In 2015, the Harper government passed the Anti-terrorism Act, also known as Bill C-51. This bill introduced sweeping changes to Canada’s national security legislation in an attempt to deal with the Conservative government’s perceived security concerns. Many journalists, scholars and security experts also questioned the constitutionality of the Bill, arguing that it jeopardized many of our most basic rights and freedoms and undermined our democracy. During the 2015 federal election, the Liberals campaigned on a promise to repeal the problematic aspects of Bill C-51. Having formed government, the Liberals introduced Bill C-59 in an attempt to fix the unconstitutional changes brought in by C-51. Overall, C-59 improves oversight and accountability, but also grants a range of troubling new powers for the various intelligence agencies, and fails to address some long-standing problems in Canadian national security law. The Canadian government must do its best to strike an appropriate balance between national security matters and rights-preservation. In order to do so, it should adopt stricter rules regarding the bulk acquisition of data. As it stands, any data that is “publicly available” is fair game for collection. Furthermore, dataset provisions make it legal for CSIS to retain this data long after it is necessary. Canadians need to be ensured that their data is not being unnecessarily collected and stored.

Overview

In 2015, the Harper government passed the Anti-terrorism Act, also known as Bill C-51. This bill introduced sweeping changes to Canada’s national security legislation in an attempt to deal with the Conservative government’s perceived security concerns. Bill C-51 was barely a month old before it faced its first constitutional challenge, filed by the Canadian Civil Liberties Association. Many journalists, scholars and security experts also questioned the constitutionality of the Bill, arguing that it jeopardized many of our most basic rights and freedoms and undermined our democracy.[i]  

Bill C-51 granted the Canadian government greater freedom in combatting national security threats by introducing numerous changes to existing legislation. However, legal experts criticized the bill’s vague language, arguing that it risked compromising Canadians’ freedoms and privacy. For example, C-51 introduced an amendment to the Criminal Code that created an offence for “knowingly advocating or promoting the commission of terrorism offences in general.”[ii] The term terrorism offences, however, was nowhere defined in the Criminal Code. This created a highly subjective test for courts to apply in determining whether an individual’s speech or actions promoted “terrorist offences in general.” Such vague and overly broad language risked criminalizing dissent and placed an unjustifiable limit on the Charter’s guarantee of freedom of expression.[iii] C-51 also introduced an amendment to Canada’s privacy laws in order to allow for increased information sharing among government agencies. Under C-51, private information could be legally shared among 17 different government agencies. Legal experts noted that this was an unwarranted breach of Canadians’ privacy, and also pointed to the unnerving possibility of this information being shared with governments abroad.[iv] This legislation also gave the Canadian Security Intelligence Service (CSIS) a new set of “threat disruption powers.” Prior to C-51, CSIS could merely collect intelligence—law enforcement was left to the RCMP. Bill C-51, however, granted CSIS the right to act on its own intelligence and intervene in a perceived security threat.[v] There were few limits placed on these “threat disruption powers,” which alarmed many legal experts. Bill C-51 also introduced the Secure Air Travel Act, which codified the way people are put on the no-fly list, and the process by which they can appeal this listing. Under this bill, both the listing process and the appeal process remained completely secret, undermining individuals’ right to due process.

During the 2015 federal election, the Liberals campaigned on a promise to repeal the problematic aspects of Bill C-51. Having formed government, the Liberals introduced Bill C-59 in an attempt to fix the unconstitutional changes brought in by C-51. This proposed legislation is long and complex, and contains a wide array of changes—some of which are improvements, while others are extremely disquieting. Overall, C-59 improves oversight and accountability, but also grants a range of troubling new powers for the various intelligence agencies, and fails to address some long-standing problems in Canadian national security law.

Questions for Federal Candidates

• Canada has rarely been attacked by terrorists, and compared to other Western countries, has a much shorter list of perceived terror threats. Do you believe that mass surveillance and information sharing is warranted or fair, given Canadians’ Charter-protected right to privacy?
• Given that people listed on Canada’s no-fly list have such limited ability to challenge this designation, do you believe that Canada should have a more transparent approach to its no-fly list?
• Between the Conservatives’ bill C-51, and the Liberals’ bill C-59, the Canadian government has acquired vast new powers of surveillance and control. While not discounting the evolving threats to national security, would you support a review and revamp of Canada’s national security legislation?
• Terrorism, whether international or domestic, is usually driven by root-cause grievances. Would you encourage Canada to study and address, when possible, the root causes behind such acts of violence? 

