Bill C-51: Breaking down both sides of a most terrifying debate

When the House of Commons reconvenes next week, the public safety committee will begin its study of Bill C-51, the Conservative government’s Anti-Terrorism Act, 2015. That study will be limited to nine hearings, in which MPs will confront a five-part bill that raises questions about national security and civil liberties.

In its current form, C-51 would, among other things, give the Canadian Security Intelligence Service (CSIS) a new ability to disrupt potential threats, create a new crime of advocating for or promoting terrorism, and allow for greater sharing of information across government departments. While the parties stake out positions—the Conservatives staunchly in favour, the NDP resolutely against, the Liberals supportive but desiring changes—critics beyond Parliament Hill are raising concerns.

To advance that discussion, Maclean’s convened a call with two experts: Ray Boisvert, a security analyst who spent nearly 30 years with CSIS, and Craig Forcese, a law professor at the University of Ottawa, who, along with Kent Roach, a professor at the University of Toronto, has written extensively about C-51.

Q: I’ll start with you, Ray. How do you feel about the bill in general? Do you see parts of it that you like? Do you think it should be supported as it is?

Boisvert: I support it, but the caveat would be that I’m certainly open to some adjustments, particularly in the area of accountability and review. The CSIS Act was a very good piece of legislation, in my estimation: It defined threats effectively for the first time in Canadian history, and it defined what a security agency is to do in a democracy, with a number of limits placed on that. That was great during the Cold War, when investigations sometimes took four years to develop. An example would be a Soviet intelligence officer gets posted to Ottawa. We would spend four years thinking: I wonder if he’s a suspect or a known intelligence officer? And effectively, all CSIS did in those days was it was involved in a process, [there was] very little direct action on anything. At most, you would maybe convince the department of foreign affairs to punt that guy out of here. That was probably the greatest victory of any threat diminishment in those days. The terrorism world hit us very hard in the subsequent two decades and I think where we find ourselves now is that we have a very, very volatile and extremely accelerated threat environment.

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So suddenly I think we have to go to a game where we do provide ways to empower CSIS to do low-level threat-diminishment activities, that are just below the need to engage the RCMP. If one of those threat-diminishment activities involves reaching out and trying to get somebody off the track of radicalization that will involve talking to people and doing some things. Up until now, in some ways, CSIS is not even allowed to tell a parent, for example, that their son is about to engage in violent jihad and travel offshore because SIRC has in the past criticized CSIS for taking on those activities because it has no mandate to diminish the threat, others are supposed to do that. CSIS is supposed to only collect, analyze, give advice. That’s not on anymore. CSIS needs some ability to be able to go do things that are fairly low level, low-hanging fruit, but they will allow some positive outcomes—as I told many community leaders, better for you folks to deal with it at the local level, being a physician, a priest, an imam, a teacher, a parent. Once it comes into my zone, as the director general of counter-terrorism, rest assured, nobody’s going to be happy when it’s all over. Because I’ll be two steps away from going to the RCMP and some poor young person who’s probably misguided is going to spend a lot of time in jail. So that’s sort of where I come from on this.

Q: Craig, what concerns you most about the bill?

Forcese: I agree with Ray that the world has changed [and] I agree that the national security law has been calling out for renovation for a very long time now. The question for me is, well, what sort of renovation? The examples Ray has given, and others have given, really relate to, I think Ray used the term, low-level intervention by CSIS. The key caveat there is low level. All the examples I’ve heard so far from government have been: “We want [this power in order] to be able to talk to people,” [but] that’s not what [it] says in the act. C-51, in its current manifestation, says CSIS will be empowered to take measures, so long as they are reasonable and proportional, involving anything short of bodily harm, obstructing justice or a violation of sexual integrity. More than that, the act anticipates that, with judicial warrant, CSIS can break the law and contravene the Charter. So the issue for me isn’t [whether] CSIS should have low-level powers of intervention. The issue is: If that’s the justification and the concern, why craft a law that’s so vast, in terms of the sorts of CSIS behaviour it might accommodate, [where] we could find ourselves, at least on the face of the law, back in the dark days of the 1970s? So, in other words, if we have a modest objective, why do we need an extreme law?

