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That will change in Bill C-51. The government’s examples of what the new powers will mean for CSIS are mild, even innocuous. But in fact the only outer legal limit is surprisingly sparse: no bodily harm, no obstruction of justice and no violation of sexual integrity.

The bill superimposes a special warrant system of CSIS’s new powers. Where those activities would violate a law or the Charter, a Federal Court judge must approve them in advance by a warrant.

The obvious thinking is that such a system simply builds on the conventional role of judges in issuing search warrants. But the analogy is approximate. In the world of search and seizure, judicial warrants are designed to prevent — not authorize — Charter violations. That is because the Charter privacy protection is qualified — the Charter protects against “unreasonable” searches and seizures and a search under a warrant is prima facie proper. “Unreasonable” typically means without warrant.

Other Charter rights are dramatically different. For instance, there is no concept of “unreasonable” cruel and unusual punishment. It is an absolute right — not qualified. Some rights — such as the right to freedom of expression — may have some internal limitations in their content (e.g., free expression does not reach threats of violence), but this is usually a matter decided by a court closely scrutinizing the scope of legislation against the behaviour protected by the right. All rights, such as the right of citizens to leave or come back to Canada, can be subject to reasonable limits under Section 1 of the Charter, but the restraint on the right is usually spelled out in advance in legislation. To imagine that a court can pre-authorize a violation of a right in response to an open-textured invitation to do so is to misunderstand entirely the way our constitution works, on a fundamental level.