I had pondered what I would write about bill C-59 for a few days. Many stories have been written about this bill and I don’t want to go over the same ground as everyone else because there’s simply no reason to do so. I will focus on the historical changes and what I think the bill means but also pay attention to some of the possible benefits and drawbacks.
Theater is the theme with this post. My tone in examining the pros and cons of this bill is cautionary because at this stage, its release is political theater. There was really no reason to introduce a large bill before the House would break for the summer unless the government wanted to get people chatting and to create hype and in that vein the bill is a success.
As for its contents, yes there is a fair degree of new content here but also there’s no guarantee of how successful it will be until we know what the budget will be. ‘Show me the money’ as the saying goes. For example, the first section of the bill sets out a new intelligence review body for Canada including an Intelligence Commissioner. This is good but previous bodies suffered from financial neglect and patronage appointments. The Review body will have the power to review the intelligence community and summon witnesses to appear, investigations though will be done in private. The mandate and powers for the review agency are fairly good, and more in line with what I had advocated for, but the question that needs asking is what about bill C-22 which recently passed the Senate, i.e. the bill to create a Parliamentary committee to review national security? This new review agency will have greater ability to review than the Parliament committee will. But one thing worth pointing out is the new agency will not be able to have access to “confidences” of the Privy Council. Why not? Why shouldn’t the review agency be able to have access to that material? I find the disconnect between government and intelligence when it comes to oversight concerning. The emphasis in this bill is on reviewing the community, CSIS, CSE, and RCMP (in matters of counter-intelligence) but why shouldn’t the review agency be able to see a confidence which might disclose how, for example, a future government directed agencies to conduct an activity that shouldn’t have been undertaken? It appears as if the government is doing its best with these oversight committees and agencies to protect itself from the scrutiny of oversight. Given all the scandal south of the border, greater transparency of elected officials here (beyond finances) would be welcome.
The bill makes some changes to preventative arrest, but not enough for me. For me, preventative arrest is an oxymoron. What is it other than arbitrary detention? Either you are arresting because an offense has occurred or you are not and if you’re arresting without an offense occurring than you are arbitrarily arresting. It is, in my opinion, a suspension of normal legal process without the government needing to suspend the legal process. It used to be the case that f you wanted to arrest someone if they hadn’t committed a crime, an emergency needed to be declared first, and then emergency laws came into effect. Preventative arrest being part of the regular Criminal Code is disturbing, and the excuse of “well it hasn’t been used” is a weak excuse for retaining it until it is and wrongly at that.
In the realm of justifying internal government sharing, Section 98 proves to be a resilient beast to slay. “Changing or unduly influencing a government by force or unlawful means,” survives in bill C-59. There is too much ambiguity left in this section of the bill to ensure protests and legitimate dissent wouldn’t be swept up in the definitions for undermining security, and for information to be shared. Case in point, one of the more irritating statements in the bill:
“For the purposes of this Act, advocacy, protest, dissent or artistic expression is not an activity that undermines the security of Canada unless carried on in conjunction with an activity that undermines the security of Canada.”
Another sizable portion of the bill concerns the CSE. I’m not particularly surprised by the inclusion in the bill that the CSE can now engage in cyber-attacks (C-59 permits this). Historically speaking I found that when these policies were put in place it was sometimes because agencies were already doing the activity, or were asked to do it, and they didn’t want to be operating in a legal vacuum. Curiously though, a new Commissioner will be in place to review CSE activities, providing a level of distance from the Minister, but still there is no active federal court judge to provide a warrant for surveillance that could involve a Canadian. While surveillance is never to be “directed” at a Canadian, that ambiguous language has always left open the possibility of incidental collection and left people wondering if collection of Canadians could occur in a roundabout fashion. What I find most interesting about this section is it is indicative of the broader transformation that has taken place with CSE or rather the government’s attempts to transform it.
This was an agency that was created during war and almost scuttled when war ended. CSE found its place as the CBNRC, and within the bureaucracy of the National Research Council. They were on the books as doing security related research, a cover for their foreign signals operation. It was only until the 1970s and a CBC Fifth Estate documentary that Canadians learned that Canada had a foreign signals agency and it took until 2001 for that existence to be acknowledged in law. This new bill in some ways officially brings CSE out into the open, lays out its mandate, and what it can and cannot do and who will be charged with reviewing it. At its core though, the bill seems to still confirm the military origins and roots of the organization. It can engage in attacks and it still can go to the Minister for authorizations rather than a court. We are left with this curious transition of an agency with military origins and roots into a civilian one, but still somewhat remaining on the fence, pulled between two worlds.
