One of the government’s main arguments in favor of Bill C-59 is that it will address the worst aspects of the Conservatives’ Bill C-51. But does it?
CSIS disruption powers
Bill C-51 gave CSIS, for the first time, the power to engage in “disruption activities” to reduce threats to national security. Up until then, CSIS was allowed to watch, share information, but not act – that’s the area of law enforcement, like the RCMP. This change alone was really troubling. Even worse: with a warrant CSIS is allowed to engage in activities that would contravene the Charter.
Disruption activities can range from interfering with someone’s movement (detention, sabotage of vehicle) to disrupting communications (blocking emails, modifying or taking down websites, etc) and a lot more.
Amendments in C-59 change the language from « contravene » to « limit » the Charter of Rights and Freedoms, and defines the disruption powers more clearly. However, this does not go nearly far enough: these powers simply should not exist.
Why? CSIS was created in 1984 as a recommendation of the McDonald Commission of Inquiry into the illegal activities of the RCMP, including their attempts to undermine the Quebec independence movement. The RCMP had opened mail, broken into offices, burned a barn where a meeting was to take place, forged documents, and conducted illegal electronic surveillance.
The Commission’s principal recommendation was to remove responsibility for national security from the RCMP and assign it to a new civilian spy agency, CSIS. This would separate policing disruption tactics from intelligence gathering in order to prevent such abuses, because spy agencies operate mostly in secret.
It was never demonstrated that we need these disruption powers to keep us safe. However, the potential for abuse and the targeting of groups and individuals expressing dissent, and of racialized communities such as Muslim and Arab folks, is clear. By introducing disruption powers to CSIS, C-51 has shown us that once again we’ve learned nothing from history.
CSIS’ disruption powers should simply be eliminated from the law.
Security of Canada Information Sharing Act
Bill C-51 established the Security of Canada Information Sharing Act. The law legislated the sharing of Canadians’ information between government departments if the information is relevant to an activity that undermines the security of Canada.
All Canadian departments and agencies are now allowed to share information with seventeen entities with national security responsibilities – ranging from CSIS to the Canada Revenue Agency to Health Canada – if the information is “relevant” to that agencies work.
The law has been widely denounced. First, “relevant” is a very low threshold, allowing for a wide range of Canadians’ private information to be shared without our knowledge. Second, SCISA also redefines what is considered an action that “undermines” Canada’s national security, broadening it to include interference with “critical infrastructure” and Canada’s “economic or financial stability.”
SCISA undermines our right to privacy and threatens to increase the surveillance and criminalization of dissent; C-59 fails to fix this.
Bill C-59 renames the Security of Canada Information Sharing Act (SCISA) to the Security of Canada information Disclosure Act (SCIDA).
Bill C-59 also introduces the following changes :
- It adds record keeping – a copy of the record has to be sent to the new National Security and Intelligence Review Agency
- It restricts disclosure to only apply to the recipient agency’s national security responsibilities
- It ensures disclosure comes with information regarding the accuracy and the reliability of the manner in which the information was obtained
- it adds the caveat: “disclosure will not affect any person’s privacy interest more than reasonably necessary.” This is overly broad and subjective – who will determine what is reasonable?
It also clarifies the definition of activities that undermine the security of Canada, which triggers a department being allowed to disclose our private information to another department. It says that to qualify as undermining the sovereignty, security or territorial integrity of Canada, an activity should constitute “significant and widespread” interference with critical infrastructure. At first glance, this looks like an improvement, but in reality it is still too subjective and vague.
Specifically, the bill could still cover environmental and Indigenous acts of dissent, which often entails blocking bridges and roads to protect water and land from dangerous energy projects that communities have not consented to.
It could also potentially encompass activities related to Indigenous land claims if they are defined as “undermining the sovereignty and territorial integrity of Canada.” Furthermore, SCIDA would apply to “conduct that takes place in Canada and that undermines the security of another state.” This is incredibly vague. We are concerned that this could allow the sharing of information on individuals involved in international solidarity campaigns such as the Boycott, Divest and Sanction or BDS movement against products coming from illegal Israeli settlements.
One argument in favor of SCIDA is that the sharing of national security related information already occurs between departments, and that this law is an attempt at creating a framework and protecting privacy. In our opinion, the SCIDA reforms do not achieve that goal.
The No-Fly List is a government’s list that serves to stop people who are supposedly a threat from boarding a plane. Once your name is on this list, it’s really hard to remove it. Dozens of Canadian kids have seen their names pop up, mostly resulting in delays but also worrying them and their families about their future. The list possibly contains dozens of adults also caught up as false-positives – the government is refusing to say how many are on the list – just for having a name similar to someone on the list.
The Minister of Public Safety establishes the lists. An individual can be put on the no-fly list if the Minister has reasonable grounds to believe they will:
- Engage or attempt to engage in an act that would threaten transportation security, or
- Travel by air for the purposes of committing certain terrorism offences as outlined in the Criminal Code.
Bill C-51 brought in the Secure Air Travel Act (SATA), which modified the Canadian no-fly list (the Passenger Protect Program) to be more like the US model.
Before Bill C-51, the Minister had to review the list every 30 days to determine if everyone listed continues to meet the criteria for listing. Currently, the Minister only needs to review the list every 90 days. This stays the same under C-59.
