By: Ben Allison, Lindsay Kvellestad, and Wajeeha Sattar

PDF Version: Proposed Security of Canada Information Sharing Act Amendments

Policy Commented On: Bill C-59, An Act Respecting National Security Matters

Executive Summary

On August 1^st, 2015, the Security of Canada Information Sharing Act, SC 2015, c 20 (SCISA) came into force by Bill C-51, 2nd Sess, 41st Parl, 2015 (assented to 18 June 2015). SCISA gave Government of Canada Institutions the power to share information in their possession with listed receiving institutions. Bill C-59, An Act Respecting National Security, 1st Sess, 42nd Parl, 2017 (first reading 20 June 2017) is currently in Committee (SECU). Among a host of other national security changes, this Bill proposes to make amendments to SCISA, which will become the Security of Canada Information Disclosure Act (SCIDA), Bill C-59, s 114. Experts in the field of national security law in Canada have pointed to weaknesses that are not being addressed in the SCISA (see Craig Forcese and Kent Roach, A report card on the national security bill). The majority of the criticisms that are associated with Bill C-59 and SCISA/SCIDA in particular are the threshold for sharing information, the overbreadth of the exception, circularity, and a lack of review. This post does not intend to canvass the issues afresh. Rather, our focus is on novel problems with the SCISA and the proposed amendments in Bill C-59 that have largely gone unaddressed. Beyond the existing critiques, the proposed amendments in Bill C-59 still do not address significant problems. We discuss some of these problems in three parts. Part I argues that treating all types of information as the same, as the SCISA does, is problematic. Part II addresses concerns related to disclosing institutions and how they function with regard to information sharing. Similar areas of concern are mentioned in Part III relating to recipient institutions. Each part of this post includes not only critiques but also proposed solutions to the various problems surveyed. Continue reading →

By: Meagan Potier, Bassam Saifeddine, and Chad Haggerty

PDF Version: What’s In A List? Examining Canadian Terrorist Listing

Policy Commented On: Terrorist listing pursuant to section 83.05 of the Criminal Code of Canada

In 2001, Canada enshrined into law a public-facing list of terrorist entities as a part of the Criminal Code, RSC 1985, c C-46. In theory, this list is meant to simplify one aspect of Canada’s exceedingly complex terrorism prosecutions. In practice, the listed entities have only been relied on in Canadian criminal proceedings six times. More often than not, the listed entities are referenced during Immigration and Refugee Board decisions. This post provides a brief review of how the list is used within Canada, and then looks to Australia, the United Kingdom and New Zealand as case studies for best-practices of listing and delisting. Finally, we recommend that the federal government should evaluate the procedural safeguards within the listing process and the continued use of the listed entitles within the immigration context. Continue reading →

By: Dana Hägg, Jocelyn Gerke and Marika Cherkawsky

PDF Version: Private Networks, Public Importance: Reviewing the Communications Security Establishment’s Private Network Cybersecurity Regime Under Bill C-59

Provision Commented On: Section 22(1) of the proposed Communications Security Establishment Act under Bill C-59, An Act Respecting National Security Matters, 2017

The proposed Communications Security Establishment Act (CSE Act), which would be enacted by Bill C-59, expands the Communications Security Establishment (CSE)’s mandate such that the CSE would be able to conduct cybersecurity and information assurance activities on private networks. Given the amount of critical infrastructure in the hands of the private sector, this is a much-needed enlargement of the CSE’s powers.

This new power has been described as being entirely dependent on a request for assistance by the owner of the private information infrastructure (see Parliament, House of Commons, Standing Committee on Public Safety and National Security, Evidence, 42nd Parl, 1st Sess, Meeting 88 at 9:45 (Ms Greta Bossenmaier, Chief of the Communications Security Establishment)). However, this is not represented in the legislation. Under the proposed CSE Act, the CSE would be able to conduct a large amount of privacy-infringing cybersecurity and information assurance activity on private networks without the owner’s knowledge or consent.   Continue reading →

By: Michael Nesbitt

PDF Version: National Security Law Lab Students Offer Reform Recommendations on Bill C-59, An Act Respecting National Security Matters

Legislation Commented On: Bill C-59, An Act Respecting National Security Matters, 2017; Anti-terrorism Act, 2015, SC 2015, c 20

In the Fall of 2016, students in the University of Calgary, Faculty of Law’s National Security Law Lab responded to the government’s calls for feedback on the ever-so controversial Anti-terrorism Act, 2015, SC 2015, c 20 (commonly known as Bill C-51). As with any large Bill analyzed by thoughtful law students, there was much that they liked and, in this case, much more that they did not like. The students decided that their efforts were best spent analyzing law reform proposals that both drew back aspects of Bill C-51 and added heft (and legal protections) to it, knowing that the then-new Liberal government was sure to table a responsive Bill, as was their campaign promise. Continue reading →

By: Michael Nesbitt

PDF Version: National Security, Bill C-59, and CSIS’s Continuing Power to Act Disruptively in Violation of the Charter

Legislation Commented On: Bill C-59, An Act Respecting National Security Matters, 2017; Anti-terrorism Act, 2015, SC 2015, c 20

Government Report Commented On: Protecting Canadians and their Rights: A New Road Map for Canada’s National Security, SECU Committee Report, May 2017, 42^nd Parliament, 1^st Session.

Introduction/Overview of Bill C-59 & CSIS’s Disruptive Powers

On Tuesday, June 21, 2017, right before Parliament rose for the summer break, the Liberal government released its long-awaited national security legislative update, marketed in part as a response to the Conservative government’s controversial Anti-terrorism Act (2015), known as Bill C-51. The Liberal government’s response came in the form of Bill C-59 and not only did it address many—though not all—of the perceived issues with Bill C-51, it went much farther afield. In general, we are all better off for that.

I will provide more detailed thoughts on Bill C-59 as a whole in short order, after I collect my thoughts. But first I want to address one issue that I see as potentially very controversial and—if Twitter can be trusted, an admittedly dubious proposition—that remains one of the least understood elements of the new (and old) anti-terror legislation: CSIS’s powers under both Bills to act disruptively (physically) to counter threats, including taking actions in breach of the Charter or of other Canadian laws. Continue reading →