To: Minister of Public Safety Canada
From: Senior Policy Advisor
Recommendation: The Bill C-44 that was enacted into law has been facing numerous criticisms from the civil societies in Canada. This is simply because it has gross violations of the human rights and freedom; it has allowed the revocation of the Canadian Citizenship and passports, a different day from the day indicated on the other provisions. This may feel intimidating to the victims who have been in pursuit of the Canadian Dream. The Bill has also increased the powers of the Canadian Security Intelligence Service members that will give them the mandate to operate on foreign territories. This will be a gross violation of the foreign state law and it will portray Canada as a state that does not respect the rule of law, hence, its impact on the global scale pertaining to international issues will be less effective. Canada should follow the lead of United Kingdom and Australia to establish an independent third institution that will be charged with the national security accountability by monitoring the national security laws. The independent monitors should be layers in non-governmental institutions charged with statutory mandate of continuously providing reports about government performance on the anti-terror laws.
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 violate the international laws. The bill has also tempered with the Strengthening 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).
The Bill, which amended the Canadian Intelligence Agency faced massive criticism especially from the Civil societies in Canada despite its real motive by the Government to safeguard Canada against terror threats ("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 their investigation on any threats facing Canada more efficiently. The bill has also touched on the strengthening of the Canadian Citizenship Act to accommodate the changes that would facilitate the revocation of any Canadian citizenship at a different time rather than the one indicated by other provisions.
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 failed to consider the governments accountability issues. I will outline the major areas of concern for the civil liberties.
1. 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 other developed countries, for instance, the United Kingdom and the United States, they have minimal access to the information about the Canadian Spy agencies and all the operation that they undertake. Additional, the government of Canada scraped the Office of Inspector General in 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 make sure that there was additional oversight from some 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 the Canadian Security Intelligence Service that is the Security Intelligence Review Committee has failed to meet its expectation as an oversight body. In fact, the committee has owned it up that its having rough times trying to be efficient this is a clear indication that they are not entirely 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 the uncovering inefficiency of the Canadian Security Intelligence Committee in that they have on several occasion failed to confirm appropriately the value as well as the reliability of intelligence they have received from abroad. I find that all 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 theses operatives will undertake that will be subjected to review as well as the oversight (Bill C-44 (Historical).
2. Sharing of Intelligence with foreign entities and Communication Security Establishment Canada Operating in Foreign Countries can increase Canadas venerability to terrorism.
For the Canadian Security Intelligence Service to conduct its operations abroad, for instance, interception of communication, and accessing individual computers as well as cell phones they will heavily rely on Communication Security Establishment Canada 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 in regrettable consequences for the Canadians. The risks may be more tragic if the Canadian Security Intelligence Service persist on inaccurately confirming the value and reliability of intelligence information from abroad or capitalizing on inaccurate intelligence information from the foreign intelligence agencies (Boer 2010). Additionally, if Canadian Security Intelligence Services shares intelligence information with the external 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 a human right, for instance when Omar Khadr was mistreated in Guantanamo Bay during his detention period.
3. Canadian Courts authorizing the violation of foreign laws may lead to responsive conducts as well as stain Canada's reputation about respecting the rule of law.
I find that since Bill C-44 has asked the Canadian Courts to authorize the 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 Canadian citizens which will be a gross misconduct of their privacy. Moreover, it would result in arrests or detainment of Canadian Citizen when they travel abroad. Canada was letting the members of the Canadian Security Intelligence Service operate abroad, translates to the violation of foreign states law. This will portray Canada as a country 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.
4. Canadian Security Intelligence service may adversely violate the Charter rights of Canadian Citizens living abroad.
The Bill C-44 has been amended to 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 were 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 lead to an unfair trial (Fingar 2011). It is still uncertain whether similar possibility for exclusion may be applied to another area rather than the criminal context to proceedings that use the Canadian Security Intelligence Services intelligence information. My greatest worry is that the Canadian Security Intelligence service will not be subject to observing the Canadians charter rights while exercising it new mandates ton conduct surveillance abroad.
Protection of the Canadian Security Intelligence Service members
The amendment of Bill C-44 into law in Canada has seen the Supreme Court of Canada unquestionably withdraw the protection accorded to the Canadian Security Intelligence service informers that were similar to the identity protection granted to the police sources. The Bill went ahead and reversed this stand by explicitly prohibiting disclosure of the identity of any Canadian Security Intelligence Service member. Unless there is the agreement between the member and the Director of the Canadian Security Intelligence Service or if there is urgent need to prove the innocence of an accused member of the Canadian security intelligence service who have been charged with an offense. The Bill has created the following controversies about the Canadian Security Intelligence services informer privileges (Johnson 2010).
1. Reduction in the transparency of the proceedings
The Canadian Supreme Court has explicitly stated that the government has consistently hyperbolized the issue of National security confidentiality. Secrecy has spread through all the national security regimes. However, a particular class privilege results to a reflexive secrecy creates a supposition of confidentiality. This kind of reflexive secrecy will aggravate the transparency as well as procedural concerns that undoubtedly end up with the proceeding that involves the national security.
2. Individuals bear the burden to argue for the exception to privilege
Initially before the amendment of Bill C-44 into law, the Canadian Security Intelligence service informer privilege was determined using the case-by-case mechanism and the burden was always on the government to prove confidentiality in each of the cases. 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 right. Anyhow, in instances where the case is national security related, 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 person should strive hard to navigate (Logan 2010).
3. Use of innocence at Stake exception is not admitted in non-criminal cases.
The informer privilege can only be challenged in cases where the proceedings are d...
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