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Bill C-9: Democracy and security Submission to the Justice and Legal Affairs Committee on the Canadian Security Intelligence Service

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C-9 is a clear improvement over C-157 inasmuch as the Director is now under the control of the Solicitor General, and the mandate and powers of the Service as narrowed. We still, however, have hesitations falling under three heads about the proposed service.

Need

Are there threats to the security of Canada that call for a distinct security intelligence capability? In answering this fundamental question in the affirmative, the Senate Committee relied on the arguments of the McDonald Commission. That Commission identified threats to the security of Canada as falling under three basic categories—activitIes of foreign intelligence agencies, terrorism, and domestic subversion—and proceeded to give examples of such threats which points to three security needs:

  • General information about terrorist techniques, recruitment methods of foreign intelligence agencies, world conditions, etc.
  • Intelligence services for special events (e.g., Olympic games, Habitat) or crises (e.g., hijacking, kidnapping) and
  • Routine monitoring to provide advance warning of threats to the security of Canada.

We acknowledge the necessity for (a) and (b), but do not see that a security service of the sort C-9 authorizes is needed to provide for them. No special powers are needed for (a), and special units of the RCMP could be set up, as occasions arises, to serve (b). There is more of an argument that (c) calls for such a service. We have some doubts, however, which we will articulate below, that this would be best served by a civilian service, as opposed to a special branch of the RCMP. But we are here concerned with a more basic doubt, namely the overall desirability of setting up a security service to provide for (c).

There are some clear advantages to doing so, as the McDonald Commission ably points out. But there are also some clear disadvantages. There is no reason to think that the history of other security services will not be substantially repeated here, and this must give us pause in two particulars: the tendency of such agencies to exaggerate threats, and the fact that personnel of dubious virtue and judgement often find homes—sometimes in high places—there. These factors have an occasion conspired to provide governments with spectacularly bad advice and produced flagrant violations of civil liberties. Add to this the undeniable substantial financial cost of initiating and maintaining the service, and one can reasonably ask whether the risks are worth the benefits.

The McDonald Commission frankly acknowledges that the need for security has to be balanced against other values. It also stares that such a service needs to be justified to the public: “If there is to be a security service, especially one with intrusive investigatory powers, both the government and the public must have a clear understanding for the need for it.” (413-4) The problem is that we are not given sufficient information to perform the required cost benefit analysis. Specifically, we are not told how much the service will cost; what it will do on a day-to-day basis to monitor the threats to the security of Canada; and, most importantly, what the actual threats facing Canada are which need to be monitored by such a service. As ordinary watchers of the news, we must say that sufficiently ubiquitous and clear dangers to the security of Canada are not apparent. If things are substantially as they seem, there is thus the worry that more and more matters of a trivial nature will be investigated, to the detriment of civil liberties and the public purse.

We appreciate that the government might be reluctant to disclose the data on dangers we ask for because that may compromise national security, but the government must likewise appreciate that unless such information is forthcoming, the public cannot, without a leap of faith, be convinced that the potential inroads into civil liberties and the national budget are worth the cost. We are not unalterably opposed to a security service, but we think, as did the McDonald Commission, that it is reasonable to ask for the necessity to be demonstrated to us. Canadians should come from Missouri when they are asked to accept an analogue of the CIA.

Civilianization

If we must have a security service, C-9 removes the fundamental objection we had to making it a civilian one in the way C-157 did, for the Director is now brought under the control of the Solicitor General and thus the Service is responsible to the electorate. However, some hesitations remain.

The Senate Committee, borrowing from the McDonald Commission, cites two principal reasons for civilianization:

  • the personnel required for a security service must have quite different abilities and education than for conventional police work, and
  • the strict process of control and review that must be exercised with respect to a security force is incompatible with the high degree of autonomy required by a police force.

We do not find these persuasive. The Armed Forces seek out quite different sorts of recruits with the special needs of their various branches in mind. Why cannot the RCMP do the same? We also cannot resist mentioning here that the Senate Committee reports that the CSIS would, in its initial stages, be composed entirely of former RCMP Security Service employees. We thus get either the bizarre situation in which it is proposed that the Security Service begin its life with ill-suited personnel, or lie is given to the claim that RCMP recruitment and training cannot produce suitable staff. In a similar way, we do not see that the political controls and review procedures which apply to one branch of the RCMP must apply to all. The special arm assigned security work could be governed by the strictures of C-9, whereas the regular branches could continue to enjoy their semi-independent status.

