Tuesday, July 16, 2019
Michael Nesbitt (University of Calgary, Faculty of Law) has posted Bill C-59 and CSIS’s 'New' Powers to Disrupt Terrorist Threats: Holding the Charter-Limiting Regime to (Constitutional) Account (Alberta Law Review, Forthcoming) on SSRN. Here is the abstract:
On June 21, 2019, Bill C-59, An Act Respecting National Security, received Royal Assent. The Act itself represents a major addition to Canada's national security landscape, arguably the largest and most important since CSIS was first created in 1984. This paper considers one important and surely controversial piece of that Act: the revisions it made to uphold the unprecedented powers that Bill C-51, An Anti-terrorism Act (2015), first gave CSIS to act kinetically--and in limitation of any Charter right or Canadian law--to disrupt threats to national security.
This paper offers an historical review of Bill C-51's introduction of this power to limit Charter rights, its subsequent controversies, and then how Bill C-59 attempted to maintain the general thrust of those new disruptive powers while putting the authority to act in violation of the Charter on firmer legal (constitutional) footing. In particular, this paper asks how Bill C-59 legally justifies this broad authority to act to limit Charter rights and whether the legislation is ultimately (constitutionally) successful in that endeavor. In the end, this paper finds that the Bill C-59 disruptive scheme is much-improved as compared to its predecessor, but that this may or may not be enough to pass constitutional muster, at least not with important tweaking to the warrant-authorizing procedures associated with CSIS's Charter-limiting disruptive actions.
In the end, this paper makes three recommendations, two of them being law reform recommendations that should ideally be instituted by way of legislative amendment, but may also be satisfied by a judicial "reading-in" of certain procedural requirements. First, public justification for the special powers given to CSIS by this scheme, including a recognition of just how unique these authorities are and why they differ from those given to police, is desperately needed. This is on the government to offer, and at minimum will be on the government provide during what seems an inevitable constitutional challenge to the disruptive activities regime (however that challenge comes about). Second, special advocates should be inserted into the warrant-authorizing process in order to ensure that it is properly adversarial given the rights at stake. If CSIS is to violate non-section 8 Charter rights in particular, and if its actions are unlikely to be challenged during subsequent criminal proceedings, then the proper constitutional balancing cannot take place outside the adversarial process. Third and finally, CSIS should be required to report back to the warrant authorizing judge on the actual actions taken by the agency to ensure that they proceeded—or more importantly are proceeding—in accordance with the warrant. That is a requirement that Federal Court judges can, and have, instituted; but, again, it is better to have such requirements firmly placed in the legislation itself.