It's wrong to call the Liberal government's new national-security bill a "repeal" of Stephen Harper's controversial spy-powers law, Bill C-51. What the Liberal legislation really does is add a new layer of oversight agencies to act as a kind of corrective.
This is really about new watchers to watch the watchers.
Canadian spy agencies aren't really seeing their powers trimmed, not even the new powers they obtained under the Conservative anti-terror law. Mostly, they remain intact. Instead, there are more levels of approvals, a few tighter definitions of the limits, an Intelligence Commissioner to preauthorize surveillance activities and a big new review agency to watch how spy powers are used.
That new oversight is undeniably a big step. It will apply more effective scrutiny to what happens in secret. But those added powers are still there. They've been put in a more carefully-crafted box, but it's still a black box. And there are still some lingering questions about what we, the people, will be told about who and what our spies are watching.
It's not a repeal. The Liberals used to use that word, especially before they came to power, to hint that they would roll back a lot of the elements of C-51 that critics said created too many secret powers to spy on Canadians. But they didn't.
When a reporter asked Public Safety Minister Ralph Goodale what had changed, why the Liberals didn't live up to their pre-election promise to repealing the problematic aspects of C-51, Mr. Goodale essentially told her to look at the fine print in the Liberal election platform: The specific pledges never went as far as the rhetoric suggested.
The new powers that were created in the Conservatives' Bill C-51 for the Canadian Security Intelligence Service to actively disrupt threats are still there – trimmed a smidge, defined a little more, but still there. The provisions that allow government departments wide latitude to share Canadians' data haven't changed much.
This bill does fix several of the gratuitous problems with Bill C-51, legislation that was so loosely drafted that it seemed designed to spark objections.
C-51, for example, raised the prospect that CSIS agents could get a warrant to do pretty much anything, in secrecy, with the explicit exceptions of killing and sexual assault. The Liberal bill released Tuesday specified that CSIS agents also can't secretly detain or torture. The list of things CSIS agents can do to disrupt a threat remains extremely broad, but at least there's a list.
It is worth noting those are a whole new class of powers that Bill C-51 conferred upon CSIS. Before that, the spy agency could gather intelligence, but it was up to the RCMP to stop them – that separation was fundamental to the creation of CSIS back in 1984.
Now, the Liberals have confirmed the new, more muscular CSIS created by Mr. Harper's government will stay. Officials noted agents still need a warrant to use those new powers if it means doing something that would otherwise be illegal. But there's a new, special kind of spy warrant – unlike the warrants obtained by police, it will stay sealed and the public will never find out how these powers were used.
The Liberals had promised that they would require the Communications Security Establishment, the electronic eavesdropping agency, to obtain a warrant to engage in surveillance on Canadians. Now, they say CSE never targets Canadians unless they're acting for another agency that has a warrant – but the bill allows CSE to intercept the communications of Canadians to be gathered "incidentally" while CSE is eavesdropping on foreigners, and the measures for protecting the privacy of those Canadians are vague.
For all concerns, the Liberals offer a general remedy: oversight. The new National Security and Intelligence Review Agency finally creates one agency that can review all such matters, rather than separate bodies that can only follow the activities of CSIS, or the CSE or the RCMP.
That is, as University of Ottawa national-security law professor Craig Forcese put it, "huge." But oversight is not transparency. It still counts on an intermediary assuring us that expanding powers are not being abused.
Justin Trudeau's Liberals might have made some think they would roll back a lot of those powers. Not so. Their idea of the security balance, we now know, is not to reduce spy powers, but to reassure the public that more watch will be kept over their use.