New laws for Canada's spies

By Justin Ling Web Only

Ottawa is taking a close look at Canada’s already robust anti-terror laws, updated only two years ago.  But some lawyers are worried about giving our intelligence services too much leeway.

New laws for Canada's spies

Justice Minister Peter MacKay

The federal government appears to drawing battle lines on many fronts, with an eye on preventing any further homegrown terror attacks from striking the country.

In October, the Conservative Government tabled Bill C-44, which would, as National reported once it was released, beef up the powers of the Canadian Security Intelligence Service (CSIS).

Those powers give the security service more leeway to use confidential informants. Running parallel to that legislation is Bill C-32, the Victim’s Bill of Rights, which received harsh critiques in committee, as lawyers lambasted its intention to create a regime to shield the identity of witnesses in criminal trials.

But the government is not done yet. Ottawa has indicated that its own anti-terror provisions are being so under-utilized that they must be re-tooled, in order to go after radicalized individuals that could become homegrown terrorists.

Updating the anti-terror updates

Speaking with reporters on several occasions in recent weeks, Justice Minister Peter MacKay has indicated that several anti-terror provisions in the Criminal Code, renewed and updated in 2012, will be clarified and part of that means reviewing the thresholds contained in certain provisions.

MacKay singled out sections aimed at preventatively detaining terror suspects as their prime target in updating the act, saying his government was looking to adopt “measures that go specifically to the heart of prevention and those two sections, 810 and 83.”

Under Section 83.3 of the Criminal Code amended in 2012 under the Combatting Terrorism Act police can arrest and detain a suspect without a warrant, so long as the officer believes a terrorist attack will be carried out and that the arrest is crucial in preventing such an attack.

The Act prescribes that they must be taken before a judge as soon as possible, who may then decide to release the suspect on a peace bond requiring that person to avoid any further criminal charges.

The preventative detention and peace bond powers have hardly ever been used. An application was filed in relation to the Air India case, and the order obtained, but it was never applied.

Before the Senate Committee on National Security and Defence, three representatives from the Public Prosecution Service of Canada — the agency tasked with prosecuting most terrorism offences, and with advising the federal and provincial police on investigating those crimes — told the committee that those peace bonds simply weren’t being used.

“We’ve used peace bonds on six occasions in conjunction with the Toronto 18 case,” Director of Public Prosecutions Brian Saunders told the committee. “Five of them were obtained as part of a plea resolution. We assessed that there wasn't sufficient evidence to continue with the prosecution, but there was sufficient evidence to meet the threshold for getting a peace bond against the five individuals. One was obtained against an individual who was convicted, and at the end of his sentence a two-year terrorist peace bond was obtained.”

Liberal and Conservative Members of Parliament have both mused why the so-called “90” — the individuals under surveillance by the RCMP and CSIS for allegedly trying to go abroad and fight for terrorist groups abroad — were not rounded up using these provisions.

Justice Minister Peter MacKay told reporters that those sections are exactly what they’re looking at.

“There are already some very robust measures that we can use – 83.3 and 8-10 do allow for the type of preventative interventions, if I can use that word for – for the police.  So we’re doing at this in concert with Public Safety. We’re doing it in a way that is really focused on not only thresholds, but the practical application of the current sections and whether they’re sufficient,” he said.

Complimenting the preventative detention powers are the investigative hearing abilities also envisioned in the Act. It affords the court the power to summon a suspect believed to have committed, or believed to be planning, a terrorism attack. The ad hoc hearing, in which evidence may be presented under oath, could lead to the issuance of a peace bond.

One of the problems identified by the RCMP is the requirement to notify the Attorney General before using either of these powers.

To hold an investigative hearing or preventatively detain a suspect, police must obtain approval from the minister’s office. That, said commissioner Bob Paulson, causes headaches and frustrates the process.

But it’s actually Saunders’ office that often bestows consent to use these powers. He told the committee that his office generally operates at a higher legal threshold than police — for laying charges, they apply a “reasonable prospect of conviction,” in contrast to the police’s requirement to apply the standard of ‘reasonable belief that an offence has been/will be committed.’

Saunders’ office can also lend its support to preventative detention, the issuance of peace bonds, and investigative hearing powers that the police say are being under-utilized. Saunders said the only threshold applied there is that the applications have a reasonable prospect of being accepted by a judge.

"These powers have not been used because law enforcement had to seek judicial approval and meet certain thresholds,” says Faisal Kutty, counsel and co-founder of Kutty Syed Mohammed and a specialist on anti-terror law. “They want lower thresholds and, I presume, less oversight. By caving in to these demands in times of crisis like this we are changing what we stand for as a nation respecting the rule of law."

Secret witnesses, confidential informants

As Parliamentary debate began on C-44, two developments arose.

The first: Howard Krongold, lawyer at Webber Schroeder Goldstein Abergel and chair of the legislative committee at the Criminal Lawyers’ Association, raised an overlooked aspect of the Victims Bill of Rights, which is winding its way through the House of Commons.

