The Liberal government has broken another election promise, this time to address deep-seated problems in our country's national security laws. As a result, the government is failing to protect us against mass surveillance, secret policing and other national security activities that threaten our most basic rights and freedoms.
With their flagship national security law, Bill C-59, the Liberal government had committed to checking off a key platform plank: eliminating the worst aspects of the Conservatives' highly contested Bill C-51 and putting rights and freedoms at the heart of our national security laws.
That bill, officially the National Security Act, 2017, just finished a marathon study at the House Standing Committee on Public Safety and National Security, to little fanfare.
Normally, committee studies don't draw a lot of attention: committees are usually limited in what they can change, and are dominated by the governing party; opposition amendments seldom get through.
This committee study would be different, promised Public Safety Minister Ralph Goodale. In a little-used parliamentary procedure, the government sent Bill C-59 to committee earlier than usual, allowing MPs (in theory) to make more substantial and consequential changes to the bill. It was presented as a goodwill gesture and a sign of the government's commitment to amending a bill that had already raised red flags.
Promises of openness don't result in change
After dozens of hours of testimony, thousands of pages of briefs and hundreds of proposed changes from a wide-range of organizations, last week we got the result: Of more than 100 opposition amendments proposed, a total of four were adopted. I sat through the hours of debate on each clause of the bill. Systematically, opposition motions were rejected, on often the flimsiest grounds. No amendments were made that didn't go in the direction that the government had already set out.
Nearly all the "problematic" aspects of Bill C-51 remain unfixed.
With the complexity of the bill and the scope of testimonies delivered to the committee, you would think a verdict on this bill would be difficult. It isn't: No substantial changes were made to Bill C-59 at committee, especially regarding protecting our rights and freedoms, despite promises of openness to doing so.
From mass surveillance to continuing the unfair, ineffective No Fly List, and from secret "threat disruption activities" to new cyber-attack powers, nearly all aspects of Bill C-59 remain the same. And nearly all the "problematic" aspects of Bill C-51 remain unfixed.
Government avoids fixing Bill C-59
The problems with Bill C-59 itself were apparent when it was tabled in Parliament in June 2017, and remain the same today. In September 2017, we along with 40 other organizations and experts raised those concerns in an open letter to the government, with no response. Since then, hundreds of Canadians have written to the Public Safety Committee, to their MPs and to Minister Goodale; 99 witnesses were heard and more than 40 briefs submitted; reports and op-eds have been published; the ICLMG has even produced a series of four videos breaking down the problems with the bill.
What have the Liberals avoided addressing?
- Bill C-59 grants vast new powers to Canada's spy agencies to collect our data without adequate protections. This includes information unrelated to national security threats, and vaguely defined "publicly available information." The new rules will essentially legalize mass surveillance.
- Bill C-59 gives Canada's foreign signals intelligence agency, the Communications Security Establishment, new offensive cyber powers with little oversight or safeguards. Experts have said this will likely legitimize state sponsored hacking and disruption, and increase the risk of retaliation and the leaking of dangerous cyber weapons.
- The bill fails to address the inherent problems of secrecy and lack of due process of Canada's No Fly List, which was entrenched with Bill C-51.
- Bill C-59 maintains CSIS' new "threat reduction" powers, granted in Bill C-51, with minimal changes. These powers are in fact "disruption" powers that go far beyond the agency's previous intelligence-gathering mandate, allowing it to take on a wide range of real-world activities, in secret.
- Invasive information-sharing rules based on a broader definition of "national security" brought in with Bill C-51 are allowed to continue without adequate safeguards.
- Bill C-59 fails to reverse changes brought by Bill C-51 that further eroded due process in security certificate proceedings.
- The minister of public safety would be able to decide, pending approval from the Intelligence Commissioner — which "acts or omissions that would otherwise constitute an offence" (i.e., activities that break a law) designated CSIS employees would either be able to carry out or instruct another individual to carry out.
Surprise new rules still won't ban intel tied to torture
In a surprise move at committee, the government also introduced an entirely new act, the Avoiding Complicity in Mistreatment by Foreign Entities Act. In introducing this new amendment, Liberal MP Michel Picard stated that it would "prevent complicity in cases of abuse by foreign entities, to make it very clear that Canada will not be an accomplice to torturers around the world."
While laudable, the new Act's purpose is actually very different: while it makes it mandatory for the government to issue directions to national security agencies on how to use information linked to torture, and mandates that those directions must be made public, it does not state what those directions must be.
In the past, governments provided these directions in secret, meaning the public had no way of knowing if there were directions, or what they were — clearly a big problem. Making the directions public, then, is a positive step. However, there is nothing in the Act that would mandate strong directions on information tied to torture, and simple transparency is not enough to ensure strong rules.
This Act also distracts from the fact that the Liberal government's directions to national security and law enforcement agencies on this issue, published in September 2017, still allow for information tied to torture to be used in exceptional circumstances — which I and others have criticized.
Review and oversight must be strengthened
Finally, Bill C-59 does establish two new review and oversight bodies: the National Security and Intelligence Review Agency (NSIRA), which will have the power to review all national security activities, and the Intelligence Commissioner (IC), who will approve surveillance authorizations granted to the CSE and to CSIS. Both these bodies are a step up from our current system of review agencies for CSIS, the CSE and the RCMP, which have restricted reach and no real-time oversight powers.
Good review and oversight can never make up for bad legislation.
The creation of the NSIRA and the IC is a move in the right direction. That is why it was so disheartening when Liberals on the Public Safety Committee voted against measures to increase the independence and effectiveness of both these bodies. Even with Bill C-59, multiple problems will continue:
- Both agencies will be hampered by limited staffing (the Intelligence Commissioner is a part-time position, for example);
- The NSIRA will not be able to make binding recommendations or provide redress if a complaint is found to be justified;
- The Intelligence Commissioner will make decisions in secret, which as we've seen with the Foreign Intelligence Surveillance Court in the U.S., has lead to a near-100-per-cent approval of surveillance requests.
Bad laws and broken promises undermine our rights
Even if the government improved the NSIRA and Intelligence Commissioner, though, good review and oversight can never make up for bad legislation. Instead, the bodies tasked with monitoring for errors and keeping the excesses of our national security agencies in check are forced to be rubber stamps reduced to making sure that bad laws aren't broken and justifying a system that undermines our rights.
More blogs from Tim McSorley on HuffPost Canada:
In an area as critical as national security, and on issues as substantial as our rights and freedoms, we deserve better. But all we've seen are broken promises.
Bill C-59 will be back in the House of Commons for the next round of debates in the coming weeks. You can voice your opposition to Bill C-59, and speak out in support of civil liberties, by sending a message to your MP and the government here.