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More to the point, such a measure could only be countenanced if accompanied by the most stringent safeguards, to prevent a recurrence of past abuses. Yet the safeguards C-51 proposes are breathtakingly weak. The only absolute limitations on CSIS agents are that that they mustn’t “cause … death or bodily harm,” “obstruct, pervert or defeat the course of justice” or “violate the sexual integrity of an individual”; and that the measures taken must be “reasonable and proportional in the circumstances.” Indeed, in a remarkable and troubling precedent, CSIS will be permitted to engage in “measures” that “will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law.” All it will need is a warrant — issued in a closed courtroom by a Federal Court judge, with no representation from the subject.

Note “will contravene,” not “may contravene.” Note, more importantly, that this turns the role of judges completely upside down. “In the world of search and seizure, judicial warrants are designed to prevent — not authorize — Charter violations,” Profs. Forcese and Roach write. “The Charter protects against ‘unreasonable’ searches and seizures and a search under a warrant is prima facie proper.”

Under C-51, however, judges would be tasked with authorizing violations of any section of the Charter. This is not the usual “reasonable limits,” as defined through decades of jurisprudence. It is not even the notwithstanding clause, which must at least be invoked openly. It is an “astonishing rupture,” as Profs. Roach and Forcese say. “There is (and has never been) a concept of ‘reasonable’ cruel and unusual punishment, for instance.” That judges can likely be trusted not to indulge abusive requests is cold comfort.