Don’t mess with Bill C-51, O’Toole warns Liberals

It would be a serious mistake for the Liberals to tamper with the security service’s new power to actively disrupt threats to national security, Tory public safety critic Erin O’Toole said Friday as documents surfaced offering a glimpse of the spy agency’s plan to safeguard the power from abuse.

“In this environment of radicalized people, this is exactly why the disruption power is so important. Intelligence agencies could intervene over time as these risks potentially develop,” he said.

His comments come as the Liberal government prepares to launch public consultations on the creation of what it calls a new national security framework. Details remain vague, but it appears to be the centrepiece of the government’s promised overhaul of the “problematic elements” of the controversial Bill C-51 national security law enacted by the Conservative government in June 2015.

One of the most dramatic provisions of what’s now known as the Anti-terrorism Act of 2015, gives the Canadian Security Intelligence Service (CSIS) the power to carry out “threat reduction activities” (TRA) against suspected breaches of national security.

If those activities could break the law or violate Charter of Rights and Freedoms rights, the agency must get a Federal Court warrant authorizing the operation and granting it impunity for law-breaking in the name of national security.

The TRA provision has fundamentally changed the agency’s role from strict intelligence gathering to a more kinetic posture, able to “take reasonable and proportional measures,” to physically obstruct suspected threats and plots, in Canada or globally.

This spring, the service revealed it had used TRAs about two dozen times since the fall of 2015. None involved breaking the law.

In opposition, the Liberals voted for C-51 but promised to repeal some provisions if elected. They expanded on that during last fall’s election campaign by promising to scrap CSIS’s law-breaking TRA power.

However, they have said nothing about their intentions for TRA powers that don’t breach laws.

CSIS was created in 1984, replacing the disgraced and disbanded RCMP Security Service after revelations of illegal activities targeting suspected Front de libération du Québec extremists and possible radicals infiltrating the Parti Québécois.

As a result, CSIS’s prime mandate had been limited to collecting, analyzing and reporting security intelligence to government and allies. The new threat reduction mandate puts it on an operational footing much closer to that of the old security service. And that worries some in the intelligence community.

Security experts say the range of measures likely to be used include sabotaging or taking down jihadist websites and interfering with suspects’ travel plans or banking.

CSIS has said the two dozen TRAs it reported involved “overt” interviews with suspects to let them known they were being watched and “engaging” with their families, friends and community leaders.

CSIS briefing notes prepared for Public Safety Minister Ralph Goodale, obtained under access to information law, portray the service as taking a cautious approach to using TRA powers.

“The service worked closely with Justice Canada to develop a robust governance framework, ensuring that legislative requirements are met each time the service exercises to reduce a threat to the security of Canada,” said one note prepared for the new government in October.

“Supporting operational policies and procedures have been developed to provide employees with clear guidance and direction.”

A separate internal CSIS memo says the service “must show reasonable grounds to believe that an activity is a threat before engaging in any TRA, rather than reasonable grounds to suspect where the purpose of the activity is simply to collect (intelligence) information.”

It concluded: “The service must have a comprehensive understanding of what constitutes reduction activities versus collection activities in order to determine when the higher threshold must be met, and conversely, a way of evaluating the reduction measures in order to assess proportionality.”

O’Toole said the Liberals, “couldn’t possibly suggest they’re going to back track,” on giving CSIS non- warranted TRA power.

He noted police are routinely granted court warrants to search and seize property, install communications wiretaps and surveillance bugs, and other measures that are otherwise illegal.

“Giving our security agency the ability to ask for similar rights is really a modest updating of powers to reflect the modern environment (and) is critical,” he added.