While the B.C. Civil Liberties Association recognizes the need for national security, it is not clear to us that any special security service is needed to preserve and protect it. What threats to national security are suitably omnipresent to call for such a standing service? Why cannot the RCMP handle such dangers? We are open to instruction here, and hence not irrevocably opposed tot he terms under which the proposed security service is set up in Bill C-157.
Contemporary Canadian democratic society is characterized by the highly prized features of rule of law, public accountability, and the civil rights of freedom of speech, freedom of association, and privacy. The importance of the first two needs no elaborate explanation. The rule of law according to which all are equally subject to the law reflects our fundamental commitment to equality. That rule does not mean that special classes of persons (e.g., police officers) cannot have special rights. But it does mean that no class of persons can be either de jure or de facto authority be systematically excepted from the usual laws of the land: no one is to beyond the law. Similarly, it is obvious that any self-governing community must have a check on those they deputize to serve their interests. Thus any compromise of public accountability compromises self-government. The importance for democracy of the civil rights in question is no less important, but more recondite. In a self-governing community the people have a dual role: they are at once both the rulers and the ruled. Now in order for them to properly fulfill their ruling function, they must have untrammelled access to all information relevant to matters of public policy. But if the people qua rules have the right to hear such information, they mustqua subjects have the right to absolute freedom of speech on all matters of public policy, for it is surely relevant for a self-governing community to know how its members feel about such matters. And to the extent to which freedom of association and privacy are necessary to promote the construction of dissemination of such opinions, they too lie at the heart of self-government.
Bill C-157, as we shall argue, compromises all of these things. We have concerns in this regard about the Service’s mandate, management, and function. Our reservations will not be met by minor modification of this proposal, and thus we have not endeavored to provide a constructive critique of the specific terms of the proposed legislation. It is our view that Bill C-157 must be withdrawn and that the need for a special security service be demonstrated, before another legislative initiative of this sort is considered.
Mandate of the service
The basic function of the service is to monitor and combat threats to the security of Canada. But what constitutes such a threat is defined in an extremely broad way. Included are the following:
- Any foreign influenced activities which are detrimental to the interest of Canada or any state associated with Canada (Sec.2, item b). This would subject to potential surveillance and control the entire peace movement.
- Any activities which support the threat of use of violence for political objectives within Canada or a foreign state (Sec.2, item c). This would place any Maxist-Leninist organization squarely within the bounds of legitimate observation, and thus raise the spectre of McCarthyism.
- Any activities, unlawful or otherwise, directed towards the destruction or overthrow of the constitutionally established system of government in Canada. (Sec.2, item d). This would bring any movement to abolish the Senate within the jurisdiction of the service.
Come, come, one might respond, no one is thinking of such things; the Service has more important targets, and life in all innocent organizations will not be disrupted. Perhaps not. But the point is that the proposed Bill has given the Service the power to do these things, 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.
Management of the service
This discomfort is not lessened when we learn the degree of autonomy the Service is to enjoy. The Minister is authorized under Sec.6(1) to issue general directions (whatever that may mean) to the Director of the Service, but Sec.6(3) stipulates that he cannot override the decision of the Director on the more sensitive questions of whether the Service should collect information in relation to any particular person or persons, and what specific information should be disclosed to the Government of Canada or any other authority. We appreciate the desire to free the Service from the possibility of political machinations. But this comes at the cost of infringing a principle lying at the heart of self-government, namely that any governmental body should be accountable to elected officials in proportion to the power it has. That does not seem a good trade-off.
We also find objectionable the secrecy in which the general directions governing the service may be kept. According to Sec.6(4), the directions the Minister is authorized to issue under 6(1) will not necessarily be made available to the public. We can understand the need for secrecy in particular matters, but general directions seem to concern matters of public policy, and hence cannot properly be kept from any self-governing people.
Function of the service
Our above worries are only exacerbated by the enormous powers the service is to be granted. First, we are concerned by Sec.14(2), according to which “Nothing in this Act restricts the Service from remaining informed about the political, economic and social environment within Canada and matters affecting that environment.” This is truly a blank cheque, for there is nothing which falls outside that description. One’s reading matter, record library, video collection, writings, teaching, etc. suddenly become suitable objects of surveillance, as does how one spends one’s leisure time and with whom. The threat to the right to privacy, freedom of speech, and freedom of association is obvious and substantial. Sec.14(3), which stipulates that nothing in the Act authorizes the Service to investigate individuals or groups solely on the basis of their participation in lawful advocacy, protest or dissent, is no doubt designed to take some of the sting out of this. But that Section is puzzling. Does it exclude from the possibility of surveillance anyone who participates in lawful advocacy, protest or dissent but who is otherwise above suspicion, even though what they are doing or saying may be a matter which is relevant to the “political, economic and social environment within Canada”? If so, what is the force of “nothing in this Act” in Section 14(2)? If not, what is the force of the same phrase in Sec.14(3)?
Second, we are concerned by the ease with which security assessments can be carried out. According to sections 15 and 17, the Service has the authority to provide security assessments on anyone for apparently any reason. There are, no doubt, occasions on which security assessments are called for, but the right to privacy dictates that they be carried out only on very special occasions. Any legislation which will not be open to serious abuse must stipulate the kinds of occasions which will warrant those measures.
Third, we are concerned by the right to break the law granted the Service under section 21(1). According to that, the Director and members of the Service are authorized to take whatever reasonable actions, lawful or unlawful, as are reasonably necessary to secure their objectives. This does not immediately place them entirely beyond the usual laws of the land, for all violations of the law must be reported to the Minister, and presumably a court could take those who broke the law to task. But, in practice, we can reasonably fear that they are so placed. Given the broad mandate and authorized functions of the Service, it would be hard for any court to overturn the judgement of its Director and the trained professionals in its employ. No one can plausibly suggest that the law cannever be broken in the exigencies of police work. But we already have a “Defense of Necessity” to provide for such contingencies. and it is not clear we need anything more. Even if we do, the sorts of occasions on which the Criminal Code can be set aside need to be specified more narrowly. The authority to do that granted under C-157 is a case of burning down a barn to roast a pig.
The right of the Inspector General to investigate the Service in Sec.28, and his duty to report to the Minister in Sec.29, give the review provisions some teeth. But it is unrealistic to suppose them sufficient to control the possible evils wrought by the broad mandate and sweeping powers discussed above. There are any number of wrongs to particular persons which could yet go unrectified and unpunished, to say nothing of the evil of undermining the long-standing social rights to privacy, freedom of speech, and freedom of association. It is not new and better review provisions which are needed here but a withdrawal of the entire legislation. It is not clear that any standing Security Service is needed, but if one is, it can only be properly given much more modest jurisdiction that that detailed in C-157.