Issue: New Powers for CSIS to “Take Measures” Against Threats
While a democracy can incorporate the need for an intelligence agency to operate with considerable secrecy, there is no place in a democracy for a secret police. Full stop.
CSIS (Canadian Security Intelligence Service) was created to collect and analyze information about threats to national security. It is a civilian agency, not part of the police or military. It operates with a substantial amount of secrecy like its approximate counterparts the CIA (US) and MI5 (UK).
Bill C-51 (the Anti-terrorism Act 2015) gave CSIS new powers beyond collecting security intelligence information and disseminating it to relevant sectors of the government. The new law amended the CSIS Act so that now, if CSIS has “reasonable grounds to believe” that an activity constitutes a threat to the security of Canada, it can “take measures, within or outside Canada, to reduce the threat.”
What those “measures” could be is not defined. The only prohibitions are actions that:
cause, intentionally or by criminal negligence, death or bodily harm to an individual;
willfully attempt in any manner to obstruct, pervert or defeat the course of justice; or
violate the sexual integrity of an individual.
Short of that, CSIS now has broad authority to take whatever measures it deems “reasonable and proportional in the circumstances, having regard to the nature of the threat, the nature of the measures and the reasonable availability of other means to reduce the threat.” It is up to CSIS to decide whether their actions are “reasonable and proportional”.
If any of their proposed actions are illegal or violate Charter rights, then CSIS is supposed to get a judicial warrant to authorize those actions. The threshold question of whether a warrant is needed for any proposed action is left up to CSIS to decide and that decision will not necessarily be reviewed by any external body.
There has been considerable debate about what kinds of actions (“measures”) are authorized under this new law. The government’s view is that these new powers do not allow CSIS to arrest individuals. The government gives examples of ‘threat reduction’ that include modifying websites, interfering with communications, disrupting financial transactions and manipulating tools or devices. Leading national security scholars believe that the law would also authorize capture, detention, interrogation and rendition.
So, although government stresses that CSIS does not have “law enforcement powers”, what they could do in the name of threat reduction looks very much like the powers of a secret police.
Does the Warrant Requirement Protect Against Abuse of these Extraordinary Powers?
There are three serious problems with the scheme to regulate these powers through the warrant process.
1) CSIS gets to decide if they will even apply for a warrant. There is an external body, called SIRC (Security Intelligence Review Committee) that reviews the operations of CSIS, but it only does selective review, after the fact. Decisions about applying for a warrant will not necessarily be reviewed.
2) But most fundamentally, even if a warrant is applied for, this warrant system attempts to legitimize unconstitutional actions and to change the role of the courts from protectingCharter rights to authorizing violations of Charter
There is a great deal of confusion on this point, in part because we are used to thinking of search warrants as important protections of our rights. But the way this works in the context of searches is unique. This is because our s.8 Charter rights protect against unreasonable search and seizure. A court needs to be satisfied, on the evidence, that the warrant is justified. If the warrant is justified, that makes the search reasonable, and a reasonable search is constitutional. In other words, no Charter right is violated with a properly issued search warrant.
But that only works for searches. As legal scholars have pointed out, there is no concept of “reasonable” cruel and unusual punishment, no warrant-based qualifier attached to fundamental rights like freedom of speech, association or religion.
The government’s argument is that the courts will be deciding on whether to give CSIS threat disruption warrants using an analysis that courts use in Charter challenges to weigh a rights violation against the government’s argument about the need to violate that right.
Firstly, not many lawyers agree with the government on this interpretation. And even assuming that the courts were to do this type of weighing and balancing exercise, this is an ex parte application. This means only CSIS is appearing before the judge and there is no one in court to present the argument of the individual whose rights are at stake. The judge only gets to hear CSIS, and it’s impossible to have a meaningful balancing exercise where one side of the argument isn’t even presented.
3) Further, CSIS has a troubling pattern of breaching its duty of candour in these kinds of applications. SIRC (the review body) has found instances of CSIS seriously misleading and failing to proactively disclose relevant documents. Similarly, the Federal Court of Canada has held that CSIS has breached its duty of candour when applying for a warrant and the conduct of CSIS with respect to security certificates has also revealed instances of CSIS conduct that raise serious concerns about its commitment to candour before the courts.
What Do We Know About How CSIS Has Used “Threat Disruption” Powers So Far?
