C-51: Comments and Criticism

Many Canadians have been very vocal in protesting the proposed Bill C-51, which is set to become law this summer. These dissenting voices include lawyers, academics, civil servants,  Members of Parliament, several former Prime Ministers, and many ordinary Canadians. For those interested in reading what these experts have to say, I have compiled what I think are the most compelling arguments against C-51 from around the web into one document, with links to the original sources.

If you feel this proposed law is unjust and inconsistent with Canadian values, sign the petition here and write your MP here expressing your feelings; the House has already passed the Bill, but if your member supported the Bill, send them an email telling them why you won’t be voting for them in the Fall.

Criticism and Comments on Bill C-51

“A close eye on security makes Canadians safer”

Jean Chrétien, Joe Clark, Paul Martin and John Turner

Contributed to The Globe and Mail. Published Thursday, Feb. 19 2015. http://www.theglobeandmail.com/globe-debate/a-close-eye-on-security-makes-canadians-safer/article23069152/

The four of us most certainly know the enormity of the responsibility of keeping Canada safe, something always front of mind for a prime minister. We have come together with 18 other Canadians who have served as Supreme Court of Canada justices, ministers of justice and of public safety, solicitors-general, members of the Security and Intelligence Review Committee and commissioners responsible for overseeing the RCMP and upholding privacy laws.

Among us, we have served in our various public office roles from 1968 to 2014. Over that time we were faced with, and responded to, a range of pressing security concerns. We all agree that protecting public safety is one of government’s most important functions and that Canada’s national security agencies play a vital role in meeting that responsibility.

Yet we all also share the view that the lack of a robust and integrated accountability regime for Canada’s national security agencies makes it difficult to meaningfully assess the efficacy and legality of Canada’s national security activities. This poses serious problems for public safety and for human rights.

A detailed blueprint for the creation of an integrated review system was set out almost a decade ago by Justice Dennis O’Connor in his recommendations from the Maher Arar inquiry, which looked into the role that Canada’s national security agencies played in the rendition and torture of a Canadian citizen. Justice O’Connor’s recommendations, however, have not been implemented; nor have repeated calls from review bodies for expanded authority to conduct cross-agency reviews.

Meanwhile, efforts to enhance parliamentary oversight of national security agencies have also been unsuccessful. For example, in October 2004, a report calling for parliamentary oversight over national security activities was presented to the minister of public safety; this report contained an oversight structure that was agreed upon by representatives of all parties in both the House of Commons and the Senate. Legislation was introduced at the time, but not adopted before the next election.

Canada needs independent oversight and effective review mechanisms more than ever, as national security agencies continue to become increasingly integrated, international information sharing remains commonplace and as the powers of law enforcement and intelligence agencies continue to expand with new legislation.

Protecting human rights and protecting public safety are complementary objectives, but experience has shown that serious human rights abuses can occur in the name of maintaining national security. Given the secrecy around national security activities, abuses can go undetected and without remedy. This results not only in devastating personal consequences for the individuals, but a profoundly negative impact on Canada’s reputation as a rights-respecting nation. A strong and robust accountability regime mitigates the risk of abuse, stops abuse when it is detected, and provides a mechanism for remedying abuses that have taken place. In the years since the Arar inquiry, international human rights experts – including the UN Committee against Torture – have called on Canada to improve oversight of its national security agencies.

Canada’s national security policies and practices must be effective in order to protect public safety. Independent oversight and effective review mechanisms help ensure that resources devoted to national security activities are being utilized effectively and efficiently. The confidential nature of national security activities means that it is more difficult to rely on the usual public checks on government performance, such as scrutiny from Parliament, civil society, media and the general public. Security-cleared review bodies play crucial roles in catching and correcting operational and structural problems before they become full-blown national security failures, leading to better security for Canadians.

National security agencies, like all government institutions, must be accountable to the public. Accountability engenders public confidence and trust in activities undertaken by the government, particularly where those activities might be cloaked in secrecy. Independent checks and balances ensure that national security activities are protecting the public, and not just the government in power. Oversight and review mechanisms are necessary to make sure that powers are being exercised lawfully, and that government officials are not called upon to undertake activities that might expose them or Canada to legal liability either at home or abroad.

