Jez Littlewood on Bill C-59 and what it means for Canada’s national security

The recently introduced Bill C-59 described by experts as the biggest overhaul in Canadian national security since the creation of the Canadian Security and Intelligence Service (CSIS) in 1984, enacts the establishment of a so-called super watchdog agency – the National Security and Intelligence Review Agency – to keep an eye on federal departments and agencies gathering intelligence, as well as revamps the Communications Security Establishment (CSE) and its activities, among other provisions. Katarina Koleva talked to Jez Littlewood, an Assistant Professor at the Norman Paterson School of International Affairs, who teaches courses on terrorism, national security, intelligence, and arms control, about his thoughts on Bill C-59, the changes it introduces, and what they mean for Canada’s security.

iAffairs: What exactly is Bill C-59 going to change?

Jez Littlewood: The Bill is going to change a lot of things. It is omnibus legislation. It changes a number of existing acts of legislation such as the CSIS’s Act, the National Defence Act, it changes parts of what was the antiterrorism act in 2015 – Bill C 51. In that sense, it changes a lot in terms of accountability structures but equally, in reality, it is tweaking and refining some of the major issues that were clearly points of concern among parliamentarians as well as among the public in Bill C-51 rather than rejecting them and getting rid of them in their entirety.

iAffairs: In what way does Bill C-59 address and refine some of the concerns raised by Bill C-51?

Jez Littlewood: It tries to do this in two ways. The first is to refine or amend some definitional terms in certain areas. To give two examples in that sense. First, major concerns were raised about the idea that CSIS could take part in what are considered to be disruption activities. This makes CSIS, rather than a passive gatherer of intelligence that was passed on to other people, if there was a threat to the security of Canada, more actively involved in disrupting those threats. C-51 allowed or certainly permitted that those disruption activities could be potentially very far ranging, to the point that it allowed breaches of the Canadian Charter of Rights and Freedoms, in certain circumstances, if a federal judge approved a warrant for such activities in contravention of the Charter. In one sense, a major concern was that we were allowing our intelligence agency to essentially violate certain portions of the Charter, under federal warrant, but that warrant itself will be delivered in secret. Bill C-59 rolls that back by essentially making it clear that there are certain disruption activities which do not require a warrant even though these are not specified in the Act. Listed in the Act in seven broad categories of disruption where a warrant would be required. These are the areas of potential concern.  Equally, it is clear that C-59 passes what the lawyers would call the Section One Charter test, which means it is supposed to be within the infringement of civil liberties and rights the Charter permits for national security reasons. That is one area.

Another area relates to disclosure of information and what was the Information Sharing Act. The concerns in the Bill C-51, in that context, was that 17 agencies and departments in Canada were named in the act itself as being able to share information, if perceived to be necessary to assist in the security of Canada. That, “security of Canada,” was a very broad definition. This has been narrowed somewhat, in an attempt to clarify that we are not talking about new intelligence collection, and that such sharing of information can only happen if it really does assist in national security investigation. So, there is some tweaking of the definitions in C-51 and refinements to certain portions of it rather than a wholesale rolling back.

iAffairs: What would be the mandate and the structure of the new super watchdog agency and how would it fit within the existing bodies of ministerial, judicial, and independent oversight?

Jez Littlewood: Essentially, the new agency deals with a problem that we’ve long had in existence in Canada. At this stage, the intelligence accountability is based upon review bodies that are sort of agency or department specific. For example CSIS had the Security Intelligence Review Committee and it could only look at CSIS; CSE has the Office of the CSE Commissioner; the RCMP has the Civilian Review and Complaints Commission. The barriers between these review bodies, the silos, have been quite firm, not impossible to bridge, but nonetheless still quite firm. This new review agency – the National Security Intelligence Review Agency – is going to subsume and take over certainly SIRC and the CSE Commissioner’s office. It will take some responsibilities for the national security component of the RCMPS’s review body in a way that allows review and accountability agencies to follow the thread of the investigations, as people say, rather than be siloed. We are likely to see, assuming C-59 passes in due course, a fundamental restructuring of Canadian intelligence and accountability oversight issues. This is, of course, in conjunction with two other areas. The first is the establishment of the National Security and Intelligence Committee of Parliamentarians which gives parliamentarians a role here, which is separate to what is in C-59. But equally we would see in C-59 itself the creation of an Intelligence Commissioner who will handle some of the ministerial authorizations so that the instructions and permissions from the ministers to CSE, within its foreign intelligence and cyber role, and within CSIS related to the retention of its open source datasets.

iAffairs: How would the new review Agency and the Parliamentarian Committee complement each other?

