So, it's the first week of the new semester. No. time. to. write. But on a first read of the government’s national security Green Paper, released today:
Pros: 1. It exists (mean this honestly, not cynically -- we've never actually had such a thing in this area before as best I can recall); 2. It has decent (though not perfect) scope. For instance, pleased we are at least discussing lawful access. Very pleased we are discussing intelligence to evidence (although I find some of the hypotheticals implausible and rather slanted to government perspectives); 3. It provides more explanation of C-51 changes than we ever had during the 2015 debate. 4. A lot of hard work probably went into it and there are parts that are quite good.
Cons: 1. The government is doubling-down on some problematic and novel legal theories advanced by the last government (e.g., averting to CSIS threat reduction warrants as if were a variant of search warrants – apples and orange comparison). 2. Inserting an even more aggressive view on the power of the information sharing law than offered during enactment (e.g., the idea that the information sharing act constitutes an exception to -- and, in effect trumps -- the Privacy Act. Very hard to see how that is, given the language of s.5). 3. Sugar-coating some powers to make them seem benign, by understating their reach (e.g., the speech offence; the examples of CSIS powers). Put another way, the law may allow the government to drive 200 km/h on the wrong side of the road, but the Green Paper offers discussion of the government choosing to drive at a sensible 90 km/h in the correct lane; 4. Similarly, offering policy construals of some of Bill C-51’s doubtful language that diminishes exactly how contorted some of the actual legal provisions are (and policy comes and goes with governments); 4. Some serious omissions (for instance, whither discussion of Communications Security Establishment collection of Canadian private communication and metadata under Mandate A and B? Has the campaign promise to address CSE activities evaporated? Why no clear question on whether the existing expert review bodies should be recrafted as a single entity?)
Worries: The discussion paper reflects positions that are “baked in” at the bureaucratic level that will be unmoveable via a consultation. My hopes: this will be a real chance to get it right, including avoiding a number of false security/rights clashes created by C-51 that are unnecessary to accomplish the stated security objective.