By any political measure it has been a pitiful and, to some extent, humbling week for the beleaguered Vic Toews.
The public safety minister has earned the justifiable wrath of frothing opposition members, a bevy of pundits of various political pedigrees, and, decidedly more mutedly, even his caucus colleagues, for his bellicose championing of the so-called “protecting children from Internet predators act.”
Given the bill’s politically charged moniker, you knew that Toews was going to employ the kind of pit-bull rhetoric this Conservative government has become accustomed to using against its perceived political adversaries in and outside the House of Commons.
In this case, the near unanimous condemnation of the bill was triggered by its central provision that would grant the police, in their supposed hunt for child predators, extraordinary powers to intercept the electronic, Internet and cellular communications of Canadians without a judicial warrant.
The opposition, pundits, academics and civil libertarians pounced, describing the proposed legislation as a gross invasion of Canadians’ privacy that would render this country a near police state.
As if on autopilot, Toews responded by effectively branding the bill’s opponents as apologists for child pornographers. It was, frankly, a vile accusation that only fuelled opposition to the proposed legislation.
Within days of making the charge, Toews’ and more importantly, Prime Minister Stephen Harper’s political antennae, recognized that a retreat was necessary to quell the uproar.
As a result, this usually intransigent government began musing publicly about its honest-to-goodness commitment to consider opposition amendments to the bill.
But lost in all the insults and the predictable antics in the House, is the inconvenient fact — particularly for the Liberal Party of Canada — that while in government not too long ago, it lifted the longtime ban on this country’s super-secret electronic eavesdropping agency, the Communications Security Establishment (CSE), to intercept Canadians’ electronic, Internet and cellular traffic.
When and how did this lawful invasion of Canadians’ privacy come into force?
Well, shortly after the 9/11 terrorist attacks, Jean Chrétien’s government introduced the Canadian Anti-terrorism Act, which included a provision that in large measure enshrined into law the potentially pervasive spying on Canadians that Liberal interim leader Bob Rae is now railing against.
Indeed, with scant parliamentary debate, the Anti-terrorism Act granted CSE the power to intercept Canadians’ private communications with foreigners without a judicial warrant. Sound mildly familiar?
And, perhaps even more troubling, under the Act, the power to authorize CSE’s spying on Canadians rests with one person alone, the minister of national defence. (The CSE is an operational arm of the Department of National Defence.) While the minister is obliged to justify the spying, the act is open-ended about precisely what activities warrant that justification.
The Liberal party’s hypocrisy is as predictable as it is instructive.
Now, if Rae won’t take my word for it, he should read Warren Allmand’s searing critique of the CSE provisions included in the Liberals’ Anti-terrorism Act. It is important to note that Allmand, a staunch Liberal, was solicitor general from 1972 to 1976.
“A rather obtuse section of the Canadian Anti-terrorism Act allows the minister of defence to authorize the CSE ‘to intercept private communications’ coming in and out of Canada ‘in relation to an activity or class of activities specified in the authorization,’ for the very broad purpose of ‘obtaining foreign intelligence,’” Allmand wrote in March 2006. “As a consequence of these powers, the privacy and constitutional rights of many Canadians could be grossly violated.”
Significantly, Allmand added, “the CSE’s provisions in the Anti-terrorism Act opened the door to massive, domestic and international spying on ordinary citizens … [and] this power to spy on our international communications has been handed to the CSE without effective oversight or safeguards.”
Allmand is right.
The Liberals only grudgingly appointed a commissioner to review CSE’s conduct in 1996 after my reportage about former CSE analyst and whistleblower Jane Shorten.
Shorten, who spoke several languages fluently and enjoyed an impeccable employment record with CSE, went to her superiors with profound concerns about how the agency was inadvertently but routinely intercepting the private communications of scores of Canadians as part of its intelligence gathering. She was told, in effect, to keep her mouth shut.
The tipping point for Shorten to reluctantly go public came shortly after she heard a CSE intercept of a Canadian who was discussing intimate details of her gynecological problems with a physician.
Unable to undercut her credibility, the Liberal government of the day was forced — by the growing public outcry triggered by Shorten’s revelations — to appoint retired judge Claude Bisson as CSE’s first commissioner.
He didn’t have much of a staff or budget to monitor an agency that employs thousands and enjoys a budget that runs into the hundreds of millions of dollars.
Things haven’t changed much since then. In its latest annual report, the CSE’s commissioner reported a paltry budget of $1.6 million and a pathetically small staff of eight analysts.
So in the days and weeks to come when you read and hear more hankering about how Canadians’ privacy may be invaded because of proposed government action, remember it may have already happened to you.
Andrew Mitrovica is the author of Covert Entry: Spies, Lies and Crimes