Bill C-51 gets global scrutiny
OTTAWA — The government’s maligned security legislation is gaining international scrutiny, in part for sanctioning Canadian spies to undertake offensive actions in other countries and for empowering Canadian judges to authorize those agents to break the laws of foreign nations.
The explicit direction to ignore the statutes of sovereign states was highlighted in an online New York Times op-ed article Wednesday by Canadian legal scholars Craig Forcese and Kent Roach, whom the newspaper invited to write. They are to testify Thursday before a Commons committee studying the proposed Bill C-51.
“If foreign governments have thus far eschewed commenting publicly on the proposed legislation, two features should stand out for the international community. Bill C-51 would permit CSIS (the Canadian Security Intelligence Service) interventions beyond Canada’s borders,” they write in their critical overview of C-51. “And it would even empower Canadian courts to authorize CSIS conduct that violates ‘any other law, including that of any foreign state.’ ”
They go on to call the proposed legislation “a highly politicized response in a parliamentary election year to the October terrorist attacks in Ottawa.”
Under C-51, the CSIS mandate dramatically expands from its current intelligence-collection-only role to actively reducing and disrupting threats to national security, whether in Canada or globally. If those disruption activities are illegal or unconstitutional in Canada, CSIS will require a judicial warrant.
However, “where international operations are concerned ... there would be little judicial oversight of CSIS activities abroad.”
Another piece of legislation before the Senate, Bill C-44, which amends the CSIS Act, also would allow Federal Court judges to “without regard to any other law, including that of any foreign state ... authorize activities outside of Canada to enable the service to investigate a threat to the security of Canada.” Those instances, however, are limited to traditional intelligence-gathering, which is done, usually covertly, by intelligence services the world over.
What’s unusual is the two provisions explicitly enshrine in national legislation what amounts to a declaration that Canada can — and may — break the laws of other nations. Experts are unclear whether the national security laws of other nations go so far.
Forcese and Roach conclude on an ominous note: “Ahead of the 2006 federal elections, Conservatives ran on a platform of building a true foreign intelligence service. Instead of doing so, the party’s political leadership is now attempting to reshape a domestically focused security agency into one with enhanced foreign powers. Only partially overseen by judges and even less accountable to national review bodies, it would be authorized to act beyond the law both at home and abroad.
“What could go wrong?”