Testimony: Professor Michael Nesbitt on Bill C-59 in Senate

Remarks on Bill C-59

SECD, Senate of Canada

Michael Nesbitt

29 April 2019

Let me begin with a sincere thank you for inviting me to appear before the SECD to talk about Bill C-59, An Act Respecting National Security. It is truly an honor to be here today and especially to talk about a Bill that I consider so fundamental to Canada’s national security.

Let me begin by expanding on that last salient point: Bill C-59 represents the largest change to Canada’s national security landscape perhaps ever, and certainly since the creation of CSIS in 1984. It is a complicated Bill and one that struggles meaningfully—and laudably—to find an effective, secure and rights-based balance to national security and liberty in Canada. For this, all involved with its conception and drafting should be praised.

The Bill is also a timely one for the age. It is imperative that it is passed in some form in the very near future and very likely before Canada’s Fall election. There is so much in this Bill that brings Canada’s national security practice into the 21st Century—and frankly it does so almost 20-years into the 21st Century, which is telling. I’m thinking here particularly of the section relating to CSE, which is absolutely imperative to the effective operation of that agency and indeed to all of our Internet and even election security.

But it is also well past time that the so-called No Fly List situation is remedied. These poor families should not have to endure another second of their Kafka-esque predicament. As honorable Canadians, I think we can all get behind the fair and reasonable treatment of these families and agree that remedying the situation is imperative.

Finally, it is beyond time that Canada has a national security and intelligence review committee, which brings us more in line with our five-eyes partners. This is especially important given the scope of the new powers and the increased information sharing that now takes place within government and with partners overseas.

Recommendation:

Having made my pitch for the overall quality and necessity of Bill C-59, there is one area upon which I would like to focus, which I think could be improved. That is, the procedures pertaining to the exercise of CSIS’s new disruptive powers, as outlined Bill C-59, need further attention. For my part, I have three small but not inconsequential changes that I would recommend, each of which I view as important from both a national security and civil liberties perspective. Let me repeat that: I think my recommendations will provide both additional support for CSIS operations and thus for national security in Canada, and ensure that these extensive powers are exercised with greater and more substantive oversight and challenge, ensuring the protection of liberty for all Canadians.

1.     Further limit CSIS’s Charter-limiting disruptive powers to reflect their accurate scope:

What do I mean by that? New subsection 12.1(3.1) will read that the “Service may take measures…that would limit a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms”, essentially with a judicial warrant.

Yet I ask you, will CSIS be able to limit the right to legal counsel guaranteed under section 10 of the Charter, or the right to be presumed innocent until proven guilty under section 11(d)? If the answer is yes, as a plain language reading of the text might indicate, then we have a rather serious constitutional problem with the authority. But I would suggest the answer is no: the Charter-limiting power really only applies to section 2 (freedoms), section 6 (mobility rights) and section 7 (right to liberty & security of the person, though not to life). In fact, new section 20.1(18), which imposes a series of limits on the Charter-limiting power, would seem to prevent many of the Charter rights from ever being limited in practice. This then is a strong new check on CSIS’s broad and indeed unprecedented powers.

But I might ask: if the intention is never to limit section 10, 11, 3 (voting rights), etc., why grant such a robust Charter-limiting authority in section 12.1(3.1) in the first place? The short answer is: you shouldn’t.

I submit to you that the section 12 Charter-limiting power should itself be directly limited by spelling-out precisely what Charter rights can be limited. This amendment offers two benefits. First, it ensures transparency and certainty with respect to what is being allowed. Again, there is no harm in limiting these powers further if that is already the intention; if that is not the intention, and section 10 or 11 might be limited, then I have grave concerns and again it would be very good indeed to hear about it—for the first time—before this Bill is passed.

Second, presuming that CSIS has no intention to ever limit these section 10 and 11 powers, my proposed amendment is important because it speaks directly to the constitutionality of the regime. The CSIS disruptive regime is constructed so as to turn on a section 1 Charter save. To do so, the powers will have to be “minimally impairing”, not overbroad, etc. But if the grant of power goes well beyond what is acceptable, and indeed goes theoretically beyond what CSIS even needs, then not only is there no security benefit to the extended power, but there is a constitutional concern with respect to its minimal impairment—for no good reason.

2.     Introduce special advocates to the section 1 warrant process:

Second, I have seen numerous descriptions comparing the proposed CSIS disruptive powers regime to the police powers regime under section 25.1 of the Criminal Code, or to the police warrant regimes found variously in the Code. This is inaccurate. In practice, the CSIS regime will look little like the police warrant regime. While warrants might similarly be authorized during ex parte, in camera hearings, police warrants will almost always be challenged in an adversarial process in open court. The same will rarely if ever be said for the CSIS disruptive warrants.

But more to the point, the CSIS regime contemplates a full section 1 Charter save during these hearings, something unique to Canadian law. That is of course fine, but section 1 saves cannot and should not be determined in ex parte, in camera hearings with only the state and a warrant-authorizing judge present.

Introducing the well-known concept of so-called special advocates into the disruptive warrant regime would go a long way to remedying the process. Indeed, if you don’t do it, in all likelihood the Federal Court will. The problem is that this is a debate for the legislative branch; it should not be left to the Federal Court to invent necessary, well-known procedures when they could just as easily be inserted directly into the legislation. I very much doubt that the CSIS regime can survive without special advocates or amici to participate in the section 1 challenge and, as such, see it as incumbent on the government to insert them into the regime just as they did with the Immigration and Refugee Protection Act or as was recently done with journalism source protection legislation.

This brings me to my final recommendation. 

3.     Introduce a requirement that CSIS return, with the special advocate present, to update the Federal Court on the exercise of the Charter-limiting warrant:

The Federal Court already seems to have introduced a practice like this, whereby CSIS is asked to return to the Court to update it on the execution of its disruptive powers. I would think the Federal Court would almost invariably have to do the same in order to save the CSIS disruptive regime under section 1. But, again, courts should not be put in the predicament of legislating necessary and well-known procedures in the face of government inertia.

Police warrants are a gold standard not just because of the authorization process, but because the actual execution of the warrant can be compared to the authorized warrant and the actions of the state challenged in open court. That process does not exist in CSIS disruptive powers regime. If you know anything about police warrants, you will know that what is actually authorized and what takes place will often differ—not because of misfeasance or malfeasance, but simply by dint of necessity. The same will be true of CSIS disruptive warrants and we should be planning for that eventuality.

It is best that legislators make these changes. It is best that these protections are enshrined in law, not left to the best graces of our judiciary. The debate should be had in open, here, rather than in closed courts. To ensure that the CSIS disruptive regime is upheld as constitutional, and to protect the liberties of Canadians, I ask you to consider these three small and simple changes that will do much good.

Thank you once again for your time and attention.