If elected:

• Will you work within caucus to raise awareness of the need to introduce greater limits on information sharing and mass surveillance within Canadian national security law?
• Will you work within caucus to raise awareness of the grave need to overhaul the listing process and redress system associated with the no-fly list?

Supporting Points

• International Law and the UN Position. States have not only a right, but also a duty to take effective measures to combat threats to national security. In 2001, the UN Security Council adopted Resolution 1373, which called upon all states to take the necessary steps to prevent the commission of terrorist acts and to find ways of intensifying and accelerating the exchange of operational information in pursuit of that goal.[vi] Of course, many Security Council members can be strongly criticized for disrespect of civil liberties and human rights both domestically, and in their foreign interventions. And in fulfilling this duty, states are obligated to ensure that any new nation security measures respect international human rights law. For example, there are numerous conventions that protect an individual’s right to privacy, including the Universal Declaration of Human Rights (Article 12) and the International Covenant on Civil and Political Rights (Article 17). [vii] There are also several UN General Assembly (UNGA) resolutions that reaffirm this right, even within a context of counter-terrorism. UNGA resolution 72/180 (2017) urges states, while countering terrorism, to safeguard the right to privacy in accordance with international law. It also urges states to review their procedures, practices, and legislation regarding mass surveillance and data collection so as to ensure that these measures do not interfere with the right to privacy.[viii] States must also ensure that their counter-terrorism measures do not interfere with the right to freedom of expression, the right to freedom of assembly, and the right to freedom of movement, all of which are protected under the Universal Declaration of Human Rights.[ix] Under international law, should states wish to limit these rights, these limitations must be imposed “in pursuance of one or more specific legitimate purposes” and “necessary in a democratic society.” They also must be imposed in an indiscriminate fashion and must be prescribed in law.[x]  
• Canada’s Current Policy. Bill C-59 represents the Liberal government’s attempt to review and revamp the Conservatives’ Bill C-51. C-59 introduces many important changes to Canadian national security law, but simultaneously fails to address some major issues. One positive change is the creation of the National Security and Intelligence Review Agency (NSIRA), which will replace a number of existing bodies. NSIRA will act as a multi-agency review mechanism, charged with assessing and reviewing the actions of each national security agency.[xi] Prior to C-59, each agency had different oversight bodies, which could not collaborate with each other. This amendment, therefore, fills a vast gap in Canada’s national security oversight and accountability framework. In regard to CSIS, Bill C-59 does not remove the “threat disruption powers” granted in Bill C-51.[xii] To understand why this is problematic, one need only look at the history of CSIS. Following the findings of the McDonald Commission in the 1970s, the RCMP was stripped of its intelligence-collecting duties. CSIS was created to handle intelligence work, and the RCMP’s mandate was limited strictly to law enforcement matters.[xiii] This split was born out of the recognition that these two goals sometimes conflict, and that doing both intelligence collection and law enforcement work puts a lot of power in the hands of one fallible agency. Moreover, C-59 facilitates the bulk acquisition of ‘publicly available’ data. The term ‘publicly available’ is loosely defined in C-59, creating a very broad opportunity for CSIS to engage in the unnecessary and disproportionate collection of information about innocent individuals.[xiv] The information that is collected can then be shared between various agencies, as long as the government deems it “reasonably necessary” to do so.[xv] Therefore, concerns about privacy remain unresolved. Lastly, C-59 fails to introduce any substantial changes to the no-fly list. As it stands, the thresholds for suspicion that allow the Minister of Public Safety to put someone on the list are too low.[xvi] Furthermore, individuals who choose to appeal their listing face an opaque and unjust appeal system. The appeals process does not involve the listed person at all. Rather, the appeal takes place entirely behind closed doors. There is no lawyer present to represent the appellant. Furthermore, the appeals process allows for secret evidence to be considered.[xvii] This completely contravenes the right of the listed person to have a full, fair defence. Additionally, C-59 does nothing to remedy the occurrence of false positives. There are numerous examples of children being incorrectly flagged as security threats because they have the same name as someone on the no-fly list.[xviii]

