One-time prime minister John Diefenbaker said, “We must vigilantly stand on guard within our own borders for human rights and fundamental freedoms which are our proud heritage. … We cannot take for granted the continuance and maintenance of those rights and freedoms.”
But critics warn that Bill C-59, Canada’s new spy legislation, threatens the freedom of expression, the right to life, liberty and the security of the person, and the right to be secure from unreasonable search or seizure.
Bill C-59 (“An act respecting national security matters,” according to the official literature) is the Trudeau government’s response to the much-maligned Bill C-51, which was enacted after the Parliament Hill shooting. The former legislation gave new powers to Canadian spy agencies with inadequate protections of privacy and democratic oversight. The new legislation purports to address these problems, but experts suggest it’s even worse.
In December, academics at the Citizens Lab and the Canadian Interest Policy and Public Internet Clinic (CIPPIC) at the University of Toronto issued their alarming analysis of C-59. The authors warn: “From mass dissemination of false information, to impersonation, leaking foreign documents in order to influence political and legal outcomes, disabling account or network access, large-scale denial of service attacks, and interference with the electricity grid, the possibilities for the types of activities contemplated in (Bill C-59) are limited only by the imagination.”
The report says the documents leaked by U.S. National Security Agency whistleblower Edward Snowden in 2013 showed experts that Canada’s Communications Security Establishment (CSE) was already spying far more than previously known.
Such non-targeted mass surveillance was seen by many to affront international law and our Charter of Rights and Freedoms. Bill C-59 seems an effort to legitimize this activity by putting it more explicitly into law, then pushes the bounds even further.
The report explains, “A foreign intelligence authorization allows the CSE to engage in any otherwise unlawful activity, ‘despite any other act of Parliament or of any foreign state,’” subject to Subsection 25(2) of the CSE Act. In Paragraph 27(2)(e), the new act allows the CSE to engage in “any other activity that is reasonable in the circumstances and reasonably necessary in aid of any other activity, or class of activity, authorized by the authorization.” In other words, the CSE can ignore any law it likes if it deems it best.
What then of oversight?
C-59 creates a National Security and Intelligence Review Agency to review and investigate the activities of the CSE and the Canadian Security Intelligence Service. It would also create an intelligence commissioner to provide independent and quasi-judicial oversight over these agencies.
Unfortunately, the commissioner doesn’t need to be consulted or approve any use of the new cyber operations. They need only the approval of the ministers of Defence and Foreign Affairs.
The bill is in its early stages and can still be revised. To this end, the CIPPIC report has 54 recommendations to improve the bill and make it more charter-compliant. Proposed changes place a stronger leash on the CSE by strengthening the intelligence commissioner’s role and authority, clarifying terms of the legislation, and narrowing the scope of the proposed spying powers.
Advocates such as OpenMedia are collecting names on a petition that calls on the government to accept the report’s recommendations.
Unjust legislation can’t be allowed in the name of security. As former prime minister Pierre Trudeau said, “I recognize that in some cases it’s more important to have freedom and justice than to have peace.” Hopefully, the government will recognize this principle and the Charter of Rights and Freedoms that Trudeau created.
Lee Harding is a research associate with the Frontier Centre for Public Policy.
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