About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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« Bill C-51: What Did We Learn About the Government's Intentions from the Clause-by-Clause | Main | Bill C-44: Statement to Standing Senate Committee »
Monday
Mar302015

Bill C-51: If the Senate does its job today, this is what it would ask

This afternoon, even before the Commons committee studying C-51 reaches 'clause-by-clause', its Senate counterpart will begin "pre-study" of the bill.  This is done in order to move bills through Parliament faster.

Readers will be aware by this point that bill C-51 is not a law project that Professor Kent Roach and I believe should move quickly through Parliament.  It is not a law project that should have been tabled by Parliament in its present form.  Our detailed objections are outlined at antiterrorlaw.ca.  Our most recent distillation of concerns appeared here, yesterday.

On security, this is a bill that is all about tactics, from a government that seems incapable of articulating an actual strategy to keep us safe, and which simply refuses to acknowledge that the tactics it employs could impair our security.  It should not be possible for us to raise both security and liberties objections to the same law, but it is.  When the Ministers appear today, we do not expect them to address any of the concerns that C-51 is bad for security, while at the same time being bad for liberty.

But a well-briefed, earnest senate fulfilling its constitutional responsibilities would not let them leave the room without answering these questions.

A Bakers Dirty Dozen of Unanswered Security Questions about C-51

Q1

Minister Blaney, in 2009 SIRC issued a secret report on then-existing CSIS disruption activities.  It observed then that the Service had failed to coordinate with the RCMP.  It wrote: "when the Service engages in disruption without the full coordination of the police, it is unclear if this is consistent with
the emphasis of the Government's national security policy, which is supposed to create a 'clear and effective approach to security' among the various federal departments and agencies which have different responsibilities".  Moreover, SIRC raised concerns that the Service had not informed your predecessor as minister of these activities and was acting without guidelines or rules.  Can you assure us that these problems have been resolved?  Can you please also explain how the massively increased CSIS disruption powers under C-51 will be managed to avoid a recurrence of this problem?

Q2

On a related note, Ministers Blaney and MacKay, now that CSIS will be conducting much, much more disruption of legal but perceived threatening activity -- as the SIRC report notes, disruption is about interfering with non-criminal activity -- what steps have you taken to ensure that this conduct will not impair subsequent RCMP investigations and criminal prosecutions that might otherwise ripen?  We note that CSIS disruption now will involve more "kinestic" interventions will real people in the real world, including some in violation of law and even possibly the Charter.  Will subsequent terrorist trials be tossed from our criminal courts because the evidentiary record is muddied by earlier CSIS actions? Won't our trials now be more complex because in bill C-44 you have extended blanket class informer privilege to all CSIS assets, reversing the Supreme Court decision in Harkat and totally disregarding the advice of the Air India inquiry?  More than that, will we soon have a variation of the famous "Mr Big" issue in which now CSIS acts as an agent provocateur in a terrorism matter?  Please provide detailed responses to these questions.

 

Q3

Ministers, in the 2009 SIRC report, SIRC noted that because the Service can act before there is a crime, there is "an impetus to divert an investigation's focus from prosecution to disruption".  Please describe in detail the government overall strategy to combat terrorism and how C-51 fits in?  We have had an almost perfect success with terrorism prosecutions.  Is the government now moving to a system where the focus will be on endless disruption and not prosecution?  How will you guard against abuses, especially if as SIRC says, you aren't being properly advised?  What is your end game?  What is your overall national security strategy?  How does C-51 fit in with the "Building Resilience" report your department released in 2012?  Where is the discussion and strategy paper?  Please share.  We are sure your officials have given all these matters careful thought and are not simply responding to a political instruction to "do something, anything" on this security issue.

 

Q4

On the same issue, Minister Blaney, in the 2009 SIRC report, SIRC reported that CSIS "recognizes that disruption is an activity that departs from typical forms of information collection, and that certain risks must be managed when undertaking this investigative activity. As CSIS noted to SIRC when describing the broader ramifications of disruption: 'Less tangible is whether our actions push some people to radicalize, but our assessment is that it discourages radicalization in most people.'"  This comment about not pushing people to radicalize doesn't sound very definite or certain -- and here they were talking about simply benign "disruption" like making people aware of the investigation. Now you want the Service to be able to do anything other than bodily harm, obstruction of justice or violation of sexual integrity.  Will you please share your careful and thorough internal analysis showing that such CSIS conduct -- or even the perception of such conduct -- will not enhance radicalization in targeted communities.  We assume, of course, you have done a careful assessment.