The Right Honourable Jean Chrétien, Prime Minister of Canada (1993-2003), Minister of Justice (1980-82);

The Right Honourable Joe Clark, Prime Minister of Canada (1979-80), Minister of Justice (1988-89);

The Right Honourable Paul Martin, Prime Minister of Canada (2003-06);

The Right Honourable John Turner, Prime Minister of Canada (1984), Minister of Justice (1968-72);

The Honourable Louise Arbour, Justice of the Supreme Court of Canada (1999-2004);

The Honourable Michel Bastarache, Justice of the Supreme Court of Canada (1997-2008);

The Honourable Ian Binnie, Justice of the Supreme Court of Canada (1998-2011);

The Honourable Claire L’Heureux Dubé, Justice of the Supreme Court of Canada (1987-2002);

The Honourable John Major, Justice of the Supreme Court of Canada (1992-2005);

The Honourable Irwin Cotler, Minister of Justice (2003-06);

The Honourable Marc Lalonde, Minister of Justice (1978-79);

The Honourable Anne McLellan, Minister of Justice (1997-2002), Minister of Public Safety (2003-06);

The Honourable Warren Allmand, Solicitor General of Canada (1972-76)

The Honourable Jean-Jacques Blais, Solicitor General of Canada (1978-79);

The Honourable Wayne Easter, Solicitor General of Canada (2002-03);

The Honourable Lawrence MacAulay, Solicitor General of Canada (1998-2002);

The Honourable Frances Lankin, Member, Security Intelligence Review Committee (2009-14);

The Honourable Bob Rae, Member, Security Intelligence Review Committee (1998-2003);

The Honourable Roy Romanow, Member, Security Intelligence Review Committee (2003-08);

Chantal Bernier, Acting Privacy Commissioner of Canada (2013-2014);

Shirley Heafey, Chairperson, Commission for Public Complaints against the RCMP (1997-2005);

Jennifer Stoddart, Privacy Commissioner of Canada (2003-2013);

 

“Open letter to Parliament: Amend C-51 or kill it”

National Post | February 27, 2015

http://news.nationalpost.com/full-comment/open-letter-to-parliament-amend-c-51-or-kill-it

The following is an open letter addressed to all members of Parliament and signed by more than 100 Canadian professors of law and related disciplines.

Dear Members of Parliament,

Please accept this collective open letter as an expression of the signatories’ deep concern that Bill C-51 (which the government is calling the Anti-terrorism Act, 2015) is a dangerous piece of legislation in terms of its potential impacts on the rule of law, on constitutionally and internationally protected rights, and on the health of Canada’s democracy.

Beyond that, we note with concern that knowledgeable analysts have made cogent arguments not only that Bill C-51 may turn out to be ineffective in countering terrorism by virtue of what is omitted from the bill, but also that Bill C-51 could actually be counter-productive in that it could easily get in the way of effective policing, intelligence-gathering and prosecutorial activity. In this respect, we wish it to be clear that we are neither “extremists” (as the Prime Minister has recently labelled the Official Opposition for its resistance to Bill C-51) nor dismissive of the real threats to Canadians’ security that government and Parliament have a duty to protect. Rather, we believe that terrorism must be countered in ways that are fully consistent with core values (that include liberty, non-discrimination, and the rule of law), that are evidence-based, and that are likely to be effective.

The scope and implications of Bill C-51 are so extensive that it cannot be, and is not, the purpose of this letter to itemize every problem with the bill. Rather, the discussion below is an effort to reflect a basic consensus over some (and only some) of the leading concerns, all the while noting that any given signatory’s degree of concern may vary item by item. Also, the absence of a given matter from this letter is not meant to suggest it is not also a concern.

We are grateful for the service to informed public debate and public education provided, since Bill C-51 was tabled, by two highly respected law professors — Craig Forcese of the University of Ottawa and Kent Roach of the University of Toronto — who, combined, have great expertise in national security law at the intersection of constitutional law, criminal law, international law and other sub-disciplines. What follows — and we limit ourselves to five points — owes much to the background papers they have penned, as well as to insights from editorials in the media and speeches in the House of Commons.

