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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Tuesday
May022017

A Feast of Commons Reports: National Security Studies by ETHI and SECU Released

This week, two standing committees released their reports on national security law and policy related matters. The Commons Standing Committee on Public Safety and National Security (SECU) released the product of its cross-country Fall 2016 hearings on national security writ large.  The Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) released its more focused assessment of one aspect of the last Parliament's infamous bill C-51, the Security of Canada Information Sharing Act.

Both reports make for interesting reading. And I am generally sympathetic to many of their recommendations.  A few quick words on each.  But before the dissecting, a general word: MPs should be congratulated in getting into the weeds on many difficult issues.  This is a hard area, and these reports join the government's own Green Paper in putting into circulation thinking on national security law and policy.

SECU Study

The SECU report is the shorter of the two studies, notwithstanding its broader coverage.  It has a fairly succinct summary of issues and evidence, and then a lengthy list of recommendations.  Not all the recommendations are closely anchored in supporting discussion, and so in some cases they are a bit unclear.  Generally, the recommendations range from very specific to very open ended.  I shan't assess on a recommendation-by-recommendation basis, but will address matters that caught my eye.

National Security Accountability

Readers of this blog will know that shortcomings in our national security review system is a recurring preoccupation in Canada. SECU highlights these difficulties in detail, and its report constitutes a welcome addition to the now vast literature on problems with Canadian national security accountability systems.

Its recommendations risk, however, a repeat of the Arar commission of inquiry error: two much bureaucratic complexity. There are basically two solutions to our institutional shortcomings in this area: a move to an all-of-government expert reviewer (sometimes dubbed a "super-SIRC); or the Arar commission proposal of "statutory gateways" between existing bodies, coupled with an expanded remit for some of them to capture agencies not currently subject to review.  The SECU report seems uncertain on which course of action to prefer.  There is some language favourable to a super-SIRC and a lot of language favouring statutory gateways, and then a complex-sounding means of coordination (including possibly the creation of still new bodies).

Too many moving parts in any policy proposal in Ottawa means certain death.  So while the spirit of the SECU recommendations is bang-on, I suspect the detailed recommendations will have limited impact.

CSIS Threat Reduction

SECU proposes abolishing statutory language suggesting CSIS can breach any and all Charter rights in engaging in "threat reduction".  This is welcome, although I think in practice there will still be a need to draft affirmatively what things we wish CSIS to do as threat reduction. Rather than a carte blanche, security legislation should lay out a detailed menu.  For reasons Roach and I discuss in various places (including some linked below), this enumeration approach would help put the regime on a more conventional constitutional footing.

SECU also recognizes the risk that CSIS and RCMP may be driving in the same lane post-C-51, and has some open textured language about, in essence, deconfliction.

This is a nod to the broader issue of intelligence to evidence.  But that is a complex matter deserving some very delicate law-making, and this report probably doesn't have the granularity to move the ball further down the field on that question.  That said, the related recommendation proposing the elimination of the bifurcated court process under the Canada Evidence Act is welcome.

Peace Bonds

SECU proposes a move to a "balance of probabilities" evidentiary standard for peace bonds -- the recommendation is unclear, but I assume this means abandoning the current "fear on reasonable grounds" (a low threshold).  I personally wouldn't support this. Balance of probabilities is a considerable burden of proof.  It will pretty much end the utility of peace bonds as a preemptive tool.  I think there are other safeguards that should be part of the peace bond regime, but this is not one of them. The state needs to have tools -- and this one has the virtue of requiring a proceeding in an open court (as opposed to all the secret administrative things like no fly lists).

Speech Crime

The SECU recommendations limiting the scope of Bill C-51's speech crime are important. That is a horribly overbroad crime at present.  It simply does not need to be so broad -- and reach so much speech only distantly linked to violence -- in order to meet the government's stated objectives. 

