Cracking the national security law books
More public consultations, or more inside baseball for lawyers?
Yes, the season is unusual. Its not just the weather. Its not just the idea of finally opening up the CSIS Act after 40 years. More consultations are underway on national security laws in Canada, prompted by concerns about foreign interference, or at least that’s the banner and opportunity for a government determined to show that they are acting against the threat. Opportunity aside, the moment seems to have arrived to at least selectively open up other parts of the national security law toolbox. A parallel track of public consultations is being conducted regarding the Security of Information Act and procedures around the Canada Evidence Act, both pieces of statute probably little known to Canadians.
For the consultation paper, see:
https://www.justice.gc.ca/eng/cons/fi-ie/form-formulaire.html
As with some of the proposed CSIS Act amendments, these consultations are a siren call to national security lawyers and legal experts in particular, but a wider appreciation and commentary may still be useful.
The Security of Information Act (SOIA, pronounced “soya”), may seem younger than the CSIS Act, as it was passed as part of omnibus anti-terrorism legislation in 2001, but in fact it has deep historical (and colonial) roots in espionage and official secrets acts going back in Canada to the First World War. There is no question that it needs wholesale modernization, even if the Government plans only a partial update to better align the SOIA with foreign interference threats.
While the consultation paper lists some detailed questions about revising the SOIA, in many respects it misses the boat by failing to pay adequate attention to the need to overhaul the “harms” section of the law (s3); by not addressing the current economic espionage provisions (s19); and by an inability to offer a holistic perspective on the many threats of foreign interference.
The harms section of the current SOIA at s3 lists 14 circumstances that involve a “purpose prejudicial to the safety or interests of the State.” They are sometimes very broadly stated. Some address obvious concerns—terrorism; threats to the capacity of the Canadian Armed Forces; interference with weapons development; messing with the conduct of diplomacy; involvement with weapons of mass destruction. Others are very generic—addressing an “urgent or critical situation in Canada; or things that might “adversely affect the stability of the Canadian economy;” or affect the ability of the government to respond to a “financial threat.” There is no direct mention of espionage, including non-traditional methods and targets; nothing specific on critical infrastructure threats; nothing on election threats, or threats to democratic practices; nothing on disinformation; nothing on efforts to disrupt Canadian society through intimidation and harassment. In other words, it reads as out of alignment with contemporary security threats.
You can find the SOIA here:
https://laws-lois.justice.gc.ca/eng/acts/o-5/
The starting point for changes to the SOIA needs to be a modernization of s3 on harms. Creating new offences under the SOIA would have to be rooted in this change.
S19 of the current SOIA on “Economic Espionage,” is equally out of date, yet is left unmentioned and untouched in the consultations. It is focused on the exploitation of “trade secrets,” and in that sense is far too narrow to properly capture the broader threat including early-stage research and development and innovation. It also contains too many loopholes (reverse engineering is OK; gaining a trade secret as an enhancement of an individual researcher’s knowledge is OK).
The government needs to dig into s19.
Lastly, the effort to hold public consultations on aspects of the Security of Information Act and other legislation will go wanting without a clear and precise definition of what we mean by foreign interference. Such a definition needs to be written into statute. There is nothing of the sort proposed in the consultation paper.
Apart from modernizing SOIA, the consultation paper also addresses the question of whether the offence of “sabotage” needs to be updated. The answer, it seems to me, is YES. But we need to shift to a greater focus on critical infrastructure threats and interference, something demonstrated in the blockades mounted by the Freedom Convoy in 2022. Where the consultation does get this right is in emphasising the need to find a balance between modernizing the law and protecting Charter rights. That balance might be hard to pinpoint in statute but is necessary.
Finding the right balance in legislation also comes up with the final two issues identified in the consultation paper. These involve possible changes to the Canada Evidence Act (s38) around procedures for the protection of sensitive information in courtroom proceedings.
