The federal government is making one of the most important changes to its anti-terrorism regime in decades, adding layers of new civilian oversight over all operations undertaken in the name of national security.
In an age of growing concerns over terrorism, the government's proposed anti-terrorism legislation does not add any new powers to its main spy agency, the Canadian Security Intelligence Service (CSIS).
Instead, the government's proposed National Security Act would put the activities of all national-security agencies under the scope of a new super-watchdog called the National Security and Intelligence Review Agency (NSIRA). The new oversight body would review the operations of the CSIS, the Communications Security Establishment (CSE) and the RCMP's national-security operations, among others.
Public Safety Minister Ralph Goodale said the new agency will do a better job than the existing patchwork of watchdogs because it will be able to review national-security operations across all agencies simultaneously. "The stovepipes are gone," Mr. Goodale said.
National-security expert Craig Forcese said Bill C-59 constitutes "the biggest reform" to Canada's national-security framework since the creation of CSIS in 1984.
The government is also looking to hire a new Intelligence Commissioner to provide independent approval of some of the more contentious operations undertaken by CSIS and CSE. The new Commissioner will be a retired judge who will be asked to approve authorizations for operations such as the acquisition of large volumes of personal information (known as datasets) and foreign cyberoperations.
The Liberals had promised in the previous election to revamp the Conservative government's Anti-Terrorism Act, but this proposed legislation goes much further with the proposed new oversight mechanism.
"There will no longer be artificial barriers between the review of what the RCMP does, and the review of what CSIS does, and the review of what CSE does, or indeed any other agency that acts for national security reasons," said Kent Roach, a law professor and national security expert at the University of Toronto. "It's a big plus."
However, the Conservatives blasted the government for limiting CSIS's ability to disrupt potential terrorist threats and target would-be terrorists in order to better respect Charter rights.
"Liberals don't take public safety seriously," Conservative MP Erin O'Toole said. "It's a dangerous step back from certain provisions that allowed law enforcement to intercede when there was a threat to public safety in Canada."
The main new powers in the legislation are provided to the CSE, which conducts electronic surveillance and offers cybersecurity expertise to the government. For the first time, CSE would be able to work with the Canadian Armed Forces to engage in cyberoperations to "disrupt the capabilities and activities" of foreign-based entities, instead of simply using defensive methods to protect Canadian assets.
"We know about the increased threat of cyberattacks, and Canadians expect us to make sure that we have all the necessary tools to protect our infrastructure and our security," Defence Minister Harjit Sajjan said.
In relation to CSIS, Bill C-59 recognizes the spy agency's right to obtain and retain datasets that contain large volumes of information on Canadians (such as a list of stolen passports) and foreigners (such as a list of people who crossed a border in a war zone).
Under this regime, CSIS would need to make an application to the Federal Court to use and retain datasets involving Canadians. Regarding foreign datasets, which contain mostly information on non-Canadians outside of Canada, the Intelligence Commissioner would be able to approve their retention.
The new legislation amends the previous government's Anti-Terrorism Act (known as Bill C-51), making it clear that all of CSIS's activities need to respect the Canadian Charter of Rights and Freedoms.
Under the current law, CSIS is allowed to take unspecified disruption actions when there are reasonable grounds to believe a particular activity poses a security threat. The new legislation would spell out the measures to be used, such as disrupting communications, interrupting financial transactions or interfering with someone's movements.
Bill C-59 would also require CSIS to obtain a warrant for any action that would "limit" a right or freedom protected by the Charter. In addition, the bill would tighten the definition of "terrorist propaganda," which currently refers to "advocating or promoting the commission of terrorism offences." Under the new legislation, it would refer to the "counselling" of terrorism offences.
The cost of the new oversight mechanisms will add up to nearly $100-million over the next five years. Creating a new oversight agency such as the proposed NSIRA was first raised a decade ago by Justice Dennis O'Connor during the public inquiry into the case of Maher Arar, who was sent to Syria by U.S. authorities.
Mr. Arar's wife, Monia Mazigh, said the super-watchdog may not have prevented her husband's rendition and subsequent torture, but it would have helped him get answers after the fact.
"It would have been helpful after he came back [from Syria] to launch a complaint and see where things started and how things actually started towards his rendition from Canada – what sort of information was shared, what sort of actions that were taken," she said.
The proposed legislation would address some of the concerns of Canadian airline customers whose names closely match those on international no-fly lists. The legislation proposes an amendment allowing the minister of public safety to inform parents whether or not their child is on the list. However, federal officials acknowledge the problem is technologically complex and will not be solved entirely with this legislation.