Spy culture hasn’t come home to roost
Fears of CSIS encroachment unfounded: study
Remember how t he Conservative antiterror legislation was going to usher in a new era of omnipresent government surveillance?
Well, it hasn’t happened — at least not according to the scraps of information that are publicly available.
The latest figures made available were on electronic surveillance, released by the Department of Public Safety.
As part of the anti- terror bill, it became a crime to “knowingly” advocate or promote the commission of a terrorism offence.
Critics cl aimed t here would be a rash of wiretap authorizations, as police sought to crack down on speech crimes.
But the numbers for 2015 suggest there were precisely two cases where the authorities were given authorization to listen in on people suspected of promoting terrorism.
We don’t know how many prosecutions resulted from the authorizations but it’s a good bet there were none. For one thing, prosecutors would be aware that they would be guaranteed to face a constitutional challenge — many of the critics of Bill C- 51 suggest that the defin- ition of “the commission of terrorism offences in general” was too broad, and therefore unconstitutional.
For another, the maximum penalty on conviction was five years in jail, hardly worth the effort for busy prosecutors.
The speech- crime provision was not the only part of C- 51 that constitutional scholars believed would never pass muster if challenged.
CSIS, Canada’s spy agency, was given wide- ranging powers to disrupt suspected terrorist plots, rather than just gathering information about them.
The new law gave CSIS the power to ask judges to approve warrants, even if its preventive measures breached rights or freedoms otherwise protected by law.
As critics Craig Forcese and Kent Roach have made clear, the law risked making judges “enablers of illegality.”
Yet here again, it appears the security forces have not used their new powers.
When he was before a Senate committee l ast March, CSIS chief Michel Coulombe said the agency had used the disruption powers nearly two dozen times but had not sought ju- dicial approval in any of the cases. Rather, the disruption powers were more benign — for example, talking to family, friends and community leaders close to the person suspected of being at risk of radicalization.
What t o make of t he information probably depends on whether you bel i eve CSIS is employing rat- like cunning to lull Canadians into a false sense of security. Coulombe admitted that his agency didn’t i mmediately use i ts new tools, spending months developing policy protocols and training.
But what it suggests is that if the powers granted under C- 51 were curtailed, our spy agency would scarcely miss them.
The Liberals are currently reviewing Canada’s national security laws. They have promised to repeal “problematic elements” of the legislation, and amending what Forcese and Roach call the “outer limits” to the speech- crime and threat-disruption provisions would seem to be a reasonable compromise between preserving freedoms and protecting Canadians.
The two academics would prefer to see the speech-- crime provision repealed. Failing that, they call for the wording to be amended to more clearly define terrorist offences, replacing “knowingly” with “wilfully,” an important distinction that would indicate the speaker intended that a terrorism offence be committed as a result of the speech.
On t hreat disruption, Forcese and Roach call for an amendment to the CSIS Act that would remove any reference to the Charter being contravened, thus removing the need to seek judicial warrants. The act already limits CSIS from any action that could cause “bodily harm, obstruction of justice or violation of sexual integrity.” The academics propose that “detention of persons” be added to the list of proscribed actions.
That there has not been a rash of speech- crime prosecutions or judicial warrants that trample over rights and freedoms does not mean there never will be. It’s human nature to use the tools at your disposal. The government should remove that temptation before it takes hold.
That need not mean removing CSIS’s ability to engage in low- level threat disruption. According to Coulombe, those powers have been used and proven timely in reducing threats.
But the ability to engage in covert conduct that results in Charter rights being breached, not to mention the capacity to launch investigations in parallel to the RCMP, is neither constitutional nor an efficient use of resources.
By most accounts, the main reason the U. K. has foiled 40 major terror plots since the 7/ 7 outrage is the improved co- ordination of the MI5 secret service and other law enforcement agencies.
The Liberals have said they will consult on a national security review until December and then act. The competing discourses of freedom of expression and security demand a fine balance.
But who could complain about the rolling back of provisions that have never been used?