OTTAWA - Three judges who led separate inquiries into national security failures of Canada’s agencies are warning Parliament not to rush to adopt new anti-terror laws without better oversight of agencies and a clear-eyed look at what powers they already have.
Retired Supreme Court of Canada justice John Major, who led an inquiry into the 1985 Air India crash, said the RCMP and CSIS have “broad powers” that must be carefully assessed before Canadians can conclude whether more are needed, and cautioned against a rush to enact new powers that may be unjustified.
“It’s a knee-jerk reaction because I think the government feels they need to do something and they have constituents, undoubtedly, and people like the press saying, ‘What are you going to do about this?’ So the impetus is to act quickly, and sometimes not so wisely.”
Federal authorities — cabinet ministers, top RCMP and senior CSIS officials — in the past week have indicated several new laws are under active consideration, or have lobbied for others.
The wish list has included:
• Lower legal thresholds to be able to preemptively arrest a suspect or to get intercept warrants;
• Possible lower thresholds for court orders to restrict an individual’s movements under peace bonds;
• Stronger powers to monitor online communications, remove online posts and charge those who glorify terrorist acts online;
• Dropping the requirement for police to seek the federal attorney general’s consent before charging or exercising certain powers, including preventive arrest;
• A new system to track Canadians who leave the country, called an “exit information system” that CSIS has twice in the past week said would be “extremely helpful.”
So far, only one bill has been tabled. On Monday the Conservatives proposed a law to offer anonymity to CSIS informants whose evidence would be used in court, and to ensure CSIS’s ability to use electronic signals intelligence gathered by the top secret federal eavesdropping agency, Communications Security Establishment, and its allies.
Major said oversight is important: “There has to be somebody distant from CSIS and the RCMP that can look at these things objectively.”
ut in the Commons, Prime Minister Stephen Harper rejected the idea of new oversight mechanisms.
Asked by Liberal Leader Justin Trudeau if he would create an all-party national security oversight committee, Harper said there is already “effective oversight of CSIS and our security agencies.”
“It is a system that works and we will continue moving forward.
“While obviously we always recognize the certain risks that exist, I do not think we should start from the assumption that everything our police and security agencies do are somehow a threat to the rights of Canadians. On the contrary, more often than not, security and rights find themselves on the same side of the ledger and Canadians do not have effective rights unless we can ensure their security, and that is what we intend to do.”
Retired Supreme Court of Canada justice Frank Iacobucci, who investigated the overseas detentions and torture of three Muslim Canadians — Ahmad El Maati, Abdullah Almalki and Muayyed Nureddin — warned history has much to teach legislators.
“I believe we should be very careful about rushing to change laws because of the dangers that can pose,” he said.
Iacobucci cautioned about the “spillover effects” that any rush to expand police powers would have on freedom of religion, association and expression; the possible “tainting” of Canada’s Muslim community, and the risk of “overreaching” by security intelligence agencies when sharing information in a global fight against terrorism.
Iacobucci reminded a conference organized by Amnesty International of Canada’s historical experiences when Ottawa ordered the round-up of Japanese Canadians during World War II and Italian immigrants like his own parents to report monthly to authorities.
Iacobucci also warned that judges on the front line of terrorism cases must not be “co-opted into being officials of the state,” otherwise “the line between the judiciary and the executive gets blurred.” Judges in terrorism cases “are reliant on the executive for information,” so it’s crucial that government provide information “that is completely true” to courts, and not allow information to fall through the cracks.
Justice Dennis O’Connor, who led the inquiry into Maher Arar’s post-9/11 detention by Syria, echoed concerns that much national security evidence can only be heard behind closed doors, as during his inquiry, but was reluctant to criticize government inaction on several of his key recommendations.
He had called for greater review of the RCMP’s national security activities and co-ordinated oversight of five other departments that have national security responsibilities, but no watchdog agency like the one overseeing CSIS. Those five are: the Canada Border Services Agency, Citizenship and Immigration, Transport Canada, the Financial Transactions and Reports Analysis Centre of Canada and the department of Foreign Affairs.
(The review powers of the Commission for Public Complaints Against the RCMP were boosted in last year’s bill overhauling disciplinary procedures for the RCMP, but it was never specifically defined as including the power to review the national security activities of the Mounties.)
O’Connor said reports like theirs provide clear guidance for policy makers, adding that Canadians should take comfort knowing any exercise of increased powers would be subject to scrutiny by the courts for compliance with the Charter of Rights.
Major expressed frustration the federal government never implemented his recommendation to create a national security adviser within the Department of Justice — not a whole new agency or bureaucracy — to oversee the “frictions” between CSIS and the RCMP as they continue to struggle to convert intelligence into evidence.
He suggested former justice minister Vic Toews, now a judge in Manitoba, either did not read his report or was “too stupid to understand it.”