Submission to Parliament on Bill C-44 concerning expansion of CSIS powers and creation of CSIS informant privilege

Bill C-44 seeks to create a statutory class privilege over the identity of CSIS informants, similar to the absolute privilege granted to police informants at common law. A CSIS informant privilege would serve as blanket prohibition against the disclosure of either the identity of the human source or information that might lead to the identification of the human source. This prohibition would apply in virtually every circumstance where information may be compelled: the scope of “a proceeding before a court, person or body with jurisdiction to compel the production of information” can encompass everything from criminal trials and immigration hearings to Commissions of Inquiry and investigations by review bodies. It is our submission that a case-by-case confidentiality privilege is the preferable approach when it comes to ensuring that claims of confidentiality are properly balanced against the public interest in disclosure and an individual’s interest in knowing the case to be met, and that Parliament should reject the creation of a class privilege for CSIS informants.

Bill C-44 also seeks to establish CSIS’s authority to conduct investigations outside of Canada, potentially with the cooperation of foreign agencies. Since CSIS was first established, Canada’s national security apparatus has grown in size, scale, reach and integration. The various agencies responsible for protecting Canada’s national security have become more integrated in their operations, and ever more funds are devoted to national security activities. Meanwhile, review and oversight mechanisms for national security activities have failed to keep pace, and in the case of CSIS, have been actively eroded. It is our submission that any expansion of CSIS authority must be accompanied by a corresponding expansion of independent review and oversight.

Finally, Bill C-44 proposes to amend s. 21 of the CSIS Act to permit judges to issue warrants for CSIS to conduct investigations “without regard to any other law, including that of any foreign state”. This is simply extraordinary in what it asks of Canadian courts, and what it permits CSIS to do once such warrants are granted. We believe that asking Canadian courts to authorize violations of foreign law simply invites reciprocal conduct by foreign courts and erodes Canada’s reputation for respecting the rule of law. We submit that this expansion of the s. 21 warrant is both unprincipled and unwise. We urge the Committee to reject this amendment to the CSIS Act.

Read the BCCLA’s submissions to the Standing Committee on Public Safety and National Security.