Duhaime's Financial Crime & Anti-Money Laundering Law in Canada

New Anti-Terrorism Measures

The Government of Canada released its proposed new anti-terrorism legislation today, entitled the Protection of Canada From Terrorists Act, Bill C-44 (the “PCFT“). The material part of the PCTF amends the Canadian Security Intelligence Service Act and is quite short. It does as follows:

1. Clarifies that the Canadian Security Intelligence Service (“CSIS“) has the jurisdiction to perform its duties outside of Canada.
2. Clarifies that CSIS may conduct investigations outside of Canada. The CSIS Act requires that CSIS collect, investigate, analyze and retain intelligence on activities if there are reasonable grounds to suspect that the activities may constitute threats to the security of Canada. It is important to note both that pursuant to the CSIS Act, CSIS must undertake these activities by law (namely, it must investigate all activities that may pose a security threat) and that the obligation arises if there is a possibility of a threat to the security of Canada – so, not if there is a threat but rather if there may be one - “may” being the operative word.
3. With respect to (1) and (2), above, it is important to note that CSIS had this power already under the CSIS Act by virtue of its ability to enter into arrangements with foreign governments and foreign institutions, (and domestic ones) to do exactly that under the CSIS Act. The power to enter into foreign arrangements for CSIS to undertake its duties is permissive, however, suggesting that it is not required to have such agreements to undertake its duties overseas, otherwise the CSIS Act would have articulated that it must enter into such arrangements to undertake its duties overseas.
4. With respect to (1) and (2), above, it is also important to note that CSIS has the legislative competence to assess security threats to Canada that (not within Canada) are foreign-influenced activities that are detrimental to Canada’s interests. It’s not possible to undertake that security assessment within Canada and before the Internet when the CSIS Act was brought into force, was certainly not possible thus the Legislature logically intended overseas activities. To suggest otherwise is inconsistent with basic statutory interpretation law.
5. Makes it an offence to disclose the identity of a person providing assistance to CSIS for the purposes of a covert operation, or a potential one. That obviously is to protect the lives of informants in respect of terrorism.
6. Requires that the identity of persons who provide information to CSIS be kept confidential for their protection and to remove inhibitions for the provision of that information. Even judges are required by law not to disclose the identity of informants and are subject to the offence provisions for doing so.
7. Authorizes a Canadian Court to issue a warrant for enforcement outside of Canada to enable CSIS to conduct requisite investigations in cases where it may need to compel evidence. The enforceability of Canadian warrants exterior to Canada is not to be automatically assumed – such enforcement will depend upon the receiving jurisdiction and reciprocal agreements in place.