Two prominent law professors argue that Canada's judges are being "dragooned" into the service of spies through Parliament's overhaul of national-security legislation.
Professors Kent Roach and Craig Forcese are to release a scholarly critique of the Conservatives' Bill C-51, tabled last month, on Friday. The analysis focuses on proposed judicial authorizations for future Canadian Security Intelligence Service "disruption" campaigns.
Government officials and the proposed law do not spell out precisely what "disruption" entails. The professors argue the bill could conceivably give CSIS licences to engage in break-ins, computer hacking, draining bank accounts, ripping up passports – even "smear campaigns" – so long as judges sign off in advance.
The professors, who have written books about Canada's security laws based on more than a decade's worth of research, argue such spying activities could be directed against a variety of CSIS "targets" – not just terrorism suspects, but possibly lower-tier threats, such as far-left environmentalists.
Other legal experts counter that the judiciary would never write CSIS a blank cheque to violate the Charter.
"The Federal Court judges have shown themselves quite fiercely independent of the government," says Ron Atkey, a former Conservative politician and past chair of CSIS's watchdog committee. "They will resist the notion that they are tools of executive power."
Canada's spies already spend months filling out one-to-four-inch thick warrant applications, Mr. Atkey said, even if they want to engage in the relatively routine ability to bug a target's smartphone. This likely means the threshold to satisfy judges that disruption is necessary would be even higher, he said.
Such views speak to the tensions inherent in Ottawa's spying efforts, where the responsibility for authorizing activities is increasingly dispersed among the executive, legislative, and judicial branches of government.
Forty years ago, that authority and accountability were held by politicians alone.
On March 27, 1975, the Canadian cabinet published a secret directive called The Disruption Mandate. This memo, recently forwarded to The Globe by lawyer Paul Copeland, empowered the bygone RCMP Security Service to do what was deemed necessary for "deterring, preventing, and countering" threats, in secret.
Word seeped out. After the police scandals of that era, Canada's security service was reborn. Parliament passed the 1984 CSIS Act, creating a class of civilian spies constrained by codified laws and judicial warrants.
Essentially, Canada's spies lost their peace-officer powers, but retained an ability "to enter any place or open or obtain access to any thing" – so long as Federal Court judges signed off, in advance, during secret hearings. Review bodies scrutinized activities afterward.
"Disruption" was never explicitly contemplated in the 1984 act – but it happened. In 2010, a watchdog agency wrote that "if CSIS has determined it is necessary to disrupt threats to national security, then the Government of Canada should be made aware of this."
The 2015 Anti-Terrorism Act attempts to codify CSIS's disruption. The burden of responsibility passes from politicians to judges through a new class of advance warrants. In a paper to be posted Friday on www.antiterrorlaw.ca, the law professors argue this misguidedly makes "judges enablers of executive illegality."
The paper is the latest in a series of essays published by the professors on Bill C-51.
"A judge dragooned into an executive function is no longer the independent and impartial adjudicator required by the constitution," they write.