The government yesterday introduced Bill C-44, the Protection of Canada from Terrorists Act. While some were expecting significant new surveillance, decreased warrant thresholds, and detention measures, this bill is a response to several court decisions, not to the attacks last week in Ottawa and Quebec. A second bill – which might use the U.K. legislative response to terror attacks as a model – is a future possibility, but policy decisions, cabinet approval, legal drafting, and constitutional reviews take time.
Bill C-44, which was to have been tabled on the day of the Ottawa attack, responds to two key issues involving CSIS, Canada’s domestic intelligence agency. The first involves a federal court case from late last year in which Justice Richard Mosley, a federal court judge, issued a stinging rebuke to Canada’s intelligence agencies (CSEC and CSIS) and the Justice Department, ruling that they misled the court when they applied for warrants to permit the interception of electronic communications. Mosley’s concern stemmed from warrants involving two individuals that were issued in 2009 permitting the interception of communications both in Canada and abroad using Canadian equipment. At the time, the Canadian intelligence agencies did not disclose that they might ask their foreign counterparts (namely the “five eyes” partners in the U.S., U.K., Australia, and New Zealand) to intercept the foreign communications.
The federal government appealed the ruling, but the appellate court decision has not been publicly revealed. It seems likely that the government lost, since Bill C-44 seeks address the issue by removing territorial restrictions on CSIS. The bill includes clauses that state that CSIS may conduct investigations within or outside Canada and seek a warrant to allow for foreign investigations. Moreover, it opens the door to warrants that apply outside the country regardless of the law in Canada or elsewhere. It provides:
Without regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada.
That is remarkably broad provision as it allows the federal court to issue warrants that violate the laws of other countries, including foreign privacy laws.
The second issue involves the anonymity of CSIS human sources. Earlier this year, the Supreme Court of Canada confirmed that CSIS human sources are not protected by class privilege. That decision upheld an earlier Federal Court of Appeal decision which arrived at a similar conclusion. The case stemmed from a 2008 security certificate naming Mohamed Harkat as a person inadmissable to Canada on national security grounds. Bill C-44 reverses the court rulings by granting anonymity to CSIS sources (though it adds a limitation where disclosure “is essential to establish the accused’s innonence”).
Bill C-44 may reverse the courts on both issues, but what it does not do is address ongoing concerns regarding the accountability and transparency of Canada’s security intelligence agencies. Indeed, the Mosley case in particular raised troubling questions about the adequacy of oversight over Canada’s surveillance activities. Rather than address those concerns, the government has instead simply reversed the court rulings through legislative reform, leaving the current inadequate oversight system untouched.