Bill C-44 (An Act to amend the Canadian Security Intelligence Service Act and other Acts)

Submission to the Standing Committee on Public Safety and National Security

November 25, 2014

Mr. Daryl Kramp
Chair, Standing Committee on Public Safety and National Security
Sixth Floor, 131 Queen Street
House of Commons
Ottawa ON  K1A 0A6

Dear Mr. Chair:

I am writing to you today regarding the privacy implications of Bill C-44 (An Act to amend the Canadian Security Intelligence Service Act and other Acts) which was introduced in the House on October 27, 2014. This Bill affects the Canadian Security Intelligence Service (CSIS) in two ways:  by explicitly allowing it to operate beyond Canada’s borders, and by proposing protections for human sources.

I would draw your attention to the Statement that I, along with my federal, provincial and territorial privacy and information commissioners, released last month. In it, we called for, among other things, the federal government to adopt an evidence-based approach in support of any new legislative proposal granting additional powers for intelligence and law enforcement agencies, and that such an approach be balanced, proportionate and measured. A copy of the Statement is attached for reference.

I would like to provide a few comments regarding what we see as the privacy risks in need of attention. As we understand it, Bill C-44 seeks in part to authorize CSIS to operate extraterritorially, including through the assistance of foreign states, following a judgment by the Federal Court of Appeal in Re X, 2014 FCA 249. In that decision, the authority under current law to make such requests was the subject of certain qualifications by the Court. Seeking the assistance of foreign states raises the possibility of broader information sharing internationally, an activity which, as demonstrated in both the O’Connor and Iacobucci Commissions of Inquiry, can lead to serious violations of human rights.

My Office is concerned with the adequacy of existing safeguards to ensure against the risk of such violations, including the risk of torture. The Charter as applied by the Courts is, of course, an important safeguard. I would, however, refer to a recent Supreme Court of Canada decision in Wakeling v. United States of America, 2014 SCC 72, which confirmed the importance of accountability and oversight measures to safeguard information shared with foreign states.

Specifically, Justice Moldaver, without attempting to “micromanage” Parliament in any way, suggested several means by which personal information sharing with foreign states could be protected from potential misuse. Footnote 1 Furthermore, Justice Karakatsanis, writing for dissenting judges, intimated that it is Parliament’s role to determine what constitutes appropriate safeguards, and how they should be implemented.Footnote 2

Absent statutory safeguards, the protection of individuals against the risk of mistreatment would depend on the application of general constitutional principles which have not been defined clearly in the context of international information sharing. This would likely lead to years of litigation and uncertainty on the level of protection to which individuals are entitled. Among the issues litigated would be the impact of subsection 21(3.1) of the CSIS Act, added pursuant to sub-clause 8(2) of Bill C-44, which provides that the Federal Court may, “without regard to any other law” including, potentially, international law principles, authorize CSIS to investigate outside Canada a threat to national security.

While the courts have a role in protecting individuals against violations of human rights, I would suggest that Parliament also has an important role in ensuring that the new powers to be conferred on CSIS are exercised in a way that respects Canada’s obligations under international human rights law in general and, specifically, the Convention Against Torture. Clear statutory rules should be enacted to prevent information sharing by CSIS from resulting in a violation of Canada's international obligations.

A balanced legislative approach would also, in my view, include in Bill C-44 measures to make the activities of all federal departments and agencies involved in national security subject to independent oversight. While Bill C-44 only broadens the mandate of CSIS directly, and of the Communications Security Establishment indirectly, and while both are subject to independent oversight, there have been calls for several years to remedy the gaps in national security oversight first identified in the Arar inquiry. I believe the introduction of Bill C-44 would be a good opportunity to address this important issue and enhance the confidence Canadians have in the work of their national security agencies. 

I would welcome the opportunity to speak to any of the points raised above, and would be pleased to follow up with whatever information you require in order to ensure that privacy concerns are addressed in the context of this Bill.

Sincerely,

(Original signed by)

Daniel Therrien
Privacy Commissioner of Canada

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