When is something that is not a threat to national security actually a threat to national security?
That is becoming an important question at the inquiry into the government’s use of the Emergencies Act. But answers remain elusive.
On Monday, David Vigneault, director of the Canadian Security Intelligence Service, appeared to testify that the convoy protests, or at least some of the things in and around them, are not a threat to national security as defined by the law. And also that they are.
The legal definition of a threat to national security is spelled out in law. But national security is, apparently, like Schrodinger’s cat – the hypothetical animal locked in a box with radioactive material in a theoretical illustration of the paradox of quantum mechanics, and is both dead and alive until the box is opened. Something that is not a threat to national security can also be one. Is that clear?
Mr. Vigneault had told the government that in the view of CSIS, the convoy protests did not constitute a national security threat as defined in the CSIS Act. There is a definition in that legislation because CSIS isn’t supposed to investigate things that aren’t legitimate threats.
But on Monday, we learned that in February, Mr. Vigneault advised Prime Minister Justin Trudeau that he should invoke the Emergencies Act, which can’t be invoked unless there is a threat to national security. The definition of a threat in that legislation is precisely the same – word for word – as the one in the CSIS Act.
The fact that the CSIS director recommended that the government invoke the Emergencies Act will presumably be helpful to Mr. Trudeau politically, since police leaders including RCMP Commissioner Brenda Lucki have revealed they did not think it was necessary.
But on the way, he seemed to twist the legal threshold for invoking extraordinary powers into a logical pretzel. Mr. Vigneault, in effect, judged the same events according to the same definition using the same words and gave two different answers.
Perhaps that is possible. If great physicists can contemplate the notion that a cat locked in a box can be living and dead at the same time, perhaps Mr. Vigneault can demonstrate that something can be legally a threat to national security and not. But he didn’t explain it. And in this case, we’re not talking about a hypothetical cat, but protections against government overreach. It would be a good idea to peek inside the box.
The whole point of having a legal definition of “threats to the security of Canada” in both the CSIS Act and the Emergencies Act is to ensure that the extraordinary powers in each law – spying and emergency decrees respectively – can be used only when there is a real danger to the country. If the definition of threat is as soft as Silly Putty, the safeguard is useless.
Last week, senior government officials including Clerk of the Privy Council Janice Charette, the head of the federal civil service, told the inquiry that the same definition of national security threat can be interpreted differently when it is applied under different legislation. And it is true that the text of legislation is supposed to be interpreted according to the purpose of the law.
But Mr. Vigneault didn’t explain the difference. He just said government officials assured him that the definition could be interpreted more broadly for the Emergencies Act. He did say he thought that the act was necessary to break up the harmful convoy protests, which he viewed as unpredictable. But the public should know how he came to two different views about whether the convoy was a threat to the security of Canada.
Honest people could certainly disagree on how to interpret the legal definition. The definition that applies in this case is activities “directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective.”
But this isn’t a disagreement between different officials. It is apparently a new interpretation of those words that is so wholly different that the country’s senior security-intelligence official was able to disagree with himself. In other words, it is a new way of looking at national security, and the way extraordinary laws deal with it. So far, no one has really explained it.