Jez Littlewood: They are separate or will be separate in law. But certainly within the first drafting of C-59 it is clear that the new review agency will work with parliamentarians, if they decide or they have a common interest. They can certainly share or would be expected to share information where it is possible to do so. So, we should see these bodies as separate but nevertheless complementary. I certainly don’t detect in the way the legislation is written that these are competing rather than complementary, in different levels. There is a level of interest and focus within parliamentarians and a different level of experts working inside and along with an agency, department, or entity which is doing intelligence. In reality, the latter is not what you would expect parliamentarians to be doing anyway. But the overlap exists and Parliamentarians have a quite wide latitude on paper to go where they see fit.

iAffairs: Do you see any weaknesses in the text of Bill C-59?

Jez Littlewood: There are a number of issues which have to be thought about, in some detail, and presumably discussed quite robustly in parliamentary committees. It is clear that some organizations remain concerned about the level of information sharing. The information sharing components of C-51 have now been renamed the information disclosure components of C-59. There are also some issues in terms of the tweaking of the passenger protect program, i.e. the no fly list, which remains a concern for some civil liberties organizations. So I would certainly expect the government is going to be pushed quite hard in consultations, and don’t necessarily think we should expect this to be simple or easy ride, in terms of the passage of Bill C-59 in due course.

iAffairs: When is the bill likely to become law? How long will the process take?

Jez Littlewood: I would imagine it will take at least one year. There is an expectation that there will be further delay. So, even if we allow for parliamentary committees to be up and running, and considering this in October, it is a wide ranging bill, with a lot of moving parts. If it is going to be reviewed correctly, that is going to take, in my view, at least six to eight months of committee hearings, and back and forth. I would be surprised if C-59 is law by this time next year, in 2018. At the same time, I would be somewhat disappointed given the fact that I am broadly in favor of what is in C-59. There are some things that might need attention but I will be somewhat disappointed if it wasn’t finally tweaked and becomes acceptable by the end of 2018.

iAffairs: The document permits CSE to hack foreign nations. Is it aimed to shut down potential cyber-attacks?

Jez Littlewood: The CSE already has foreign and signal intelligence, as well as cyber safety and cyber assurance role. It is in its existing mandate, as well as offering technical advice to existing law enforcement intelligence agencies. It is really putting armour or proposing to put on a legal footing the fact that CSE can have more interventionist role, more active or offensive role. But equally it can have an active defensive role in thwarting attacks and interfering with the structures in the cyber domain. At this early stage, we understand, these will not be decisions taken solely by the CSE internally. Such decisions would have to involve ministerial authorizations and oversight of a fairly high level of government. So, it alters CSE mandate pretty much in line with what people have been thinking is going to be necessary in the future years, and puts more extensive and intrusive technical capabilities in the hands of government on a much more formal legal foundation.

iAffairs: Are there models of super watchdog agencies, in other countries, that Canada can draw examples from?

Jez Littlewood: The one, in some sense of a model, might be Australia which has the Inspector General approach which looks across all of Australia’s national security and intelligence community. In some respects we can look at that. In another way, in a separate environment, we can look at the UK’s Independent Commissioner to deal with counterterrorism issues which is focused on counterterrorism, not the broader set of national security. Canada’s approach is to cover all aspects of national security.

iAffairs: What are your thoughts with regard to the latest terrorist attacks in London and elsewhere – using vehicles as weapons?

Jez Littlewood: It is not a new terror tactic in the sense that we’ve seen vehicles used as weapons in Nice, France, in Germany, in Sweden, and elsewhere. However, it has been an innovation over the last decade or so, a part of a broader trend with two characteristics. The first is coming exclusively from the so-called Islamic State for individuals to basically carry out acts of terror wherever and however they can. Even if you do not have access to bombs or weapons, you use what you have and this is what we see in the propaganda, as well as in the literature – use a vehicle, use a knife. A good example, of course, being October 2014, and the attack in Quebec. The other part of that trend is that counterterrorism efforts have made it more difficult, but not impossible, for individuals to get quite sophisticated weapons. So, in one sense the success of counterterrorism in largely removing bomb making capabilities has pushed terrorists into using bladed weapons, vehicles etc. This trend reinforces what we’ve known for a long time throughout the history of terrorism – terrorism and counterterrorism have action-reaction effect on each other. If some things become harder or more difficult for terrorists, they shift to different kinds of targeting tactics. This, unfortunately, is one of those realities we are all living in.

In terms of prevention, are we going to harden every bridge, every sidewalk? That is unlikely. That is not really going to happen. Some measures might be temporary, in terms of, for example, if you have a special event where the street is closed off for a public celebration. The streets around it, you may have a much more controlled access to a given area. There are some practical short term measures that can be taken. But the reality is it is very difficult for any intelligence agency or police force to prevent an individual who may simply get in his own car and decide to target civilians. It is an unfortunate reality. We have to accept that we can do some things but we cannot eliminate all risks in their entirety.

This article is a cross-post from iAffairs.

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