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

 

National Security Law Blog Search
Subscribe to National Security Law Blog

Best Law School/
Law Professor Blog Award

 

Most Recent Blog Postings
Thursday
Nov232017

A Listener's Guide to Bill C-59

Bill C-59 is back with a rush. The initial debate in the Commons was disappointing and I fear for the future of the little that remains of my hair. So without pointing specific fingers: We need to debate what is *really* in this bill (or not), not what various political bases want to *believe* is in the bill. There are important things that can be meaningfully debated about what *is* in the bill and what *is not* in the bill.  There is no meaningful debate to be had about things one *imagines* are in the bill.

Once more unto the breach, I will try to squeeze a few compact video primers into the short space between the end of the teaching term and the beginning of the grading purgatory. Kent Roach and I did a basic early assessment here.  And I posted a meditation here. But for those following along with A Podcast Called INTREPID, Stephanie Carvin and I are getting into the weeds .  So here is a Listener's Guide to Bill C-59:

  • Episode 3: The Challenge of Warching Watchers: bill C-59's new "review" body, the National Security and Intelligence Review Agency.
  • Episode 6: Commissioner, Minister, Lawyer, Spy: bill C-59's fix to CSE's current (very) constitutionally-suspect system of foreign intelligence and cybersecurity activities implicating Canadian private communication or metadata. (We did not discuss how we haven't quite fixed the problem but could with a few words of amemdment. See here. I think I have been persuaded that my one-word fix may fix the a constitutional problem and create an operational problem. So I have a different, five or six word fix.)  This podcast also discusses new powers for CSIS to receive and analyze and retain information not tied only to threats to the security of Canada. (Feel free to shake your head should anyone claim that C-59 does not include substantial new powers for intelligence services).
  • Episode 8: The Legal Pile-One, the No-Fly Glitch, and the Police Probe: includes a discussion of Canada's creaky no-fly list and how C-59 fixes it in part, but still fails to resolve it in full.
  • Episode 9: Cyber-Cyber-Bang-Bang: discusses C-59's considerable expansion of CSE's mandate to include offensive and defensive cyber.  (Again, feel free to shake your head should anyone claim that C-59 does not include substantial new powers for intelligence services).
  • Episode 10: The first thing we do, let's disrupt all the lawyers: discusses C-59 and CSIS threat reduction powers and what changes and what doesn't.  And discusses new criminal immunity powers for CSIS sources (and officers) doing intelligence work and the checks and balances. (Please keep shaking that head if people try to tell you this bill doesn't offer anything to the security services).

In Episode 12, we will discuss C-59 and the Security of Canada Information Sharing Act.  And in Episode 14, we intend to discuss C-59 and changes to the C-51 speech crime and some of C-51 changes to preventive detention.

You can decide for yourself whether you like what's in C-59 or not, and whether its good policy.  You can decide for yourself if the bill grapples properly with hard dilemmas. We have our own views and perhaps make our own errors. But we believe that any opinion on C-59 is necessarily guided by (a) knowing what those dilemmas are and (b) what is in C-59. Hope this helps.

Sunday
Nov122017

A Podcast Called INTREPID

Readers will note that this space has been quiet this Fall. In part, that is because of the final post-peer review edits to my new book, Destroying the Caroline: The Frontier Raid that Reshaped the Right to War. The book should be available for purchase by year's end, from Irwin Law books. I shall blog about it further later, but I found this project among the most intellectually satisfying of my career. It is a real yarn: how a forgotten clash on the Niagara frontier has reshaped the international law of self-defence, which in turn has changed how states justify use of force in international relations. And there is considerable misunderstanding about exactly what happened during that 1837 raid, and the circumstances in which it occurred.

But the other new dedevelopment is the podcast series that Stephanie Carvin and I have been producing: "A Podcast Called INTREPID". As our description explains, here we "discuss and debate issues in Canadian national security law and policy, sometimes ripped from the headlines, and in other instances, just because they seem interesting." We are about to record this week our 10th episode and figure this is now a going concern. So we have a website as well: https://www.intrepidpodcast.com/. And subscribers can join via iTunes and Google Play. We have had a double mandate so far: a steady march through the details of bill C-59 and also our efforts to respond to developments in national security law and policy as they arise in the news. If you enjoy this podcast, we'd be very grateful for your reviews. It is worth keeping up if people are getting something out of it.

