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Craig Forcese* and Kent Roach** Abstract This Article Responds to The v. October 16 2016 Circulated for review RIGHTING SECURITY: A CONTEXTUAL AND CRITICAL ANALYSIS AND RESPONSE TO CANADA’S 2016 NATIONAL SECURITY GREEN PAPER Craig Forcese* and Kent Roach** Abstract This article responds to the government’s 2016 consultation on national security law and policy. It outlines a series of concerns, both with laws enacted in 2015 (and especially bill C-51) and some interpretations of C-51 and other laws in the consultation documents. It urges the need for a systematic and contextual understanding of the many issues raised in the consultation. For example, information sharing and increased investigative powers should not be discussed without attention to inadequate review and accountability structures. Similarly CSIS’s new disruption powers need to be understood in the context of the intelligence and evidence relationship. The article proposes concrete and significant changes to the current legal and policy regime motivated both by civil liberties and security-based concerns. Table of Contents I. Introduction ..................................................................................................................................2 Our Approach .............................................................................................................................. 4 II. Accountability .............................................................................................................................5 Oversight of CSE ......................................................................................................................... 5 What Should be Done ............................................................................................................. 7 Expert Review ............................................................................................................................. 8 A National Security and Intelligence Review and Complaints Commission ......................... 8 Independent National Security Legislation Monitor ............................................................. 10 III. CSIS Threat Reduction Powers ................................................................................................12 What problem are these new powers attempting to fix? ........................................................... 12 Threat reduction is a tool to be considered in the broader context ............................................ 13 Lessons from Overseas .............................................................................................................. 13 What specifically could CSIS do? ............................................................................................. 15 * Professor, Faculty of Law, University of Ottawa ([email protected]). ** Professor and Prichard Wilson Chair in Law and Public Policy, University of Toronto, Faculty of Law ([email protected]). 1 v. October 16 2016 Circulated for review Could a court warrant really exonerate a Charter breach? ........................................................ 16 What should be done? ............................................................................................................... 18 IV. Information Sharing ..................................................................................................................20 The Privacy Question ................................................................................................................ 20 Bill C-51’s New Security of Canada Information Sharing Act ................................................. 21 Breathless Overbreadth ............................................................................................................. 22 Powers to Do What Exactly? ..................................................................................................... 23 Relevance or Necessity? ....................................................................................................... 23 Trumping the Privacy Act? ................................................................................................... 23 What Should Be Done ............................................................................................................... 24 V. Terrorist Speech Crime and Propaganda ...................................................................................25 The New Speech Offence .......................................................................................................... 25 The Need to Examine the New Speech Offence in its Broader Context .............................. 26 What Does Terrorism Offences in General Mean? ............................................................... 26 More Proportionate Alternatives to “Terrorism Offences in General”? ............................... 29 What should be done? ........................................................................................................... 30 Terrorist Propaganda ................................................................................................................. 30 VI. Digital Investigations ................................................................................................................31 Metadata and Subscriber Information ....................................................................................... 31 What Should be Done? .............................................................................................................. 33 VII. Intelligence and Evidence and Related Secrecy Issues ...........................................................33 Non-Legislative Changes and the need for Culture Change at CSIS ........................................ 34 Section 38 of the Canada Evidence Act and Canada’s Continued and Dangerous Game of Constitutional Chicken .............................................................................................................. 35 The Use of Secret Evidence in Civil Proceedings? ................................................................... 36 Broader Secrecy Protections in No-Fly Listing, Passport Revocation and Proscription Decisions ................................................................................................................................... 37 What Should Be Done? ............................................................................................................. 38 VIII. Conclusion .............................................................................................................................38 I. INTRODUCTION In September 2016, the government of Canada issued a 21-page “Green Paper” accompanied by a 73-page background document on national security, entitled Our Security, Our Rights.1 These documents pose questions to the public, as part of a consultation process on national security law and policy. This process is an apparent first step in Prime Minister Justin Trudeau’s government promise to remove the “problematic” 2 aspects of Bill C-51, the Harper government’s 2015 1 Public Safety Canada, Our Security, Our Rights: National Security Green Paper, 2016 (“Green Paper”), online: https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-scrt-grn-ppr-2016/index-en.aspx ; Public Safety Canada, Our Security, Our Rights: National Security Green Paper, 2016 Background Document (“Background Document”), online: https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-scrt- grn-ppr-2016-bckgrndr/index-en.aspx 2 Prime Minister’s Mandate Letter to Minister of Public Safety (November 2015), online: http://pm.gc.ca/eng/minister-public-safety-and-emergency-preparedness-mandate-letter (instructing the 2 v. October 16 2016 Circulated for review security omnibus bill.3 That bill was a political response to two Daesh-inspired terrorists attacks in October 2014 that saw a terrorist enter Parliament and resulted in the murder of two members of the Canadian Forces as well as both “lone wolf” terrorists. The Green Paper goes considerably beyond Bill C-51’s already significant and (we have argued)4 often radical content. There are some risks in expanding the topics for consultation beyond Bill C-51, especially the risk of delay. Delay may entrench C-51’s new and problematic powers, such as the Canadian Security Intelligence Service (CSIS) new disruption powers and C-51’s broad information-sharing regime. And with the passage of time, political momentum may stall, especially if terror fears are reignited by events in Canada or abroad. Nevertheless, we welcome the expansive Green Paper – not least because C-51 was notorious not simply for what it did, but also for the problems it failed to address. Two of the most pressing such problems, Canada’s inadequate review and accountability structure and its troubled relationship between intelligence and evidence, are addressed in the Green Paper. We see the consultation as a first step to returning to more measured and evidence- based policy making in the contentious and dynamic anti-terrorism field. In particular, we welcome the Green Paper for its recognition that the findings and recommendations of the commissions of inquiry on the treatment of Maher Arar (2006)5 and the Air India bombings (2010)6 provide an unprecedented evidence base for national security policy-making -- one that was largely ignored during the enactment of Bill C-51. The Green Paper is not, however, immune from criticism. We share the federal Privacy Commissioner’s concerns that the “tone of the Government’s discussion… focuses heavily on challenges
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