Tucked inside the bill is a new power forbidding the disclosure of the identity of a witness during the course of a trial, if a judge has ruled that it’s in line with the administration of justice, and necessary to protect the witness.

"Proposed section 486.31 is a new provision that would codify the common law practice of enabling a witness to testify without disclosing their true identity, typically through the use of a pseudonym,” says a spokesperson for MacKay. The Department of Justice has denied that this makes them ‘secret.’

The obvious of the intent of the legislation is to encouraged frightened or intimidated witnesses to come forward without fear of reprisal. The provision explicitly states that a judge should not accept an application where it interferes with the administration of justice.

That is an unimaginable scenario, says Krongold, who worries that defence counsel could not cross-examine witnesses in cases where the line of questioning could identify them.

“What it seems to contemplate is an ex parte hearing where it’s just the prosecution and the judge,” says Krongold adding that it would fundamentally frustrate the pursuit of the truth and hobble defence counsel in an irreparable way. “It is profoundly unconstitutional.”

In defending the provision, the department and government MPs relied heavily on a 2007 Supreme Court case, Named Person v. Vancouver Sun, where lawyers for various media organizations wrangled with the court over reporting the identity of a police informant. Ultimately, a majority court found the confidentiality of those informants to be absolute.

But there is a distinction. Confidential informants are police tools whose identities may only be withheld if it’s in “a specific public interest.” They are not always called to act as witnesses at trial.

The debate also raises questions about the new powers laid out in Bill C-44 afforded to CSIS to protect confidential informants. According to George Dolhai, deputy director of public prosecutions at the PPSC, “the current state of the law is such that in relation to CSIS informants, there is the ability to protect them through a privilege, but it's not a case privilege. It's a one-at-a-time analysis, and I think the service has made the point that this introduces a certain amount of uncertainty in the process for them.”

There is a caveat included in Bill C-44: the court must appoint an amicus curiae or, in immigration cases, a special advocate in order to determine whether the confidentiality is appropriate. That process has also evolved through the case law when it comes to police informants who testify.

The Victims Bill of Rights does not envision such a process. While it’s not clear how the two acts would work together, Michael Spratt, also at Webber Schroeder Goldstein Abergel, says the broad and ill-explained powers tucked in the Victims Bill of Rights may well be “geared towards national security cases.”

Meanwhile, speaking specifically to Bill C-44, Kutty says the confidential informant powers are a “very dangerous development.

“Whenever you have informants who cannot be challenged at all, there are numerous avenues for abuse. It is fundamental in our system that one be able to challenge evidence and it was already difficult to do this with existing anti-terror laws, now they wish to make it even more difficult. Even prior to this there was solid evidence of abuse taking place in this context, now we will open the floodgates." 

Finally, the Federal Court of Appeal appears to have thrown a wrench in the machine of the government’s foreign spying plans. The decision, made public on Tuesday, upholds the Federal Court ruling of Justice Richard Mosley that castigated CSIS for secretly relying on foreign counterparts to spy on Canadians abroad.

The crux of Bill C-44 allows CSIS to conduct foreign operations, in direct response to a pair of federal court rulings (including Mosley’s decision) explicitly telling the spy agency that its governing legislation allows for no such thing.  In that respect one would think that the decision has no real bearing on Bill C-44, given that the courts have iterated the government’s legislative prerogative in changing CSIS’ mandate.

And yet a statement from Public Safety Minister Steven Blaney reads that “the Federal Court of Appeal decision left uncertain other important questions of law. The government is seeking leave to appeal these issues to the Supreme Court of Canada.”

Duty of candour

The aspects of the Court of Appeal decision irking the minister appear centred around just how forthcoming CSIS is expected to be when obtaining warrants.

The original case that offended the Federal Court, and led them to reprimand the spy agency’s global ambitions, involved CSIS’ request to rope-in the American National Security Agency for its surveillance regime.

Its original application, to Justice Edmond Blanchard, was to run international surveillance. That request was quickly denied. Their section attempt, on the same case — entitled simply X, due to national security restrictions — went to Mosley. In their application for a surveillance warrant, they insisted that the surveillance would be done from within Canada. It was approved.

It was some months later when suggestions that CSIS’ operations involved international bulk data collection that Mosley recalled CSIS to further detail their operations. It was then that the learned that the warrant he had approved was being used much more broadly than he intended. He rebuked the agency for breaching their duty of candour. Now that the Federal Court of Appeal has backed up Mosley’s conclusions that CSIS must be forthright and open about its operations, the government is looking to push back before the top court.

“You could argue that C-44, once passed, will render that part of the decision moot,” agrees Jon Penney — law professor at Dalhousie University, and fellow at both Harvard’s Birkman Centre, as well as the University of Toronto Citizen Lab.

What changes for CSIS, he says, are the ex parte hearings. “In these types of procedural applications,” he says. “There’s a strong duty of candour and disclosure and good faith. So CSIS has to provide material information and facts. If they don’t, they very well may breach this duty of candour.”

 

Justin Ling is a regular contributor based in Ottawa.

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