Tories' Anti-Terror Bill C-44 Extends CSIS Source Protection, Judicial Warrant Powers

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OTTAWA - Long-promised anti-terrorism legislation introduced by the Conservatives would strengthen protection of intelligence sources, but it stops short of shielding an identity crucial to proving someone's innocence.

As expected, the government bill tabled Monday also gives the Canadian Security Intelligence Service more latitude to obtain a court-ordered warrant authorizing security investigations abroad.

"With this bill, it will bring clarity, so that CSIS can work with our allies to share information," Public Safety Minister Steven Blaney said shortly after the legislation was introduced.

The government has clearly signalled more changes will be put forward in coming weeks — measures that could lower the threshold for detaining a suspected homegrown radical or even outlaw glorification of terrorism.

The government says the source-protection and warrant provisions of the bill tabled Monday will help CSIS conduct investigations into potential terrorists when they travel overseas.

Canada and other western nations fear that citizens who go abroad to take part in the Islamic State of Iraq and the Levant's guerrilla-style battles could come home with intent to do harm.

The bill was on the drawing board before the events of last week, when two soldiers were killed in separate attacks — one in St-Jean-sur-Richelieu, Que., the other in Ottawa — in broad daylight. The government is characterizing the deadly assaults as terrorist incidents, though some are openly questioning the state of mind of the assailants.

The Federal Court of Appeal said in 2012 that human sources recruited by CSIS do not have the sort of blanket protection that shields the identities of police informants, even from a judge.

In the case of CSIS, that is instead decided on a case-by-case basis.

The Supreme Court agreed in a May ruling on the national security certificate regime — a tool for deporting suspected terrorists — that there should be no overarching privilege for the spy service's sources.

The bill introduced Monday would prohibit anyone from compelling information during a court proceeding that would disclose the identity of a CSIS human source.

However, the legislation includes exceptions, allowing a source's identity to be revealed if the source and the CSIS director agree to disclosure. It would also permit release if knowing the name "is essential to establish the accused's innocence'' in a criminal prosecution — as is the case for police informants.

The bill does not include a specific exception for security certificate cases, meaning it could become even more difficult to test the validity of a CSIS source in such an immigration proceeding.

"The legislation does not address an exception even in secret proceedings, and this is a serious concern for both basic fairness and the reputation of our justice system,'' said lawyer Norm Boxall, who represents Algerian refugee Mohamed Harkat in his security certificate case.

The bill would allow CSIS to seek a judicial warrant to investigate a security threat — "within or outside Canada.'' The warrant could be issued "without regard to any other law, including that of any foreign state,'' the legislation states.

The amendment flows from court judgments that took issue with CSIS's powers to operate abroad — including a biting one by Federal Court Justice Richard Mosley that criticized CSIS for requesting warrants to track two Canadians with technical help from the Communications Security Establishment, Canada's electronic spy agency.

CSIS failed to disclose to Mosley that CSEC's foreign counterparts in the Five Eyes intelligence network could be called upon to help —something the judge called "a deliberate decision to keep the court in the dark about the scope and extent of the foreign collection efforts.''

The legislation also tweaks the CSIS Act to prohibit the naming of individuals who might be involved in covert operations in the future.

Finally, the bill contains technical amendments that would speed up implementation of provisions passed in June to permit the government to revoke the Canadian citizenship of dual citizens convicted of terrorism.

The NDP will study the bill closely, given concerns about how some of the proposed changes could affect judicial proceedings, said Randall Garrison, the party's public safety critic.

"We'll be looking at all of that in the days to come. We are also interested in what steps the government will be taking to partner with communities to combat radicalization — something that we have been asking for action on for weeks.''

University of Ottawa law professor Craig Forcese said he was also hoping to see beefed-up review and oversight powers in the bill, including a stronger parliamentary security committee.

"On the side of the ledger that deals with accountability,'' Forcese said, "it remains pretty much blank.''

The legislation follows revelations from the national spy watchdog that it had to push CSIS to hand over crucial information during some of its recent efforts to keep an eye on the spy service.

The Security Intelligence Review Committee said it faced "significant delays'' in receiving requested documentation over the last year and had to press CSIS to obtain complete and consistent answers to several questions.

In its annual report to Parliament, the review committee — which has a right to see all CSIS records — also said it was "seriously misled'' by the spy service in one complaint investigation.

The committee report, quietly tabled Friday, criticizes CSIS for failing to point out a highly relevant document in another complaint probe.

It also says CSIS failed to keep Blaney apprised of a particularly sensitive program that could stir controversy if exposed publicly.


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