Canadian spies have new legal authority to operate overseas, and to keep their informants under wraps, thanks to legislation tabled by the Federal Government on Monday.
Bill C-44, the Protection of Canada from Terrorists Act, codifies the ability of Canadian Security Intelligence Service (CSIS) to operate abroad, so long as it has the approval of a federal court.
The changes are seen as a direct response to two Federal Court judges who previously repudiated the service’s effort to run intelligence gathering outside of Canada.
But more than that, the new legislation could allow CSIS to conduct more targeted investigations in order to obtain Canadians’ data from internet companies based in the United States, and it could facilitate bulk information gathering in partnership with the Communications Security Establishment Canada (CSEC), Canada’s other intelligence agency and a member of the “Five Eyes” global surveillance partnership led by the American National Security Agency (NSA).
Previously, Justices Richard Mosley and Edmond Blanchard had admonished CSIS for trying to get warrants for international surveillance.
“There is nothing in the CSIS Act or in its legislative history, to my knowledge, that suggests that … Parliament granted express legislative authority to CSIS to violate international law and the sovereignty of foreign nations either directly or indirectly through the agency of CSEC and the second parties,” wrote Mosley in a 2013 summary of a classified decision.
That decision echoed two other similar rulings form 2009 and 2007 that expressly forbid CSIS from conducting investigations abroad or, as the service attempted to do, launder their surveillance through other departments like CSEC.
Bill C-44 changes all that.
“A Canadian judge can now authorize a covert operation in a foreign state that may violate that state’s privacy laws,” says University of Ottawa law professor Craig Forcese. And while sending spies to another country, with the expressed purpose of violating their laws may sound like a legal red zone, Forcese says: “In a system of parliamentary supremacy, it’s valid.”
To that end, Federal Court judges may, once this bill is passed, issue warrants that will allow CSIS agents to do direct surveillance on individuals, collect information from foreign corporations, and use all that information in Canadian courts.
What’s more, it is now formally allowed to work through other departments like CSEC. That raises some eyebrows, as CSEC is barred by its enacting legislation from collecting Canadians’ communication, unless it is acting under the lawful authority of another Canadian department. CSEC concerns itself with capturing bulk data from foreign sources and analyzing it for 'chatter' — essentially, communications about future attacks. CSIS is more concerned with investigating groups or individuals that may pose threats to Canada, including everything from environmentalists and animal rights groups to Chinese spies and anarchists.
That means, once Bill C-44 comes into place, “CSEC can ask as a proxy or a technological appendage” to CSIS, says Forcese.
Christine Duhaime, a partner at Duhaime law, notes that CSIS will also win new powers to conduct investigations of foreign-based companies like Paypal and Twitter.
Previously, CSIS relied on warrantless disclosure powers afforded to it under Canadian law to make those requests off the books. When the Supreme Court of Canada found that those sorts of requests are inherently unlawful in R. v. Spencer, CSIS was left with its powers curtailed.
Now that CSIS can bring a warrant to these corporations, Duhaime says, “what we’ll see is more private sector requests for information.”
That means CSIS could specifically do more to target terrorism financing where it identifies a Canadian nexus.
Adding to this new toolkit is the newly-created power for CSIS to use confidential informants, in line with similar powers afforded to regular law enforcement.
The changes to CSIS’ governing legislation mean that if the agency promises not to reveal the identity of a source, it would forbid any disclosure of their identity, or of evidence that could reasonably expose their identity.
Forcese says he was looking for an exception whereby the identity of that informant can be disclosed.
So the question, as currently contemplated by the bill, is whether the disclosure “is essential to establish the accused’s innocence.”
The changes mimic criminal law, whereby a judge can hear arguments from an amicus curiae or a special advocate to determine whether or not revealing the identity of the informant or the information really is jeopardizing their identity, or whether the person’s innocence hinges on that disclosure.
As Forcese points out, without installing a safety valve on the anonymity by way of a special advocate system, “you’re in trouble." Luckily, he says, the government installed that valve and ensured that the legislation is likely to stand up to any Charter challenge.