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Ottawa can eavesdrop on Canadians under law

From Monday's Globe and Mail

Canada's anti-terrorism law opened the door to secret eavesdropping on Canadians and others inside Canada, the same kind of activity that is causing a furor in the United States, intelligence and legal experts say.

U.S. President George W. Bush is under fire after revelations that he authorized the National Security Agency to monitor international telephone calls and e-mail messages of Americans and others to search for evidence of terrorist activity without the court-approved warrants usually required for domestic spying.

Both Republican and Democratic party legislators say Mr. Bush may have violated the 1978 U.S. law that makes it illegal to spy on U.S. citizens without court approval and have called on Congress to investigate.

In Canada, the Criminal Code maintained an absolute prohibition against intercepting "private communications," meaning any communication that originated or terminated in Canada, without specific court-ordered warrants.


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But that all changed after the Anti-Terrorism Act was proclaimed four years ago in the wake of 9/11. The omnibus anti-terrorism legislation now allows the clandestine Canadian Security Establishment to intercept private communications when directing its activities against "foreign entities" located abroad.

The CSE does not need to go to a court to get such authorization. All it needs to do is get permission from the Minister of Defence.

When the anti-terrorism legislation was introduced, University of Toronto law professor Martin Friedland said that information gathered by CSE can be passed on to law-enforcement agencies at home and abroad. "The extension of CSE's activities to persons in Canada -- even though the communication is to or from abroad -- is a troubling aspect of the bill."

U of T law-faculty colleague Lisa Austin agreed: "There is a concern that there is little to preclude the CSE from nonetheless intercepting the communications involving Canadians."

Wesley Wark, who teaches intelligence and security at the University of Toronto, said the change made sense because it allows the interception of Canadian communications when they were at one end of a network located overseas.

"Thus, if a terrorist organization located in Afghanistan attempted to maintain communications with an individual in Canada, CSE would have the legal mandate to monitor both ends of the message traffic," he said in an essay about the law.

In an interview yesterday, Prof. Wark said the CSE's new powers could create investigative complications that may hinder their effectiveness. If CSE wanted to conduct an eavesdropping investigation on a Canadian involved in a foreign terrorist hub, it would then have to involve the Canadian Security Intelligence Service, he said.

"The only way in which that hub could be properly investigated would be if the operation were turned over to CSIS and CSIS would [then] need to get a warrant to pursue it," he said. "It's a very cumbersome mechanism to imagine working in practice."

Keith Coulter, the head of the CSE, testified last April before a special Senate committee reviewing the legislation. He said that until the law changed, the agency was hamstrung from obtaining invaluable intelligence sources and from protecting Canada.

He maintained that such intelligence has been "directly responsible for helping to protect Canadian troops in Afghanistan from terrorist attack." Mr. Coulter said that the agency has comprehensive safeguards designed to protect the privacy of Canadians and its actions are subject to review by Antonio Lamer, former chief justice of the Supreme Court of Canada, who has unfettered access.