Accordingly, we urge all MPs to vote against Bill C-51 for the following reasons:

  1. Bill C-51 enacts a new security-intelligence information-sharing statute of vast scope with no enhanced protections for privacy and from abuse. The law defines “activities that undermine the security of Canada” in such an exceptionally broad way that “terrorism” is simply one example of nine examples, and only “lawful advocacy, protest, dissent and artistic expression” is excluded. Apart from all the civil-disobedience activities and illegal protests or strikes that will be covered (e.g. in relation to “interference with critical infrastructure”), this deep and broad intrusion into privacy is made worse by the fact there are no corresponding oversight or review mechanisms adequate to this expansion of the state’s new levels of information awareness. Concerns have already been expressed by the Privacy Commissioner, an Officer of Parliament, who has insufficient powers and resources to even begin to oversee, let alone correct abuses within, this expanded information-sharing system. And there is virtually nothing in the bill that recognizes any lessons learned from what can happen when information-sharing ends up in the wrong hands, as when the RCMP supplied poor information to US authorities that in turn led to the rendition of Maher Arar to Syria and his subsequent torture based on that – and further – information coming from Canada.
  2. Bill C-51 enacts a new “terrorism” offence that makes it criminal to advocate or encourage “terrorism offences in general” where one does this being reckless as to whether the communication “may” contribute to someone else deciding to commit another terrorism offence. It is overbroad, unnecessary in view of current criminal law, and potentially counter-productive. Keep in mind how numerous and broad are the existing terrorism offences in the Criminal Code, some of which go beyond what the ordinary citizen imagines when they think of terrorism and all of which already include the general criminal-law prohibitions on counselling, aiding and abetting, conspiring, and so on: advocacy or encouragement of any of these “in general” could attract prosecution under the new C-51 offence. Note as well that gestures and physical symbols appear to be caught, and not just verbal or written exhortations. In media commentary and reports, there have been many examples of what could be caught, including in some contexts advocacy of armed revolution and rebellion in other countries (e.g. if C-51 had been the law when thousands of Canadians advocated support for Nelson Mandela’s African National Congress in its efforts to overthrow apartheid by force of arms, when that was still part of the ANC’s strategy). So, the chill for freedom of speech is real. In addition, in a context in which direct incitement to terrorist acts (versus of “terrorism offences in general”) is already a crime in Canada, this vague and sweeping extension of the criminal law seems unjustified in terms of necessity – and indeed, the Prime Minister during Question Period has been unable or unwilling to give examples of what conduct he would want to see criminalized now that is not already prohibited by the Criminal Code. But, perhaps most worrying is how counter-productive this new crime could be. De-radicalization outreach programs could be negatively affected. Much anti-radicalization work depends on frank engagement of authorities like the RCMP, alongside communities and parents, with youth who hold extreme views, including some views that, if expressed (including in private), would contravene this new prohibition. Such outreach may require “extreme dialogue” in order to work through the misconceptions, anger, hatred and other emotions that lead to radicalization. If C-51 is enacted, these efforts could find themselves stymied as local communities and parents receive advice that, if youth participating in these efforts say what they think, they could be charged with a crime. As a result, the RCMP may cease to be invited in at all, or, if they are, engagement will be fettered by restraint that defeats the underlying methods of the programme. And the counter-productive impact could go further. The Prime Minister himself confirmed he would want the new law used against young people sitting in front of computers in their family basements, youth who can express extreme views on social-media platforms. Why is criminalization counter-productive here? As a National Post editorial pointed out, the result of Bill C-51 could easily be that one of the best sources of intelligence for possible future threats — public social-media platforms — could dry up; that is, extreme views will go silent because of fears of being charged. This undercuts the usefulness of these platforms for monitoring and intelligence that lead to knowing not only who warrants further investigative attention but also whether early intervention in the form of de-radicalization outreach efforts are called for.
  3. Bill C-51 would allow CSIS to move from its central current function — information-gathering and associated surveillance with respect to a broad area of “national security” matters — to being a totally different kind of agency that now may actively intervene to disrupt activities by a potentially infinite range of unspecified measures, as long as a given measure falls shy of causing bodily harm, infringements on sexual integrity or obstructions of justice. CSIS agents can do this activity both inside and outside Canada, and they can call on any entity or person to assist them. There are a number of reasons to be apprehensive about this change of role. One only has to recall that the CSIS Act defines “threats to the security of Canada” so broadly that CSIS already considers various environmental and Aboriginal movements to be subject to their scrutiny; that is to say, this new disruption power goes well beyond anything that has any connection at all to “terrorism” precisely because CSIS’s mandate in the CSIS Act goes far beyond a concern only with terrorism. However, those general concerns expressed, we will now limit ourselves to the following serious problem: how Bill C-51 seems to display a complete misunderstanding of the role of judges in our legal system and constitutional order. Under C-51, judges may now be