Since most of what CSIS does is secret, we have very little understanding of how these new powers are being used. SIRC, the body that does external review of CSIS, has just issued a report in which it says that CSIS has used or considered using threat reduction measures “approximately two dozen” times since the powers were granted and that no warrants have been issued for those measures.
Here is the provision about when warrants are needed:
12.1(3) The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to any other Canadian law, unless the Service is authorised to take them by a warrant issued under section 21.1
So, “approximately two dozen” disruption measures engaged in or contemplated and not a single warrant applied for. This should mean that no laws were contravened and no one’s Charter rights were violated. Which begs the question: what kind of disruption measures can they be using? Recall the activities that the government envisions being used: modifying websites, interfering with communications, disrupting financial transactions and manipulating tools or devices. Every one of those activities is illegal and violates Charter rights. It is a complete mystery as to what CSIS could possibly be doing in the name of threat disruption that does not impact Charter rights, unless it is just talking to people. If so, it didn’t need new powers to do that; it has always done that and frankly, classifying such activity as falling under the new disruption powers would seem to be a tactic to make such powers look much more benign than they truly are.
In this light, the fact that no warrants have been applied for is not a comfort. It is rather a sign that even the seriously problematic accountability mechanism these warrants provide is likely being skirted and avoided.
Analysis: Security Benefit of the New Powers vs. the Dangers of the New Powers
Giving “disruption” powers to CSIS has radically altered its role in the national security system and upended the balance between security intelligence and law enforcement, blurring the line between spying and policing. Prior to this change, CSIS would gather and provide security intelligence information to the rest of government and the police had the ability to physically act on the basis of that information. The government’s National Security Green Paper says that “it was felt that there were situations where CSIS was best placed to take timely action to reduce threats.”
Giving CSIS secret parallel powers to that of the police greatly increases the potential of their working at cross purposes and undermining the policing of genuine threats. The government appears to implicitly point to other jurisdictions to support “disruption” powers for CSIS, but as experts have noted, the “disruption” powers of MI5 in the UK are designed to work with the police and within the confines of the regular law, not apart from the police outside of the confines of the regular law.
Thus, there is no evidence that the new powers will enhance our security and realistic concern that they could in fact reduce it.
Bottom line: The Changes We Need
The recent expansion of CSIS powers is unprincipled, dangerous and unnecessary.
Over the past decade we have seen the effects of an approach to national security that at best, privileges bare legality, and at worst, descends into illegality. The consequences for the rule of law and human rights have been profound.
Bill C-51 gave CSIS vast powers to operate outside the confines of the regular law in near total secrecy. These provisions must be repealed.
While a democracy can incorporate the need for an intelligence agency to operate with considerable secrecy, there is no place in a democracy for a secret police. Full stop.
The “New” CSIS – a de facto Secret Police
Issue: New Powers for CSIS to “Take Measures” Against Threats
CSIS (Canadian Security Intelligence Service) was created to collect and analyze information about threats to national security. It is a civilian agency, not part of the police or military. It operates with a substantial amount of secrecy like its approximate counterparts the CIA (US) and MI5 (UK).
Bill C-51 (the Anti-terrorism Act 2015) gave CSIS new powers beyond collecting security intelligence information and disseminating it to relevant sectors of the government. The new law amended the CSIS Act so that now, if CSIS has “reasonable grounds to believe” that an activity constitutes a threat to the security of Canada, it can “take measures, within or outside Canada, to reduce the threat.”
What those “measures” could be is not defined. The only prohibitions are actions that:
Short of that, CSIS now has broad authority to take whatever measures it deems “reasonable and proportional in the circumstances, having regard to the nature of the threat, the nature of the measures and the reasonable availability of other means to reduce the threat.” It is up to CSIS to decide whether their actions are “reasonable and proportional”.
If any of their proposed actions are illegal or violate Charter rights, then CSIS is supposed to get a judicial warrant to authorize those actions. The threshold question of whether a warrant is needed for any proposed action is left up to CSIS to decide and that decision will not necessarily be reviewed by any external body.
There has been considerable debate about what kinds of actions (“measures”) are authorized under this new law. The government’s view is that these new powers do not allow CSIS to arrest individuals. The government gives examples of ‘threat reduction’ that include modifying websites, interfering with communications, disrupting financial transactions and manipulating tools or devices. Leading national security scholars believe that the law would also authorize capture, detention, interrogation and rendition.
