Fans at a concert holding up cellphones. PHOTO: Pixabay
By Kevin Metcalf
On Tuesday, June 20, 2017, the Government of Canada tabled Bill C-59, An Act respecting national security matters. The proposed act constitutes 150 pages of long-awaited national security legislation. Over the past two years, CJFE has advocated and organized toward this moment.
We want Bill C-59 to be a hit. Help us make that happen.
We understand that drafting sweeping overhauls to national security legislation is not a simple process. Parliament is due to break for summer recess in a matter of days, so any substantial Parliamentary debate on the legislation will wait until the fall. There is a significant opportunity this summer for civil society groups to plan their response to the legislation and strategize at the community level on approaching elected officials with their concerns.
WHAT IS BILL C-59?
Bill C-59 creates a series of amendments to existing national security legislation, including portions of the controversial Anti-terrorism Act, 2015 (formerly, Bill C-51). The changes are the result of a series of online and in-person public consultations run by the government in late 2016.
An accurate depiction of our office when we heard C-59 had been tabled.
WORTH DANCING ABOUT:
We are encouraged by the introduction of an integrated national review body for national security. A comprehensive and holistic framework is necessary in order for review to be effective, given the existing level of cooperation and integration of operations across the Canadian security intelligence community, including the RCMP, CSIS and CSE. This is particularly important in tracking and reviewing the generation, use and distribution of information pursuant to the various inter-agency agreements or arrangements that exist among the national security agencies, the sweeping information sharing authority they have been granted, and various statutory provisions. The creation of an Intelligence Commissioner responsible for authorizing certain national security activities is also a positive step, and should provide additional privacy protections and oversight.
Many of the powers possessed by a Canadian spy will be subject to approval by a Federal Court warrant. The presence of judicial oversight as well as real-time administrative review for the operations of Canadian spies offers real assurances about the government’s intentions toward preserving the primacy of the Charter of Rights and Freedoms.
‘Terrorist Propaganda’ Definition
As a free expression organization, one of our greatest concerns with Bill C-51 is the vague definition it sets out for ‘terrorist propaganda’ and ‘promotion of terrorism offences in general.’ Civil society groups widely panned those provisions as a serious threat to advocacy, dissent, and private and academic discussion. The new legislation proposes to amend these offences to fall in line with the Criminal Code definition of ‘counsel to commit’—explicitly instructing or commanding someone else to break the law—which is already a crime in Canada. This revision does much to ensure that free expression rights are better protected.
‘Undermining Security’ Definition
One of the most concerning aspects of Bill C-51 was its broadened definition of ‘undermining the security of Canada,’ notably to include interference with critical infrastructure or the economy as a security threat. Many advocates claimed this spoke to the political priorities of the sitting government in 2015, as it could be used to further target Indigenous and environmental activist activities. Bill C-59 proposes a further clarification of “significant or widespread interference with critical infrastructure.” However, no clear definition is provided of what ‘significant’ connotes in this context. Faced with looming protests in BC over the Kinder Morgan pipeline project, the government must be more explicit in defining these terms and specifically affirm its commitment to protecting Charter rights to free expression and free assembly for all.
Limits to Threat Disruption Powers
A major concern with C-51 was the creation of threat disruption powers for CSIS, which allows CSIS agents to seek judicial authorization to violate the Charter. Bill C-59 narrows the scope of these powers and sets out a specific list of threat disruption capabilities which may be judicially authorized. Notably, these would now be compliant with international statutes governing the use of torture. However, it would be better if this section were excluded entirely, and there are individual powers with which we have grave concern (see below).
Exclusion of Investigative Capabilities
When we read the consultation framework and accompanying green paper back in the fall, we were concerned by the suggestion to expand digital surveillance and data collection powers for Canadian police and intelligence agencies. These powers included rote access to Basic Subscriber Information (BSI), encryption backdoors in software, mandating internet service providers to support ‘lawful’ intercept capabilities for communications and the requirement that service providers retain data on consumer internet use. CJFE is relieved that this legislation was left out of the national security consultation process and are fully committed to fighting any future legislation that attempts to introduce these powers.
MISHAPS AND MISSED NOTES:
Based on our preliminary reading, it is readily apparent notes are wrong and mistakes happened with the proposed legislation.
We can’t get it right everytime.
Threat Reduction Powers
While the narrowed scope of threat disruption powers (as mentioned above) is an improvement on the existing legislation, it would be vastly preferable if the government would repeal Charter-violating powers in their entirety.
While many of the listed threat reduction or disruption tactics are a matter of common sense, the specific wording of some of the points gives us cause for concern. Federal judges should not be in a position to authorize CSIS to breach the Charter, and this needs to be addressed.
Police Impersonating Journalists
The threat reduction power of impersonation could be taken to read that Canadian spies have the power to pose as journalists in the course of an investigation.
(g) personating a person, other than a police officer, in order to take a measure referred to in any of paragraphs (a) to (f).
This is a serious threat to freedom of the press—one that CJFE has stood up against in court. It reduces public trust and compromises the relationship between the public and the media, and between journalists and their sources.
CJFE is imminently awaiting the passage of a journalistic source protection act, Bill S-231. Giving police or spies the power to pose as journalists themselves for investigative purposes fundamentally undermines the spirit of this new legislation.
Another problematic threat disruption power is a provision that allows spies to falsify records or publish false statements for investigative purposes.
(c) fabricating or disseminating any information, record or document;
In the context of fake news and propaganda, the ability to create false documents and disseminate them for investigative purposes presents a clear threat to our journalistic institutions. As with impersonating journalists, the prospect of CSIS potentially fabricating information for widespread public consumption undermines public trust in the news media and blurs the line between what is real and what is disinformation.
Bill C-59 amends the mandate for Canada’s digital spy agency, the Communications Security Establishment (CSE) as defined in the National Defence Act. The CSE was established to act as a line of defence against cyber threats. Bill C-59 authorizes offensive cyber activities beyond Canada’s borders. This is part of a broader conversation about what kind of a country we want to live in— is an increasingly aggressive cyber warfare program consistent with Canadian values or Canada’s place on the world stage?
LET’S MAKE C-59 A HIT
There are lots of concerns with the wording of Bill C-59. What we’ve outlined here is just a small sample of the issues which civil society groups will no doubt bring forward in the coming weeks and months.
What we do know is that Bill C-59 constitutes a huge improvement over Bill C-51 and, as a product of a government public consultation is reflective of many of the concerns that Canadians have voiced. We can see clear evidence that the government is trying to turn Bill C-59 into a hit. We badly want this as well, but we’ll need your support in organizing through the summer so that we can make sure that they get all of the notes pitch perfect.
C-51 was not a tough act to follow. Get it right.
Kevin Metcalf is CJFE’s Promotions and Communications Coordinator. In his spare time, he volunteers as Operations Coordinator for Stop C-51: Toronto.