Source

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

385

CHAPTER 9

SOURCE

Stopping threats to national security requires timely availability of

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

semination of intelligence. The government’s 2004 national security

strategy observed:

[i]ntelligence is the foundation of our ability to take eective meas-

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

risk eectively, we need the best possible information about threats

we face and about the intentions, capabilities and activities of those

who would do us harm. The best decisions regarding the scope and

design of security programs, the allocation of resources and the

deployment of assets cannot be made unless decision 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 this

environment, surveillance and monitoring of anticipated threats, and

sharing relevant information between security and intelligence agen-

cies are essential.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://publications.gc.ca/collections/

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-sharing

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

mation collected initially for a public interest purpose more doubtfully

in the future. Alan Dershowitz warned in 2006: experience “teaches

us that information secured for the limited purpose of preventing only

terrorism will often be used by the government to prosecute other less

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

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

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

creates an understandable sense of mistrust that animates much of the

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

to prevent terrorism, ranging 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 their activities for national security

or public safety purposes.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

national security purposes.6 Since the completion of this survey, Par-

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

legislation dramatically increased the powers of the Canadian Security

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 hearings.”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-liberties.

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-privacy-research/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