Promised anti-terror measures are in the House, but experts are wary
A TRU law professor says he is concerned that Bill C-51, tabled in Ottawa on Jan. 30, gives Canada’s spy agency, CSIS, powers similar to a secret police force.
According to Robert Diab, who specializes in national security, human rights and constitutional law, the bill allows CSIS to actively disrupt suspicious activities as opposed to gathering information and passing it on to the authorities to act on.
“The idea was that there should be a clear division between the role of CSIS, which is a civilian intelligence gathering agency and the RCMP, which is a law enforcement agency,” he said.
Bill C-51, or the Anti-Terrorism Act 2015, follows the shootings in Ottawa last October. An earlier bill, C-44, also amended CSIS powers, but was set to be tabled the same day Michael Zehaf-Bibeau began shooting on Parliament Hill.
The federal government later warned Canadians to expect more security legislation.
According to local MP, Cathy McLeod, the new CSIS powers are similar to intelligence services in other democracies and will make the orgnization more efficient.
“When CSIS conducts an interview as part of an investigation, the sole purpose of the interview must be to collect information, not to dissuade the subject from actions that threaten the security of Canadians,” she said via email to The Omega.
“With its new mandate, CSIS could take measures, at home and abroad, to disrupt threats when it had reasonable grounds to believe that there was a threat to the security of Canada.”
McLeod added that safegaurds come with the new powers, including the need for a warrant in cases where intervention might interfere with Charter rights (such as wiretaps or surveillance within a home), a higher standard of belief and a limit of 120 days for disruption warrants.
CSIS would also have to report to the Minister of Public Service and Emergency Preparedness and be overseen by the Security Intelligence Review Committee (SIRC).
The new powers also do not extend to disruptions that would cause bodily harm.
While Diab acknowledged these safeguards, he is concerned over what he calls limited CSIS oversight. He pointed out that the SIRC only reports to Parliament once a year, has only limited powers to address concerns that come up on a case-by-case basis and relies heavily on CSIS’s self-reporting.
“The trouble with this new power of CSIS to prevent threats is that while the government has expanded the scope of what CSIS can do, it has not expanded the oversight mechanisms to make sure that this power is not abused,” Diab said.
Diab’s concerns were echoed by B.C. Privacy Commisioner Elizabeth Denham during TRU’s law student conference last week.
“Robust surveillance needs robust oversight and I think we have insufficient oversight,” she said, adding that Canada lags behind its democratic allies (including the U.S. and U.K.) when it comes to overseeing intelligence organizations.
“There’s no parliamentary oversight. There’s no civilian oversight. There are some specialized groups like the SIRC committee and the CSEC [Communications Security Establishment Canada] commisioner, a retired judge who does one annual report,” Denham said.
She added that a specialized parliamentary committee could be formed to provide more consistent oversight and “could acutally examine what is happening on the ground and complaints or issues when they come up.”
Who has the data?
Critics of Bill C-51 have said an upgraded ability for government organizations to share confidential information is a breach of privacy and violates civil liberties.
The Bill allows organizations like Canada Customs, Canada Border Services, the Canada Revenue Agency and other public organizations to share confidental information if it is relevant to “activities that undermine the security of Canada.”
According to Diab, this is another area with insufficient oversight and room for abuse.
“They’re supposed to be exchanging information if it’s necessary to prevent threats to national security and so forth, but whether they are in fact passing information for these purposes and whether there are adequate safeguards built into the passage of this information is something that we don’t really have a major oversight body to police,” he said.
“There are oversight bodies for each of these little agencies… but there isn’t a sort of ombudsman or ombudsperson for the web of the agencies.”
McLeod refuted Diab’s concern, saying that there are limits to information able to be shared.
“Information can only be shared with designated Canadian Government institutions when it is relevant to their national security responsibilities,” she said. “Furthermore, only those officials within the institution who require the information to carry out their duties will be delegated to receive this information.”
The bill also includes adds a “glorifying terrorism” offence the Criminal Code, making any actions encouraging or promoting terrorism punishable by up to five years in prison.
Critics argue that the new offence might have a chilling effect on free speech.
Likely to pass
Last week, Liberal leader Justin Trudeau announced that, while his party would like changes to the document (including greater CSIS oversight), the Liberals would support the Bill, CBC reported Feb. 4.
Green leader Elizabeth May has formally denounced the Bill, but with Liberal support and a Conservative majority, Diab says it will likely get through the House of Commons.
“It seems likely to pass in substantially the same form in which it has been tabled,” he said.