The new national security bill: Just tinkering?

By Justin Ling June 22, 201722 June 2017

The new national security bill: Just tinkering?


The federal government unveiled its wide-ranging national security overhaul this week, to a chorus of decidedly mixed reactions.

The omnibus legislation, bill C-59, updates a wide array of Canada’s national security framework, from adding the role of an Intelligence Commissioner, tasked with approving operations and activities; to the newly-created oversight committee, designed to keep a watchful eye on the wider security environment; to the creation of a standalone legal authority for the Communication Security Establishment, the country’s spy agency that performs foreign electronic surveillance.

At the core of the bill is a plan to trim aspects of C-51, the Harper government’s previous attempt to overhaul the Anti-Terrorism Act and CSIS Act, which drew heavy criticism from a variety of constitutional and criminal lawyers.

One of the most controversial aspects of C-51 was its commitment to allow CSIS to break Canadians’ Charter rights in pursuing its newly-afforded disruption powers.

“The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant,” the law currently reads, thanks to changes from C-51.

A core campaign promise from the Liberals was to ensure that those warrants would not permit outright Charter breaches. And, in C-59, they take a crack at doing exactly that.

The legislation tries to fulfill their campaign promise by adding language to clarify that a judge may issue the warrant if satisfied that the authorized are Charter compliant.

The substantive differences between the language from C-51 and C-59 might, in the end, be more symbolic than anything.

As the Conservatives of the day noted, C-51 wouldn’t give courts the authority to ignore the Charter outright.

When Michael Duffy (no relation to the Senator), the Senior General Counsel of the National Security Law division at the Department of Justice, testified before a Parliamentary committee on C-51, he argued that the language of the bill still hangs on Section 1 of the Charter.

“The judge may determine that a particular right referred to in the Charter, be it mobility or something else, is violated, and that's in a sense the preliminary stage. The point that goes to the judge is, is that violation a reasonable one because the restriction is prescribed by law in a free and democratic society? That's the judicial inquiry that has to take place on the warrant process,” he said in response to the debate around the disruption powers.

That logic is still present in C-59.

A Charter statement tabled by Justice Minister Jody Wilson-Raybould notes that the changes are meant to “clarify” the law. “Amendments to the Act’s threat reduction provisions to clarify that any threat reductions measures undertaken by CSIS must be Charter-compliant and also that, as authorized under warrant, they must comply with other Canadian law,” it reads.

Putting the bills side by side reveals what the Liberals are going for.

C-51 required a warrant only if the proposed action would “contravene” a right. C-59 requires one if the action will “limit” a Charter right. C-51 required CSIS to only take measures, in general, that are “reasonable and proportional in the circumstances,” whereas C-59 maintains that, on top of that, a judge must analyze whether the actions could limit third party privacy rights. C-51 leaves the type of disruption open-ended, whereas C-59 creates a circumspect list of things that CSIS can do to reduce a threat.

For defenders of C-51, the changes may well be an unnecessary limit on what was already a Charter-compliant bill. For opponents, it is merely tinkering that still lays out how CSIS can run roughshod over Canadians’ rights. For the Liberals, it’s a happy medium — it fixes a defect while preserving the core of the power.

Craig Forcese and Kent Roach — law professors at the University of Ottawa and Toronto, respectively — took the view that the list of acceptable disruption powers is the meaningful shift.

“That closed list at least makes explicit what CSIS can do,” the pair wrote in Maclean’s. They add: “In constitutional law, legislating powers, and prescribing them by law, places that debate on a very different footing than giving CSIS a carte blanche. (For those versed in the Charter, this is clearly an effort to place CSIS threat disruption into a conventional section-one framework.)”

University of Calgary law professor Michael Nesbitt, however, is more skeptical.

He tweeted, on first read of the bill, that dressing up the language on limiting threats “adds nothing, states [the] obvious, sounds nice.” After picking through the bill a bit more, Nesbitt told CBA National his opinion hasn’t changed much.

“I still think the authority — while important — is unconstitutional as legislated in this scheme. I could very well be wrong, but even then it could use some real work to make it cleaner. And the continued reference to the police warrant process, as though they're at all the same, is misleading,” he says. “There are stark differences in the law and in how that law would be applied given the CSIS process and RCMP process.”

Brenda McPhail, Director of the Privacy, Technology & Surveillance Project at the Canadian Civil Liberties Association, told CBA National that “the new language is clearly trying to make the disruption powers and associated warrant regime more Charter compliant by legislating specific powers, and using the language of necessity and proportionality.”

That said, McPhail adds that the bill still needs some significant study to figure out whether that updated language really does the job. “The warrant regime for disruption activities in C-51 was one of CCLA's major concerns and was included in our C-51 challenge, and we will be studying the revisions in C-59 thoroughly,” she added.

CBA National will breaking down various aspects of the bill in the days and weeks to come.



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