One might object that civilianization would be a simple solution to these real difficulties. But we have two worries about that which we regards countervailing. First, it is clear that the security service and RCMP will have to act in close concert, and we suspect that rivalries will be minimized and harmonious interaction enhanced by bringing the agencies under a single roof. Second, we are concerned that an independent security service will tend to overemphasize security threats in comparison to other criminal threats. We think that if the security service were integrated into the regular force, security threats would be placed in a proper context. They would be assessed in relation to other criminal activity and threats of criminal activity, and this would reduce the danger of the excesses to which a security service is liable.

Mandate 

While we think that the changes made to the definition of “threats to the security of Canada” are improvements, we still find the definition fearfully broad and open-textured in a number of ways.

Sec. (a) speaks of “espionage”, but that word is nowhere defined in C-9; nor does it receive a definition anywhere in the Criminal CodeOfficial Secrets ActWar Measures Act, or the 1979 Cabinet Directive on the “Role, Tasks and Methods of the RCMP Security Service”. Going by Webster’s New World Dictionary, “espionage” ranges from any close watching or observing, to that done secretly, to that done secretly with unfriendly purpose, to the use of spies by a government to learn the military secrets of other nations. Thus, at best, the meaning of sec. (a) is indeterminate; at worse, it sanctions a whole host of behaviour inimical to civil liberties. The McDonald Commission recommended that the term be given the meaning of the offences defined in secs. 46(2)(b) and 52 of the Criminal Code and sec. 3 of the Official Secrets Act. We find it preferable to have this (or some similar) stipulation written into the act, as that would put activities which fall under some legitimate ordinary sues of the word outside the scope of the Security Service.

Sec. (b) exposes to potential surveillance and control the entire peace movement and certain international business activities, insofar as these may be regarded as foreign influenced, detrimental to the interests of Canada, and involving a threat to persons.

Sec. (c) would place any Maxist-Leninist organization squarely within the bounds of legitimate observation, and thus raise the spectre of McCarthyism.

Finally, the exclusionary clause at the end regarding “lawful advocacy, protests or dissent” is no protection at all. It does nothing to narrow the mandate of the Security Service inasmuch as it allows that lawful activity in conjunction with any of the activities outlined in (a)–(d) is fair game for the CSIS. We would thus recommend that the “unless”-clause be struck, and the sentence end with the word “dissent”.

Perhaps no one is thinking of the things we cite as possibilities. Our point, however, is that C-9 does give the Service the power to do them, and one does not have to be paranoid about the abuse of power to feel acute discomfort about that. The mere possibility of such intrusions is severely detrimental to the delicate atmosphere needed for freedom of speech and association to flourish. We must be careful not to undermine the elements of democracy we wish to protect by the very too with which we seek to protect them. Apart from what we offer above, we have no positive suggestions for redrafting the definition of “threats to the security of Canada”. In our 1979 brief to the McDonald Commission, we recommended that it be made unlawful to place the activities of persons under surveillance before there is reason to believe the activity is criminal in intent or likely to result in crime. Under this proposal, the Security Service would not receive powers to investigate any activity not already prohibited by law. We continue to think that no additional powers are needed: the sections on treason, sedition, and sabotage in the Criminal Code, and subversive activities in the Official Secrets Act, are sufficient to meet any of the needs specified. Nonetheless, we are now less enthusiastic about this suggestion, given that the powers granted under those sections are at least as broad as those granted under the definition of “threats to the security of Canada” in C-9. The law of sedition is, in particular, a civil libertarian’s nightmare. But if that law were abrogated, as the McDonald Commission recommended, we think that this proposal would be better than that of C-9 in its present form. It would serve to cancel any suggestion that the definition of “threats to the security of Canada” creates some new crime or crimes or sanctions surveillance of anything other than unlawful behaviour, actual or potential, and reduce terminological indeterminacy.

In the end, however, we are prepared to acknowledge that it is impossible to frame legislation to secure the objectives of a security service which will not be open to serious abuse. The question is whether the potential abuses are worth the potential benefits, and that brings us back to the matters with which we began.