Solicitor General Robert Kaplan has been under attack since he introduced legislation last month to set up a new civilian security agency. But the strongest backlash came last week when Canada’s provincial attorneys general issued a strong communiqué denouncing the new agency as a “massive threat to the rights and freedoms of all Canadians.” Meeting in Charlottetown, representatives of nine provinces and two territories—British Columbia did not attend—endorsed the joint communiqué, claiming that the legislation eliminated the ordinary safeguards of Canadian criminal law.
Kaplan’s proposed Canadian Security Intelligence Service (CSIS) was designed to answer problems that arose in the 1970s when the RCMP Security Service routinely broke laws and, without authorization, opened mail, planted bugs, surreptitiously entered premises and gained access to confidential information. Under Kaplan’s new legislation, operatives of the new agency will be able to carry out these activities legally, as long as they obtain a warrant from a federal judge.
Kaplan insists, and his bill makes clear, that these activities are not to be used against those engaged in peaceful, law-abiding dissent. In 1981 the McDonald commission into RCMP wrongdoing found that the Mounties had secretly watched and disrupted the activities of lawful dissenters and had even investigated mainline political parties. Critics charge that the new bill does not ensure this will not happen again. In fact, the bill defines threats to the security of Canada so broadly—any activities “intended ultimately to lead to the destruction or overthrow of the constitutionally established system of government in Canada”—that they appear to include some forms of peaceful dissent. Critics have questioned, for instance, if NDP MP Stanley Knowles might not be considered a security threat for advocating the abolition of the Senate—a constitutionally established system of government in Canada.
The CSIS bill not only exempts agents with warrants from specified laws but it also gives them the right to ignore other unspecified laws without warrants if such actions are “reasonably necessary.” In explanatory notes accompanying the bill, Kaplan points out that the purpose of this permission is to “put aside criticism about the legality or propriety of such incidental activities.”
In an interview with Maclean's last week, Kaplan insisted that this section
simply gives the new operatives powers already granted police under Section 25 of the Criminal Code. But Morris Manning, a Toronto lawyer who heads the criminal justice section of the Canadian Bar Association, strongly disagrees. Manning says that the powers police have under the Criminal Code are far more restrictive because they only allow police to carry out acts that they are authorized to perform. According to Manning, the problem with Kaplan’s bill is that it does not place limits on what actions its agents may perform.
Peter Russell, a University of Toronto political scientist who served as research director of the McDonald commission, fears that this section opens up the possibility of the new agency resorting to the kinds of “dirty tricks” that the RCMP used against dissenters in the 1970s. This included spreading damaging information to employers about suspected troublemakers or planting incriminating evidence on individuals already in trouble.
Kaplan answers the charges by inI
sisting that agents would have to answer for their actions in the courts. Bill C-157 stipulates that whenever the service’s director decides that an agent has broken the law, he must report it to the federal solicitor general and the federal justice minister, who will decide what action to take. But critics suggest that the government may take no action, and Kaplan concedes that this may be the case when national security is at stake. Alan Borovoy, counsel to the Canadian Civil Liberties Association, adds that since the federal government has rarely prosecuted agents for wrongdoing in the past, there is little reason to expect that they will start prosecuting now or handing over cases to the provincial attorneys general to prosecute. Says Borovoy: “There is no guideline to prevent them from simply sitting on it.”
To keep a check on the security service, the new bill provides for a federally appointed inspector general and a review committee composed of three members of the Privy Council, most of whom are former cabinet ministers. This provision stops short of the McDonald commission recommendations for overseeing the security and intelligence establishment. Members of the proposed review committee will act as watchdogs and will have access to all information in the security service’s files—except for cabinet documents. Russell insists that the exemption of cabinet documents is significant in that it could allow the cabinet to prevent the watchdogs from seeing cabinet directives to the security service. “There’s no check and no balance on the cabinet,” says Russell. Kaplan said that he believes cabinet directives would not be exempt from review.
In its goal of collecting foreign intelligence, the service will be empowered to tread into new areas that Kaplan admits will sometimes have no bearing on national security.The explanatory notes of the legislation indicate that collecting information bearing on “international economic relations” will be part of CSlS’s mandate. Kaplan conceded that such a broad mandate could result in intelligence-gathering on the international operations of unions.
Russell says he is also concerned about a section in the new bill that prevents the solicitor general from overriding the decisions of the service’s director on whether the service should collect or disclose information about a person or a group. “We’re being set up for the violation of responsible government,” he said. With criticism mounting, Kaplan may have to alter his bill if he wants to satisfy critics that it meets his own objective of balancing “the need to protect security on the one hand and civil liberties and the right to privacy on the other.” ;£?
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