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So that’s the first point, and then that theme sort of runs throughout the critique that Kent Roach and I have marshalled, which is that the justifications that are invoked in this law sound reasonable, but the law itself is unreasonable. Take the information-sharing provisions. The breadth of the information-sharing provisions is vast. It’s not tied to terrorism. It’s not limited even to CSIS’s mandate. It accommodates all sorts of behaviour that many people may not support, per se, but might consider at least understandable. It now falls within the realm of undermining the security of Canada, and is subject to this vast information-sharing regime within government. So again, if the motivation is anti-terrorism, why have a law of this breadth? And I would say the same thing about the new speech crime that’s in play. Again, it’s over-broad. And then we get to Ray’s point, which I agree with fully, that, setting aside whether these provisions are overly broad or not, there is an urgent need to renovate our accountability system. That’s been manifest since before the [Maher] Arar commission, [which] underscored the extent to which our review system has not kept pace with the modern reality of how CSIS and whole-of-government national security operations operate. So we really need to resolve that issue, and Bill C-51 makes that need, which was urgent, essentially an emergency need, at this point.

 

Q: Ray, do you have a response to the concern about CSIS’s disruption power?

Boisvert: Craig paints a very reasonable picture [about] how broad this wording is, yet we have no real sense of how that’s going to be operationalized.

I guess I always base my thoughts about this on my direct experience, and I think about the conversations [and] the decision-making. Maybe it’s the culture that grew up in CSIS in the last 30 years. It was born out of scandal. It was born into change, as we used to like to say. And we recognized that, and that was fine. In fact, we always felt review made us a better organization than many of our peers, including many in Canada, because it kept us sharp. We realized everything we do will likely get reviewed at some point down the road—especially, the higher-profile the case, the more likely it is, and the greater the shaming and the likelihood of accountability and perhaps even criminal charges. So all those little things were always first and foremost.

So the psychology was, we’ll always err on the side of caution. So all those decisions were always made [to] protect privacy [and] the sanctity of the individual. I think of one particular case, where my deputy came in to see me on late on a Thursday afternoon around six o’clock, and said, “We have two young persons who have status in Canada as students, who are headed off to be suicide bombers in a third country and we’re about six hours behind them.” We had enough information at that very moment to know they were serious and they were committed, and the radicalization took less than six months, from being very average students on campus to suddenly becoming very reclusive and wearing a hijab and a few other things. It was a brother-and-sister team. And then we had to try to find them, mostly, because we didn’t want them to do harm to others. We don’t want them killing people, themselves and others, in other jurisdictions, carrying Canadian travel documents. And he looks at me and says, “Foreign agency X knows about this and are after them, as well.” Our first responsibility became: We have to get to them first, because if the other guys get to them, it’s not going to be so good. And finally, all the countries they were travelling through were had a less-than-stellar human-rights record, so that was the other complexity. How do we info-share with foreign powers like that? We will get deeply criticized, based on Arar and everything else, because we do pay attention to lessons. What do we do to fix all that? And yet, it’s like an episode of 24; we’ve got to move. So everything I’ve experienced, I say we’re always very cautious.

What really jammed me up when I was in that business was that everything I turned to [in] the tool kit, I was missing: a wrench, a screwdriver, a hammer, and the only thing I had were all the reasons not to do things. All the department of justice lawyers [were] saying the same things, [giving] all the reasons we [couldn’t] do something that [needed] so urgently to get done. So this is a paradigm shift to where the toolbox is going to be pretty, pretty full. In fact, it’s going to be amply filled in for the practitioner group and, back to Craig’s particular worry, and I think it’s a legitimate one: How do we know they’re going to grab the right tool, and how do we know they’re going to use it appropriately? Right now, all I can suggest is that there are certain levels of review. They’re far from perfect, and I think we need to bolster that, and bolster the oversight to make up for that gap. But, at the end of the day, given this threat environment—and it’s not just CT; this is about Vladimir Putin, this is about totalitarian regimes, this is about cyberthreats, this is a number of really weird things that are going on out there, to the point that I’m exceptionally worried about what we see in front of us—I’m inclined to believe that’s why this is necessary, and that’s why it’s still ill-defined, in the sense of: Do we know how they’re going to use things? Of course, we don’t, because we don’t know what’s going to happen tomorrow, but we’ll have to make sure we have some form of accountability.

Q: The one form of accountability that’s been mentioned is judicial oversight: that if CSIS wants to do anything that would potentially contravene the Charter, it would have to go before a judge and ask for the right to do that. Is that sufficient to you?

Forcese: I have a practical concern and a lawyerly rule-of-law concern and both, I think, are quite acute.

The practical concern is the way in which the warrant procedure has traditionally worked. In CSIS’s current security intelligence operations, it’s not every operation in which CSIS requires a warrant. There’s a trigger, and the trigger in the conventional context, because we’re talking about surveillance, is when CSIS is engaged in a form of covert surveillance that would otherwise transgress a reasonable expectation of privacy. That’s the Charter trigger for getting a warrant.

