The Fifth Eye by Dustin Ginetz (CC BY-NC-SA 2.0)

The Fifth Eye by Dustin Ginetz (CC BY-NC-SA 2.0)


Canada’s New “Anti-Terrorism” Bill: Responding to the Courts, Not the Attacks

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.


  1. Cool! “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”.

    Hi. your Honour, my name is Joe-the-Canadian Bond, CSIS number 007, can I get a warrant to kill Ernst Stavro Bowfly, please?

  2. The only real terrorist in the world is the American government.

    Why does the Canadian taxpayer have to support all the James Bond wanna be’s ?

  3. Pingback: Editorial: Balancing security and liberty | Montreal Gazette


    no complaining, it’s illegal
    no watching, we’ll lock you up.
    no comment.

  5. This is a long show. It is in 2 parts… but if you missed it…

    If you are short for time, watch Part 2. Pay attention to the details of AT&T tapping the internet backbone from the room that has no door handle.

  6. Michael Heroux says:


    Michael Heroux said

    The terrorist that attacked parliment was known to alot of people on the downtown eastside. My family and I walk downtown east hastings all the time and we have seen him quite a few times walking around talking to himself and yelling about people pissing him off about one thing or another. I seen people trying to rile him up on purpose. I remember one night last year when I took my wife out dancing at the Cellar night club on Granville street downtown Vancouver. A stanger that night which we think was one of the intelligence agents that was following us around tried to get my wife and I to go to the irish pub just above the Cellar night club but we would not go there because the bar didn’t have dancing or top 20 hip hop or R@B so we would not go in but when we were standing out front of the irish pub we saw the terrorist run out of the pub and he was yelling at the door men that worked there because they were harrassing him just like they used to do with us. We knew what was going on because it is the same thing that has been going on with us for the last 5 years. We did not know it at the time but we read he came to BC in 2009 just like we did after the agents told us to. I remember reading about the terrorist attack in Quebec and they said Canadian intelligence was at the terrorists house talking to him on October 9 before the attacks. Two intelligence agents came to my home on October the 9th also and they were knocking on the door but we didn’t want to be harrassed anymore so we didn’t answer the door but they stayed out there for a long time pointing up at our security camera wondering why we wouldn’t answer the door. We are not sure what they are up to now but the intelligence agents that were living in the apartment below us moved out the other day and they took some heavy electronic equipment with them. They got our landlord to help them carry it out for them. Something else that we think is strange is our new landlord that let the agents move in below us will not come back to get his rent money from us. He is afraid for some reason to come here and collect his rent money now. We met our new landlord through craigslist also. What a coincidence. Thanks for reading. Follow the money.

  7. Covert Geoengineering says:

    These were pulled from a wall a few years back. Does previous or proposed legislation provide for the installation of optical and EM harassment devices in a private home by Canadian officials and are these attempts at trace-less domestic torture now legal? How many Canadians have this ‘monitoring’ technology installed in their residences/workplaces and is there judicial oversight of this class of ‘surveillance’? Can’t believe any Canadian judge with full knowledge would authorize this on a citizen.