OTTAWA—A bill to broaden the powers of CSIS would, for the first time, explicitly authorize Canadian spy agents abroad to break the laws of a foreign country when investigating threats to the security of Canada.
After a tense week that saw Parliament Hill attacked by a gunman, the Conservative government unveiled a promised new bill to boost spy surveillance powers and protection for secret agents. Even before it was introduced, top RCMP and CSIS officials began lobbying for even greater legal “tools.”
Public Safety Minister Steven Blaney on Monday tabled Bill C-44, the so-called “Protection of Canada from Terrorists Act.” If passed into law, the bill would:
• Extend complete confidentiality to CSIS sources, informants or covert agents, creating a “class privilege” for their identity and forestalling most legal challenges to the use of their evidence in court.
• Explicitly confirm the legal authority of CSIS to conduct investigations within or outside Canada, something CSIS has claimed it has but which has been questioned in light of recent court rulings.
• Broaden explicit authorization for CSIS to seek and use Federal Court warrants to authorize investigative activities — including electronic intercepts and other covert surveillance activities — outside Canada “without regard to any other law, including that of any foreign state.”
The Conservatives previously rejected the creation of a foreign intelligence agency, citing cost, bureaucracy, and arguing CSIS already has a legal mandate to operate on foreign soil to investigate security threats to Canada. This makes CSIS much more akin to the CIA.
“It’s an act of political courage,” said University of Ottawa law professor Craig Forcese. “What a federal court judge is now authorized to do is authorize a warrant . . . to engage in surveillance in a foreign country that presumably violates that foreign country’s privacy laws.”
“So the Parliament of Canada is now saying, ‘We are prepared to allow our security intelligence service to violate state sovereignty.’ ”
In practice, the provision expressly allows CSIS to enlist the technical support of Canada’s top secret electronics eavesdropping agency, CSEC (or Communications Security Establishment Canada) and its foreign counterparts in the U.S., United Kingdom, Australia and New Zealand in the “Five Eyes” alliance to spy on Canadians or foreigners abroad in pursuit of security threats to Canada. (The CSEC already has the mandate to provide “technical and operational support” to CSIS, but Forcese says this clarifies the reach of that power.)
However, Forcese argued that with increased spying powers should come robust oversight. He and others objected that the Conservative government made no move to increase the ability of Parliament or any other review body to oversee the operations of CSIS or CSEC, or the RCMP’s national security operations.
If anything, agreed lawyer Lorne Waldman, it’s worse now than eight years ago when the Maher Arar inquiry urged stronger oversight overall.
The Conservative government has rejected calls for a parliamentary oversight committee of MPs, abolished the office of the Inspector General of CSIS, has failed to create any oversight body for the Canada Border Services Agency, left the watchdog agency of CSIS — known as the Security Intelligence Review Committee or SIRC — understaffed, underfunded, and has not permanently replaced its disgraced chairperson Arthur Porter.
Others worry the blanket anonymity for CSIS’s human sources will diminish an accused person’s ability to challenge evidence and test the credibility of the Crown’s case in a court of law, eliminating the possibility of cross-examination even by judges or special advocates. Others say it is tempered because an accused may apply for a court order to lift the veil of secrecy where identity is “essential” to establishing someone’s “innocence,” similar to cases involving police informants.
Lawyer Paul Copeland, formerly commission counsel to the judicial inquiry into Arar’s deportation and torture in Syria, is a security-cleared special advocate assigned to challenge secret intelligence evidence that CSIS uses in immigration proceedings to deport foreign-born terror suspects. He has a clear warning: “One of the ways you test evidence is by cross-examining witnesses.” He said CSIS informants have failed lie detectors in the past, with CSIS withholding that fact from a judge.
“This stuff to me is potentially explosive and I think it should be slowly reviewed by an informed committee in the House of Commons,” he said.
Blaney, the lead minister responsible for CSIS and RCMP, told the Commons, the legislation will improve the ability of CSIS to work with other intelligence agencies to share information on Canadians going abroad or returning home.
“We will not overreact, but it is also time that we stop underreacting to the great threats against us,” said Blaney in the Commons.
Liberal MP Wayne Easter said Liberals are “open-minded” about the bill, and believe CSIS should have a way to protect its informants abroad. But he questioned the push for more powers when he said authorities have yet to use those already on the books, such as punishing those who have gone abroad to engage in terror acts.
With files from Bruce Campion-Smith