So in the current circumstance, we’re talking about a unique set of new powers, where there’s not that understanding [of] their scope. I mean, it’s not always going to be surveillance; presumably, it’s going to be more than surveillance. So we need a trigger for this warrant regime, and the only clear trigger in the act is CSIS contravening the law or the Charter, and not just the privacy protections in the Charter, but, presumably, the whole Charter is potentially in play. My practical concern is that we’re taking a warrant proceeding that has been developed for a surveillance context, which is a secret proceeding in its own right. The government is the only side represented [and] the warrant is never disclosed, so the only check and balance is a highly secretive proceeding, in which only the government side is represented in front of a federal court judge. The target is not in a position to bring facts to bear that might influence the government’s position or the judge’s position, and that’s a natural disadvantage of this sort of warrant proceeding. It’s hard to imagine how you could overcome that. The reality is there are going to be false positives. A false positive when [what’s in question is whether] someone was improperly spied upon is one thing; a false positive when [what’s] at issue is potentially some other measure that breaches the Charter [is another], and we can imagine what those might be. As Ray suggested, we really don’t know what the wrench or the hammer might look like in the tool box, but it’s going to be potentially much more concerning than merely improper spying. The consequence of a false positive in that context is much more disturbing.

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Then there’s the lawyerly preoccupation. The idea of judges now sitting and facilitating a breach of the law and the Charter is absolutely alien to our legal tradition. Judges are supposed to enforce the rule of law, not exonerate breaches of the law. So you have this really peculiar situation, where judges are now asked to essentially bless executive illegality and give it cover.

Some people have said, “Well, isn’t this just a variant on the famous Section 1 of the Charter, which allows Charter breaches to be exonerated when it’s reasonable in a democratic society?” Well, our Charter at Section 1 is constructed so that it is adjudicated in open court with a full evidentiary record, having prescribed by law, which almost always is by legislation or regulation. This new warrant proceeding will be a flying, open-ended, in-advance override on the Charter, and we’ve just never seen that.

For those two reasons, I am deeply concerned about this process, and I’m not sure what the solution is. For me, the solution is simply to say that if CSIS is going to conduct these operations, then the Charter really does, as it does for every other government actor, represent the outer limit as to what they can do. I appreciate that then means there might be justice lawyers talking to people in Ray’s position, saying, “ You can’t do this,” but the reality is that there has to be a point at which justice lawyers say to CSIS, “You can’t do this.” And for me, that’s the Charter.

Boisvert: The warrant process has always been extremely important to CSIS activities, up until now, and this has been the more traditional, pre-C-51 type of warrants. They’re parallel to law-enforcement warrants. Mostly, they are about the ability to search covertly: to enter someone’s premise, in other words, something that would be considered unlawful, breaking into somebody’s home, especially as non-police officers, to intercepting somebody’s mobile communications, emails and so on. Those all require a federal court warrant. And there are multiple layers. I know these are all the things that quite often are never explained to the public, and I don’t know why, but anyhow, they’re not: There are a lot of inherent checks and balances that, unfortunately, don’t get a lot of exposure, but they demonstrate extreme amounts of diligence.

When I was the director general of counterterrorism, to get a warrant, every detail of those hundreds of pages in one single warrant would be reviewed, then reviewed again and reviewed again and reviewed again, and that’s before it even leaves the branch. So by the time it got to the federal court, it’s a pretty robust document. It’s a big part of the job, and I still believe that will continue in this new process. But it won’t have what Craig would be interested in, and I get that, and most Canadians would say, “Yeah, okay, but where’s the public side of that check and balance?” Hence, the issue of deeper accountability after the fact.

Q: Craig, can you explain your concern about the new definition of encouraging or advocating for terrorism?

Forcese: First point, this is a new Criminal Code offence, and it is tied, ultimately, to terrorist activities. This is one aspect of C-51 that is concretely related to terrorism. It will be our 15th Criminal Code offence in relation to terrorist activity. We have right now, in those Criminal Code offences, a substantial amount of coverage of speech. A lot of what goes into participating in a terrorist group or facilitating a terrorist activity has involved speech and, in fact, with an eye to those provisions, we had a successful conviction in 2010 of an individual for, among other things, terrorist propaganda.

So we have a substantial amount of coverage, when it comes to terrorist speech. A lot of what [concerns people is that] the sort of terrorist propaganda coming out of [Islamic State] would already be criminal, and persons could already be prosecuted, if you could actually lay your hands on them.

It seems capable, on a strict reading, to encompass all sorts of activities that are far removed from the sort of Islamic State-inspired narrative people are most concerned about. I keep using this example involving a hypothetical Ukrainian resistance movement. An academic goes to a conference, which is attended by, among others, Ukrainian support groups, and that person says, “We should be supporting Ukrainian insurgency movements who are resisting the Russian occupation in Ukraine by targeting Russian oil infrastructure through means that involve the use of violence.” If that person says that, knowing someone in that room might then give money to that insurgency, that is almost certainly an offence, because those insurgencies would likely fall within the scope of the definition of terrorist group in the Criminal Code.

