Canadian security strategy enlists landlords

Proposed anti-terrorism legislation could compel secret cooperation with CSIS
Tuesday, February 3, 2015
By Barbara Carss

Proposed federal legislation means landlords, property managers or their staff could be secretly conscripted to help disrupt deemed threats to Canadian security. Amendments to the Canadian Security Intelligence Service (CSIS) Act tabled in the House of Commons late last week would give CSIS powers of physical entry and search that are currently the purview of the police, along with the authority to compel others to assist in those tasks.

The pertinent section of the legislation, 21.1 (3), gives authorization to:

  • enter any place or open or obtain access to any thing:
  • search for, remove or return, or examine, take extracts from or make copies of or record in any other manner the information, record, document or thing:
  • install, maintain or remove any thing; or
  • do any other thing that is reasonably necessary to take those measures.

Amendments to the CSIS Act are one of five parts of the proposed legislation dubbed Bill C-51, the Anti-terrorism Act, 2015, aligned with the federal government’s stated goals to thwart propaganda, recruitment and/or attacks that advance terrorist causes. For CSIS, that would translate into a broader mandate than its current legislated advisory role. A Jan. 30 release from the Department of Justice explains that proposed new powers would allow CSIS to actively intervene against threats categorized as “espionage, sabotage, foreign influenced activities, terrorism and domestic subversion (activities against the constitutionally established system of government in Canada).”

“Currently, CSIS is limited to collecting and analyzing information and intelligence, and advising the Government of Canada,” the Justice Department material states. “With its new mandate, CSIS could take measures, at home and abroad, to disrupt threats when it had reasonable grounds to believe that there was a threat to the security of Canada.”

Any such action would first require CSIS to present a written application and affidavit to a judge and receive a warrant. Through that process, other participants could be unwittingly tagged for mandatory cooperation, as Section 22.3 (1) of the proposed legislation states: “A judge may order any person to provide assistance if the person’s assistance may reasonably be considered to be required to give effect to a warrant…”

Property owners/managers would most likely be called on to enable physical access to a residential or commercial suite, whereas IT experts speculate access to telecommunications, such as phone or internet intercepts, would be obtained via the service provider rather than at the point of presence (PoP) in a building. Logistically, such requirements don’t necessarily differ greatly from landlords’ customary dealings with police, except CSIS would be afforded flexibility to “install” or “maintain” that the police do not have.

“With police, it’s usually for domestic occurrences/911 calls, drug or weapons investigations or occasionally robbery investigations, all of which arise from incidents traced back to a residence at the building,” notes Joe Hoffer, a partner and specialist in residential tenancy law with Cohen Highley LLP. “A judge could order a rental landlord, a unit owner or the condo’s property manager to facilitate whatever the warrant authorizes — usually entry into a residential unit or access to videotape. In a condo, usually it would require a unit owner to allow access to the building and a rented suite, if the unit is a rental. If the purpose is to gain access to an owner-occupied suite, then a property manager or the condo corporation could be required to provide a key, although sometimes the police just bash the door in.”

In contrast, Bill C-51 includes confidentiality options that support more covert tactics. As proposed, a warrant can stipulate that the identity of those providing assistance remains secret and that “any other information concerning the provision of the assistance” remains secret.

Thus, in the scenario of a rental unit in a condominium, the condo corporation or property manager would not be informed that CSIS had gained access to a unit with the owner’s cooperation. Perhaps more precariously, there could be legal ramifications for any landlord or property manager who deliberately or inadvertently breached the imposed confidentiality.

“That’s definitely a possibility,” Hoffer says.

Critics argue a broadened mandate for CSIS should be balanced with a heightened role for its oversight body, the Security Intelligence Review Committee — an element that’s not addressed in the proposed legislation.

“The Canadian Civil Liberties Association (CCLA) is concerned that CSIS will be exercising greater powers on the basis of intelligence, which is, by nature, not subject to the exacting criteria preserved for evidence collected by the RCMP or police,” a Feb. 1 release from the CCLA states.

Barbara Carss is editor-in-chief of Canadian Property Management.

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