Security Cannot Trump Freedom

Commentary, Core Public Sector Reform, Lee Harding

John Diefenbaker once said, “We must vigilantly stand on guard within our own borders for human rights and fundamental freedoms which are our proud heritage.”. “We cannot take for granted the continuance and maintenance of those rights and freedoms.” Experts and advocates warn that Bill C-59, Canada’s new spy legislation, threatens the freedom of expression, the right to life, liberty, and the security of the person, and the right to be secure from unreasonable search or seizure.

Bill C-59 (an Act respecting national security matters) is the federal government’s response to the much-maligned Bill C-51 which was enacted after the Parliament Hill shooting. The former legislation gave new powers to Canadian spy agencies with inadequate protections of privacy and democratic oversight. The new legislation purports to address these problems, but analysis by experts suggest it is even worse.

In December, Academics at the Citizens Lab and Canadian Interest Policy and Public Interest Clinic (CIPPIC) at the University of Toronto issued their alarming analysis of C-59. The authors warn: “From mass dissemination of false information, to impersonation, leaking foreign documents in order to influence political and legal outcomes, disabling account or network access, large-scale denial of service attacks, and interference with the electricity grid, the possibilities for the types of activities contemplated in (Bill C-59) are limited only by the imagination”.

The report says the documents leaked by National Security Agency whistleblower Edward Snowden in 2013 showed experts that the Canadian Security Establishment (CSE) was already spying far more than previously known. Such non-targeted mass surveillance was seen by many to affront international and Charter law. Bill C-59 seems an effort to legitimize this activity by putting it more explicitly into law, then pushes the bounds even further. The report explains, “A foreign intelligence authorization allows the CSE to engage in any otherwise unlawful activity, ‘despite any other Act of Parliament or of any foreign state,’” subject to Subsection 25(2) of the CSE Act. In Paragraph 27(2)(e) the new Act allows the CSE to engage in “any other activity that is reasonable in the circumstances and reasonably necessary in aid of any other activity, or class of activity, authorized by the authorization.” In other words, the CSE can ignore any law it feels like if it deems it best.

What then of oversight? It is true that C-59 creates a new National Security and Intelligence Review Agency to review and investigate the activities of the CSE and the Canadian Security Intelligence Service. It would also create an Intelligence Commissioner to provide independent and quasi-judicial oversight over these agencies. Unfortunately, the commissioner does not need to be consulted on or approve any use of the new cyber-operations. They need only the approval of the Minister of Defense and the Minister of Foreign Affairs.

The bill is in its early stages and can still be revised. To this end, the CIPPIC report has 54 recommendations to improve the bill and make it more Charter-compliant. Proposed changes place a stronger leash on the CSE by strengthening the Intelligence Commissioner’s role and authority, clarifying terms of the legislation, and narrowing the scope of the proposed spying powers. Advocates such as OpenMedia.ca are collecting names on a petition that calls on the government to accept the report’s recommendations.

Unjust legislation cannot be justified in the name of security. After all, it was Pierre Trudeau himself who said, “I recognize that in some cases it’s more important to have freedom and justice than to have peace.” Hopefully our current government will recognize this principle and the Charter Pierre Trudeau created.