BILL C-59 AND THE FORMER BILL C-22: COMPROMISED OVERSIGHT AND CONTINUING THREATS TO NON-DEROGABLE RIGHTS.

Author:Alford, Ryan
Position:Canada - Forum: Rights in Times of Challenge
 
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Abstract

This article assesses the context and content of Bill C-59's proposed revisions to the Anti-terrorism Act, 2015 (the former Bill C-51), which created a controversial warrant-based regime for authorizing CSIS activity that would otherwise violate the Charter. These amendments have been introduced in Parliament and are currently being debated in the House of Commons. Bill C-59, the product of a fatally-flawed public consultation process, addresses the possibility that this warrant regime might lead to serious abuses in two ways. First, it creates an oversight body (the National Security Intelligence Review Agency), which will supervise these warrant applications and other activities undertaken by the Canadian Security Intelligence Service ("CSIS" or "the Service") and advise the National Security and Intelligence Committee of Parliamentarians (created by the former Bill C-22). Second, it specifies in further detail what the warrants can and cannot authorize.

This article demonstrates that these revisions are not sufficient; they respond to an inadequate assessment of the problems with Bill C-51. Its ambition to balance expanded powers with increased accountability is the product of a consultation process that was overborne by political concerns. The new oversight bodies to be created lack sufficient powers to be effective, and they are as likely to be influenced by executive interference as those which they replace. The powers retained by CSIS, although trimmed, still give the Service the power to violate non-derogable rights in a future major public order emergency.

In particular, the new restrictions on this warrant regime leave open the possibility of the authorization of incommunicado detention. This would constitute enforced or involuntary disappearance, a practice of arbitrary detention that places a suspect outside of the protections of the law that are safeguarded by access to counsel. As this violates rights that are inviolable in any emergency, however serious, this cannot be justified by reference to the balancing of rights or by means of enhanced accountability, even if the oversight regime created by Bill C-22 was not seriously deficient.

Introduction

Bill C-59 (2) introduces certain amendments to Bill C-51, passed under the title of the Anti-terrorism Act, 2015 (the "Act"). (3) Bill C-51 was the most controversial piece of legislation of the new century. In addition to prompting widespread protests, (4) it was the subject of an open letter signed by over one hundred law professors, (5) as well as a joint statement by five former Supreme Court justices, seven former solicitors general and ministers of justice, three past members of the Intelligence Review Committee, and two former privacy commissioners, (6) each of whom called for substantial amendments or the bill's withdrawal. The Act remained exceptionally controversial after its enactment, both internationally and domestically. During the 2015 federal election campaign, the provisions of the Act were a leading topic of the leadership debates. The Liberal caucus whipped the vote in favour of Bill C-51, which had been necessary for the passage of the Act, as the Harper Government was in the minority. Justin Trudeau, then leader of the Liberal party, argued that "we made a call that we were going to support the bill [but] push to have it amended" by a Liberal Government. (7) These long-awaited amendments are now before Parliament. The most criticized section of the Act pertained to the enlargement of CSIS's powers.

"Part 4 of Bill C-51 amends section 12 of the CSIS Act to allow the Service to undertake measures, both within Canada and outside, to reduce activities that constitute a threat to the security of Canada. These measures are referred to in this document as 'disruption activities or operations.'" (8) The Act created a warrant-based regime for the authorization of what would otherwise (it is argued) (9) violate a suspect's rights under the Canadian Charter of Rights and Freedoms ("the Charter"). (10)

These and other provisions were the subject of two consultation processes addressing Canada's national security framework: one undertaken by the House of Commons Standing Committee on Public Safety and National Security, (11) the other being the Government's own. (12) These consultations produced disparate recommendations. The parliamentary response rejected the notion of balancing rights against the government's interest in promoting national security:

The Committee recognizes that the responsibility bestowed upon a government to counter terrorism-threats and ensure the safety and security of individuals is a vital issue. The Committee is of the opinion that the measures taken to address these threats should respect the constitutionally protected rights and freedoms of Canadians. The "two responsibilities do not compete with each other, they are one and the same." (13) Bill C-59 purports to strike the balance that the Government advocated prior to and during its consultation process, about which Parliament remained dubious. Rather than abolishing CSIS's controversial "disruption powers" as the House of Commons Standing Committee on Public Safety and National Security recommended, the Bill narrows these powers by creating a set of presumptively permissible "disruptions" that will be approved under a new oversight regime that would purport to monitor (and, by extension, to prevent) the abuse of these powers.

