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

Public Safety Minister Marco Mendicinosays he's open to discussing changes tothe Canadian Security Intelligence Service's legal authority after the spy agency's chiefsignalled during the Emergencies Act inquiry that his organizationneeds"critical" reform.

CSIS's key mandate is toinvestigate 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 suchthreats under the Emergencies Act turned out to bea key point of contention during the inquiry.

During the Public Order Emergency Commission inquiry,CSIS director David Vigneaultand deputy director of operations Michelle Tessier sat for an in-camera interview with lawyers representing the inquiry. In the course ofthat exchange, they wereaskedabout 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 foreignstate, and activities intended to overthrow a government by violence.

Tessier told the commission that definition is outdated.

"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 Tessiercalled for a change tothe 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 continuestoassessCSIS's"authorities" to determinewhether it needsadditional toolsto respond to evolvingthreats.

"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 andrising 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 academiaabout 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 CSISAct 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 sourceof debate during the public hearings phase of the Emergencies Act inquiry.

The inquiryis 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 withPublic Order Emergency Commissionlawyers last fall, Prime Minister Justin Trudeau suggestedCSIS 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 clearermandate tohone 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," saidMolinaro, whose research focuses oncounter-intelligence andforeign 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."

Wark said he doesn't think serious talk of modernizing the act will happen until afterPaul Rouleau, head of thePublic Order Emergency Commission, tables hisfinal report in February. Much woulddepend on whether the Liberal minority government can secure NDPsupport for any legislative changes, he added.

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

Molinaro saidrecent high-profilestories in the media about intelligence and foreign interference including claims that China meddledin the last federal election havesparked 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 changeCSIS'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 hopesRouleau's finalrecommendationstouch on CSIS's concerns.

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