Five questions MPs must ask about Bill C-59
This week, the government is expected to send Bill C-59, their massive new set of national security reforms, to committee before second reading. This is an unprecedented opportunity to fix Canada’s national security framework.
Public Safety Minister Ralph Goodale has stated that the government has taken this step to “allow for a broader scope of discussion and consideration, and possible amendment of the bill in the committee when that deliberation begins.” In other words, change is possible. This is good news because there are definitely things about C-59 that need to change.
This government campaigned on an election promise to correct the unconstitutional and problematic aspects of Bill C-51, the former government’s notorious anti-terrorism bill. As the Canadian Civil Liberties Association and 40 other organizations wrote in an open letter to the government this September, while Bill C-59 fixes certain issues created by C-51, it fails to fix others and creates a host of new problems. Here are some questions we hope parliamentarians and Canadians will ask as this bill undergoes review. 1. Why isn’t the no-fly list being fixed?
As it stands, the Passenger Protect Program (a.k.a. the government’s “no-fly list”) is broken and unconstitutional. It’s too easy for innocent people to be put on the list, it’s too difficult to get off, and proposed redress mechanisms remain underfunded and inadequate. A flawed system fails to take basic measures to reduce false positives, which arbitrarily impact the rights of adults and children, rendering its security value questionable. Bill C-59 introduces cosmetic changes, but doesn’t solve these larger problems. 2. Why haven’t the due process flaws in the security certificate process been addressed?
Security certificates are a problematic mechanism that can be used in some circumstances to detain and deport foreign individuals from Canada. In these secretive legal proceedings, named individuals have a right to a special advocate, an independent, securitycleared lawyer able to review secret evidence and advocate on their behalf. Bill C-51 exacerbated longstanding issues with the security certificate system by permitting the government to selectively withhold information, even from special advocates. Despite clear direction from the Supreme Court on the need for due process in security certificate proceedings, the lack of full disclosure — and other important civil liberties issues — has not been addressed in Bill C-59. Why not? 3. What is the justification for maintaining controversial “threat reduction” powers for CSIS?
Bill C-51had introduced “threat reduction” (or “disruption”) powers for the Canadian Security Intelligence Service (CSIS), allowing the spy agency to respond to security threats by engaging in covert measures that may be illegal or even violate the Charter of Rights and Freedoms — from impersonating journalists to taking down communications platforms. Not only was this unconstitutional, but it undid the longstanding separation between intelligence and law enforcement, a key distinction introduced in the 1970s to end the serious abuses that took place when these roles were combined. While C-59 may constrain and soften the “disruption” powers, it fails to address the real question: why does CSIS need this power in the first place? 4. What are the human rights implications of giving the CSE unchecked hacking powers?
Bill C-59 creates a new Act for the CSE, Canada’s signals intelligence and cybersecurity agency, and explicitly expands CSE’s mandate to include both “active” and “defensive” cyber operations. In other words, the bill grants CSE the power to conduct secret, state-sponsored hacking, with few hard limits on how far they can go. As we’ve seen abroad, these kinds of powers are ripe for abuse and may provide a green light for spy agencies to interfere with rightsprotecting communication technologies. This is a step backwards for security, both at home and abroad. Have we actually thought this through? 5. Why do exceptions allow CSIS and CSE to engage in mass collection of Canadian data?
Canada’s intelligence agencies are generally prevented from “directing” mass data collection activities at Canadians and people in Canada. Yet Bill C-59 creates expansive new frameworks for mass data collection with exceptions that let both CSE and CSIS collect and use information about Canadians and others in Canada as long as that data is “publicly available.” This sweeping exception includes anything ever published or publicly broadcast, anything that can be accessed by the public and anything that can be acquired on request, by subscription or by purchase. Such an expansive definition could plausibly include information purchased on the black market, including data acquired through hacking and breaches. There has been no convincing explanation from government about how this kind of mass collection could be necessary or proportionate. With all these activities conducted in secret, how does the government credibly plan to protect our privacy rights?
National security is critical, and there is a great deal at stake. We hope these questions will help spark the kind of debate our representatives need to have.