asked to give warrants to allow for disruption measures that contravene Canadian law or the Charter, a role that goes well beyond the current contexts in which judges now give warrants (e.g. surveillance warrants and search and seizure warrants) where a judge’s role is to ensure that these investigative measures are “reasonable” so as not to infringe section 8 of the Canadian Charter of Rights. What C-51 now does is turn judges into agents of the executive branch (here, CSIS) to pre-authorize violations of Canadian law and, even, to pre-authorize infringements of almost any Charter right as long as the limits in C-51 – bodily harm, sexual integrity and obstruction of justice – are respected. This completely subverts the normal role of judges, which is to assess whether measures prescribed by law or taken in accordance with discretion granted by statute infringed rights — and, if they did, whether the Charter has been violated because the infringement cannot be justified under the Charter’s section 1 limitation clause. Now, a judge can be asked (indeed, required) to say yes in advance to measures that could range from wiping a target’s computer clear of all information to fabricating materials (or playing agent-provocateur roles) that discredit a target in ways that cause others no longer to trust him, her or it: and these examples are possibly at the mild end of what CSIS may well judge as useful “disruption” measures to employ. It is also crucial to note that CSIS is authorized to engage in any measures it chooses if it concludes that the measure would not be “contrary” to any Canadian law or would not “contravene” the Charter. Thus, it is CSIS that decides whether to even go to a judge. There is reason to be worried about how unregulated (even by courts) this new CSIS disruption power would be, given the evidence that CSIS has in the past hidden information from its review body, SIRC, and given that a civil-servant whistleblower has revealed that, in a parallel context, Ministers of Justice in the Harper government have directed Department of Justice lawyers to conclude that the Minister can certify under the Department of Justice Act that a law is in compliance with the Charter if there is a mere 5% chance a court would uphold the law if it was challenged in court. Finally, it is crucial to add that these warrant proceedings will take place in secret, with only the government side represented, and no prospect of appeal. Warrants will not be disclosed to the target and, unlike police investigations, CSIS activities do not culminate in court proceedings where state conduct is then reviewed.
  4. We now draw attention to effectiveness by noting a key omission from C-51. As the Official Opposition noted in its “reasoned amendment” when it moved that C-51 not be given Second Reading, Bill C-51 does not include “the type of concrete, effective measures that have been proven to work, such as working with communities ‎on measures to counter radicalization of youth – may even undermine outreach.” This speaks for itself, and we will not elaborate beyond saying that, within a common commitment to countering terrorism, effective measures of the sort referenced in the reasoned amendment not only are necessary but also must be vigorously pursued and well-funded. The government made no parallel announcements alongside Bill C-51 that would suggest that these sort of measures are anywhere near the priority they need to be.
  5. Finally, the defects noted in points 1, 2 and 3 (information-sharing, criminalizing expression, and disruption) are magnified by the overarching lack of anything approaching adequate oversight and review functions, at the same time as existing accountability mechanisms have been weakened and in some cases eliminated in recent years. Quite simply, Bill C-51 continues the government’s resolute refusal to respond to 10 years of calls for adequate and integrated review of intelligence and related security-state activities, which was first (and perhaps best) articulated by Justice O’Connor in a dedicated volume in his report on what had happened to Maher Arar. Only last week, former prime ministers and premiers wrote an open letter saying that a bill like C-51 cannot be enacted absent the kind of accountability processes and mechanisms that will catch and hopefully prevent abuses of the wide new powers CSIS and a large number of partner agencies will now have (note that CSIS can enlist other agencies and any person in its disruption activities and the information-sharing law concerns over a dozen other government agencies besides CSIS). Even if one judged all the new CSIS powers in C-51 to be justified, they must not be enacted without proper accountability. Here, we must note that the government’s record has gone in the opposite direction from enhanced accountability. Taking CSIS alone, the present government weakened CSIS’s accountability by getting rid of an oversight actor, the Inspector General, whose job was to keep the Minister of Public Security on top of CSIS activity in real time. It transferred this function to CSIS’s review body, the Security Intelligence Review Committee (SIRC), which does not have anything close to the personnel or resources to carry this function out – given it does not have sufficient staff and resources to carry out its existing mandate to ensure CSIS acts within the law. Beyond staff, we note that SIRC is a body that has for some time not been at a full complement of members, even as the government continues to make no apology for having once appointed as SIRC’s Chair someone with no qualifications (and it turns out, no character) to be on SIRC let alone to be its chair (Arthur Porter). And, as revealed in a recent CBC investigation, the government has simply not been straight with Canadians when it constantly says SIRC is a robust and well-resourced body: its budget is a mere $3 million, which has flat-lined since 2005 when the budget was $2.9 million, even as its staff has been cut from 20 in 2005 to 17 now. Without an integrated security-intelligence review mechanism, which should also include some form of Parliamentary oversight and/or review, and with especially SIRC (with jurisdiction only over CSIS) not a fully effective body, we are of the view that no MP should in good conscience be voting for Bill C-51.

