37 Pages Posted: 14 Feb 2015

Date Written: February 12, 2015

Abstract

If bill C-51 passes, CSIS will be expressly authorized to “take measures, within or outside Canada, to reduce” very broadly defined “threats to the security of Canada.” Where authorized by Federal Court warrant, these “measures” may “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms” or may be “contrary to other Canadian law”.

The CSIS changes are dramatic, even radical. In 1984, parliamentarians granted CSIS a very broad mandate – found in the definition of “threat to the security of Canada” in s.2 of its Act – but were careful to accord it very limited powers. It has been an intelligence service – it collects and analyzes information and supplies assessments to the government.

That will change in Bill C-51.

The government proposes radically restructuring CSIS and turning it into a “kinetic” service taking physical action well beyond intelligence collection – and competent to act beyond the law and even the constitution. We doubt the legality of this proposal. Moreover, it is a rupture from the entire philosophy that animated the CSIS Act when it was introduced 30 years ago. The bill amounts to an open-ended authorization of clandestine powers whose proper and reasonable application will depend on perfect government judgment, tempered (in some cases) by superb judicial judgment in a problematic, secret proceeding. It violates, therefore, a cardinal principle we believe should be embedded in national security law: any law that grants powers (especially secret, difficult to review power) should be designed to limit poor judgment, not be a law whose reasonable application depends on excellent judgment.

But whatever the truth as to whether these powers are constitutional or necessary, their introduction is irresponsible without a redoubled investment in our tattered accountability system. Anyone who has worked on accountability in the security sector knows that there is another core maxim in this area, when dealing with powerful, covert state agencies: “trust but verify”. We do not believe that that standard can be met at present, even without the new powers.

Our background paper has two primary sections. In part I, we lay the factual foundation, describing what Bill C-51 (and the earlier Bill C-44, now before the Senate) would do to CSIS’s powers. We raise legal doubts about these new powers, focusing first on concerns about the scope of the new powers and second on the Federal Court warrant regime. We also briefly examine the question of CSIS accountability. Here, we raise (but do not address in full) broader questions of accountability that will figure prominently in a separate paper on this topic.

In part 2, we name and briefly discuss a number of administration of justice and operational quandaries we see as possibly arising in relation to the new power.