In 2015, the Conservative government caused uproar with Bill C-51, the Anti-Terrorism Act, 2015. Ostensibly in response to the killing of two members of the Canadian Armed Forces in separate events, many saw it as the government seizing an opportunity to pass national security legislation long in the works. Thousands of Canadians took to the streets, tens of thousands spoke out, denouncing the process and the content of the bill. The ICLMG and our 45 member organizations were part of the movement to protect Canadians’ civil liberties.
We were disappointed with the Liberal Party’s decision at the time to vote in favour of the bill, and not promise an eventual repeal. At the same time, we were hopeful that the promise of fixing the worst elements of Bill C-51 would result in substantial changes.
We were buoyed by the report from the Standing Committee on Public Safety and National Security on its review of Canada’s national security landscape. We also welcomed the findings of the third-party analysis of the federal National Security consultation that the vast majority of respondents favoured moves to protect civil liberties and that provisions of Bill C-51 and other powers proposed in the federal Green Paper went a step too far.
While we recognize that Bill C-59 makes efforts in some areas to move in this direction – particularly around new review and oversight bodies, as well as some changes to the criminal code – unfortunately we do not believe it goes far enough. Rather, we see Bill C-59 fitting into the steady progression, since the first Anti-Terrorism Act of 2001, of expanding and enshrining significant, secretive powers in the hands of Canada’s national security agencies.
In our brief, we present realistic and necessary recommendations, suggestions and areas of examination that we believe will help to strengthen not just Canadians’ rights, but also our security. Our recommendations are listed below. You can read the fill brief here.
List of Recommendations
Part 1: The National Security and Intelligence Review Agency
- The minimum number of members of the NSIRA be set at 5 and the maximum number be increased to 8 (in addition to the chair).
- In addition to nomination of NSIRA members being carried out in consultation with opposition parties, the final appointment be made by a 2/3 vote in the House of Commons.
- The NSIRA complaints mechanism be amended to apply to all federal national security activities, regardless of department. At a minimum, it should be modified to include both CBSA’s and Global Affairs Canada’s national security activities.
- Adding a more specific requirement under “Public Reports” that would mandate a listing of each departmental study requested, and its result.
- That the NSIRA be granted binding recommendation powers.
- Mandating an annual follow-up and review on previous recommendations in the NSIRA’s annual public reports.
- That the complaints investigation and reporting mechanisms be amended to ensure greater transparency and accountability; that all representations or recommendations made during the complaints investigation process are available to complainants; and that, to the greatest degree possible, complaint findings are released to the public
Part 2: The Intelligence Commissioner Act
- The Intelligence Commissioner should be nominated by the Governor in Council, but be approved by a 2/3 vote in the House of Commons.
- The IC should be appointed on a full-time, rather than part-time, basis.
- The IC not be restricted to a retired superior court judge, and that the pool should also include active superior court judges.
- Amend the Intelligence Commissioner Act to require the issuance of written reasons when approving any authorization or amendment
- That the IC be mandated to produce an annual, public report, outlining their activities from the past year, including the number of authorizations reviewed, the number approved and the number rejected, and reasons for those rejections.
- That the NSIRA be mandated to include a section regarding the work of the Intelligence Commissioner, including an external review of their work.
- Amending the Intelligence Commissioner Act to allow the IC to impose conditions on approved authorizations.
- Require both approval of the IC and consent of the Minister of Foreign Affairs for all cyber operation authorizations.
Part 3: The Communications Security Establishment Act
- International affairs should be removed from the CSE’s cyber operations mandate.
- That greater restrictions be placed on any CSE activities that are directed at Canadians or people in Canada. In particular, a warrant should be required for any activities related to its technical and operational assistance to other law enforcement and intelligence agencies such as the RCMP and CSIS.
- Further safeguards should be placed on Active and Defensive cyber operations.
- Further restrictions be placed on any collection of “publicly available information.”
- Increasing the powers of the Intelligence Commissioner to review all of the CSE’s activities.
- Take steps to further narrow the scope of the CSE’s surveillance and cyber activities overall.
- The CSE Act should define metadata; strongly limit its collection, use and retention; and require a warrant to collect it.
- The targeting of unselected information be removed from the CSE Act, or, at a minimum, that the Intelligence Commissioner be granted the powers to rule on whether such actions are disproportionate, and/or impose binding limits.
