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• Author: Craig Forcese/Leah West
• Pages: 385-409

385

CHA PTER 9

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Stopping threats to national security requires t imely availability of

information, the analysis of that information, and the ecient dis-

semination of intelligence. The government’s 2004 national security

strateg y observe d:

[i]ntelligence is the foundat ion of our ability to take eective me as-

ures to provide for the secu rity of Canada and Can adians. To manage

risk eectively, we need the best po ssible information about th reats

we face and about the intentions, c apabilities and activ ities of those

who would do us harm. The best dec isions regarding t he scope and

design of secur ity programs, the a llocation of resources and t he

deployment of assets c annot be made unless de cision makers are as

informed as possible.1

As this passage suggests, national security investigations tend to be

prospective, aimed at anticipating and pre-empting threats. In th is

environment, surveillance and monitoring of anticipated threat s, and

sharing relevant inform ation between security and intelligence agen-

cies are essenti al.2

1 Canada, Pr ivy Council Oce, Securing an O pen Society: Canada’s National

Security Policy (April 200 4) at 15, online: http://publicat ions.gc.ca/collection s/

Collection/CP22-77-2004E.pdf.

2 See also on th is point, Stanley A Cohen, Pr ivacy, Crime and Terror: Legal Rights

and Security in a Time of Per il (Markham, ON: LexisNex is Butterworths, 2005)

at 57.

NATIONAL SECUR ITY LAW386

Information collection, surveill ance, and sharing necessar ily trench

on individual privacy. Excessive surveillance and information-shar ing

raise the spect re of an omniscient state. The government may use infor-

mation collected initially for a public interest purpose more doubtfully

in the future. Alan Der showitz warned in 2006: experience “teaches

us that information secured for the limited purpose of preventing only

terrorism wi ll often be used by the government to prosecute other less

serious crimes, such a s drugs, pornography and fraud.”3 Democracies

tend, therefore, to be suspicious of a “surveillance st ate.” In Dershow-

itz’s words, the “history of creeping expan sion and misuse of power

creates an understand able sense of mistrust t hat animates much of the

opposition to changes that might incre ase the eectiveness of measures

to prevent terrorism, rangi ng from surveillance, to prof‌iling, to inter ro-

gation methods designed to gather preventive intelligence rather than

evidence for use at trials.”4

A 2016 survey prepared for the Oce of the Privacy Commissioner

reported 81 percent of Canadians were at least somewhat concerned

that the government is monitoring t heir activities for national secur ity

or public safety purpose s.5 At the same time, 50 percent of Canadians

believed intelligence and law enforcement agencies did not have enough

power to collect private information about citizens for public safety or

nationa l security purpo ses.6 Since the completion of this sur vey, Par-

liament has enacted t he National Security Act, 2017 (NSA 2017). This

legislation dramatically increased the powers of t he Canadian Secur ity

Intelligence Service (CSIS) to collect non-threat related datasets — that is,

electronic information not specif‌ically tied to known threat actors. How-

ever, the NSA 2017 also eliminated a controversial provision from the

Anti-terrorism Act, 2001, which permitted compelled collection of infor-

mation by the RCMP in “investigative hear ings.”7 The NSA 2017 also

3 Alan Dershow itz, “How To Protect Civil Libert ies” The Spectator (30 August 2006),

online: www.spectator.co.uk/2006/08 /how-to-protect-civil-lib erties.

4 Ibid.

5 Canada, Oce of t he Privacy Commiss ioner, 2016 Survey of Canadians on Pr ivacy

(December 2016), online: www.priv.gc.ca/en/opc-actions-and-decisions/research/

explore-priv acy-researc h/2016/por_2016_12.

6 Ibid.

7 Under the former s 83.28, a pe ace ocer investigating a ter rorism oence could

apply, with the consent of t he federal attorney general, for an order f rom a

provincia l or superior court judge for the “gathering of i nformation.” A judge

could then order the pe rson to attend a hearing and b e examined, and requir e

that indiv idual to bringanythi ngwithin his or her pos session or control to the

proceedings. A p erson named in such an order wa s obliged to “answer ques-

tions put to the per son by the Attorney General or the At torney General’s agent,

and shall produce t o the presiding judge thing s that the person was ordered