A Canadian flag flying outside Parliament Hill is backlit by the setting sun on Oct. 22, 2014.FRED LUM/The Globe and Mail
On a day when the Conservative government tabled new legislation to expand the powers of CSIS, sources say Ottawa is now weighing new tools to deal with citizens who openly support terrorist attacks on Canadians or back groups that urge this goal.
And in the midst of this proposed overhaul of security laws, the country's top Mountie is calling on the government to make it easier to restrict the liberties of suspects in terror cases.
RCMP Commissioner Bob Paulson's comments to a Senate committee come as Ottawa moves on two fronts to strengthen the powers of Canada's spy agency and police forces in the wake of the killings of two Canadian soldiers last week.
The first step came Monday when the Harper government tabled new spy legislation called "the Protection of Canada from Terrorists Act," which will expand the powers of the Canadian Security Intelligence Service. The bill, C-44, would better safeguard the identities of intelligence informants in Canada and authorize CSIS to eavesdrop in foreign countries.
C-44 contains the first legal changes to the CSIS Act since the spy service was created in 1984. The bill, drawn up months ago, was tabled in Parliament just five days after a gunman shot an Ottawa soldier and breached the main hall of Parliament's Centre Block before being killed by security guards.
Ottawa is also weighing additional powers or measures for police and agencies who monitor terror groups, in reaction to last week's slayings – incidents Prime Minister Stephen Harper has called terror attacks.
The government has already signalled it's looking at lowering the threshold for preventive arrests.
Sources say Ottawa is also considering measures to crack down on individuals who openly support terrorist attacks on this country or groups that call on aggressors to attack Canadians and Canadian soldiers. They cited the case of Martin Couture-Rouleau who veered into extremist Islam and shared his new-found beliefs online before running down Warrant Officer Patrice Vincent in Quebec last week.
"One of the questions that has come up further to last week's attack is you have a case with a guy like Rouleau who [was] openly supporting a group that is calling for terrorist attacks on Canadian citizens," one government source said of Mr. Couture-Rouleau. "Are there tools required? Is there legislation required?"
Speaking to a Senate committee Monday, Mr. Paulson said law-enforcement agencies are having trouble prosecuting matters where their suspicions point to a would-be terror case, but evidence can't substantiate it. "We continue to be challenged with the transition of intelligence into evidence," he said.
Mr. Paulson believes two types of thresholds should be lowered to give police more power in fighting terror cases. In other words, he said police in each of the two cases should face fewer checks and balances. "We need to be able to lower the threshold and potentially exclude some steps," he told senators.
The first type relates to peace bonds under Section 810 of the Criminal Code, which allow certain restrictions to be placed on a terror suspect even when authorities don't have enough to charge them. Specifically, he called for a step – requiring attorney-general approval – to be removed.
"I think there's an understanding to be made that cops can handle it," Mr. Paulson said. Such peace bonds have been used exceptionally rarely in terror cases.
The second type relates to court orders to hand over information to police, such as Internet subscriber information or telephone records. A Supreme Court ruling earlier this year said that such cases should typically require a warrant. Mr. Paulson said the warrant thresholds should be dropped – demanding only reasonable grounds to "suspect" someone has or will commit a crime. "Information has become very difficult to come by," he said.
Mr. Paulson said such changes must "be balanced against Canadians' rightful expectation that they're free."
Experts said the CSIS legislative changes can be considered constrained in the circumstances.
"In the wake of last week's events, I feared they'd bring out all the more controversial ideas," said Craig Forcese, a University of Ottawa law professor.
In recent rulings from several courts, Canadian judges had prevented CSIS from getting new powers through legal decisions, saying that these could only be conferred by Parliament.
For example, the Supreme Court last year declined to give CSIS informants a "class privilege" intended to better shield their identities in court proceedings. And, last year, Federal Court Judge Richard Mosley reined in a telecommunications-intercept power – known in CSIS lexicon as a "DIFT" or "domestic interception of foreign telecommunications" warrant.
CSIS officials have said the Federal Court ruling created a "black hole" obstructing their pursuit of "homegrown" terrorism suspects migrating to foreign war zones.
C-44 allows CSIS to better shield informants' identities.
It would also allow CSIS – with a judge's approval – to capture conversations involving Canadian suspects taking place abroad.
"Without regard to any other law, including that of a foreign state, a judge may in a warrant …. authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada," the legislation reads.
Mr. Forcese said he knows of no other countries that have taken such explicit steps to make foreign spying appear lawful.
"I don't think I've ever seen that," he said. He added that the Canadian government is "now saying, to both potential foes and potential friends, that we're prepared to authorize surveillance in your jurisdiction that may be in violation of your laws – and we're prepared to be very frank about it in our law books."
Traditionally, CSIS officers haven't operated like the foreign-intelligence services run by Canada's allies – such as the U.S. Central Intelligence Agency or Britain's MI6. The operations of such agencies are rarely spelled out in legislation, given how such foreign spying is, by nature, unlawful in the perspective of the country where the spying is taking place.
CSIS was created by Canada's Parliament in 1984 as a domestic-intelligence service. This means that its officers' intelligence-gathering was intended to take place predominantly within Canada's borders, and that its officers' bugging, hacking and covert entries are typically undertaken only after being first authorized by Canadian judges.