Canada’s Antiterror Gamble

The Canadian Parliament is debating the country’s most significant national security reform in over a decade. The proposed act, known as Bill C-51, would supplement antiterror laws enacted following 9/11. Responding to United Nations Security Council resolutions calling for the criminalization of terrorism, that legislation — passed without partisan rancor — modified Canada’s criminal code, creating a host of new terror offenses.

In contrast, Bill C-51, proposed in January by the Conservative government of Prime Minister Stephen Harper, is a highly politicized response in a parliamentary election year to the October terrorist attacks in Ottawa. With Conservatives controlling the House of Commons, it is widely expected to pass before Parliament breaks in June.

Bill C-51 has many moving parts. Taking a breathtakingly broad view of national security, it facilitates information-sharing among federal institutions, with no robust limits on how that information may then be used (or misused). This is a remarkable development for a country that in 2007 agreed to pay millions to compensate a Canadian citizen who suffered foreign torture as a result of inaccurate intelligence-sharing.

The legislation would also augment police powers to preventively detain or restrict terror suspects. But when it comes to antiterrorism, its main goal is to enhance the covert powers of Canada’s security services.

Canada has a national police force and a mostly domestic intelligence service, the Canadian Security Intelligence Service (C.S.I.S.). These organizations haven’t always worked well together. Spies and police have been known to unproductively chase the same targets. And spying has complicated police efforts to bring charges in open court: The C.S.I.S. often tries to protect its sources and methods in criminal proceedings that demand full disclosure.

The investigation into the 1985 Air India attack, when a bomb exploded on a plane en route from Toronto to New Delhi, killing 329 people, is a prime example of this disorganization. In 2010, a judicial commission of inquiry found that efforts to detect and prevent this attack had been undermined by a fundamental lack of cooperation between Canada’s spies and police, and urged reform. Bill C-51 rejects these calls, giving primacy to the C.S.I.S. and empowering it to carry out investigations without police assistance.

Bill C-51 would authorize the C.S.I.S. to “take measures, within or outside Canada, to reduce” national security threats. The government argues that this would enable a range of valuable actions, like allowing C.S.I.S. agents to speak with parents of potential terrorists. But the real endgame could be much more concerning. If the bill is passed, the C.S.I.S. could have the capacity to do things like block the return of Canadians fighting abroad; remove Web postings it found threatening; drain bank accounts; engage in disinformation campaigns; or bypass traditional police channels in order to detain suspects. The only limits explicitly spelled out in Bill C-51 are acts that would cause “death or bodily harm,” willfully obstruct justice or violate sexual integrity.

The bill’s main safeguard would be judicial warrants, required when potential agency actions would contradict Canadian law or contravene rights enshrined in the country’s Charter of Rights and Freedoms. But this safeguard is imperfect. C.S.I.S. warrant proceedings are secret and one-way: The target of the requested warrant is not represented. Such proceedings always run the serious risk of wrongly penalizing an innocent person. This trade-off may have been (barely) acceptable when requests were limited to surveillance. But Bill C-51 could see Canadian Federal Court judges asked to authorize lawbreaking or unconstitutional behavior by a covert agency whose mandate would extend beyond spying.

If foreign governments have thus far eschewed commenting publicly on the proposed legislation, two features should stand out for the international community. Bill C-51 would permit C.S.I.S. interventions beyond Canada’s borders. And it would even empower Canadian courts to authorize C.S.I.S. conduct that violates “any other law, including that of any foreign state.”

Polite Canadian judges might be reluctant to authorize C.S.I.S. breaches of foreign statutes. But where international operations are concerned, judicial reticence may not matter. Bill C-51 would only require warrants in cases of potential violation of Canadian law or its national Charter, which almost never apply outside the country. Thus there would be little judicial oversight of C.S.I.S. activities abroad.

To make matters worse, Canada’s independent security review mechanisms are outdated. The Security Intelligence Review Committee (SIRC), starved of staff and resources for a decade, is mandated to track an operation only within the C.S.I.S., even as that agency works with the country’s armed forces, border control officials and foreign partners. Canadian lawmakers rarely have access to classified national security information, which means that they are generally flying blind with respect to the details of active operations. Bill C-51 includes no provisions to correct this, or strengthen external watchdogs like the SIRC.

Bill C-51 faces stiff opposition from the New Democratic Party, and has ignited the concern of civil liberties groups, lawyers and academics. But the prospects of a course-correction are dim. The Conservatives are eager to pass antiterror legislation before general elections in October; once enacted, Bill C-51 would presumably take effect immediately. So far, the party has signaled no serious interest in amendments, even as protests mount.

Ahead of the 2006 federal elections, Conservatives ran on a platform of building a true foreign intelligence service. Instead of doing so, the party’s political leadership is now attempting to reshape a domestically focused security agency into one with enhanced foreign powers. Only partially overseen by judges and even less accountable to national review bodies, it would be authorized to act beyond the law both at home and abroad.

What could go wrong?

Craig Forcese and Kent Roach are law professors specializing in antiterrorism law at, respectively, the Universities of Ottawa and Toronto

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