(I note that the dissenting Tory report expresses particular enthusiasm for the speech offence. I also note that a number of very serious lawyers had to debate at length in 2015 whether some Tory fundraising letters reproducing terrorism propaganda violated the speech crime. This is not a good offence if some very bright legal minds think there might be a real issue there. 

The Tories also argue that the offence has not injured free speech. Still, it has meant less privacy: RCMP documents suggest that the police are using the offence to seed investigations, including obtaining wiretap warrants. So to be clear: the police can wiretap speech in an effort to find the wrong kind of speech. This is not a happy situation).

The SECU recommendations cut away much of the excess of the speech crime, without undermining the stated purpose of this offence (which I happen to believe is already meet by existing crimes, but that is another debate. Personally, on this specific issue, I am with the NDP "supplementary opinion" to the report: the speech crime is unnecessary; repeal.)

No Fly List etc

There are many recommendations on improving the no fly list.  A redress system for false positives would be very welcome -- and we await action on this by government.  And use of special advocates during the secret appeal hearings would also be welcome.  Generally, there are a number of quite sensible recommendations on this topic. 

Likewise, the oblique reference to rolling back constraints on special advocate access to information in immigration security certificate matters created by C-51 is also welcome.

Lawful Access

SECU basically ducks the issue of lawful access, encryption and CSE collection of metadata and private communication.  The report does propose an appropriate warrant where CSE shares with other agencies -- a very vague recommendation.  But interpolating from what is intended, this is actually an issue, since I understand that some sharing may be occurring without warrant.  That is, CSE may be sharing information (incidentally) collected under its Mandate A with CSIS and police. In some instances, this may be information that the latter agencies could only collect had they obtained a warrant.  Since administrative end-runs around Charter rights are unconstitutional (says the Supreme Court), it would be nice to have a handle on this.  Likewise, however incidentally collected, the fact that CSE is acquiring Canadian personal information without judicial authorization raises its own constitutional problems.  I have discussed these issues before.  They are still unresolved.

Final observations

I suppose, not surprisingly, the report continues to be coloured by C-51 and the (disproportionate) focus on terrorism.  There are allusions to other national security threats.  But not a lot of detail on espionage, insider-threats, influence activities, cyber-security, etc.  Hopefully, there will be future opportunity to forward think on these and other national security challenges.

Overall, the report is a welcome benchmark on many of today's key (primarily anti-terror) issues.  Worth a read.

ETHI Report

ETHI's study is a deep dive into the obscure Security of Canada Information Sharing Act (SCISA).  I have less to say on this because the study is particularly comprehensive in its narrative. Covered both the criticism and defence of SCISA fairly, I thought.  And informative on government positions. 

SCISA's problems have always, in my view, been ones of drafting, and less conception.  I think the most of the ETHI report SCISA recommendations are sensible, justifiable and sound.  For the most part, implementing them (or reasonable variants on them) would not degrade the government's objectives with SCISA.  (I think there are technical issues involved in getting SCISA and the Privacy Act to work properly together, but I would be less concerned about subordinating the Privacy Act to SCISA if SCISA was more reasonable.  On the other hand, I still think the best solution would actually be a careful process of amendment and pruning of the multitudinous laws on security and information sharing to make them more coherent, adding where necessary; clarifying in other instances. SCISA was wallpaper over a fissured wall.)

ETHI also has recommendations on reformed accountability review. ETHI doesn't opt for either a super-SIRC or statutory gateways but does press for action of some sort.

And ETHI too raises the intelligence-to-evidence issue (I am so happy!) by recycling the Air India commission recommendations.  I confess that my own thinking on how to address intelligence to evidence has moved beyond the Air India recommendations, but keeping this issue alive in the public policy mind is critical.

Overall, a thorough study on highly technical issues.

If you have a couple of hours, these two studies are worth a read.

If you have even more time: Kent Roach and I discuss many of the issues at play in more detail here and here and here and here.  For the long version, still available, still current, still affordable, consider picking up our book False Security: The Radicalization of Canadian Anti-terrorism, written with verve and élan.