As for this blog, expect it to start filling as I begin to march through updating National Security Law: Canadian Practice in International Perspective for a long-overdue second edition.

Thanks for your continuing interest.

Monday
Oct022017

A One-Word Fix: Bill C-59, the Constitution & Communications Security Establishment Activities

As the parliamentary season starts, I have begun working up more detailed thinking on bill C-59, the government's massive national security law overhaul. A lot of this bill is about heading off constitutional and other legal train-wrecks. But it also includes measured moves into new areas, with attention to drafting these powers in manners that (hopefully) will not ignite new legal controversies. In some respect, it is about getting the law out of the way as a source of doubt, at the cost of accepting more structural checks and balances.

In a first note, I set out observations on the new "intelligence commissioner" process for CSE foreign intelligence activities. The focus here is on the question of whether C-59 is enough to cure the constitutional objections to CSE's current manner of operating. For what it is worth, I think it is one word away from doing that.

The Shiny Bauble of Ministerial Responsibility

There is another issue not addressed in the paper. Does the presence of the intelligence commissioner constitute an erosion of ministerial responsibility? This seems to be a recurring issue in some parts of Ottawa. I am not entirely sure everyone means the same thing in discussing the concept, but what it means is: a minister answerable in Parliament for subordinates, and responsible for the conduct of those subordinates.

Those who have read some of my public law work will know that my view on ministerial responsibility in Canadian government in relation to the second half of the above sentence is: "What a wonderful idea. Too bad it doesn't exist." As I concluded after surveying practice between 1950 and 2009, it is rare to the point of being unknown for ministers to resign in response to wrongdoings committed by their subordinates, at least officially. (Senator Forsey arrived at similar conclusions in his notable 1985 work, The Question of Confidence). The buck-stops-here concept of ministerial responsibility is a magnificent myth, not a reality. There is a reason why Donald Savoie called one his books "Breaking the Bargain".

So, it seems a bad idea to preserve a myth by insisting on a form of unilateral executive oversight of CSE activities that is almost certainly unconstitutional without the interpostion of an independent judicial officer.

And in the area of CSE, there are several additional exhibits tending to suggest that the status quo is a bad idea.  First, on information and belief, the minister of national defence's office has not had the internal capacity (at least in the past) to "red team" thoroughly CSE authorizations to intercept private communications.  Put another way, I fear ministerial oversight has been modest.

Second, so modest has been ministerial oversight in this area that when the Snowden disclosures came out and there were revelations of CSE collection of Wifi information from Toronto airport, it was CSE's review body that stepped most vocally into the breach to offer conclusions and observations. Put another way, the review body took bullets, something that should never happen in a world with functional ministerial responsibility.

Third, C-59 does not actually remove the minister from the driver's seat. It just puts the intelligence commissioner in the back seat, looking over the minister's shoulder.  Unlike with conventional warrants, which judges shape (albeit with input from government lawyers), the C-59 system requires the minister to kick first at the authorization can, and set the terms and conditions.  Only then does the intelligence commissioner review and bless (or not). This is a double-lock system in which the minister turns the key first. It is not one in which the ministers is subordinated. Instead, he or she is watched.

As my article suggests, I think this is probably the most clever way to square the constitution with CSE's rather sui generis activities.  Take it away, and you run the real risk that the current system ends up at the Supreme Court. That Court has, of late, rarely turned down an opportunity to apply new understandings of privacy rules to new technology. Leaving it to the Court to speak first on this issue -- and perhaps narrow the range of options -- would be a huge mistake.

Added to which: a court finding that CSE's activities since (probably well before) 2001 have been unconstitutional would be disastrous for CSE. Indeed, even as we need to call upon it to do more in the area of cybersecurity and cyberassurance in the public and private sectors, its reputation would be shattered.  And those private sector companies that touch it with a ten foot pole risk collateral reputational injury.  Put another way, C-59 needs to solve the problem of a CSE currently tied to the tracks, with a Charter train rumbling toward it.

So you need to be a real risk-lover to preserve a status quo that a) does not include much, if any, real ministerial responsibility, but b) has managed to produce a lot of reputation-damaging fall-out.