Security overhaul is the first step in right direction
For decades, the trend in Canada and much of the Western world has been to expand the powers of the security establishment without offering counterbalancing privacy protections or safeguards against abuse — and often without even establishing that these powers enhance our security.
In opposition, Justin Trudeau hawked a more balanced approach. His Liberals vowed on the campaign trail to improve the dismal oversight of our national security apparatus and rein in the rightsviolating elements of the Harper government’s draconian Bill C-51.
But these laws, often born first and foremost of fear, are always politically difficult to rescind. So it was perhaps unsurprising that the Trudeau government advanced with a maddening furtiveness on the file, launching a number of public consultations and waiting a year and half, until Tuesday, before finally tabling its legislation.
The result of all that time-biding and deliberation, Bill C-59, is, on first blush and on balance, rather good. It does not correct every aspect of Harper-era overreach, and it even introduces at least one troubling new security power, but as a whole it does quite a lot to rebalance a dangerously unbalanced regime. The government should be commended for this good-faith grappling with a fraught and difficult issue too often hijacked by crass political concerns.
If passed, the bill would significantly strengthen the oversight of our intelligence services. In particular, it heeds the long-standing call of security experts to establish a so-called super-watchdog to review the entirety of our sprawling intelligence apparatus.
Under the current system, security services are monitored by three meagre watchdogs, each strictly tethered to its own jurisdiction. As many critics have pointed out, they have neither the mandate nor the resources to hold our security agencies to account.
Moreover, certain organizations, such as the Canada Border Services Agency, fall within the jurisdiction of none of the existing watchdogs and escape scrutiny altogether. Fifteen people have died in CBSA custody since 2000, yet in the absence of any arm’s-length oversight citizens have remained largely in the dark about the circumstances of those deaths. The super-watchdog promises to put an end to this impunity.
This new body, in combination with the Parliamentary watchdog the Trudeau government established with previous legislation, promises to provide the sort of robust and integrated system of security oversight that Canada has for too long lacked.
Yet no amount of oversight could have addressed the profound substantive pitfalls of the Tories’ security laws. On this, the new legislation makes significant, if incomplete, progress.
For instance, C-51gave CSIS broad and rights-undermining powers to disrupt threats to national security without a warrant. The new legislation more narrowly defines what is permissible and requires that warrants be obtained to ensure any limits to rights and freedoms are reasonable and justified.
C-51 criminalized the “promoting” of terrorism, a provision that seemed to violate speech rights. The new legislation significantly narrows the ban and reduces the penalties for those who violate it.
The Tories also made it much easier to arrest someone suspected of a terrorism offence and subject them to a peace bond that could restrict their movement and activities. The new legislation requires that the Crown prove that a peace bond would be “necessary” to prevent a terrorist act, not merely “likely.”
While the legislation doesn’t rescind the additional powers granted by C-51, it significantly and rightly constrains them. It clearly takes seriously Charter compliance in a way the Tories did not.
Still, on a number of important issues, Bill C-59 appears to fall short. For instance, the existing law permits a highly invasive and indiscriminate approach to the gathering and inter-departmental sharing of information — an approach deemed “clearly excessive” by the privacy commissioner. The new legislation merely tweaks these rules. More should have been done to ensure our security laws do not abrogate the protections guaranteed under the Privacy Act.
Troubling, too, is that C-59 will give CSIS the power to store and analyze information, which has been incidentally obtained in the course of its investigations, on Canadians suspected of no wrongdoing. Last year, a federal court ruled that the spy agency was not allowed to keep and analyze such so-called datasets, but recognized that the law, written for a pre-digital world, was far from clear on the issue.
C-59 seeks to offer legal clarity and establish a new intelligence commissioner, who would be given the authority to review and approve ministerial decisions regarding data retention and sharing. The clarity and oversight are welcome, though it would have been better to make this information off-limits to the state, as it is in many other jurisdictions.
This a large and complex piece of legislation. Many details must still be debated and much work must still be done, especially around managing datasets and protecting privacy. But unlike in the case of the Tories’ dangerously overreaching approach, this legislation moves us in the right direction. It is an important first step in a necessary rebalancing.
The government should be commended for this good-faith grappling with a fraught and difficult issue too often hijacked by crass political concerns