Subject: Bill C-44: Accountability issues with respect to the Protection of Canada from Terrorists Act
I would like to draw a brief background on the Bill C-44 that was tabled by the minister in charge of Public Safety and Emergency Preparedness in Canada, Honorable Steve Blaney. The bill which become law basically amended the intelligence organ in Canada that is, Canadian Security Intelligence Service. The bill faced a lot of criticism especially from the civil societies in Canada. However, it was passed into law as one of the drastic measures being taken by the Canadian government to ensure that Canadian security organs are strengthened in the wake of continuous terrorism threats globally by the terrorist groups ("Understanding Bill C-44: The Protection Of Canada From Terrorists Act - Canadian Civil Liberties Association" 2015). This bill has amended the Canadian Security Intelligence Service Act to increase the protection given to the Canadian Security Intelligence Services operatives. Additionally, it enables the Canadian Security Intelligence Service to conduct to their investigation on any threats facing Canada more effectively. Moreover, it has gone ahead and clarified the nature of the Canadian Security Intelligence Services mandate as well as outlining the jurisdiction that the Federal court can issue warrants whose effect lay outside Canada.
The bill has also touched on strengthening Canadian Citizenship Act to accommodate the changes that would facilitate the revocation of any Canadian citizenship on a different time rather than the one indicated by other provisions. The Bill C-44 has three major changes that have been enacted into law in Canada:
The bill has given authority to the Canadian Security Intelligence Service to conduct their operations outside the Canadian borders.
The bill has allowed the Federal court to issue warrants to authorize activities outside the Canadian jurisdiction despite the fact that this is a gross violation of the foreign state law.
The bill has also authorized the concealment of the identity of the Canadian Security Intelligence Service operatives unless in rare specific circumstances.
The Canadian Government has passed the Bill C-44 into law. This bill has given the members of the Canadian Security Intelligence Service more privileges and they are now allowed to operate outside Canadian borders which violates the international laws. The bill has also tampered with the Strengthening of the Canadian Citizenship Act which can lead to revocation of any Canadian Citizenship anytime even if it not the day indicated in the other provisions of the Act (Sredojevic, 2014).
Criticism of the Bills accountability
The Bill C-44 has received fierce criticism especially from the civil societies in Canada who feel that the bill has several violations ranging from foreign states law to the Canadian Citizenship. The civil societies are of the opinion that the bill has at large failed to consider the governments accountability issues. I will outline the major areas of concern to the civil liberties.
Mismatch in the review and oversight mechanisms and the notable increase of the Canadian Security Intelligence serves operatives power.
This is the most outstanding criticism on this Bill. Comparing the Canadian parliamentarians with of the other developed countries, for instance, the United Kingdom and United States, they have minimal access to the information pertaining to the Canadian Spy agencies. This is in all of the operations that they undertake. Additionally, the government of Canada scraped the office of Inspector General in the year 2012. This office had the responsibility of ensuring that the minister had the appropriate Canadian Security Intelligence Service activities details. Nonetheless, this Bill overlooked numerous recommendations to ensure that there was additional oversight from a number of commissions that had been set up to inquire into the matters of national security. For instance, the commission of inquiry on Air India forwarded recommendations to the Canadian authorities to enhance the functions of National Security Advisor in the Privy Council office so as to perform as cohesive National Security Oversight organ (Sredojevic, 2014).
The current body charged with the responsibility of reviewing Canadian Security Intelligence Service that is Security Intelligence Review Committee has failed to meet its expectation as an oversight body. In fact, the committee has owned it up that it having rough times trying to be effective this is a clear indication that they are not fully accountable for the activities of the Canadian Security Intelligence Service. Additionally, most of the activities conducted by the Canadian Security Intelligence Service are demanding for more oversight. The Canadian Security Intelligence Service has continuously failed to bring to the Ministers attention sensitive as well as possible controversial operations. Moreover, they have consistently breached their duty of honesty during court proceedings as well as failure to cooperate with the Security Intelligence Review Committee (Wilford 2012). The Security Intelligence Review Committee has gone a step further in uncovering inefficiency of the Canadian Security Intelligence Committee in that they have in several occasions failed to appropriately confirm the value as well as reliability of intelligence they have received from abroad. I find that all of these questionable concerns call for a more robust review as well as oversight. My opinion is that with the additional power to the Canadian Security Intelligence Services members by the Bill C-44. It will only further call for the need of more review as well as oversight actions since it will equally increase the number of activities that these operatives will undertake that will be subject to review as well as oversight ("Bill C-44 (Historical).