- Any information collected by the CSE should not be retained longer than necessary to fulfill the intended objective.
- Authorizations for foreign intelligence activities should not last for an entire year, and any extension or changes should be examined and approved by the Intelligence Commissioner.
- To ensure accountability of the CSE, the independence and transparency of the work of the Intelligence Commissioner should be strengthened and, to the greatest amount possible, the CSE’s powers and authorizations should narrowly defined.
- Under no circumstances should the Canadian government – including the CSE – engage in mass surveillance.
- Any collection of publicly available information should be subject to narrow restrictions, be authorized through Ministerial authorization, and subject to similar safeguards as those for other CSE information collection practices.
- Impose greater restrictions, including limits on how information is collected, retained, analyzed and disposed of, in the course of the CSE carrying out work in support of the Investment Canada Act.
- Include a limit on how long incidentally acquired information can be retained in the CSE Act.
- The CSE Act must enshrine strong privacy protections around CSE’s activities into law.
- Information gathered in order to protect information infrastructure from mischief, unauthorized use or disruption should not be disclosed for any other purpose.
- Regarding designating persons for the purposes of disclosure of Canadian identifying information, the Minister of Public Safety should report such a designation and the reasons for it to either the Information Commissioner or Privacy Commissioner, who may then rule on the designation. These reports should also be provided to the NSIRA.
- Arrangements with foreign countries should be strongly regulated, limited and approved by the Intelligence Commissioner,
- When sharing information with a foreign country, it should be necessary for the Intelligence Commissioner to explicitly determine the likelihood that bodily harm – including mistreatment or torture – could be at play in any arrangement.
- The Intelligence Commissioner should integrate an analysis of impact on mistreatment or torture into authorization approvals as necessary.
- Section 56(5) should include an exception preventing a judge from ordering that confidentiality be respected if it hinders due process.
- Five Eyes spying on each other should be outlawed, and the Canadian government should take actions to that effect.
- Cyber operation powers are akin to military actions and should be discussed publicly, and further restrictions should be placed on them, including oversight and reporting from the Intelligence Commissioner.
- The definition of possible cyber operations should be narrowed.
- Active cyber operations, as well as the creation and use of any cyberweapons, should be strongly limited.
Part 4: Amendments to the CSIS Act
- Amend Bill C-59 to repeal CSIS’ current threat reduction powers.
- Documentation of all queries of Canadian and foreign datasets (including reasons for and results) should be shared with the NSIRA for review within 30 days.
- The Federal Court should have the power not only to examine the relevance of a query but also any eventual use of that query in order to ensure that ramifications of an illegal query are addressed.
- Limit authorizations to one year, with the possibility of extension by the Intelligence Commissioner for another year.
- Impose stronger thresholds for querying datasets for foreign intelligence purposes.
- Restrict the definition, collection, and use of publicly available information as CSIS datasets.
Part 5: The Security of Canada Information Disclosure Act
- SCISA should be rescinded and be replaced instead by strong privacy protections.
Part 6: Amendments to the Secure Air Travel Act
- The government should include clear guidelines for the creation of a redress system for false positives.
- Listing decisions, if necessary, should be reviewed and approved by a court.
- Individuals should be given written notice that they have been listed.
- Ultimately, the Safe Air Travel Act should be repealed.
Part 7: Amendments to the Criminal Code
- The offence of “counselling terrorism offenses” seems superfluous and should simply be removed.
- Similar to the changes to preventative detention, the threshold for peace bonds should be increased to “necessary” to prevent a crime.
- Bill C-59 should repeal the “Terrorist Entities Listing” in favour of simply using laws that already prohibit organizations from taking part in criminal activities.
Part 9: Review
- Reduce review period to five years for new oversight and review mechanisms and to 3 years for new CSIS and CSE powers.
What’s missing from Bill C-59
- A strong review mechanism to look at the CBSA and its activities outside of national security.
- Bill C-59 should include a provision that puts an end to the security certificate regime.
Since you’re here…
… we have a small favour to ask. Here at ICLMG, we are working very hard to protect and promote human rights and civil liberties in the context of the so-called “war on terror” in Canada. We do not receive any financial support from any federal, provincial or municipal governments or political parties.
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