Senate Standing Committee on National Security and Defence
feat. Michael Nesbitt
April 29, 2019
Let me begin with a sincere thank you to all of you for the work you are doing and, of course, for inviting me to appear before you to talk about Bill C-59. It really is an honour to be here today, and I mean that.
Let me begin by expanding on one salient point that I really want to drive home, which is that Bill C-59 represents the largest change to Canada’s national security landscape I think ever — certainly since 1984 and the creation of CSIS. It’s a complicated bill, as you now know, and one that struggles meaningfully — and I would say laudably — to find an effective, secure and rights-based balance to national security and liberty in Canada. For this, all of those involved with its conception and drafting should be praised.
The bill is also a timely one for our age. It’s imperative that it is passed in some form in the very near future, I believe, and very likely before Canada’s fall election. There is so much in this bill that brings Canada’s national security practice into the 21st century, and, frankly, it does so almost 20 years into that 21st century. I’m thinking here particularly of the section relating to CSE, which you’ve just heard about, which is absolutely imperative to the effective operation of that agency and, indeed, to Internet and even election security.
It’s also well past time that the so-called “no-fly list” situation is remedied. These poor families should — I think self-evidently — not have to endure another second of their Kafkaesque predicament. As honourable Canadians, it’s time we act.
Finally, it’s beyond time that Canada has a national security and intelligence review committee that brings us more in line with our Five Eyes partners. This is especially important given the scope of the new powers and the increased information sharing that now takes place both within government and with our partners overseas.
Having made my pitch for the bill as a whole, I don’t want to leave you with the impression that I think it’s perfect as such, so I wanted to make three small recommendations with respect to the CSIS disruptive powers as found in Part 4 of the bill. For my part, these three small recommendations are not inconsequential. Each of these I view as important from both a national security and a civil liberties perspective. Let me repeat that. I think that these recommendations will provide both additional support for CSIS operations, and thus for national security in Canada, and ensure that these extensive new powers for CSIS are exercised with greater and more substantive oversight and challenge, ensuring the protection of liberty and, frankly, the constitutionality of the powers.
So what are these three recommendations? The first one is to further limit CSIS’s Charter-limiting disruptive powers to reflect their accurate scope. What do I mean by that? As you know, new section 12.1(3.1) will read that the service may take measures that would eliminate a right or freedom guaranteed by the Charter of Rights and Freedoms essentially with a judicial warrant. I ask you, will CSIS be able to limit the right of legal counsel guaranteed under section 10 of the Charter or the right to be presumed innocent until guilty under section 11(d)? If the answer is yes, as a plain-language reading of that text might indicate, then we have a rather serious constitutional problem. I suggest the answer is no. The Charter-limiting power really only applies to section 2, your freedoms; section 6, your mobility rights; and section 7, or part thereof, the right to liberty and security of person, though not to life. In fact, the new section 20.1(18) is going to impose a series of limits on these Charter-limiting powers, which would seem to prevent many of the Charter rights from ever being limited in practice, so sections 10 and 11 in practice are probably, though not clearly, unlikely to ever be limited. This is obviously a strong new check on CSIS’s broad and indeed unprecedented powers and therefore a good one. But I ask you, if the intention is never to limit sections 10, 11, 13, your voting rights, et cetera, why offer such a robust, explicit Charter-limiting authority in new section 12.1 in the first place? The short answer is, you shouldn’t.
I submit to you that the new section 12 Charter-limiting power should itself be directly limited by spelling out precisely what Charter rights can be limited. This amendment offers two benefits. First, it ensures transparency and certainty with respect to what is actually being allowed in practice. Again, there is no harm in limiting these powers further if that is already the intention of CSIS. If that is not the intention and sections 10 and 11 might indeed be limited by these powers, then I have grave concerns, and again it would be very good indeed to hear about it, and I will add, hear about it for the first time, before this bill is passed.
Second, presuming that CSIS has no intention of ever limiting the section 10 and 11 powers, my proposed amendment is important because it speaks directly to the constitutionality of the regime. The CSIS disruptive regime is constructed so as to turn on a section 1 Charter save. To do so, the powers will have to be minimally impairing, not over-broad, et cetera. But if the grant of power goes beyond what is acceptable, and indeed goes theoretically beyond what CSIS even wants or needs, then not only is there no security benefit to this extended power as currently worded, but there is a constitutional concern with respect to its minimal impairment and that constitutional concern exists for no good reason.
Second recommendation I would have is again a simple one. It is to introduce special advocates to the section 1 warrant process. I have seen numerous descriptions comparing the proposed CSIS disruptive powers regime to the police powers regime under section 25.1 of the Criminal Code or perhaps to the police warrant regime found variously in the code. This is inaccurate in practice. In practice, the CSIS regime will look little like the police warrant regime. While warrants might similarly be authorized during ex parte in camera hearings, police warrants will almost always be challenged in the adversarial process in open court once they are executed. The same will rarely, if ever, be said for CSIS disruptive warrants.
More to the point, the CSIS regime contemplates a full section 1 Charter save during these hearings, something unique to Canadian law. That’s, of course, fine, but section 1 saves cannot and should not be determined in ex parte in camera hearings with only the state and a warrant-authorizing judge present. Introducing the well-known concept of so-called special advocates into the disruptive warrant regime would go a long way to remedying the process. Indeed, if you don’t do it, in all likelihood, the Federal Court is going to anyways.
The problem is that this is a debate for the legislative branch. It should not be left to the Federal Court to invent necessary, well-known procedures that we all know are probably going to come to pass when they could just as easily have been inserted into the legislation in the first place. I very much doubt that the CSIS regime can survive without special advocates, or amici, as they will be called if the Federal Court does it, to participate in the section 1 challenge, and as such I see it as incumbent on the government to insert them into the regime, just as they did, by the way, with the Immigration Refugee Protection Act in similar ex parte in camera hearings and just as they did with recent journalism source protection legislation, et cetera.
This brings me to my final recommendation, which is to introduce a requirement that CSIS return with the special advocate present to update the Federal Court on the exercise of the Charter-limiting warrant. The Federal Court already seems to have introduced a practice like this, whereby CSIS is asked to return to the court to update it on the execution of its warrant. I would think the Federal Court would almost once again invariably have to do the same in order to save the CSIS disruptive regime under a section 1 challenge — that is, to be constitutional, they are going to have to require that CSIS come back and explain how they executed the warrant. Again, that’s fine, but courts should not be put in the predicament of legislating necessary and well-known procedures in the face of government inertia. There is no reason why this wouldn’t just be spelled out in the bill. Police warrants are the gold standard, not just because of the authorization process but because the actual execution of the warrant can be compared to the authorized warrant and the actions of the state challenged subsequently in open court. The process does not exist in the CSIS disruptive powers regime. If you know anything about the police warrants process, you will know that what is actually authorized and what actually takes place will often differ, not because of misfeasance or because of malfeasance, but simply by dint of necessity. The same will be true for the CSIS disruptive warrants, and we should be planning for that eventuality now.
It is best that the legislators make these changes. It is best that these protections are enshrined in law, not left to the best graces of our judiciary. The debate should be open, here, rather than in closed courts, to ensure that the CSIS disruptive regime is upheld as constitutional and thus is able to operate to protect all of us and to protect the liberties of Canadians. I ask you to consider these three small and simple changes. Thank you for your time.