CSIS's New Disruptive Powers, Grey Holes, & the Rule of Law in Canada

Abstract

Section 12.1 of the Canadian Security Intelligence Service Act (CSIS Act) formally came into force with Parliament’s enactment of Bill C-51. Section 12.1 has taken CSIS from its traditional role as an information collection and analysis agency to one that is empowered to exercise disruptive powers against potential terrorist threats – a task long performed by Canada’s police services. Parliament relied on a system of pre-emptive judicial warrants to justify CSIS’s new powers. In particular, this scheme was held out as a meaningful check on CSIS activity just as judicial warrants are used daily as a check on police power, particularly in the area of search and seizure law. But the term “judicial warrant” is where the meaningful similarities between the system that disciplines police conduct and section 12.1’s scheme governing CSIS activities begins and ends, not least because the section 12.1 scheme contemplates that a judge may authorize Charter-infringing or unlawful activities the likes of which has never been seen in Canadian law. Seen in this light, section 12.1 is supported by a “rule of law trope” – a reference to a well-worn legal norm or standard that serves to obfuscate the fact that the standard, as legislated in the new scheme, offers little to meaningfully constrain state activity. The result is that Parliament has created a very subtle “legal grey hole”; that is, it has created a scheme that is nominally prescribed by law – there is formal law in place authorizing the exercise of new CSIS powers – and that appears on first blush to be governed by a well-worn system of legal checks and balances, but that in practice offers little in the way of oversight or legal protections for individuals. In the end, the façade of legality exists where the substance of legality should govern.

Keywords: National Security, Canada, Rule of Law, Charter, CSIS, Criminal Law