Another aspect of the bill dealt with immunity for CSIS officers and the controversy of threat disruption that arose with C-51. While I think most would understand and agree CSIS needed immunity protections and an ability to engage in disruption (it doesn’t always mean the worst thing you can think of, it can include warning family members about the path someone in the family is taking) C-51 was pretty lazy in doling out this kind of power. Legal boundaries needed to be drawn and there is now some attempt to do that and I think CSIS would actually be happy with more clarity. At the end of the day this bill, like many from this government, doesn’t drastically change many things and the bigger changes that are proposed require funds to make them work. Some distance from the bill I think will show that to be true.
But the whole concept of openly discussing once deeply secretive things I find fascinating. Take for instance this once closely guarded secret law:
“Notwithstanding any Act of the Parliament of Canada or of a legislature or any enactment made thereunder or any other law, no person is liable in civil or criminal proceedings by reason only that he complies with this Order or an order made under this Order.”
That was from P.C. 3486 in 1951, a secret law that protected those charged with setting up wiretapping to do it free from legal prosecution and it was reflective of how the issue of immunity was once addressed – in secret. The subject now appears so plainly in a bill, and many celebrate that transparency, but I think things are more complex. In some ways, this open discussion of immunity powers, and all the things bill C-59 lays out, should be celebrated as a positive step in transparency, but the historian in me looks to the broader historical trend. What does it also mean that something that was once considered so secret, like CSE, now appears to be so regular and so normal? I can’t help but wonder what historical actors like Peter Dwyer would think of this. Dwyer, the former MI6 officer who entered Canada’s Privy Council in the 1950s and had such a large ‘behind the scenes’ role in Canadian intelligence history, and even burned his own papers in the 1970s rather than risk them ever being made public would, I think, be taken aback by it all. He thought the whole exercise of surveillance to be a “distasteful” enterprise. It was something that was necessary, but as repulsive as it was necessary hence the need for keeping it hidden. He was a lover of theater and would have agreed with Le Carre that “espionage is the secret theatre of society.” The watchers and listeners bore a special burden in society he thought. But that burden was also in his eyes a type of special blessing. As Mark Kristmanson detailed, Dwyer’s essays revealed the changes he was undergoing, his transition from the artistic to intelligence world, such as in his essay “The Bridge in the Parks:”
“There is perhaps no more pleasant pastime than that of listening to the conversations of other people. There are, of course, those lucky few who can place their ear at the keyhole without any moral qualms; but these superhuman creatures are few and far between…your honestly disinterested listener could do no better than to take up his station on the top of the bridge in the parks. Here he can overhear the most delightful snatches of talk…Here he can mediate on humanity.”
Dwyer may have been surprised by the modern-day transition to such open discussions of surveillance powers and the like, maybe he’d even be repulsed because he thought these things should not be discussed so plainly. But I suspect there may have also been some delight. As Shakespeare’s “hood-man blind” stanza iterates
Eyes without feeling, feeling without sight,
Ears without hands or eyes, smelling sans all,
Or but a sickly part of one true sense
Could not so mope.
Signals intelligence and surveillance agencies broadly speaking relied on imperfect senses to interpret intelligence, but their existence also relied on those same poor human senses. The Security of Information Act encourages workers to have “eyes” and “ears without feeling.” The public must lose sight of security cameras, blank out transmission and listening stations, and maybe even talk about new security laws someday as if they were no different than parking bylaws. So for me, in addition to the measures being proposed and altered, it’s worth reflecting on the historical change, how the bill so openly mentions things once considered so secret that revealing them could land you in jail. Is this the beginning of a new phase in our security history or the end of one?
For more on the bill see here
and also here.
Read the bill here
Since I wrote this there has been a slew of articles and blogs written on this bill. Some of the best work is listed below:
National Security Law Blog
Lux Ex Umbra
Macleans article by Stephanie Carvin
If you find another piece I should include let me know.