSE focuses on sweeping up foreign digital communications, and in fact is barred from collecting data in Canada or belonging to Canadians. The agency has been widely criticized, however, for ignoring this rule and acting on a “collect first, ask questions later” basis. Though CSE says it eventually eliminates this information and does not analyze it, there have been troubling incidents of the agency sharing private data on Canadians with foreign governments.
Even within CSE’s strict mandate, from a human rights perspective we should be concerned with the level of mass surveillance the agency performs on foreign individuals. Up until now, CSE has been governed by the National Defence Act, meaning the defence minister both sets the agency’s priorities and monitor its activities—a case of “the fox guarding the henhouse,” Tamir Israel told the Ottawa event in September.
Bill C-59 for the first time creates a CSE Act, which more clearly defines the agency’s role, activities and how its work is authorized. While this is good for transparency’s sake, much like the new CSIS rules it also serves to legalize what before was seen as highly questionable behaviour: information-gathering on Canadians; widespread, foreign-focused mass surveillance (of the kind the U.S. National Security Agency is criticized for); and the collection and retention of publicly available information.
To help see why this last task could be an issue, Israel asked the Ottawa audience to picture CSE purchasing and analyzing vast amounts of information sold by U.S.-based data-brokers who scrape Facebook, Amazon and other social media and commercial sites for information to sell banks, governments and (why not?) spies.
The Liberal security bill takes the important step of creating an intelligence commissioner, a position that will be held by a retired judge who will have to sign off on important aspects of both CSE and CSIS surveillance operations, but these authorizations will be granted in secret, with minimal transparency (more on this below). Finally, it’s important to note that Bill C-59 also grants CSE new cyberwarfare and hacking capabilities not described here, but which you can read about on the iclmg.ca website.
Spy agency disruption powers
The task of spies and law enforcement officials are different for a reason. Spying is by nature secret: as soon as a target realizes they are being watched, they will change their behaviour. The pursuit of criminal activity, on the other hand, should (in theory) take place in the open, so that the tactics and evidence used by police to make their case against someone can be challenged in open court.
This division of responsibilities was enshrined in Canada in the early 1980s when the Royal Commission of Inquiry into Certain Activities of the RCMP, also known as the McDonald Commission, concluded that national security responsibilities should be removed from law enforcement agencies and assigned to a civilian agency. The commission investigated what came to be known as the RCMPs “dirty tricks,” which included illegal activities such as arson, break-ins and theft.
Most infamously, RCMP agents burned down a barn where the Front de libération du Québec was rumoured to be meeting with the Black Panther Party. The revelations made clear that police agencies, with the mandate to stop crime, should not have the ability to operate in secret. As a result of the inquiry, the government created CSIS in 1984, though the RCMP would be granted important national security roles in the post-9/11 period.
Bill C-51 further blurred the boundaries between spying and policing by granting CSIS new "disruption powers,” for example to interfere with someone's movement, tamper with equipment or share false information. Some of these actions would need to be approved by a judge, but those warrants would be issued in secret and could never be challenged by the targeted person in court.
In his talk at the Ottawa event in September, Israel suggested that CSIS would probably not be cleared to actually burn down a barn, but it is highly likely they could engage in “digital barn burning.” In such a situation, agents would be granted authorization to disrupt online means of communications, such as a blog or online discussion forum, either temporarily or permanently, essentially shutting down an online “meeting place,” burning down the digital barn, all without the public or the targets knowing who what happened.
Bill C-59 would bring in some new restrictions on disruption powers. Whereas current legislation only sets out three specific limitations (death or bodily harm, aggravated sexual assault and the perversion of justice), the Liberal proposal contains an enumerated list of disruption options for CSIS. However, the only adequate solution is to stick with the recommendations of the McDonald Commission, by leaving crime fighting, including disruption, to law enforcement, and outlawing it for spy agencies.
