Editor’s Corner article
With the return of Parliament on the near horizon, one of the security issues sure to attract attention (apart from the Omar Khadr $10.5M payoff and the Liberal government’s deer-in-the-headlights approach to the flood of persons illegally entering Canada to claim ‘refugee’ status) is what exactly is in Bill C-59 and how is it different from the Conservative’s much maligned C-51?
Bill C-51 was passed into law by the previous Government, curiously with the support of the Liberals, who were the Opposition at the time. During the 2015 election, however, they were clear that, if elected, changes would be made. It is important to note that the new C-59 Bill was only introduced into Parliament in late June 2017, some 18 months after being elected, and just before breaking for summer recess. This timing suggests that the new Government may have realized that the original Bill was not necessarily as malevolent as had been suggested and that the issues involved were more complex than originally thought. To its credit though, Bill C-59 demonstrates that the Government has decided to address larger national security institutional and accountability issues, which C-51 had not done.
Oversight and review reforms have been identified as a guiding principle of C-59. This is reflected throughout the Bill, and specifically addressed in Parts 1-4, which will no doubt deservedly receive close attention. It should also be noted that this commitment to national security and intelligence review and accountability was reflected in the now passed Bill C-22 which creates a Parliamentary National Security Oversight Committee. Although some improvements would serve to strengthen the independence and mandate of the Committee, C-22 was definitely a step in the right direction – one that previous governments had resisted for years. The Bill also creates a mandatory review of the legislation and its operational impacts in five years which is a helpful strategy.
Bill C-59 contains multiple Parts which address different subjects related to national security and intelligence operations. The Bill contains a relatively detailed Preamble that sets out the rationale for what is proposed. This is a welcome feature as it greatly reduces the future ability of Courts to strike down legislation on Charter grounds on the basis that no justification for the impugned measures was provided by Government.
C-59 is the Government’s response both to its open criticism of the previous Government’s Bill C-51 and to a national security and intelligence environment that has evolved without appropriate changes to the governing legislation. Clearly intended to bring greater clarity of purpose and rationale to security and intelligence legislation, as well as to demonstrably prioritize transparency and accountability, Bill C-59 is successful in achieving these goals.
The Bill creates the National Security and Intelligence Review Agency (NSIRA) that will replace the previous Security Intelligence Review Committee (SIRC). The NSIRA will have direct review authority for the Canadian Security Intelligence Service (CSIS), the Communication Security Establishment (CSE) and, in relation to national security issues, the RCMP. It will have authority to review activities of any Department that relates to national security or intelligence, or any an issue referred to it by a Minister of the Crown. It will also have authority to investigate complaints made against CSIS, CSE or the RCMP when it relates to ‘national security’ issues. It should be clarified and confirmed that this also applies to the actions of an Agency of the federal government, as a significant gap would be created were that not the case.
To be successful, the Agency will need to be assessed that it is carrying out its duties as intended because having a mandate is not the same thing as delivering on it. With the creation of the Parliamentary National Security Review Committee, there is no longer a need to have the new NSIRA comprised of former politicians. The Agency needs fully qualified members with operational, academic or even journalistic expertise, and it needs appropriate funding to be able to carry out its important duties.
The Bill abolishes the Office of the Commissioner of the CSE and replaces it with an increasingly empowered Intelligence Commissioner with defined approval authority for authorizations, amendments or determinations sought by CSIS and CSE (Part 3 of Bill C-59 reforms). The Commissioner is also granted extensive review and approval authority over metadata (datasets) acquisition, use, and sharing – which is clearly a response to the 2016 Federal Court decision slamming CSIS for its unauthorized activities in this area.
While independent oversight is welcome, it must not simply create more self-serving bureaucracy that interferes with operational needs in exigent circumstances which is an ongoing reality in the intelligence and national security world. This appears to be recognized in section 21 of the CSIS Act, but this is an issue that needs to be clarified and monitored. In a welcome sign of information sharing and coordination, section 21 of the Act requires all of the Commissioner’s decisions in this regard to be provided to the new NSIRA.
Among the most important changes in C-59 is the modernization of the CSE mandate. It gives specific detail and authorizes ‘active’ cyber operations for the first time (including metadata). These changes more accurately reflect the current cyber and security environment and activities that CSE is undertaking. This is reflected in the s. 2 definitions, which now includes ‘public information’ and ‘terrorist group’ thus more accurately reflecting the current area of operations. Consistent with the overall focus on mandate clarity and compliance and accountability, section 3 now expressly articulates this as a guiding principle.
For the first time, CSE is now authorized in s. 20 to carry out ‘active cyber operations’ for the broad purpose of being able to “… degrade, disrupt, influence, respond to or interfere with the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group as they relate to international affairs, defence or security.” This is a significant enhancement of CSE’s mandate that, no doubt, will be subject to close scrutiny.
The changes in C-59 provide more detail regarding restrictions on activities as well immunities for CSIS officers in carrying out their duties. It does not, however, remove the active ‘disruption’ authority that was provided to CSIS in C-51. In that sense, the C-59 changes are more symbolic than substantive. The amendments create specific and extensive procedural requirements, and the Preamble reinforces the clarity and compliance and accountability of CSIS.
Similarly, while the changes to the renamed Security of Canada Information Disclosure Act do not obstruct the purpose of the changes made to C-51 and provide greater description of its rationale, they too are more symbolic than substantive.
Creating an annual reporting requirement of actions taken to the new NSIRA is supportive of transparency and accountability, which is welcome (although the Privacy Commissioner, who originally suggested this reform, may not be pleased as his Office has not been assigned this role).
Changes made to the Secure Air Travel Act in C-59 suggest that Transport Canada will take greater operational control of the ‘No Fly’ list system, and may be preparing to add modern technology to the existing biographic data based system. This change will support an effective international ‘bad guy’ biometric lookout database which is critically important in today’s threat environment. The Bill also adds measures to somewhat improve the redress system for persons challenging their designation.
C-59’s changes to the Criminal Code are among the most dramatic in that they will expand the designated terrorist ‘entity’ criteria and repeal the unused preventive arrest and investigate hearing provisions. Unfortunately, the changes made with respect to advocating or promoting the commission of terrorism offences, and the definition of ‘terrorist propaganda’ needlessly undermine this targeted measure created by C-51 which responded to what has become a reality in the new domestic terrorism threat. There have been no reported instances of inappropriate use of the current provisions, so the motivation for this change appears to be political, and is something that needs to be confronted and hopefully reversed. The terrorism peace bond evidentiary standards in s. 810.011, which were revised in C-51, have fortunately been left intact.
There are definitely a number of issues in C-59 that need to be raised at Committee so that appropriate explanations of the rationale and purposes of the changes can be provided. That is, after all, the purpose of the Committee review of legislation and hopefully this can be accomplished without the acrimony and partisanship that surrounded C-51.
– Scott Newark, Editorial Advisor, FrontLine Safety & Security
A full review of Bill C-59 will be published by the Macdonald-Laurier Institute.
Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations to the Washington D.C.-based Investigative Project on Terrorism and as a Security Policy Advisor to the Governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.