Above, we have limited ourselves to five central concerns, but it is important to reiterate that some or all of the signatories have serious concerns about a good number of other aspects of C-51 – and/or about detailed aspects of some of the concerns that were generally expressed in the above five points. The following are some (but only some) of those concerns, in point form. They are included by way of saying that signatories believe these all need to be looked at closely and rigorously during House of Commons committee study of C-51, now that it has passed Second Reading:

  • C-51 radically lowers the threshold for preventive detention and imposition of recognizance with conditions on individuals. Only three years ago, Parliament enacted a law saying this detention/conditions regime can operate if there is a reasonable basis for believing a person “will” commit a terrorist offence. Now, that threshold has been lowered to “may.” There has been a failure of the government to explain why exactly the existing power has not been adequate. In light of the huge potential for abuse of such a low threshold, including through wide-scale use (recalling the mass arrests at the time of the War Measures Act in Quebec), Canadians and parliamentarians need to know why extraordinary new powers are needed, especially when the current ones were enacted in the context of ongoing threats by Al-Qaeda to carry out attacks in Canada that seem no less serious than the ones currently being threatened by entities like ISIS and Al-Shabab.
  • C-51 expands the no-fly list regime. It seems to have simply replicated the US no-fly list rules, the operation of which has been widely criticized in terms of its breadth and impacts on innocent people. Is this the right regime for Canada?
  • C-51’s new disruption warrants now allows CSIS to impinge on the RCMP’s law enforcement role, bringing back turf wars that were eliminated when intelligence and law enforcement were separated in the wake of the RCMP’s abusive disruption activities of the late 1960s and early 1970s. But, even more important than turf wars is the potential for CSIS behaviour in the form of disruptive measures to undermine both the investigation and the prosecution of criminal cases by interfering with evidentiary trail, contaminating evidence, and so on.
  • C-51, in tandem with C-44, permits CSIS to engage not just in surveillance and information-gathering abroad, but also in disruption. There are many questions about how this will work. The danger of lawlessness seems to be significantly greater for CSIS activities abroad, in that CSIS only needs to seek approval for disruption under C-51 where Canadian, not foreign, law could be breached or where the Charter could be contravened (with Canadian law on the application of the Charter outside Canada being quite unclear at the moment). And there is no duty for CSIS to coordinate with or seek approval from the Department of Foreign Affairs, such that the chances of interference with the conduct of Canada’s foreign affairs cannot be discounted. Nor can we ignore the likely tendency for disruption measures abroad to be more threatening to individuals’ rights than in Canada: for example, Parliament needs to know whether CSIS agents abroad can engage in detention and rendition to agencies of other countries under the new C-51 regime.

