Mendicino willing to talk about changing CSIS's legal authority after Emergencies Act hearings

The enabling legislation behind Canada's espionage agency has a clear list of activities and events that constitute threats to national security. (Martin Mejia/The Associated Press - image credit)
The enabling legislation behind Canada's espionage agency has a clear list of activities and events that constitute threats to national security. (Martin Mejia/The Associated Press - image credit)

Public Safety Minister Marco Mendicino says he's open to discussing changes to the Canadian Security Intelligence Service's legal authority after the spy agency's chief signalled during the Emergencies Act inquiry that his organization needs "critical" reform.

CSIS's key mandate is to investigate activities suspected of constituting threats to the security of the country, and to report to the Government of Canada. But the definition in law of such threats under the Emergencies Act turned out to be a key point of contention during the inquiry.

During the Public Order Emergency Commission inquiry, CSIS director David Vigneault and deputy director of operations Michelle Tessier sat for an in-camera interview with lawyers representing the inquiry. In the course of that exchange, they were asked about potential reforms of the intelligence service.

According to a summary of that conversation, Vigneault "explained that one critical area for reform was modernization of the definition of a threat to the security of Canada."

Under CSIS's enabling law, such threats are defined as espionage or sabotage, foreign influence activities detrimental to Canada's interest, serious violence against persons or property "for the purpose of achieving a political, religious or ideological objective" in Canada or a foreign state, and activities intended to overthrow a government by violence.

Tessier told the commission that definition is outdated.

Adrian Wyld/The Canadian Press
Adrian Wyld/The Canadian Press

"In today's environment, we really need to be looking at the definition of threats to the security of Canada. It's more threats to Canada's national interests," says the summary of that joint interview.

The summary says Tessier called for a change to the definition of a threat to national security "to match the expanding expectations from the government for more information from the intelligence service, for example relating to economic security, research security and pandemic and health intelligence, because the definition in terms of threat currently can be quite narrow."

In an interview with CBC News, Mendicino said the federal government continues to assess CSIS's "authorities" to determine whether it needs additional tools to respond to evolving threats.

"That is something that I think we're all going to continue to reflect on and be laser-like focused on — understanding how ideological or politically extreme ideology can motivate individuals to take up the cause and become potentially violent," he said.

"How that then relates to revisiting certain laws and statutory authorities is going to be the subject of an ongoing conversation."

Mandate should be 'narrow, precise and clear': CCLA

Wesley Wark, a senior fellow with the Centre for International Governance Innovation, said that conversation is "absolutely necessary."

"I just don't think we can live with a 1984 model for this," he said, referring to the year the CSIS Act was written.

"The Cold War has gone, we're in a very different geopolitical environment. I think the public discussion around threats posed by intelligence agencies has probably matured and broadened a bit to a greater understanding."

Wark pointed to the security concerns that emerged during the pandemic and rising fears about economic security — ones that lawmakers in the 1980s couldn't have predicted.

"CSIS is increasingly being asked to play a major role in providing security advice to the private sector and academia about potential threats to research, potential threats to the control of data and intellectual property — all key economic security issues, again. And there's nothing in the current CSIS Act that actually allows them to do that," he said.

But Brenda McPhail, director of the Canadian Civil Liberties Association's privacy, technology and surveillance program, said she sees any expansion of the legal definition of a "threat to national security" as a power grab.

"If everything is national security, then nothing is off the table," she said.

"Our national security bodies, reasonably, have extraordinary powers, to do the difficult and important job that they do. For a body with extraordinary powers, it's important that their mandate be narrow, precise and clear."

The question of whether section two of the CSIS Act — which defines threats to national security — is broad enough to capture modern threats was a major source of debate during the public hearings phase of the Emergencies Act inquiry.

The inquiry is looking at whether the federal government was justified in invoking emergency powers to combat protests against COVID-19 measures that gridlocked Ottawa for nearly a month.

In an interview with Public Order Emergency Commission lawyers last fall, Prime Minister Justin Trudeau suggested CSIS faced challenges during the convoy protests.

"He noted that CSIS does not necessarily have the right tools, mandate or even mindset to respond to the threat Canada faced at that moment," says a summary of that interview, released as part of the commission inquiry.

Policy in a time of panic

McPhail said security agencies have in the past used public events to acquire new powers.

"Our national security landscape changed immensely after 9/11 and many of the actions that were put in place at that time were things that security agencies had been advocating to have the power to do for some time. And no one thought it was necessary until there was a really heart-wrenching crisis on North American soil," she said.

"Times of fear, when we've just been through a crisis that has been difficult, are usually not good times to make really significant policy changes."

Dennis Molinaro, a former security analyst turned professor at Ontario Tech University, sees it differently.

He argues CSIS needs a clearer mandate to hone its investigative powers.

"[You can] leave it up to them to be creative in terms of how they can investigate something, and that has the potential to either fall into the category of risk aversion — because nobody wants to overstep — or overstepping, and we get into abuses," said Molinaro, whose research focuses on counter-intelligence and foreign interference.

"You don't want to have to chase down rabbit holes to ... make something fit when it doesn't really fit the mandate, even though you believe it should be something that's investigated. So more often than not, you're going to have, unfortunately ... things are not going to get looked at."

Sean Kilpatrick/The Canadian Press
Sean Kilpatrick/The Canadian Press

Wark said he doesn't think serious talk of modernizing the act will happen until after Paul Rouleau, head of the Public Order Emergency Commission, tables his final report in February. Much would depend on whether the Liberal minority government can secure NDP support for any legislative changes, he added.

"I think there's a long march towards any change," he said.

Molinaro said recent high-profile stories in the media about intelligence and foreign interference — including claims that China meddled in the last federal election — have sparked Canadians' interest in national security issues in a way he hasn't seen before.

"I think I am a little bit more optimistic now than I have been in the past. Because I think a lot of Canadians are seeing why foreign policy is important," he said.

"And they're seeing how foreign policy relates to domestic policy, especially security policy."

McPhail said she doesn't think Canadians "are going to roll over and play dead" in response to any push to change CSIS's mandate.

"What we're really talking about is changing the degree to which our national security spy agency can intervene or interfere in the lives of Canadians," she said. "And that's not the kind of decision that should be taken lightly."

Mendicino said he hopes Rouleau's final recommendations touch on CSIS's concerns.

"He believes he's got the evidence that he needs to make some conclusions about that," said the minister.