Steven Blaney: “What is this bill [C-44] doing? Basically allowing CSIS to keep doing what it’s been doing for 30 years.”
By: Dana Wagner on
Steven Blaney, Minister of Public Safety and Conservative MP for Lévis — Bellechasse, in a speech on April 29, 2015
Bill C-44 became law in April 2015 and changed how Canada’s spy agency can operate in at least two ways that courts have decided were not possible before under the law. But this claim is about behaviour, not law, and there’s not enough evidence to say if C-44 means an operational change or just a legal one.FactsCan Score: Withholding Judgement
While bill C-51 grabbed headlines, another security bill quietly passed into law in April. Bill C-44, or the Protection of Canada from Terrorists Act, primarily amends the Canadian Security Intelligence Service Act.
The week after the bill became law, Steven Blaney, the public safety minister, said C-44 is “basically allowing CSIS to keep doing what it’s been doing for 30 years.”
At issue is if the law clarifies powers Canada’s spy agency already exercised in practice, or if it would significantly change operations.
The Conservatives introduced C-44 in the fall of 2014 in response to earlier court decisions, and these provide insight into what is actually new in the new law. There are at least two sections in bill C-44 that mark a change.
1. Informer privilege
Police informers are protected by “informer privilege,” a rule against disclosing any information that might identify them. The informer gives information and in return gets secrecy and anonymity. As a result, it can be difficult to use an informer as a witness in court. The rule is called a “class” privilege because it is absolute (with few exceptions) and automatic, instead of being determined case-by-case.
Bill C-44 introduced class privilege for CSIS sources (Section 7), something they did not have before.
In 2009, a Federal Court judge extended class privilege to human sources used by CSIS. However, the decision was successfully appealed in 2012. Two years later, the Supreme Court of Canada upheld the appeal judge’s decision that CSIS sources do not have class privilege.
In its decision, the Federal Court of Appeal reasoned that creating a CSIS informer class privilege by way of a judicial decision would extend the protection to “those who did not have it” and would “run afoul of Parliament’s intention” in the CSIS Act. The important insight here is that Parliament did not previously create this privilege. Creating it now, through bill C-44, is new.
What about Blaney’s point that the new law only enables CSIS to do what it had already been doing?
It seems that CSIS had promised significant anonymity, even if these assurances were not enforceable. In the final report of the Air India inquiry which waded into class privilege, Justice John Major wrote “the available public evidence suggests that CSIS gives ‘covert human intelligence sources’ absolute promises that their identities will be protected.”
CSIS did so without a legal basis, but it seems the practice happened anyway. In theory, judges may have chosen not to apply privilege-like anonymity to CSIS sources, but that doesn’t necessarily change things operationally.
On this issue, according to publicly available evidence, Blaney’s claim is true.
2. Operate “without regard to any other law, including that of any foreign state”
A second change in bill C-44 is giving judges the authority to issue warrants that allow CSIS to break foreign laws (Section 8 (2)).
In 2007, a Federal Court judge decided that the judiciary cannot authorize CSIS to violate laws of other countries. Whether Justice Edmond Blanchard was right may be decided by the Supreme Court in the fall. It will hear another case, from the Federal Court of Appeal, called X (Re), that raises the same issue.
In that case, the appeal court concluded “it remains an open question as to whether the Federal Court possesses … jurisdiction [to issue a warrant] when the interception is not legal in the country where it takes place.”
Explicitly allowing judges to let CSIS surveillance activities violate foreign law, as C-44 does, is therefore new. But what happened in practice?
Craig Forcese, an expert in national security law, said “I don’t think there was a thirty-year understanding that a Federal Court judge could authorize a warrant in violation of foreign law. So I would argue that at least this part is new, and quite dramatic.”
It’s hard to know if CSIS had habitually applied for warrants that would authorize breaking foreign law because warrants are secret. The agency did apply at least once before in a 2005 case that was discontinued (referenced in a separate Federal Court decision). Forcese said he is not aware of any other cases, but only the government and judges would know.
On this issue, the answer is unclear. Although it’s an open question of legality, CSIS may have been breaking foreign law with judicial approval. But we do not know. We cannot determine if the behaviour formed a 30-year pattern without evidence that is unavailable.