Civil liberties watchdog sues Ottawa over massive electronic surveillance of Canadians

Steve Mertl
October 22, 2013
Civil liberties watchdog sues Ottawa over massive electronic surveillance of Canadians

The B.C. Civil Liberties Association, arguably the most activist civic watchdog in the country, is taking on perhaps its biggest challenge: Ottawa's national security apparatus.

The association said Tuesday it's filed a lawsuit against the federal Communications Security Establishment Canada (CSEC), claiming the agency's widespread electronic surveillance of Canadians is unconstitutional.

The Vancouver-based civil rights group said in a news release the suit is based on two elements of CSEC's operations – interception of the private communications of Canadians, and the sweeping collection of Canadians' metadata generated from routine activities online and from phone calls.

According to the BCCLA's notice of claim, filed Tuesday in B.C. Supreme Court, those activities violate the Charter of Rights and Freedoms and guarantees against unreasonable search and seizure and on freedom of expression.

The work of CSEC, the Canadian counterpart to the U.S. National Security Agency, came to light via American whistleblower Edward Snowden, the NSA contract employee who leaked thousands of documents about the agency's worldwide surveillance activities.

[ Related: Brazil summons Canadian ambassador over spying allegations ]

His revelations included a CSEC presentation outlining how sophisticated software allowed it to spy on the Brazilian government and obtain business intelligence useful to Canadian resource companies.

The BCCLA said CSEC is allowed to read Canadians' emails and text messages and listen to their phone calls when they are communicating with someone outside Canada. All they need is permission from the minister of National Defence.

"The minister’s authorizations permit for broad collection of Canadians’ personal communications and are entirely secret," the association said in its release.

Human rights lawyer Joseph Arvay, said the system allows for "unaccountable and unchecked government surveillance," which "presents a grave threat to democratic freedoms."

"We are deeply concerned that CSEC is gaining secret, illegal access to the private communications of ordinary Canadians, and there are no reasonable safeguards in place to monitor its activities," he said. "We know from the experiences of other countries that government agencies have a tendency to push and even break the boundaries of spying unless they are checked."

Unlike its equally controversial American counterpart, the CSEC program has no judicial oversight or congressional watchdog, the association said. A warrant is not needed when the targeted communication is not solely within Canada.

Association lawyer David J. Martin said such wholesale surveillance, authorized by amendments to the National Defence Act covering CSEC after the 9/11 terror attacks, is "fundamentally incompatible" with Canadian law.

"Metadata information can reveal the most intimate details of Canadians’ personal lives, including relationships, and political and personal beliefs," he said.

"The majority of Canadians use the Internet and telecommunications on a daily basis, and we should be able to do so without the government snooping on our personal information and monitoring our behaviour online.”

[ Related: B.C.'s Appeal Court says Canada's ban on assisted-suicide is constitutional ]

Arvay told a news conference the program has a chilling effect on Canadians' communications.

"Persons who may have friends, family, business associates, political allies or lovers in countries where CSEC may believe or suspect that there are terrorists, which is just about everywhere in the world, will now simply refrain from engaging in what would otherwise be perfectly legal communications," he said, according to The Canadian Press.

Depending on the outcome, the suit potentially could have important implications for Canadians' right to privacy and the way that Ottawa manages its national security activities.

The BCCLA has never shrunk from a challenge. Throughout its 50-year history it's weighed in on many important cases, from the detention of the members of the breakaway Doukhobour sect known as the Sons of Freedom as potential terrorists and attempts to suppress the Georgia Straight counter-culture newspaper in the 1960s, to championing advocates of assisted suicide in the present day.

Has it reached too far, taking on Canada's national-security machinery in a climate of fear over the threat of terrorism? The association doesn't think so.

"Canada is not a nation of secret laws," BCCLA counsel Caily DiPuma said in its news release.

"It is fundamental to the proper operation of our democracy that Canadians be able to access and understand the laws that impact their rights and freedoms.

"It is simply not enough for the government to ask Canadians to 'trust' their spy agencies. We are not a society of blind faith – we are a society of accountability, transparency and free and open debate."