Trudeau’s security bill looks a lot like Harper’s

With its new national security legislation, Justin Trudeau’s Liberal government has pulled off quite a coup. It has kept some of the worst elements of former prime minister Stephen Harper’s widely discredited Bill C-51. But so far, it has managed to do so without creating much political flak.

When Public Safety Minister Ralph Goodale unveiled the draft legislation this past Tuesday, most attention was focused on new oversight bodies.

The proposed National Security and Intelligence Review Agency would monitor Canada’s many spy agencies. As well, two key agencies — the Canadian Security Intelligence Service and the Communications Security Establishment — would be required to obtain the OK of a new Intelligence Commissioner before undertaking some actions.

Many welcomed these new bodies. As a judicial inquiry into the imprisonment and torture of Maher Arar noted 11 years ago, oversight of Canada's spooks has been singularly inconsistent.

But what has been less remarked upon is the Liberal government’s decision to give CSIS agents extraordinary new policing powers.

In this, the Liberals are continuing along a path marked out by the previous Harper government. The Conservatives’ Bill C-51 authorized CSIS agents to break the law and even the Charter of Rights and Freedoms if necessary to neutralize security threats.

The only requirement was that the agency obtain a secret judicial warrant. The only constraint was that the illegal acts could not include inflicting bodily harm, obstructing justice or violating sexual integrity.

In their bill (which, to make matters confusing, is labelled C-59). The Liberals would modify this power in two ways.

First, they would give CSIS agents explicit authority to engage in certain kinds of illegal acts. These acts would be spelled out by the public safety minister but could not include bodily harm, obstruction of justice, torture, detaining a person or violating someone’s sexual integrity.

An agent wishing to engage in permitted illegal acts would need no judicial warrant.

The government says these new powers would merely replace a more general grant of immunity from criminal prosecution already present in law. But the new formulation, which echoes one granted to police officers, could also hasten the transformation of CSIS from a pure intelligence agency to an intelligence and enforcement agency.

Second, the Liberals would give CSIS agents the authority to break the law in a more serious way in order to disrupt perceived security threats. Like the Conservatives’ Bill C-51, the Liberal draft law would require CSIS to obtain a secret judicial warrant. Unlike C-51, the permitted law-breaking would be limited to seven areas, ranging from interfering with financial transactions to interfering with the movement of people.

As well, the law-breaking would have to be consistent with the charter of rights.

The Liberals never promised to axe Bill C-51. Indeed, in opposition they voted for it — with a promise to make amendments if elected.

Now, with Parliamentarians ready to head off for their three-month summer break, the Trudeau government has finally released its blueprint for national security. And it is strikingly reminiscent of Harper’s. Both would allow government agencies to pass on confidential information about individual Canadians to the security services. Both would beef up the power and authority of CSIS to undertake direct action.

That, in turn, would fundamentally undo the rationale for setting up CSIS in the first place, which was to separate intelligence collection from enforcement and curb the excesses of a too powerful security service.

The Liberal plan has more oversight — ranging from a committee of Parliamentarians to the new review bodies proposed by this bill. But as the British and Americans have found, oversight bodies can be co-opted or avoided.

When the Harper government introduced Bill C51 in 2015, it was a cause célébre. Critics attacked it root and branch. It dominated the news. Politically, it reinforced the view among Harper’s critics that he was an out-of-control authoritarian.

When the Trudeau government announced this week that, in effect, it was keeping the most contentious elements of C-51, there was little outcry. Even the British Columbia Civil Liberties Association was muted in its criticism.

Perhaps people don't care anymore. That's possible. Or perhaps it’s easier for centre-left governments to sell hard-right policies. That’s possible too.

Thomas Walkom writes on national affairs for Torstar Syndication Services