Friday, February 20, 2015

In a commentary in the National Post, Prof. Kent Roach and Prof. Craig Forcese of the University of Ottawa argue that the judicial protections proposed to control the new powers being offered to CSIS in Bill C-51 are limited and problematic ("Judicial warrants are designed to prevent — not authorize — Charter violations," February 17, 2015).

Read the full commentary on the National Post website, or below.

Judicial warrants are designed to prevent — not authorize — Charter violations

By Kent Roach and Craig Forcese

February 17, 2015

If Bill C-51 passes, CSIS will be expressly authorized to “take measures, within or outside Canada, to reduce” very broadly defined “threats to the security of Canada”. Where authorized by Federal Court warrant, these “measures” may “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms” or may be “contrary to other Canadian law”.

The CSIS changes are dramatic, even radical. In 1984, parliamentarians granted CSIS a very broad mandate – found in the definition of “threat to the security of Canada” in s.2 of its Act – but were careful to accord it very limited powers. It has been an intelligence service – it collects and analyzes information and supplies assessments to the government. When enacted, Parliament accepted CSIS’s broad mandate because it lacked what we will call in this discussion “kinetic” or physical powers – the powers to do things to people in the physical world (except as necessary to, for example, install a wiretap or listening device).

That will change in Bill C-51. The government’s examples of what the new powers will mean for CSIS are mild, even innocuous. But in fact the only outer legal limit is surprisingly sparse: no bodily harm, no obstruction of justice and no violation of sexual integrity.

The bill superimposes a special warrant system of CSIS’s new powers. Where those activities would violate a law or the Charter, a Federal Court judge must approve them in advance by a warrant.

The obvious thinking is that such a system simply builds on the conventional role of judges in issuing search warrants. But the analogy is approximate. In the world of search and seizure, judicial warrants are designed to prevent — not authorize — Charter violations. That is because the Charter privacy protection is qualified — the Charter protects against “unreasonable” searches and seizures and a search under a warrant is prima facie proper. “Unreasonable” typically means without warrant.

Other Charter rights are dramatically different. For instance, there is no concept of “unreasonable” cruel and unusual punishment. It is an absolute right — not qualified. Some rights — such as the right to freedom of expression — may have some internal limitations in their content (e.g., free expression does not reach threats of violence), but this is usually a matter decided by a court closely scrutinizing the scope of legislation against the behaviour protected by the right. All rights, such as the right of citizens to leave or come back to Canada, can be subject to reasonable limits under Section 1 of the Charter, but the restraint on the right is usually spelled out in advance in legislation. To imagine that a court can pre-authorize a violation of a right in response to an open-textured invitation to do so is to misunderstand entirely the way our constitution works, on a fundamental level.

We could be wrong in our construal of the law — and when we are, it is because courts will correct us. But any deliberation on this question, and on whether CSIS can exceed the law, will be conducted in a warrant proceeding. In other words, all these weighty legal deliberations will be done in secret, with only the judge and the government side represented. The person affected by the illegal activity will not be there — in fact they will likely never know who visited the misfortune on them. They cannot defend their rights. No civil rights group will be able to weigh in.

At best, a “special advocate” will be invited to defend the public interest (because a court insists on having that person present). This is a person, able to act only by themselves, trying to balance their special advocate work with their busy private practice, paid a fraction of their regular wage, unable to consult often with other special advocates, and sworn to secrecy . There is no equality of arms between special advocates and government lawyers/CSIS.

And more than that, there are now numerous review body reports and Federal Court decisions complaining that CSIS has failed to meet its duty of candour in closed door proceedings. It is very difficult to know whether these reports represent the sum total of CSIS shortcomings — a failure to be candid is something that is, by definition, very difficult to detect.

The ultimate court decision will generally not be public because of concerns its disclosure will adversely reveal ongoing operations and disruption methods. There will be no natural party able to appeal it. In the worst instance, we risk a secret jurisprudence on when CSIS can act beyond the law.

Our expectation is that the Federal Court will do its best to issue redacted versions of its cases, but it will be inventing the process as it goes. So too, any appeal will depend on ad hoc arrangements, and presumably also require a very earnest special advocate with the time and inclination to press matters.

Meanwhile, the Federal Court will not automatically know what is done under its authorization. Past experience suggests that what is authorized by the Federal Court and what is done by CSIS may not line up.