For current s38 provisions, see:
https://laws-lois.justice.gc.ca/eng/acts/c-5/page-4.html#h-137899
The balance sought here, in the vernacular, is protecting secrets while still allowing for fair trials. The country struggled with this problem mightily when using Security certificate procedures under the Immigration and Refugee Act to target alleged terrorists seeking admission to Canada. The practice, after challenges in court, had to be amended to better take into consideration Charter rights and fair process. But it would be hard to say that a satisfactory balance was ever found and it has been many years since any security certificate proceeding under IRPA was launched, perhaps for that very reason.
It is not clear to me that the framers of the consultation paper have fully taken on board these lessons, as they seem to want to rely on some of the same measures adopted for IRPA security certificates, including the use of special advocates and modified forms of disclosure to defendants.
The consultation paper thrashes around in the weeds of potential legislative changes. Some of its suggestions don’t seem particularly well thought out, including the idea that the powers of the federal court in adjudicating national security claims in proceedings could be passed down to a designated judge of a provincial or territorial court. The problem here is one of expertise, which is precisely why the Federal court serves a special function when it comes to national security law. There is also talk of amending the provisions around so-called “third party” information, but it doesn’t address issues of the third party rule applying to foreign providers of intelligence to Canada, which would be a no-go area.
On another sensitive topic, the consultation paper addresses challenges to warrants that might arise in criminal proceedings (Garafoli applications). Garafoli applications can really sink a case, as happened notoriously in the trial of Qing Quentin Huang.
Huang was arrested in 2013 and accused of attempting to provide secrets about Canada’s federal shipbuilding and maritime policies to Chinese officials. The trial spanned 8 years before a federal court judge decided the clock had run out and ended the proceedings.
Mr. Huang’s effort to challenge a CSIS warrant that allowed the Service to collect intelligence on the Chinese embassy in Ottawa was the nub of the case. The CSIS warrant was the spur to an RCMP investigation, called Project Seascape, which included the use of an RCMP undercover officer posing as a Chinese embassy official who engaged with Huang. Huang’s lawyer claimed the RCMP investigation breached his Charter rights to protection against unreasonable search and seizure-- they wanted to see the original CSIS warrant and its supporting documentation.
For an overview of the Huang case, see:
https://www.cbc.ca/news/canada/hamilton/hamilton-secrets-law-huang-case-stayed-1.6289933
For the judicial ruling on a stay of proceedings in Huang, see:
https://www.canlii.org/en/on/onsc/doc/2021/2021onsc8372/2021onsc8372.html
The government’s appeal to the Supreme Court was denied. The outcome of the Huang case was an embarrassment for the government and the public prosecution service (PPSC) and it knows it has a problem on its hands. It just doesn’t have a solution. The consultation paper simply states that:
“The Government is currently examining the possibility of creating special procedures for a trial court to review and assess sensitive national security information when the accused challenges a Criminal Code warrant that was issued on the basis of sensitive information.”
Note trial court rather than Federal Court. Not sure why? Otherwise, thanks tips.
Overall, what can be said about the consultation process on the Security of Information Act and the Canada Evidence Act? As with the consultation on the CSIS Act, this parallel endeavour clearly engages a small community of national security lawyers and legal academics with deep experience of these matters. It will be important to hear from them.
But the issues are too important to be left to lawyers alone.
A better way is needed to bring Canadians into this conversation on how best to frame national security law. That is especially so on the question of what are the key objectives of legal powers in dealing with national security threats. I hope more Canadians will weigh in on this than perhaps the Government intended.
Have a go, if you are so inclined. The consultation paper allows comments on the issues, up to 2000 characters (spaces count) for each, no more! OK, they don’t want screeds, but it seems a bit nannyish.
For some reason the exercise left me thinking about one of the many brilliant lines in T.S. Eliot’s “The Wasteland.” From Stanza 1, “The Burial of the Dead,” comes this too gloomy thought: “what are the roots that clutch, what branches grow, out of this stony rubbish…”
https://www.justice.gc.ca/eng/cons/fi-ie/form-formulaire.html