National Security and Foreign Law: The Government Insists on Having and Eating its Cake

By Alex Neve, Secretary General, Amnesty International Canada. Follow Alex on Twitter: @AlexNeveAmnesty

There is so much packed into the government’s current national security law reform, it is hard to know where to focus.  Bills C-44 and C-51, currently before Parliament, constitute the most substantial and controversial overhaul of Canada’s national security landscape since the 2001 terrorist attacks.

The weeks to come will see much debate about the human rights consequences of CSIS’ unprecedented new powers to act to reduce security threats and to apply for Federal Court warrants authorizing Charter violations as part of that process. 

There will be discussion of the vagueness of the new criminal offence of advocating or promoting the commission of terrorism offences in general and the certainty that this will both intrude on and chill free expression in the country. 

Indigenous peoples, environmental activists, human rights campaigners and others will worry that the new measures only protect “lawful” advocacy, dissent and protest, an intentional retrenching from current laws that recognize that protests that are not lawful in the sense of having a City Hall permit are nonetheless not criminal, are protected under the Charter and should not, by any twisted interpretation, be lumped in with terrorism.

The stunningly expansive new definition of threats to Canada’s security which guides the new information sharing legislation, a definition which places terrorism down the list at number four, will also attract much attention.

Among the many worrying issues, there is one that is not only troubling but deeply ironic.

Bill C-44 and Bill C-51 both establish that CSIS can be active outside Canada, a dramatic departure from the agency’s mandate which has always been limited to operating within the country.  Bill C-44 opens that up with respect to investigating threats to Canada’s security.  Bill C-51 extends that authorization to act outside of Canada to new powers for CSIS to disrupt and reduce threats to Canada’s security.

Other than expressly excluding acts that would result in death, bodily harm, perversion of justice or violations of sexual integrity, there are no limits to these threat reduction powers.  Acts that violate the Charter are explicitly anticipated, as long as a Federal Court judge gives thumbs up.

The prospect of Federal Court judges approving Charter violations turns democratic governance and the rule of law on its head.  The judiciary is the guardian of constitutional documents like the Charter, expected to red light, not green light, violations.

Whether or not these new powers to act outside Canada are advisable, necessary, legal or likely to be effective I will leave aside for the moment.

Attracting less attention in the debate is that in C-44 and C-51 Federal Court judges are explicitly told that warrants allowing CSIS to act outside Canada to investigate threats or take proactive steps to reduce threats should be granted “without regard to any other law, including that of any foreign state”. 

Judges will authorize CSIS action in other countries even if it violates that country’s law – any law, seemingly including their constitution.  In fact they are told they should not even pay attention to local law.

It takes me back to 2007-2008, when Amnesty International, along with the British Columbia Civil Liberties Association, challenged the Canadian military’s practice of transferring prisoners in Afghanistan to the Afghan secret police, despite overwhelming evidence of the risk of torture. 

The government argued strenuously that the Charter of Rights, the legal basis of the claim, did not apply to Canadian soldiers in Afghanistan.  Instead it was of paramount importance that local Afghan laws govern and be respected.  The Federal Court and Federal Court of Appeal agreed with that position and the Supreme Court, unfortunately, declined to hear a final appeal.

Here is the irony.  When Canadian law, notably the Charter, stood to offer important human rights protection, the government’s view was that local law must have the final word and Canadian law be disregarded. 

Now, in a context where local laws might limit the actions of Canadian intelligence officials, including by safeguarding human rights, the opposite applies.  Local law should play no part and Canadian law must rule.

There’s an old adage about not being able to have one’s cake and eat it too.   But that’s not how best to protect human rights. 

This blog was originally published in the Ottawa Citizen.