Everything will then depend on SIRC, CSIS’s review body. We have nothing but respect for those who work in SIRC, in very difficult circumstances. The fact is SIRC is an underfunded, understaffed review body. Its statutory powers have not kept pace with the reality of the security service it reviews. In 2006, the Arar Commission underscored the urgent necessity of new legislative tools allowing SIRC to coordinate with other review bodies and to expand its mandate. But still, even now, as the security services all collaborate, the review bodies are “stove-piped” and “siloed” by agency. Informal efforts by review bodies to coordinate are reportedly rebuffed by the government.

On top of these legal matters, we have administration of justice and “operational” concerns. These include the following:

Criminal trials: CSIS’s operation and new powers are often “pre-criminal” and may overlap, affect and perhaps taint a subsequent RCMP investigation and evidentiary record. A criminal trial may be mired in questions arising from the Federal Court authorizations, its holdings in a potentially secretive Charter jurisprudence, and doubts about whether the CSIS operation contributed too or otherwise was associated with the crime at issue.

Interaction with informer privilege: Bill C-44, now in the senate, will give CSIS “human sources” broad privilege from being compelled to be a Crown witness or having identifying information disclosed in court proceedings. Crown prosecutors may find this complicates and, quite likely, frustrates their witness list. Good defence lawyers will fight this proviso, especially when the first thing they suspect is that a CSIS kinetic operation lies at the heart of a subsequent criminal case. Disclosure disputes may make terrorism trials — already long and complex — even more difficult.

Interaction with the RCMP: As we understand it, thus far “disruption” has been a peace officer function, linked to police investigations. Peace officers in these situations likely remain preoccupied with the effect their conduct might have in any future criminal proceedings, and concerned with reducing the chances that their disruption activities will lead to acquittals or stays on the basis of abuse of process in criminal trials. For cultural and institutional reasons, CSIS may not have the same concerns. How will CSIS and RCMP arrange their affairs so that CSIS’s kinetic activities do not undermine RCMP criminal investigations, either ongoing or prospective?

Institutional skills: CSIS is a security intelligence organization. If it gears up kinetic activities, it will presumably require skills and aptitudes that presently are not part of its arsenal. What plans are in place to acquire and resource and train these new kinetic operatives and operations? How will CSIS guard against agents recruited for kinetic operations themselves proving problematic?

Institutional culture: CSIS is a law-observant service, and adhering to legal expectations is an important part of its culture. Violations of the law are an aberration, not a pastime. As the Service begins operations that, but for a Federal Court warrant, would be illegal, how will it ensure that its “black” operations do not contaminate the overall culture of the organization?

Social licence: The world is rife with misunderstandings and conspiracy theories about spy services, including CSIS. With the new measures, many conspiracy theories move from the “implausible because require compounded illegal steps” to “within CSIS’s powers in principle”. There will be a consequence in terms of social licence for a clandestine service empowered to act in violation of the law and the Charter, especially in communities that feel targeted.

Since CSIS too depends on community cooperation to conduct many of its activities in security intelligence, there is a risk that is new powers may undermine its ability to exercise effectively its original mandate. In the final analysis, the increased scepticism and the new doubts about the Service stemming from the new powers may be the most dangerous aspect of this law proposal.

In sum, the government proposes radically restructuring CSIS and turning it into a “kinetic” service — one competent to act beyond the law. This is a rupture from the entire philosophy that animated the CSIS Act when it was introduced 30 years ago. We await convincing argument that it is truly warranted. This bill reaches much further in authorizing problematic CSIS conduct than required in any scenario we have seen raised by the government in justification. It amounts to an open ended authorization whose proper and reasonable application will depend on perfect government judgment. It violates, therefore, a cardinal principle we believe should be embedded in national security law: any law that grants powers (especially secret, difficult to review power) should be designed to limit poor judgment, not be a law whose reasonable application depends on excellent judgment.

But whatever the truth as to whether these powers are necessary , their introduction is irresponsible without a redoubled investment in our tattered accountability system. Anyone who has worked on accountability in the security sector knows that there is another core maxim in this area, when dealing with powerful, covert state agencies: “trust but verify”. We do not believe that that standard can be met at present, even without the new powers.