Bill C-59 and CSIS’s “New” Powers to Disrupt Terrorists Threats: Holding the Charter-Limiting Regime to (Constitutional) Account

Abstract

In 2017, the Liberal government released Bill C-59, which was its update to the national security legislation that was introduced by the previous government via Bill C-51. Bill C-59’s goal was to address the criticisms of its predecessor, including the new “kinetic” powers granted to the Canadian Security and Intelligence Service (CSIS) to actively disrupt threats to the security of Canada. While Bill C-59 made some improvements to ensure that CSIS’s new powers are exercised in accordance with the Charter, there are still deficiencies to be addressed. This article reviews the changes brought in with Bill C-59, examines how those amendments may not avoid constitutional challenge, and outlines what a section 1 Oakes justification may look like. Ultimately, to address the Charter implications of the new legislation, further changes are required, including the use of court-appointed special advocates to ensure an adversarial system and further oversight of CSIS’s new, disruptive authority.