A pressing matter: Fixing national security ahead of the election
With less than eight months to go before the next federal election, anxiety is running high that Canada might not have the legal tools in place to defend itself from foreign meddling.
The Liberal government first introduced its landmark national security reform package, Bill C-59, in June of 2017. It has since inched its way through Parliament at a glacial pace. After passing second reading in the Senate in December, it is now awaiting consideration from the upper chamber’s committee on national security and defence.
The bill has precious little time for a full study before coming for a final vote. That timeline will be even more challenging if the Senate committee proposes to amend the bill.
Meanwhile, Canada’s security services are gearing up for an election which, analysts say, could be targeted by malicious foreign agents.
Bill C-59 aims to both expand the power of the Canadian Security Intelligence Service and the Communications Security Establishment while bringing oversight to Canada’s entire national security apparatus.
The legislation received generally favourable reviews when it was first tabled. In its submission on the bill, the Canadian Bar Association called it “as a positive change, modernizing the legal framework for Canada’s national security infrastructure and increasing transparency, oversight and review, features that have previously been lacking.” Even so, the CBA recommended 30 amendments to improve the legislation. Some of those recommendations were adopted at the House of Commons committee.
Craig Forcese, a professor in the University of Ottawa faculty of law, who has become Canada’s go-to national security legal expert, says he remains “anxious” about the fate of C-59.
“It’s probably the best national security bill I’ve seen in my lifetime,” he told CBA National.
But with lawmakers grappling with a host of other bills that have yet to be passed, and amidst the ongoing controversy surrounding SNC-Lavalin’s push to negotiate a deferred prosecution agreement, the fear is that Parliament may take its eye off the ball on C-59.
Forcese would like to see two flaws in the legislation addressed. First, C-59 allows the country’s foreign signals intelligence agency, CSE, to engage in offensive and defensive cyber operations abroad. But it lacks clarity in how it aligns with international law. The government had fixed a similar deficiency in the CSIS Act, in 2015, after being cited by the Federal Court, which found the Act did not permit CSIS' foreign operations.
Second, there is no definition for the term “publicly-available information.” Under the proposed law, CSE and CSIS could siphon data already available online, even if that data belongs to Canadians, with a significantly lower threshold for oversight. Forcese worries that this may be the “mack truck exemption,” allowing data collection that may not be permitted otherwise.
Forcese expects to raise both issues when he testifies before the Senate committee. But, he stresses, those are not hills he wants to die on. Especially not if it means delaying the bill any further.
His concern is that CSIS is sitting in legal limbo, while it preserves a set of data banks which, the Federal Court ruled, it was not permitted to keep and is now not permitted to exploit. C-59 would give the service legal authority to keep and use that data. But, until the bill is law, it leaves CSIS in an awkward position.
The longer the passage of time is between the Federal Court’s finding and C-59 becoming law, the longer the period of non-compliance is, Forcese says.
And the longer the bill sits in the Senate, the longer CSE must wait before offering its assistance to those who may be most at risk as the election draws nearer.
For now, Forcese says, “they can provide advice to political parties...but they can’t provide wherewithal tools or actual assistance.”
C-59 will give CSE license to Canada’s political parties to defend their systems from outside attack. Given Australia’s main political parties were just hit by a malicious attack from a sophisticated state actor, that concern is top-of-mind for many in the national security realm.
There are other pressing concerns, too. C-59 is Ottawa’s attempt to start addressing shortcomings in its no-fly list, to give Canadians more power to get themselves, or their kids who have been mistakenly included, off it. The longer the bill takes to become law, the more disruptions may occur for those impacted.