Recommendations for Canada

• The Canadian government must do its best to strike an appropriate balance between national security matters and rights-preservation. In order to do so, it should:
  • limit the amount of information shared between government agencies in order to protect Canadians’ right to privacy. This disclosure of information should only occur in exceptional circumstances, and should not become the norm.
  • Adopt stricter rules regarding the bulk acquisition of data. As it stands, any data that is “publicly available” is fair game for collection. Furthermore, dataset provisions make it legal for CSIS to retain this data long after it is necessary. Canadians need to be ensured that their data is not being unnecessarily collected and stored.
• Canada should reform the listing process, as well as the appeal procedures, associated with its no-fly list. The government should adopt stricter criteria for listing, and the decision to list an individual should not be left exclusively to the Minister of Public Safety. Rather, this decision should be made by a committee of high-level security officials in order to ensure greater oversight. Furthermore, there needs to be greater transparency in the appeal process. The Canadian government should allow for appellants to be represented by a “Special Advocate,” as is the case in closed-door security certificate proceedings. The government must also introduce a solution for individuals who have been improperly flagged because their name matches that of someone on the list.

[i] Canadian Civil Liberties Association. (September 12, 2017). Ten things you need to know about Bill C-69. Retrieved from https://ccla.org/ten-things-need-know-bill-c-59/

[ii] CJPME. (March 2015). Bill C-51 and implications for Canadian freedoms.

[iii] Canadian Civil Liberties Association. (September 12, 2017). Ten things you need to know about Bill C-69. Retrieved from https://ccla.org/ten-things-need-know-bill-c-59/

[iv] CJPME. (March 2015). Bill C-51 and implications for Canadian freedoms.

[v] CJPME. (March 2015). Bill C-51 and implications for Canadian freedoms.

[vi] UN Security Council. (September 28, 2001). S/RES/1373(2001): Resolution 1373. Retrieved from https://www.unodc.org/pdf/crime/terrorism/res_1373_english.pdf

[vii] Privacy International. (2019). Guide to international law and surveillance. Retrieved from https://privacyinternational.org/sites/default/files/2019-04/Guide%20to%20International%20Law%20and%20Surveillance%202.0.pdf

[viii] Privacy International. (2019). Guide to international law and surveillance. Retrieved from https://privacyinternational.org/sites/default/files/2019-04/Guide%20to%20International%20Law%20and%20Surveillance%202.0.pdf

[ix] United Nations. (1948). The Universal Declaration of Human Rights. Retrieved from https://www.un.org/en/universal-declaration-human-rights/

[x] Office of the United Nations High Commissioner for Human Rights. (n.d.) Human rights, terrorism, and counter-terrorism. Retrieved from https://www.ohchr.org/Documents/Publications/Factsheet32EN.pdf

[xi] Canadian Civil Liberties Association. (September 12, 2017). National security accountability, oversight and review in Bill C-59. Retrieved from https://ccla.org/national-security-accountability-oversight-review/

[xii] Canadian Civil Liberties Association. (September 12, 2017). Understanding CSIS disruption powers in Bill C-59. Retrieved from https://ccla.org/understanding-csis-disruption-powers-bill-c-59/

[xiii] Canadian Civil Liberties Association. (September 12, 2017). Understanding CSIS disruption powers in Bill C-59. Retrieved from https://ccla.org/understanding-csis-disruption-powers-bill-c-59/

[xiv] Canadian Civil Liberties Association. (September 12, 2017). Mass surveillance and bulk collection in Bill C-59. Retrieved from https://ccla.org/mass-surveillance-bulk-collection-bill-c-59/

[xv] Canadian Civil Liberties Association. (September 12, 2017). Information sharing and disclosure in Bill C-59. Retrieved from https://ccla.org/information-sharing-disclosure-bill-c-59/

[xvi] Canadian Civil Liberties Association. (September 12, 2017). The No-Fly List and Bill C-59. Retrieved from https://ccla.org/no-fly-list-bill-c-59/

[xvii] Canadian Civil Liberties Association. (September 12, 2017). The No-Fly List and Bill C-59. Retrieved from https://ccla.org/no-fly-list-bill-c-59/

[xviii] Note: Please see https://noflylistkids.ca/en/home/