AuthorCraig Forcese/Leah West
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 s/
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.
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: /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:
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

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