Kent Roach and Craig Forcese are professors of law at the Universities of Toronto and Ottawa respectively. Stephanie Carvin is an assistant professor at Carleton University.
Bill C-59, the government's massive response to the Harper government's controversial Bill C-51, is now before committee in the Commons.
Some of the parliamentary debate has been side-tracked by invented disputes about whether we should kill, prosecute or hug returned terrorist foreign fighters and a media-fuelled panic about the uncertain number of returnees. This is most unfortunate. National security law and policy is full of hard dilemmas that deserve close scrutiny. And national security legislation should provide a stable and principled basis to respond to unanticipated crises; it almost always goes wrong if it is enacted as a response to a past or present crisis.
That is not to say C-59 offers a perfect solution to hard dilemmas. But as compared to C-51, C-59 does try to balance new security powers with new oversight and review regimes. It draws security powers into closer orbit around the rule of law, while increasing the prospect that when these powers are used they will be subject to independent scrutiny.
One of the highlights of C-59 is that it will create a review body with a government-wide mandate over national security and intelligence issues. This satisfies the basic principle articulated by the Arar Commission about fixing Canada's deficient review system.
C-59 also builds up the powers of Communications Security Establishment, Canada's cyber and signals intelligence service. Now CSE will be able to engage in "active" (offensive) and "defensive" cyberoperations, while retaining its classic intelligence and cybersecurity powers. Canadians can and should debate whether cyberattack is the business we should be in. But if it is, C-59 does a reasonable job of checking and balancing the "how" and "what" of that cyberoffensive.
Even more critically, it finally tries to draw CSE into the constitutional tent by creating a unique independent approval system for its intelligence activities. We think there are some important amendments to be made in these areas. But it is precisely on these issues that debate should focus.
Likewise, the Canadian Security Intelligence Service receives new powers under C-59. For one thing, it will now be more able to ingest datasets – electronic information archives. But in C-59, with great power comes considerable new oversight, including (for datasets involving Canadians) retention of this information only with court authorization. Furthermore, these activities are subject to the scrutiny of the new super-Security Intelligence Review Committee and also the new special committee of parliamentarians created this fall.
C-59 preserves one of C-51's most controversial aspects: CSIS's ability to physically disrupt threats. But it puts the original C-51's expansive and unnecessarily sweeping power to violate any Charter right, with secret warrant, on a narrower footing. Now we can predict with more certainty what conduct might imperil a Charter right, no longer leaving it open-ended. Moreover, the outer limit of CSIS conduct is tighter, excluding detention (and thus a host of Charter violations that might flow from it).
Canadians can and should debate datasets and whether CSIS should have disruption powers, but they should do so with an eye as to what C-59 will allow (and preclude), and how these activates now will be reviewed.
C-59 would replace one of the most controversial features of C-51– the advocating "terrorism offences in general" offence – with a more traditional offence of counselling specific terrorism offences. This better respects freedom of expression while still recognizing that much speech – including terrorist recruitment and instruction – is a reasonable target for criminalization.
The bill very modestly tweaks preventive arrest powers (which have never been used since created in 2001) and adds reporting requirements to peace bonds (which have been used extensively). It grafts on new standards for use of these processes against young people. Canadians can properly debate whether more should be done here.
And then there are the omissions. Canadians should be concerned with how intelligence agencies work with the police in terrorism investigations. At present, Canada uses a siloed approach of separate investigations that was heavily criticized by the Air India Commission as not necessarily serving the public interest. While the new review agencies and mechanisms will evaluate if security services are legally compliant, it is not yet clear if or how they will review for efficacy.
Canadians should also appreciate that C-59 will not, itself, cure the problem of false positives and Canada's no-fly list – people who share the same name as a listed person, whose travel is impeded. A solution means rebuilding Canada's ill-conceived no-fly list, a logistical undertaking that will require political will and money.
The most disappointing part of Bill C-59 is its light-touch amendments to the Security of Canada Information Sharing Act. The provocatively broad triggering definition of activities that undermine the security of Canada is arguably made even broader in C-59. Fixing that excess requires close scrutiny.
No law is perfect. National security policy making is complex. There is no place for the use of simple slogans or attempts to gain partisan advantage. It is time to get into the weeds.