This article will demonstrate that this approach to the problems introduced by the former Bill C-51 is ill-conceived and inadequate. Part I will demonstrate that the consultation process which preceded the framing of Bill C-59 was flawed and wholly inferior to those conducted within Parliament. It was a Potemkin process designed to produce conclusions that accorded with a preconceived approach to reform. Part II will show that the Government's focus on balancing the retention of kinetic powers with greater oversight is predicated on a faulty premise: the reforms that purport to create more accountability will only create bodies that are likely to be ineffective and incapable of restraining abuses at CSIS and other intelligence agencies. Parliament failed to implement reforms that would give any weight to constitutional rights, and instead chose to rely on pat reassurances about the amelioration of what is by now a badly compromised intelligence oversight apparatus, which Bill C-59 stripped of all remaining independence, even the final fail-safe of parliamentary privilege. Part III will demonstrate that the decision to retain these powers is particularly dangerous. Even after the introduction of new restrictions, warrants could still be obtained that would authorize restrictions on the communications of suspects already subjected to preventative detention under other provisions of the former Bill C-51 that were untouched by Bill C-59.

The conclusions that follow are troubling. A warrant that would authorize the "disruption" of a suspect's communications with their lawyer, if this suspect was already being held in preventative detention (under the Criminal Code's provisions for warrantless preventive arrest of terrorism suspects, as expanded by Bill C-51, which are found in section 83.3 of the Code) would transform that custody into an enforced or involuntary disappearance. This authorization would allow for the violation of non-derogable norms that are integral to the rule of law. When this possibility is considered in the context of the inevitable and endemic breakdown of restraints on executive authority during emergencies--as demonstrated by Canadian history and elsewhere more recently--this should be considered foreseeable misuse of the legislation. Accordingly, if Bill C-59 becomes law, Canada's system of emergency powers and intelligence oversight will still be grossly deficient when judged against international standards and its own basic constitutional norms.

Bill C-59 is also evidence of a continuing failure to explicitly acknowledge the existence of a set of rights, well defined in international law, that can never be violated, no matter how serious the national emergency. This increases the possibility that non-derogable rights will be violated in Canada after the next large-scale terrorist attack, and, what is worse, that these will be authorized by warrants permitting the infringement of the right to counsel of a suspect already subjected to preventative detention. This is a threat to the rule of law that should have been identified and addressed explicitly when the legislation was debated. Rather than being reassured by Bill C-59's amendments to the CSIS Act, scholars and the engaged public should be alarmed by its failure to address a serious threat to the rule of law in Canada's next major public order emergency.

  1. The Consultations on Canada's National Security Framework

    In September of 2016, the Government inaugurated its "Consultation on National Security", which it later claimed was "instrumental in the development of Bill C-59, the proposed legislation to update Canada's national security framework." (14) However, this much-derided consultation process presented every appearance of proceeding inevitably towards a predetermined conclusion, namely a set of amendments that would not affect the fundamental structure of the Act, or even the process that the government admitted was the most controversial and, to the public, the most troubling: the amendments to the CSIS Act that created a warrant to violate the Charter rights of terrorism suspects. (15) A comparison of this consultation process and its outcome to those of the House Standing Committee on Public Safety and National Security reveals how the politicization of the reform of Canada's national security framework led to a flawed and inadequate set of amendments to the former Bill C-51.

    1. The Government's Consultation: Balance as Leitmotif

      The...

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