Sharing of Intelligence with foreign entities and Communication Security Establishment Canada Operating in foreign Countries can increase Canadas venerability to terrorism.
In order for the Canadian Security Intelligence Service to conduct its operations outside Canadas borders, for instance, interception of communication, and accessing individual computers as well as cellphones they will heavily rely on Communication Security Establishment Canada. This is in conjunction with other foreign intelligence bodies. Relying on these foreign intelligence agencies comes at a cost, which is sharing of intelligence information and reliance. This creates a significant risk and may result to regrettable consequences for the Canadians. The risks may be more tragic if the Canadian Security Intelligence Service persist on inaccurately confirming the value. This is in addition to reliability of intelligence information from abroad or capitalizing on inaccurate intelligence information from the foreign intelligence agencies (Boer 2010). Additionally, in the event Canadian Security Intelligence Services shares intelligence information with the foreign Intelligence agencies, foreign partners can do anything that pleases them with the information. For instance, referring to the Maher Ara case, it clearly outlines that dangers and risks of sharing information to Canadians especially in grim terms. Moreover, the information sharing may cause the Canadian Security Intelligence Service to violate human right, for instance, when Omar Khadr was mistreated in Guantanamo Bay during his detention period.
Canadian Courts authorizing violation of foreign laws may lead to responsive conducts as well as stain Canadian reputation in relation to respecting the rule of law.
I find that since Bill C-44 has asked the Canadian Courts to authorize violation of foreign law by allowing the members of Canadian Security Intelligence Service to operate abroad, this may result to other foreign countries spying illegally on Canadians citizen which will be a gross misconduct of their privacy. Moreover, it would result to arrests or detainment of Canadian Citizen when they travel abroad. Canada letting the members of the Canadian Security. For intelligence Service to operate outside Canadas borders, translates to violation of foreign states law. This will portray Canada as a state that undermines the rule of law and it will adversely affect Canadas importance to speak out on international affairs and also reduce the importance of its diplomacy.
Canadian Security Intelligence service may adversely violate the Charter rights of Canadian Citizens living abroad.
The Bill C-44 has been amended into law in Canada and the Supreme Court of Canada has emphatically realized that the Charter of human rights and freedom will not be subject to the actions undertaken by the Canadian officials in foreign countries. Nevertheless, any evidence that will be obtained by an investigation conducted in a foreign country by the Canadian official will probably be excluded since its admission leads to an unfair trial (Fingar, 2011). It is still uncertain whether similar possibility for exclusion may be applied in other areas rather than the criminal context to proceedings that use the Canadian Security Intelligence Services security detail information. My greatest worry is that the Canadian Security Intelligence service will not be subject to observing the Canadians charter rights while exercising its new mandates when conduct surveillance abroad.
Protection of the Canadian Security Intelligence Service members
The amendment to the Bill C-44 into a law in Canada has seen the Supreme Court of Canada unquestionably withdraw the protection accorded to the Canadian Security Intelligence service informers. This was similar to the identity protection accorded to the police sources. The Bill went ahead and reversed this stand by clearly prohibiting disclosure of the identity of any Canadian Security Intelligence Service member unless there would be an agreement between the member and the Director of the Canadian Security Intelligence Service. Additionally, this would be possible if there is urgent need to prove innocence of an accused member of the Canadian security intelligence service who have been charged with an offense. The controversies pertaining to the Canadian Security Intelligence services informer privileges (Johnson 2010). The Bill has created the following.
Reduction in the transparency of the proceedings
The Canadian Supreme Court has clearly stated that the government has consistently hyperbolized the issue of National security confidentiality. Secrecy has spread through all the national security regimes, however, a specific class privilege results to a reflexive secrecy creating a supposition of confidentiality. This kind of reflexive secrecy will aggravate the transparency as well as procedural concerns that undoubtedly end up with proceeding that involves the national security.
Individuals bear the burden of arguing for the exception to privilege
Initially, prior to the amendment of Bill C-44 into law the Canadian Security Intelligence service informer privilege was determined using the case-by-case mechanism. The burden was always on the government to prove confidentiality in each of the case. Nonetheless, Bill C-44 has established a class privilege mechanism whereby the burden has shifted from the government to an individual to argue for an exception to the privilege. Anyhow, in instances where the case is related to national security, most of the available evidence may already be a secret. Hence it becomes much difficult for the individual to impede the felonious claim of privilege. I find it clear that the informer privilege is an added level of complexity that the individual should strive hard to navigate (Logan 2010).
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