Senators fail to protect civil liberties by adopting Bill C-59 without crucial amendments

OTTAWA, ON, May 30, 2019 — Canadian senators missed an important opportunity to protect fundamental rights and freedoms in Canada and internationally by failing to bring necessary amendments to the National Security Act, 2017 (Bill C-59) before sending the bill back to the House of Commons.

Senators adopted Bill C-59 at third reading today, without any further amendments than the minor changes adopted at committee earlier in May. This move ignored calls from leading civil liberties and human rights groups, and hundreds of letters from the public to bring further changes to the bill.

“Once again, Canadian lawmakers have failed to act to ensure that national security laws do not come at the cost of privacy, free expression, due process and government transparency,” said Tim McSorley, national coordinator of the International Civil Liberties Monitoring Group. “Senators missed an opportunity to defend the rights of people in Canada today.”

The Liberal government has touted Bill C-59 as being a “fix” for the previous government’s controversial Bill C-51 (the Anti-terrorism Act, 2015). But while it brings some important improvements, Bill C-59:

  • Continues to allow CSIS to engage in secret and dangerous threat disruption powers;
  • Maintains the secretive No Fly List, which violates due process and has never been proven to be effective;
  • Preserves overly-broad information sharing rules that infringe on privacy and free expression;
  • Transfers the weaker aspects of current national security review bodies to the new National Security and Intelligence Review Agency;
  • Grants sweeping new surveillance powers to both the CSE and CSIS, including the collection of metadata, vaguely defined “publicly available information,” and the incredibly broad category of “unselected information” (which essentially means any information);
  • Introduces new powers to give CSIS agents or designated individuals immunity for committing crimes in the line of their work;
  • Fails to prohibit the use and sharing, in all circumstances, of information linked to mistreatment and torture;
  • Allows the CSE to engage in broad and powerful new “active cyber operations” with little oversight, creating the risk of retaliation as well as attacks from leaked new cyber-weapons.

The amendments adopted earlier by the Standing Senate Committee on National Security and Defense to reduce the number of years before Bill C-59 is reviewed, and to allow the Intelligence Commissioner to suggest conditions on surveillance authorizations, are positive, but severely insufficient.

The ICLMG has welcomed aspects of the bill:

A redress system for those erroneously caught up in Canada’s No Fly List will help ensure less travellers face undue interrogations, searches and delays at airports; although, due to unresolved issues around secrecy and due process, we maintain our position that the no-fly list regime should simply be abolished.

The new National Security and Intelligence Review Agency (NSIRA) and Intelligence Commissioner will both help to bring greater accountability to Canada’s national security activities. At the same time, senators failed to ensure that these bodies will have all the tools necessary to accomplish their important work: greater transparency and independence; the power to make binding recommendations; and the ability to provide redress for complainants when abuse is found, though, are all essential aspects missing from this bill.

Even if review and oversight were improved, though, it still would not make up for bad laws, warns the ICLMG. “The NSIRA and the Intelligence Commissioner will only be able to enforce the rules set out by lawmakers. Bill C-59 grants new powers for surveillance, maintains secretive CSIS disruption activities, allows for concerning new active cyber operations, and fails to address real threats to due process, free expression and privacy,” said McSorley. “With laws like these on the books, these bodies risk simply becoming rubber stamps.”

Read our more detailed recommendations and our full brief to the Senate.

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