The no-fly list
Canada’s so-called no-fly list has long been a concern of Canadian civil liberties defenders. The list is maintained in secret; the last time a government official stated how many names were on it was 2007 (“up to” 2,000); it is impossible to know if you are on the list unless you are stopped from flying or the government agrees to disclose the information; and once you find out you are on the list, you may still never be told why you are there or what information is being used against you. For all those reasons it’s also very difficult to get off the list once you are on it.
These problems with the no-fly list have come to the fore recently with revelations of the number of kids it ensnares—minors whose names are the same or similar to adults on the list and who therefore experience constant delays at the airport. The families of these kids, with growing support even from Liberal MPs, have advocated for a redress system to ensure that false positives, especially among minors, can be flagged and issued a redress number to avoid future problems.
This small reform would not resolve the underlying problems with the no-fly list, but it would help. Bill C-59 moves in that direction by allowing parents to find out whether their children’s name matches one on the list. However, while there are some other minor changes in process, it does little to provide redress for adults who may be mistakenly refused access to a flight. It also does nothing to ensure that there is an open and transparent means for an individual to challenge their inclusion on the list (let alone find out if they are on the list before they go to board a plane).
Review and oversight
Bill C-59 creates important new bodies to review and control national security activities: the National Security and Intelligence Review Agency (NSIRA) and, as mentioned already, an intelligence commissioner (IC). While both are improvements to the system, there are concerns regarding how they will operate, as well as their likely overall impact.
The new intelligence commissioner will replace the CSE commissioner, who reviews only the activities of that agency, and must be a retired judge. Among the new commissioner’s tasks would be to grant approval of various CSIS and CSE surveillance and intelligence gathering activities within 30 days of receiving a request from either agency. This is an improvement, since currently surveillance activities are only reviewed after the fact.
However, the commissioner position is part time, and surveillance and disruption approvals would be granted in secret, which will always create concerns. In the U.S., similar secret judicial authorizations of foreign surveillance have resulted in a more-or-less “rubber stamp” process where nearly all warrants are approved. This issue only came to light because of Edward Snowden’s whistleblowing. What will prevent a similar experience in Canada?
The NSIRA is a much larger organization tasked with reviewing all of Canada’s national security agencies and activities. It will operate similarly to the current Security and Intelligence Review Committee (SIRC), but with a mandate to review all security activities, not just those carried out by CSIS.
The NSIRA would be able to receive complaints about CSIS, the RCMP and the CSE, and could order any other government department or body to carry out a study and report back on a particular national security issue. But as Champ warned during his presentation in Ottawa in September, the SIRC process is highly problematic, and C-59 will simply transpose some of its flaws onto the larger NSIRA.
Champ described situations he has seen as counsel for complainants to SIRC. Privacy and secrecy rules mean the complainants might not be allowed in the room while CSIS presents counter-arguments, for example. The complainant and their counsel may be stopped by the committee from sharing their arguments with the public, and SIRC has the option to divulge (or not) its decisions. Likewise, CSIS is not required to publicly account for how a SIRC ruling has been accommodated, or to share that information with complainants.
All this amounts to a review system with such limited accountability and transparency that Champ questions its value, and suggested to the audience that if someone has a real concern with CSIS they would be better to turn to the courts than to go through the SIRC process.
The ICLMG also questions the government’s inclusion of new review and oversight bodies in the same bill that would grant troubling new powers to security agencies. The adoption of stronger safeguards should not be contingent on accepting these new national security powers, nor do they fully make up for the dangerous impact of the latter on human rights.
Throughout the 2015 election, since forming government, and upon announcing Bill C-59, the Liberals have emphasized that the protection of human rights and civil liberties will balance out their national security policies. Unfortunately, it’s not enough to say the legislation is better at doing that than C-51. The benchmark must be to what degree do the laws respect and even strengthen Canadians’ civil liberties. Right now, C-59 is slightly better than what we had, which isn’t good enough.
Tim McSorley is the National Co-ordinator of the International Civil Liberties Monitoring Group. You can watch the panel discussion with Vonn, Champ and Israel by clicking here.