So, although government stresses that CSIS does not have “law enforcement powers”, what they could do in the name of threat reduction looks very much like the powers of a secret police.
Does the Warrant Requirement Protect Against Abuse of these Extraordinary Powers?
There are three serious problems with the scheme to regulate these powers through the warrant process.
There is a great deal of confusion on this point, in part because we are used to thinking of search warrants as important protections of our rights. But the way this works in the context of searches is unique. This is because our s.8 Charter rights protect against unreasonable search and seizure. A court needs to be satisfied, on the evidence, that the warrant is justified. If the warrant is justified, that makes the search reasonable, and a reasonable search is constitutional. In other words, no Charter right is violated with a properly issued search warrant.
But that only works for searches. As legal scholars have pointed out, there is no concept of “reasonable” cruel and unusual punishment, no warrant-based qualifier attached to fundamental rights like freedom of speech, association or religion.
The government’s argument is that the courts will be deciding on whether to give CSIS threat disruption warrants using an analysis that courts use in Charter challenges to weigh a rights violation against the government’s argument about the need to violate that right.
Firstly, not many lawyers agree with the government on this interpretation. And even assuming that the courts were to do this type of weighing and balancing exercise, this is an ex parte application. This means only CSIS is appearing before the judge and there is no one in court to present the argument of the individual whose rights are at stake. The judge only gets to hear CSIS, and it’s impossible to have a meaningful balancing exercise where one side of the argument isn’t even presented.
What Do We Know About How CSIS Has Used “Threat Disruption” Powers So Far?
Since most of what CSIS does is secret, we have very little understanding of how these new powers are being used. SIRC, the body that does external review of CSIS, has just issued a report in which it says that CSIS has used or considered using threat reduction measures “approximately two dozen” times since the powers were granted and that no warrants have been issued for those measures.
Here is the provision about when warrants are needed:
So, “approximately two dozen” disruption measures engaged in or contemplated and not a single warrant applied for. This should mean that no laws were contravened and no one’s Charter rights were violated. Which begs the question: what kind of disruption measures can they be using? Recall the activities that the government envisions being used: modifying websites, interfering with communications, disrupting financial transactions and manipulating tools or devices. Every one of those activities is illegal and violates Charter rights. It is a complete mystery as to what CSIS could possibly be doing in the name of threat disruption that does not impact Charter rights, unless it is just talking to people. If so, it didn’t need new powers to do that; it has always done that and frankly, classifying such activity as falling under the new disruption powers would seem to be a tactic to make such powers look much more benign than they truly are.
In this light, the fact that no warrants have been applied for is not a comfort. It is rather a sign that even the seriously problematic accountability mechanism these warrants provide is likely being skirted and avoided.
Analysis: Security Benefit of the New Powers vs. the Dangers of the New Powers
Giving “disruption” powers to CSIS has radically altered its role in the national security system and upended the balance between security intelligence and law enforcement, blurring the line between spying and policing. Prior to this change, CSIS would gather and provide security intelligence information to the rest of government and the police had the ability to physically act on the basis of that information. The government’s National Security Green Paper says that “it was felt that there were situations where CSIS was best placed to take timely action to reduce threats.”
Giving CSIS secret parallel powers to that of the police greatly increases the potential of their working at cross purposes and undermining the policing of genuine threats. The government appears to implicitly point to other jurisdictions to support “disruption” powers for CSIS, but as experts have noted, the “disruption” powers of MI5 in the UK are designed to work with the police and within the confines of the regular law, not apart from the police outside of the confines of the regular law.
Thus, there is no evidence that the new powers will enhance our security and realistic concern that they could in fact reduce it.
Bottom line: The Changes We Need
The recent expansion of CSIS powers is unprincipled, dangerous and unnecessary.
Over the past decade we have seen the effects of an approach to national security that at best, privileges bare legality, and at worst, descends into illegality. The consequences for the rule of law and human rights have been profound.
Bill C-51 gave CSIS vast powers to operate outside the confines of the regular law in near total secrecy. These provisions must be repealed.
While a democracy can incorporate the need for an intelligence agency to operate with considerable secrecy, there is no place in a democracy for a secret police. Full stop.
CIVIL LIBERTIES CAN’T PROTECT THEMSELVES