On October 29, 2014 the government introduced Bill C‑44, an Act to amend the Canadian Security Intelligence Service Act and other (related) Acts, cited in short form as the Protection of Canada from Terrorists Act. Public Safety Minister Steven Blaney stated that the amendments put forward under Bill C‑44 are required to keep Canadians safe from terrorism and to protect and uphold the privacy of confidential informants. However, in achieving the government's stated goals, Bill C‑44 deliberately pushes the limits of Canadians' right to privacy, protection from unreasonable search and seizure, and the right to life, liberty and security of the person.
What are the legislative amendments?
Bill C‑44 amends the Canadian Security Intelligence Service Act (CSISA) in two main ways. It authorizes the Canadian Security Intelligence Service (CSIS) to conduct activities within and outside Canada, whether or not these activities comply with the laws of any foreign jurisdiction. Secondly, it adds in protection for "human sources" who share information with CSIS. A human source is defined as an individual "who, after having received a promise of confidentiality, has provided, provides or is likely to provide information to [CSIS]."
The bill also amends provisions in the Immigration and Refugee Protection Act, allowing the government to revoke the citizenship of dual citizens in certain circumstances, including convictions of terrorism.
The changes to the CSISA in particular reflect recent restrictions introduced by both the Supreme Court of Canada (SCC) and the Federal Court of Appeal on the ability of the government to engage in surveillance activities and limit rights under the Canadian Charter of Rights and Freedoms (the Charter).
Investigations in foreign jurisdictions
In the 2007 decision of R. v. Hape, the Supreme Court of Canada (SCC) applied principles of international law and the Charter to searches and seizures by Canadian officials in foreign jurisdictions. At issue in Hape was whether RCMP officers could rely on evidence gathered in a foreign jurisdiction that did not comply with the section 8 Charter right to be secure from unreasonable search and seizure.
The SCC stated that there was a "rebuttable presumption" regarding whether Canadian laws should be interpreted to comply with international laws. If legislation was ambiguous, then it would be presumed that international law would apply. The Canadian government would need to specifically legislate out of its international obligations, which, according to the court, it was entitled to do.
The SCC also found that the Charter did not necessarily apply to foreign investigations by Canadian officials. If the conduct in question violated Charter rights and was carried out by a Canadian official, the Charter may be applied as an exception to the principle of state sovereignty, but only where the evidence obtained from the foreign investigation would render a trial in Canada unfair.
The right to intercept communications in foreign jurisdictions
Justice Mosley at the Federal Court further explored the investigative powers of Canadian officials in foreign jurisdictions in his 2013 decision. The issue before Justice Mosley was CSIS's use of warrants issued under section 21 of CSISA to intercept foreign telecommunications of Canadian citizens travelling abroad. CSIS, through warrants issued by the Federal Court, authorized the Communications Security Establishment Canada (CSEC) to carry out surveillance activities on Canadian citizens abroad through foreign agencies. CSIS was tasking CSEC to do this even though CSEC "is expressly constrained from directing its activities at Canadian persons anywhere," unless it is acting under a mandate and under another Canadian agency that is acting within its authority.
The Federal Court found that CSIS was not permitted to use the warrants granted under the CSISA to "request foreign agencies intercept the communications of Canadian persons travelling abroad either directly or through the agency of CSEC under its assistance mandate."
The Federal Court stated that it was open to Parliament to amend the legislation to permit this type of surveillance. There was no analysis of what the impact of this type of amendment to CSISA would have on the Charter rights of Canadian citizens.
Confidential sources and the right to liberty and security of the person
More recently, in 2014, the SCC in Canada v. Harkat, delved further into the constitutionality of CSIS powers. One of the many issues addressed by the SCC in Harkat was whether the identity of "human sources" had to be disclosed in inadmissibility proceedings under the Immigration and Refugee Protection Act.
The SCC found that the concept of confidential informants did not apply to CSIS's human sources, and the identity of these individuals should be disclosed to an individual accused of engaging in terrorist activity, unless the court found that disclosing the sources' identity would be a threat to the source or national security.
The impact of Bill C‑44 on Charter rights
Bill C‑44 is a systematic attempt by the government to circumvent the limits Canadian courts have placed on its investigative and surveillance powers, through legislative amendments. It expands the powers of CSIS to allow for surveillance activities in Canada and abroad, consequentially allowing CSEC to intercept, or allow other foreign agencies to intercept, telecommunications of Canadian citizens when travelling abroad.
In addition, it requires that CSIS's human sources remain confidential, unless a court orders otherwise. This is despite a clear finding by the SCC in Harkat that this protection was not necessary given the broad powers which prevent public disclosure of harmful information under the Immigration and Refugee Protection Act.
Finally, it explicitly permits Canadian officials to violate international law and the laws of a foreign country by giving the Federal Court the power to issue a warrant authorizing activities that allow CSIS to investigate a security threat, whether or not those activities comply with the laws of the jurisdiction where they are being carried out.
The proposed amendments may ultimately be found to be unconstitutional, but the government has nevertheless capitalized on the courts' suggestion that the principles of international law and the protections of the Charter can be legislated away.
Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.
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