The Canadian government is currently reviewing the national security framework and is soliciting public comment. I’ve decided to post my comments publicly, in the hopes of spurring discussion and providing model comments for others to riff off of.
If you care about limiting government spy powers and government accountability, I urge you to read the Green Papers and comment yourself.
In Part 2, I cover Information Sharing, The Passenger Protect Program, and Criminal Code Terrorism Measures.
The Government has made a commitment to ensure that Canadians are not limited from lawful protest and advocacy. The SCISA explicitly states that the activities of advocacy, protest, dissent, and artistic expression do not fall within the definition of activity that undermines the security of Canada. Should this be further clarified?
One person’s lawful protest is another person’s riot. Whether protestors are given sympathetic treatment or labelled as an unruly mob often depends on how much people agree with them. It is also true that protests can have multiple factions and we often see peaceful protestors unfairly detained due to the actions of a few radicals (e.g. during the G20 protests).
Due to the inherent ambiguities here, all protestors who haven’t been charged with a crime should be considered legitimate protestors. This bar ensures that lawful protestors will never have their privacy rights violated and gives and clear threshold for information sharing with no room for subjectivity. Similarly for other activities of dissent. If criminal charges aren’t brought, then the activity shouldn’t be treated as undermining the security of Canada, even if the activity is against the national interests of Canada as the government decides them (protesting at pipelines, for example, may be viewed by the government as against Canada’s national interests, but shouldn’t trigger information sharing).
Artists groups should be consulted to see what recommendations they would make to ensure that artists are protected. I lack domain specific knowledge to make good suggestions here.
Should the Government further clarify in the SCISA that institutions receiving information must use that information only as the lawful authorities that apply to them allow?
One hopes that institutions understand that they must act within the law at all times, with shared information or not. If this seems at all in doubt, then it is of course necessary to clarify the wording to remind institutions that they aren’t above the law.
Do existing review mechanisms, such as the authority of the Privacy Commissioner to conduct reviews, provide sufficient accountability for the SCISA? If not, what would you propose?
As with any expansion of security agencies, oversight can become ineffective if there isn’t a corresponding expansion in the capabilities of the review agency. As reviewing new SCISA cases will inevitably take time, the Privacy Commissioner should see its staff and budget increased to meet the additional demand. For further comments on accountability, please refer to my specific suggestions under that heading, which I think apply double here.
To facilitate review, for example, by the Privacy Commissioner, of how SCISA is being used, should the Government introduce regulations requiring institutions to keep a record of disclosures under the SCISA?
Yes. This will definitely make the Privacy Commissioner’s job much easier and will probably allow some money to be saved in hiring additional staff for the privacy commissioner.
Some individuals have questioned why some institutions are listed as potential recipients when their core duties do not relate to national security. This is because only part of their jurisdiction or responsibilities relate to national security. Should the SCISA be clearer about the requirements for listing potential recipients? Should the list of eligible recipients be reduced or expanded?
While I agree that all government institutions should be able to share important information they have, it makes sense to limit the pool of recipients to only those organizations with the know-how and wherewithal to stop or disrupt terrorist plans. While the Department of Fisheries should be able to share information with CSIS, the reverse should probably not be true.
Therefore, I think only organizations related to national security (a non-exhaustive list would include the DND, RCMP, and CSIS) should be listed as eligible recipients.
The Passenger Protect Program
At present, if the Minister does not make a decision within 90 days about an individual's application for removal from the SATA List, the individual's name remains on the List. Should this be changed, so that if the Minister does not decide within 90 days, the individual's name would subsequently be removed from the List?
Yes. Currently the minister can abrogate review duties (say, due to a busy schedule) and largely escape censure because names will remain on the list. While this may be devastating to individuals wrongly added to the list, it will not cause much public embarrassment to the government. Defaulting to names being removed from the list unless the minister acts aligns the incentives of the Minister and law-abiding citizens who have been wrongly added to the list (as both now want the minister to review their applications within 90 days). The Minister would have to grapple with the potential danger of not fulfilling his or her review duties and would have no incentive to let people languish.
To reduce false positive matches to the SATA List, and air travel delays and denials that may follow, the Government has made a commitment to enhance the redress process related to the PPP. How might the Government help resolve problems faced by air travellers whose names nonetheless generate a false positive?
The government must be committed to paying all costs associated with false positives. Costs include (but are not limited to) re-booked tickets, accommodations, transportation, additional time off work, additional accommodations at the destinations to maintain total trip duration, as well as all of these expenses for minors when a guardian is prevented for travelling or these expenses for at least one guardian when a minor is prevented from travelling. This should be the default, with no application or wait period required.
In addition, the government should not add individuals to the list unless it knows their approximate date of birth. Having a toddler prevented from flying because his or her name happens to match a name on the no-fly list is patently ridiculous. An alternative approach would be to not screen against the no-fly list anyone younger than 12.
Finally, these delays happen because individuals do not know they are on the no-fly list. Keeping the list secret gives individuals no opportunity to pre-emptively clear their name before they go to fly. The government should have learned from the PROFUNC debacle that it is wrong to keep secret list of citizens suspected of committing crimes. Individuals on the no-fly list should be notified when they are added to it.
Are there any additional measures that could enhance procedural fairness in appeals of listing decisions after an individual has been denied boarding?
Individuals (and more importantly, their lawyers) should have access to all information used to make the decision to put them on the no-fly list. It is impossible for anyone to seek to clear their name if they aren’t allowed to know the evidence against them. In addition, the government must be on the hook for all costs incurred when an individual is denied boarding.
Criminal Code Terrorism Measures
Are the thresholds for obtaining the recognizance with conditions and terrorism peace bond appropriate?
Given the significant restrictions that recognizance or peace bonds place on individual liberty, I believe that the previous threshold were much more appropriate.
Advocating and promoting the commission of terrorism offences in general is a variation of the existing offence of counselling. Would it be useful to clarify the advocacy offence so that it more clearly resembles counselling?
Given that counselling already carries the same sentence as the crime that the accused counselled others to commit, I see no reason why a separate advocacy of terrorism offence is at all necessary. It seems like there was adequate redress before additional offences were added to the criminal code, so I question the usefulness of the duplication.
Should the part of the definition of terrorist propaganda referring to the advocacy or promotion of terrorism offences in general be removed from the definition?
Yes. Advocacy or promotion should refer to advocating or promoting a specific terrorist plot, not advocating for terrorism in general.
What other changes, if any, should be made to the protections that witnesses and other participants in the justice system received under the ATA, 2015?
There is a long accepted common law right to know and face your accuser. While I understand the rationale behind these laws, it cripples an effective defence when the lawyer for the accused does not know the identity of the accuser. Without his or her identity, the lawyer cannot effectively cross-examine or raise character flaws that may make the testimony less compelling. Therefore, these protections should be removed to protect the due process rights of accused. See R v Seaboyer for the jurisprudence behind bringing up past witness behaviour at a trial.