Bill C-59 and the Former Bill C-22: Compromised Oversight and Continuing Threats to Non-Derogable Rights

Abstract

This article assesses the context and content of Bill C-59's proposed revisions to the Anti-terrorism Act, 2015 (the former Bill C-51), which created a controversial warrant-based regime for authorizing CSIS activity that would otherwise violate the Charter. These amendments have been introduced in Parliament and are currently being debated in the House of Commons. Bill C-59, the product of a fatally-flawed public consultation process, addresses the possibility that this warrant regime might lead to serious abuses in two ways. First, it creates an oversight body (the National Security Intelligence Review Agency), which will supervise these warrant applications and other activities undertaken by the Canadian Security Intelligence Service (“CSIS” or “the Service”) and advise the National Security and Intelligence Committee of Parliamentarians (created by the former Bill C-22). Second, it specifies in further detail what the warrants can and cannot authorize. This article demonstrates that these revisions are not sufficient; they respond to an inadequate assessment of the problems with Bill C-51. Its ambition to balance expanded powers with increased accountability is the product of a consultation process that was overborne by political concerns. The new oversight bodies to be created lack sufficient powers to be effective, and they are as likely to be influenced by executive interference as those which they replace. The powers retained by CSIS, although trimmed, still give the Service the power to violate non-derogable rights in a future major public order emergency. In particular, the new restrictions on this warrant regime leave open the possibility of the authorization of incommunicado detention. This would constitute enforced or involuntary disappearance, a practice of arbitrary detention that places a suspect outside of the protections of the law that are safeguarded by access to counsel. As this violates rights that are inviolable in any emergency, however serious, this cannot be justified by reference to the balancing of rights or by means of enhanced accountability, even if the oversight regime created by Bill C-22 was not seriously deficient.

Keywords: Bill C-51, Bill C-59, Bill C-22, CSIS, Non-derogable rights, rule of law, intelligence oversight, emergency powers, national security

JEL Classification: K1, K33