Macdonald-Laurier InstituteThe government should be commended for the scope of Bill C-59, although the committees that review this bill still have important work to do, writes Scott Newark.

By Scott Newark, Oct. 21, 2017

Few pieces of legislation during the Harper government years were more controversial than C-51, introduced and passed after the October 2014 terrorist attacks in Ottawa and Saint-Jean-sur-Richelieu.

As the Macdonald-Laurier Institute reported at the time, C-51 did include some significant changes, such as authorizing operational ‘disruptive’ activities for CSIS, criminalizing terrorism ‘propaganda’ that advocated or promoted terrorist offences, and a reduction in the evidentiary standard for courts to subject suspects to preventive terrorism peace bonds.

The criticism of C-51, however, was focused not so much on what these changes would authorize as on the lack of an explanation for why they were needed, and how they would be balanced against privacy interests and civil rights. This seemingly deliberate lack of clarity or rationale also fuelled controversy over the supposedly increased degree of information-sharing and the implied Charter violations in the new CSIS powers.

C-51 also failed to deal with the long-identified need for improved independent oversight and review of intelligence activities; the Harper government flat-out rejected the creation of a specially mandated Parliamentary Committee for that purpose. While there were significant changes — and improvements — to the Canadian national security system in C-51, much of the controversy about the Bill was created by the former government itself.

While the Liberals supported C-51 at the time, they made clear during the subsequent 2015 election campaign that, if elected, changes would be made to address the concerns raised about C-51. This process began in June 2017 when Bill C-59 was introduced in Parliament.

C-59 addresses many of the issues surrounding C-51 and, to the government’s credit, it also offers a far clearer description of the purpose of enhanced authorities for security agencies such as CSIS, as well as clearer mandate descriptions, while balancing privacy and civil rights considerations.

C-59 also authorizes the Communications Security Establishment to take action to eliminate a hostile entity’s offensive cyber capability.

The bill also introduces targeted actions to improve ongoing independent oversight of intelligence and security activities by creating the Office of the Intelligence Commissioner, which will cover several Canadian security agencies. Further, C-59 acts on years of recommendations by creating the National Security and Intelligence Review Agency, which also has a multi-agency mandate and specific review and reporting responsibilities. Both will help support the necessary balancing of interests inherent to national security activities.

C-59 also authorizes the Communications Security Establishment to take action to eliminate a hostile entity’s offensive cyber capability, rather than simply blocking attacks. This articulation of authority is appropriate to the modern environment in which the CSE operates.

The bill modernizes how the government approaches the ‘No Fly’ list, terrorist entity listings and information sharing within government with defined purposes and required reporting. The bill also will repeal the unused ‘investigative hearings’ sections of the Criminal Code and require subsequent statutory review of defined powers so that they will lapse after five years if they cannot be justified.

While the bill gets a lot right, we should be very concerned that C-59 amends the ‘terrorism propaganda’ offence section by raising the evidentiary standard to ‘counselling another person to commit a terrorism offence’ rather than merely promoting terrorism, as per C-51. This change could seriously compromise the government’s counter-radicalization efforts. Addressing the online publication of material that promotes radicalization, recruitment and facilitation is an important issue in preventing domestic terrorism, so hopefully the Committee studying the Bill will consider this change closely.

The committee also should explore whether the new oversight and review entities have sufficient mandates to achieve their goals, including with respect to receiving complaints and launching their own investigations.

The government is to be commended for the scope of the bill as well as its reflection of modern realities and the need for clear articulation of how it balances civil liberties and security. The committees that review this bill have important work to do.

Scott Newark is a former Alberta Crown Prosecutor and currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University. He is author of the MLI report “C-59: Building on C-51 towards a Modern Canadian National Security Regime​.”

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