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Q: The government’s position has been to say lawful protest is fine. But Craig, the idea that unlawful protest—say, blocking a street or not having a permit for a protest—may get captured by this act,  is that a concern for you?

Forcese: Right now, the [exception] for the new information-sharing powers is lawful advocacy, protest or artistic expression. Everything then hinges on what you mean by lawful. We had the same conversation back in 2001 with the original Anti-Terrorism Act, [which] said it wouldn’t be a terrorist activity to interfere with critical infrastructure, so long as the interference was lawful advocacy or protest. A lot of people said, “Well, what about a wildcat strike, that’s not lawful? What about a street protest without the right municipal permit, that’s not lawful?” And the justice minister of the time, Anne McLellan, said, “We see this point, so we’re going to take ‘lawful’ out and we’re going to put in more careful qualifiers.” My concern at present is that we seem to be repeating history.

Q: Ray, if we are to improve oversight, what do you imagine that being? Is that more funding for the [government-appointed] Security Intelligence Review Committee (SIRC)? Is that a wider mandate for SIRC? Would you be happy with a committee of parliamentarians that had national security clearance to review the security agencies?

Boisvert: I wouldn’t have said it 10 years ago, because I felt I was exhausted by review, I guess partially, because we had so many security certificates going on. I had to testify at every one multiple times. At one point, I remember looking down the hall at a time when we had the Fowler-Guay kidnapping, we had Amanda Lindhout, plus a number of other very active and frightful domestic terrorism cases coming forward, and about one-third of my management team was somehow involved in review or preparing for security certificate cases. That’s a team I relied on to help supervise the cadre of officers running the counterterrorism branch; 86 per cent at its peak had less than two years of service. Talk about setting up for failure. Wonderful group to manage—bright, articulate, most of them with graduate degrees—but, given the complexities of the law [and] the expectations of Canadians, I relied on those supervisors to frame and help those young officers get through their day-to-day stuff without destroying the reputation of the service or the government, or having a government fall, or abusing the rights of individuals. So all of that to say: I was exhausted by review.

Now, at the end of the day, one comes with another. In the post-[Edward] Snowden era, there’s a heightened sensitivity by the public about these issues. I get that, and they deserve to be; you do need to tell people what you’re doing in that area. One excellent way to do that is through parliamentary briefings and parliamentary hearings. I think the American system, despite all its warts, is a great way to create a much more effective dialogue between the agencies and the public through their representatives. It also gives them an opportunity to raise the level of effectiveness of the legislative branch in having that constant dialogue.

Forcese: The first thing I would do is put in place the Arar commission’s recommendations. I would take our existing system, which involves SIRC, [and] I would remove the stove-piping so that SIRC had a mandate that was a lot more like the inspector general of Australia. Ray mentioned that the Australian service was the inspiration for CSIS, and their review functions are much broader and all-encompassing than ours. I would make sure that SIRC can follow the trail when it leaves CSIS. It can’t, at present, and SIRC has noted that in front of parliamentary committees repeatedly, and it was the focus of the Arar inquiry. I would also make sure SIRC is well-resourced. It has always been a snapshot, it always will be a snapshot, but the pixelation on the snapshot is becoming less and less precise, especially as the service increases its operational tempo and as we move now into a world in which the service may be doing more than simply surveying and conducting intelligence operations. So the body needs to be staffed-up much more robustly;; it needs more resources and it needs a broader remit.

I also think, though, that there is a role for an enhanced parliamentary body. The Australians have made this work: They have made expert review work with parliamentary review. I would echo Ray’s comments about it having the effect of enhancing competency within parliament on national security functions. I remain flabbergasted, when I compare the quality and depth of our parliamentary debate on national security-law issues with that that arises in, say, the United Kingdom, where some of their laws are even more dramatic than ours, but there is a vigorous debate, including in Parliament itself, which far exceeds in quality and quantity that which arises in Canada. I think, in part, that’s because parliamentarians are invested in national security matters that our Parliament is excluded from. I do not subscribe to the view that, by having a parliamentary committee, you create redundancy and additional red tape. As I say, the Australians have made this work and work successfully. More than that, we have to have some body that has what I call “pinnacle review.” So even with an expanded SIRC, SIRC is not going to see the entire universe of national security preoccupations. That’s the role for a special parliamentary body, so they can see the forest, while the expert bodies are focused on trees.