Bill C-59 brings amendments to the No-Fly List to try and address some of its problems. The amendments would:
- Allow parents or guardians to ask if their kids are on list
- Allow for a unique identifier that could be used to deal with false-positives
- Allow the government to centralize the list, rather than sharing with domestic and foreign airlines
- State that passenger information must be destroyed within 7 days
These changes are better than nothing but the fundamentally problematic nature of the No-Fly List remains:
You cannot know if you are on the list until you get prevented from boarding a flight. The boarding agents will see you are flagged, call the Department of Public Safety and they will then decide if you can board or not.
If you are listed, you can’t find out what information about you is included. However, Bill C-59 allows the list to be shared with foreign governments, with no statutory limits on how that information can be used by the foreign state. Not only is this unfair, the sharing with other countries could lead to risks of detention and mistreatment abroad.
If you have been told you are on the list, you can ask to be delisted. The Minister currently has 90 days to respond; if you don’t receive a response you are deemed to still meet the criteria to be listed. Bill C-59 makes a change: The Minister will now have 120 days to respond to a request, but must send an answer if you are being kept on the list. If the Minister does not respond within 120 days, you are deemed to have been removed from the list. However, the Minister will also be able to extend that period by a further 120 days.
If the Minister refuses to delist you, you can go to court to ask a judge to review the Minister’s decision. The government lawyers will then present the court with information relevant to the listing, but you’ll have no access to this information. At best, you might get an incomplete summary of reasons for listing, but the underlying evidence can be withheld on national security grounds. And, if the Minister requests it, the hearing of the appeal must be held in secret, with neither you nor your lawyer permitted to attend.
How is someone supposed to defend themselves if they don’t know the evidence against them? This is a flagrant violation of our constitutional right to due process.
There is no evidence that no-fly lists improve aviation safety. Travelers on these lists are deemed too dangerous to fly, and yet too harmless to arrest? They are restricted from boarding aircraft, but not trains, ferries, subways, buses, etc.
We have other means of keeping suspected terrorists off airplanes in the Criminal Code:
- Seeking a peace bond,
- Laying charges (recall, conspiracy to commit, or attempting to commit terrorism offenses are themselves crimes), or
- Seeking a court order for the imposition of a travel ban.
Because our no-fly list regime now closely resembles the US scheme, we have lessons that can be learned from their experience. We know the US list is frequently used to pressure listed individuals to become informants for security agencies. Nothing in the Canadian system, deeply mired in secrecy, protects the public from such abuses.
In our opinion, the No Fly list needs to be repealed.
***The information in this section is heavily sourced from the BCCLA’s great article on the no-fly list. More details here.
The new National Security Act would roll back several of Bill C-51’s problematic changes to the Criminal Code. With Bill C-59:
- The offence (brought in by C-51) of “promoting terrorism offences in general” would change to “counseling terrorism offenses.” This is a much narrower and clearer wording, and won’t affect freedom of expression. However, it still seems superfluous because counseling terrorism is already a crime. These provisions should simply be removed.
- Investigative hearings – which were actually introduced with Canada’s first Antiterrorism Act in 2001 – would be repealed. Something we wholeheartedly agree with.
- Thresholds for preventative detention (which were lowered with Bill C-51) are increased. The change would ensure that an arrest is « necessary» to prevent a crime, rather than simply « likely » to prevent a crime. We believe that this change should also be applied to peace bonds.
- Bill C-59 changes the Terrorist Entities Listing, extending the review period from 2 years to 5 years, which is too long.
We have expressed significant concerns about the entire “Terrorist Entities Listing” program in the past, including its political nature, and its impact on due process and freedom of association. It’s very concerning that the only change in Bill C-59 is to weaken rules around the revisions of the list.
Ideally, Bill C-59 would have repealed the “Terrorist Entities Listing” in favor of simply using laws that already prohibit organizations from taking part in criminal activities.
Bill C-59 also brings amendments to the Youth Criminal Justice Act. We are encouraged to see that C-59 offers new protections for the rights of youth involved in terrorism-related offences, by ensuring that any recognizance measures introduced against a youth will go through a youth justice court.
Security certificates are an immigration proceeding that can be applied to non-citizens who the government decides are a risk to national security and that will lead to the removal of the non-citizen in question.
When challenging a security certificate, neither the named person on the certificate nor their legal counsel has access to the information against them if the government says its disclosure would be « injurious to national security ». So the counsel cannot challenge the evidence.
Non-citizens subject to a security certificate are often escaping violence and persecution and if they are returned to their home country – with the label of terrorist stuck to them although they have never been charged with a crime let alone convicted of one – they face detention, torture, disappearance and even death.
Special advocates – lawyers who have security clearance – have been added in an attempt to make the hearings more fair. They can see the secret evidence, but they do not represent the named person and cannot discuss the evidence with them.
On top of all that, Bill C-51 has limited the access to information of special advocates, and Bill C-59 has not reversed this damaging change.
Although several people have seen the addition of special advocates as an improvement, we argue that overall the security certificates’ secret hearings still violate due process and the right to a fair hearing and can lead to grave consequences.
Bill C-59 should include a provision bringing changes to the security certificate regime to put an end to secret hearings and ensure that due process is respected.
***If you haven’t done so already, we strongly suggest you watch the documentary The Secret Trial 5 about the stories of 5 men who have been subject to a security certificate and how it gravely impacted their lives. We guarantee you will be against security certificates after watching it.
Review of the law
Finally, part 9 plans a review of Bill C-59 in six years. This is an important safeguard, and we would suggest reducing it to five years for the new oversight and review mechansims, and to 3 years for the new CSIS and CSE powers – if they haven’t been removed as they should be. It will be important to ensure that this review happens in an open, public manner, with clear timelines for gathering input from all stakeholders. Recommendations of the review should be fully implemented.
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