Screen

• Author: Craig Forcese/Leah West
• Pages: 555-576

555

CHA PTER 13

SCR EEN

The “end” in any national security investigation is a prevented threat.

In keeping, however, with the themes of this book, steps t aken to

avert a threat must be lawful, proportionate to the threat, necessary in

the context, and designed to be eective and ecient. Meeting these

standards requires reasonable laws. In this part, we focus on the legal

authorities permitting Canadian state action in response to threat s. It

is common to stovepipe these tools by agency and discu ss the powers

of each body. We believe this tendency perilous in an overly siloed

world. Our approach is instead to organize tools accordi ng to a rough

hierarchy, ranked by the degree of coercion the law perm its. We have

organized thi s section to bring the reader up a “response e scalator,”

running from security screening to lawf ul killing.

In this chapter, we discus s the tools of interdiction or, as we call

it, “screening.” For our purposes, screening means intercepting and

limiting the acces s of a threat actor to sensitive information, places,

or conveyances. Screening comes in several form s: security screen-

ing of government personnel or private sector employees in sensitive

sectors; security screening of non-Canadians to prevent security risks

from entering or remaini ng in Canada; and the list ing of persons con-

stituting a securit y risk to control their access to sensitive modes of

transport ation or travel to other countries. This chapter examines the

various laws governing t hese interdiction processes.

NATIONAL SECUR ITY LAW556

PART I: GOVERNMENT SECURIT Y

An “insider thre at” is “any person who has the potential to har m an

organization for which [they have] inside knowledge or access, either

maliciously or unintention ally”1 One way of stopping an insider threat

is to prevent the threat from becoming a n insider. Thwarting this inf‌il-

tration depends on the careful vetting of those with access to sen sitive

information and facilities. Chapter 12 discusses Can ada’s information

and asset classif‌ication categories, which are a central part of t he gov-

ernment’s information assurance policies. As noted there, these poli-

cies aim to categorize information by degree of injury that might stem

from compromi sing its conf‌idential ity, availabil ity, or integrit y. These

policies also oblige a securit y screening process, the intr usiveness of

which correlates to the sen sitivity of the in formation or assets to which

a person has access. In t his section, we describe that screening proce ss

(sometimes also called “safeguarding”).

As the Supreme Court observed, any government “must have trust

in their employees and ocers to preser ve that degree of security which

a government requires to operate eectively.”2 Canada now has security

screening for government of Canada employees w ith access to sensitive

information or assets, including “major ports, airports, nuclear f acili-

ties or the Parliamentary Precinct.”3

This security screening implicates more than Can adian interest.

Insider threats m ay also prejudice Canada’s allies as cert ain secur-

ity clearances allow access to classif‌ied foreign information. Security

screening is, therefore, obligatory under some of Canad a’s informa-

tion-sharing ar rangements with foreign governments. The 1996 Can-

ada–Australia defence information-sharing agreement, for example,

limits access to shared information to government personnel who are

“nationals of either of the Part ies, unless the originating Part y has given

its prior written consent other wise,” “require the information for the

performance of their ocial duties,” and “have been Security Sc reened

1 Rachael Br yson, “Updating Our Knowle dge of the Insider Threat’” (29 October

2018), online: The Conference B oard of Canada ww w.conferencebo ard.ca /e-li-

brary/abstract.aspx?did=9956.

2 Thomson v Canad a (Deputy Minister of Agriculture), [1992] 1 SCR 385 at 395.

3 “Government Sec urity Screening” (18 July 2018), online: Government of Can ada

www.canada.ca/en/security-intelligence-service/serv ices/government-security-

screening.html. The government also run s a security screeni ng process for

private sector cont ractors, managed by Public Works and Gove rnment Services

Canada. Thi s chapter focuses, however, mostly on se curity screening for feder al

government employees.