The Government of Canada recently tabled Bill C-44, the Protection of Canada from Terrorists Act, in response to a series of court defeats concerning how the Canadian Intelligence and Security Service (CSIS) collects intelligence about Canadian residents. The federal courts took CSIS to task after Justice Richard Mosley realized that warrants issued to CSIS, which enabled CSIS to collaborate with Canada’s foreign signal intelligence agency to monitor Canadians abroad, were also being used to enlist the assistance of other nations’ signals intelligence agencies. In addition to the warrants not being issued with such foreign collaboration in mind there was — and remains — a judicial belief that CSIS’ lawyers deliberately misled the court when requesting the warrants.
The tabled legislation would not alleviate the ruling that CSIS lawyers misled the court. It would, however, authorize CSIS to apply for warrants which authorize the service to monitor Canadians abroad even if doing so would violate the laws of foreign nations. Moreover, CSIS would be empowered to request the assistance of foreign organizations in monitoring the aforementioned Canadians. The Act would also provide the government the power to prevent courts from publicly examining informants as well as to revoke citizenship under certain situations. Finally, the legislation further clarifies (and arguably extends) prohibitions on revealing the identity of CSIS officers.
A host of academics and lawyers have examined and critiqued the legislation thus far. In summary, they have raised the following concerns:
- There is a question about which conditions must pertain for the Charter to apply overseas. If s.8 doesn’t reach beyond Canada’s geographic borders then it’s unclear whether CSIS requires a warrant to intercept private communications abroad;
- There are questions of how the existing laws are being used and whether the proposed new powers are needed in the first place;
- It is uncertain how the privilege for CSIS sources will play out in security-certificate and immigration cases, where there are no exemptions for protecting sources;
- It is possible that source protection could be detrimental to prosecuting terrorism-related cases in Canadian courts.
In addition to these concerns, many public commentators have argued that the proposed legislation should be designed to enhance oversight and review of CSIS’ activities. The current review mechanism, the Security Intelligence Review Committee (SIRC), has been woefully neglected by the Government of Canada for some time. It currently only has three of five committee members, with one past Chair fighting extradition to Canada and another having resigned from the Committee after the press realized he was a registered lobbyist. Moreover, SIRC’s recent report indicates that CSIS is sometimes resistant to cooperating with its Review Committee.
In principle I agree that further review and oversight is required of Canada’s security, intelligence, and law enforcement agencies. In the case of CSIS and Canada’s signals intelligence agency, demonstrating that they are only monitoring Canadians in legally authorized ways and that collected information is subject to strict limitations of access and use gives Canadians reason to trust the agencies. Moreover, by including political review of these agencies it would be possible to remediate activities before they unnecessarily infringe on Charter rights and freedoms or cause Canada to violate its human rights obligations.
Establishing such review and oversight processes are unlikely given the current political climate in Ottawa. Perhaps more modestly, Bill C-44 could be amended to include a statutory reporting requirement. Specifically, CSIS could be required to provide yearly reports that detail its request for, and use of, its new warrant powers to monitor Canadians abroad, to work with foreign partners, and to violate foreign laws. In addition to reporting on the Service’s use of these powers another amendment could fill an existing reporting gap at the same time: the Service could be required to provide yearly reports on its access to Call Detail Records (CDRs) and subscriber data. While CSIS presumably avails itself of these kinds of records, today, there are no statutory requirements for the Service (or any other government agency) to record and report how often it requests, and receives, access to such data either under emergency circumstances, by warrant, or by using other statutory instruments.
Such statutory reporting is important because it would reveal the regularity at which some of the most invasive kinds of surveillance are actually used by state agencies in the course of their operations. And it would reveal the face of contemporary surveillance to Canadians: do wiretaps still reign supreme (answer: no) or do other techniques (answer: yes). And, with aggregated data on the public record a real debate about the extent of contemporary surveillance could take place that is based on evidence and not rhetoric, concern, fear, or guesswork.
Each year the federal government and provinces are required to table reports on how often private communications are intercepted and such reports do not impair government agencies’ abilities to monitor private communications. The reports do, however, show Canadians the rationales for such surveillance, the utility of the surveillance, and the number of Canadians affected by the surveillance each year. The creation of similar reports that addressed foreign monitoring, call detail records, and access to subscriber records could alleviate Canadians’ concerns similar to how wiretap reports alleviate worries that wiretaps are used excessively and inappropriately. Moreover, expanded statutory reporting would let citizens or parliamentarians raise concerns if, suddenly, there were unexplainable increases of the surveillance powers.
Statutory reporting adds cost to the government’s surveillance practices but all efforts to ensure that the government is acting appropriately bear some cost. And given that currently tabled legislation would significantly increase the legal tools available to CSIS (and, presumably, require increasing CSIS’ budgets so the Service could take advantage of the powers) it makes sense to establish measures to gauge how widely used, and how important, these powers are to the Service’s operations. And while increasing oversight bodies could be expensive the costs of statutory reporting would be comparatively minimal.
It is imperative that the Canadian public trust that CSIS is not acting in a lawless manner. And while improving how SIRC functions, or adding Parliamentary review, could regain or maintain that trust, a more cost-sensitive approach could involve statutory reporting. Regardless, something must be done to ensure that CSIS’ actions remain fully accountable to the public, especially given the new powers the Service may soon enjoy. Doing anything less would irresponsibly expand the state’s surveillance capabilities and threaten to dilute the public’s trust in its intelligence and security service.