Experts wary about boost in legal powers for CSIS
OTTAWA — The federal government will face intense scrutiny — perhaps even a constitutional challenge — when it introduces legislation to give its spies more legal powers, say experts on the work of the Canadian Security Intelligence Service.
Public Safety Minister Steven Blaney Thursday announced that amendments will come as early as next week to the act governing CSIS, the country’s spy agency.
“We cannot be complacent in the face of terrorism,” said Blaney, who was meeting his provincial counterparts in Banff.
“We are firmly committed to take action against the threat of individuals who become radicalized.”
Blaney said the government will amend the CSIS Act in two ways.
One measure would let CSIS work more closely with its allies in the “Five Eyes” spy network, which is made up of Canada, the United States, the United Kingdom, Australia and New Zealand. This would allow CSIS to obtain information from the others on Canadians fighting abroad with terror groups, and would allow it to help another Five Eyes country track its nationals working with terror groups in Canada.
A second measure would give CSIS informants the same anonymity that already exists for police sources, who are not subject to crossexamination and can have their identities hidden, even from trial judges.
“What we’re trying to do is give our sources a class privilege akin to that of law enforcement,” said Andy Ellis, CSIS’s assistant director of operations, citing a “chilling effect” on informants without such protections.
“They’re going to have to be fairly careful in how they draft this,” said Craig Forcese, associate professor of law at the University of Ottawa. “The devil’s in the details in terms of what’s in the bill.”
Both changes come as courts have slammed CSIS’s approach to investigations.
Last year, a federal court judge said Five Eyes warrants were being used as a backdoor way to spy on Canadians, putting them at risk of being detained abroad.
“If you throw some info over the fence, the allies can do whatever they want,” said Forcese, expressing concern over cases like that of Maher Arar, a Syrian Canadian detained and deported to Syria while in the United States. Arar was tortured during his imprisonment in Syria but later completely exonerated in Canada from any links to terrorism.
The Supreme Court of Canada ruled in May that CSIS informants already have sufficient protection, with their anonymity decided on a caseby-case basis.
Intelligence expert Wesley Wark served as an expert witness in that case, in which CSIS revealed one source had failed lie-detector tests. He said not allowing informants to be cross-examined in secret trials would be “very problematic.”
“The court said (informants) need more protection, but not blanket protection. Why are they going to ignore that ruling and introduce something into legislation?” said Wark, adding that he’s never heard of a CSIS informant’s identity being publicly revealed since the agency’s creation in 1984.
CSIS officials say more than 130 Canadians have travelled abroad to engage in terror-related activities, while 80 have returned to Canada.