In the weeks to come, the Conservative government may propose legislation and regulations in response to the threat of terrorism – changes to Canadian law and practice that will deserve very careful scrutiny. This week, Parliament begins considering Bill C-44 – legislation changing some of the rules of the game for CSIS, Canada's spy agency.
Are these changes cause for alarm? No. First and foremost, Bill C-44 makes it clear that it's okay for CSIS to conduct domestic intelligence-gathering activities partly outside of Canada. CSIS's governing statute did not forbid extraterritorial work, nor should it have, but a few years ago, a judicial decision drew that questionable and unnecessary line. This legislation erases it.
The more sensitive part of the CSIS Act's amendments has to do with "the identity of human sources." This is analogous to the long-standing protection of confidential police informers in ordinary criminal court cases – an exception to the general right of defence counsel to cross-examine. If carefully employed with proper judicial protections – as courts already do with confidential informers – this isn't an unreasonable step. In fact, given that CSIS business doesn't normally involve criminal prosecutions, the protection of confidential sources in intelligence operations is actually often less troubling than in routine police matters.
But in some security and intelligence matters, there are court proceedings. In recent years, non-citizens who could not be deported have been held in Canada without trial (or at least without normal trials) on "security certificates," and the evidence has not been given to the detained persons, on security grounds – but only to "friends of the court" as "special advocates," who can't say much to their clients. It has been the stuff of nightmares. And C-44, while not making it better, doesn't make it any worse.
Bill C-44 is part of the evolving effort to reconcile anti-terrorism legislation with due process. These convoluted procedures are adaptations of old practices to modern circumstances – much as electronic search warrants authorizing searches of phones are derived from old-style search warrants allowing a search of someone's home.
All this is a work-in-progress. And Bill C-44 appears to be an honest effort.