Bill to cement CSIS powers is constitutional, Public Safety official tells MPs

OTTAWA – The deputy minister of public safety says a bill that would allow Canada’s spy agency to break foreign laws is constitutional.

At a Commons committee meeting, Francois Guimont assured MPs that Justice Department lawyers had vetted the legislation against the Charter of Rights and Freedoms.

The government legislation introduced last month would provide blanket protection for Canadian Security Intelligence Service sources and give the spy agency more latitude to obtain a court-ordered warrant authorizing investigations abroad — even if it means violating the laws of other countries.

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

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

At the committee meeting Monday, CSIS director Michel Coulombe said a lack of blanket protection for sources hampers efforts to win the confidence of potential informers. “It is more difficult to recruit or get people to actually co-operate because there is that uncertainty in terms of their protection.”

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

Defence lawyers have objected to this aspect of the bill, saying it violates a tenet of fundamental justice.

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