 

Q5

Likewise, Minister MacKay, could you please explain how you see the new speech crime working in the context of the very important counter radicalization programs Minister Blaney has described elsewhere.  Could you please outline in detail to this committee how the new speech crime will affect willing participation by targeted communities in such initiatives?  Of course, this is a question your officials have studied closely, and none of it is privileged.  So please provide your assessment.

 

Q6

Minister Blaney, the government has declined to add a limit providing that CSIS cannot detain -- the proposed language about CSIS not having "law enforcement powers" does not do this.  Why are you resisting such an amendment?  Is it your intent that CSIS has the power of "security detention" or "detention for security interrogation"?  Maybe you are thinking CSIS should do this overseas?  Maybe even in Canada?

 

Q7

Minister Blaney, with judicial warrant CSIS will be authorized to breach the Charter.  Which Charter rights did you have in mind?  What is it that you wish CSIS to do that would violate the Charter?

 

Q8

Minister Blaney, you have made much of the warrant requirement.  But that is only triggered where CSIS would violate a Canadian law or the Charter.  You accept, I am sure, that much CSIS conduct will never reach that trigger, including conduct that might be concerning (including that at issue in the SIRC 2009 report)?  You also accept that Canadian law and the Charter rarely apply overseas, and so this trigger will rarely be reached for CSIS overseas operations?  And so, are you comfortable with a system in which CSIS is empowered to do anything short of bodily harm, obstruction of justice or violation of sexual integrity to anyone anywhere in the world, without judicial oversight?

 

Q9

Minister Blaney, you have repeatedly pointed to SIRC as the ultimate safeguard.  A simple question: did you consult with SIRC on C-51?  Not notify.  Consult.  Another simple question: have you read or heard anything that they have said on the public record about their legal and resource constraints and how C-51 might affect them?

 

Q10

Minister Blaney, you have repeatedly suggested the proposed CSIS powers just catch up to allies.  Please provide your justification for this statement.  Because law professors and embassy officials from basically all of the countries you name say their domestic intelligence services don't have the powers you wish to give CSIS.

 

Q11

And Minister Blaney, those same countries you name often have parliamentary review bodies scrutinizing security service activities, on top (in several cases) of specialized expert review and complaints bodies.  Why do you resist doing the same?

 

Q12

RCMP Commissioner Paulson, thank you for coming.  Can you please share with us your assessment of how the RCMP and CSIS will avoid "confliction" after C-51? Also, you told the Commons committee that the RCMP national security investigations unit has gone from less than 300 members to more than 800 in the span of four months.  There have since been a number of arrests.  Does C-51 solve legal problems, or was the paucity of arrests before this period simply a resourcing issue?  Can you also tell us, with 600 new members, are you maintaining the safeguards the RCMP introduced after the Arar Commission to forestall another tragedy like the Arar matter?  Also, you have suggested that the RCMP has had to draw members from other policing areas, such as organized crime.  Can you assure the Canadian people that resourcing decisions made by the government will not make this a glorious period to be in the mafia?

 

Q13

CSIS Director Coulombe, thank you also for coming.  In the 2009 SIRC report, it sounded like the powers CSIS wished to exercise for disruption purposes were fairly modest -- overt investigations to alert targets they were being watched.  Could you please explain, in detail, why the Service now needs powers to do anything short of bodily harm, obstruction of justice or violation of sexual integrity to anyone anywhere in the world?  And why do you need this power in relation to your entire security mandate -- and not just counter-terrorism?  Your mandate includes subversion.  Do you believe these new powers are really justified for counter-subversion and counter-foreign influenced activity operations?  I note that the latter concept is really not tied to any actual violence by the target.

On behalf of the senate and people of Canada, thank you Ministers and officials for assuring us that all the security concepts in C-51 are well thought out and reflect a coherent government security strategy.  And now we need to talk about the civil liberties issues in this bill...