We end by observing that this letter is dated Feb. 23, 2015, which is also the day when the government has chosen to cut off Second Reading debate on Bill C-51 after having allocated a mere three days (in reality, only portions of each of those days) to debate. In light of the sweeping scope and great importance of this bill, we believe that circumventing the ability of MPs to dissect the bill, and their responsibility to convey their concerns to Canadians at large before a Second Reading vote, is a troubling undermining of our Parliamentary democracy’s capacity to hold majority governments accountable. It is sadly ironic that democratic debate is being curtailed on a bill that vastly expands the scope of covert state activity when that activity will be subject to poor or even non-existent democratic oversight or review.

In conclusion, we urge all Parliamentarians to ensure that C-51 not be enacted in anything resembling its present form.

 

Randal Garrison, M.P., speaking in the House on May 5th, 2015

From – https://openparliament.ca/bills/41-2/C-51/

Mr. Speaker, I am proud to stand and speak today to one of the most significant pieces of legislation to come before the House, certainly while I have been a member of Parliament. It is indeed a piece of legislation touching on the two most important topics that we ever deal with in this chamber: national security and our civil liberties.

I am proud to speak to Bill C-51 as the member of Parliament for Esquimalt—Juan de Fuca, a riding which plays a key role in our national security as the home of CFB Esquimalt and our Pacific fleet. I am also proud to speak today as the NDP public safety critic and as a member of the official opposition. Ours is a party whose leader has taken a strong and principled stance in opposition to Bill C-51, even when at the outset the bill appeared to be overwhelmingly popular.

I remember quite clearly the first scrum on Bill C-51 that I faced as the NDP public safety critic after we announced our opposition to the bill. Journalists asked me how we could oppose something that was so popular, when 82% of Canadians polled said that they supported the bill. My answer to the media that morning was that I believe it is the the role of the official opposition to inform public opinion, not to run away from it.

It was clear that the government intended to marshal the politics of fear to stampede Bill C-51 through the House. We knew this would be an uphill struggle, but I trusted at the time that few Canadians knew exactly what was in the bill. I also trusted that when they did know what was in the bill, they would likely not like what they saw.

What the poll told us at the time was that Canadians believed that the threats from terrorism are very real, and we all acknowledge that fact. It also told us that Canadians believe that the government has a responsibility to do something about those threats. It told us nothing about what was actually in the bill.

I believe, as most Canadians do, that the government’s responsibility is to protect both public safety and our fundamental freedoms. Instead, the Conservative government has chosen to risk sacrificing our freedoms for security.

What the Conservatives are proposing in Bill C-51 fails on two grounds. Incredibly, it manages at one and the same time to constitute a threat to our basic civil liberties while also putting forth measures, many of which would be either ineffective or unnecessary. Unfortunately, the government is pressing ahead, refusing to listen to legal experts, civil society organizations, and the tens of thousands of Canadians who have turned out at rallies across the country to express their concerns about Bill C-51.

Unfortunately, the Liberal Party wilted almost immediately in the face of the pressure created by the government to stand with it or stand with the terrorists. We heard yet another example of that this morning from the minister in his opening remarks. Before Canadians had any chance to find out what was in the bill, the Liberals had already promised to vote for the bill and to do so even if the Conservatives refused to amend the parts of the bill that the Liberals said they were concerned about. The Liberals were even heard saying publicly that they did not want to get on the wrong side of public opinion on terrorism. Well, I firmly believe that they now find themselves on the wrong side of Canadian public opinion.

As the debate on this bill draws to a close under the 94th use of time allocation by the Conservatives to limit debate, let me review my major concerns about both the ineffectiveness of Bill C-51 and the threats it poses to our civil liberties. In the time I have, I want to focus on four major problems that I see in this bill.

The first has to do with information sharing. The Conservatives pretend that Bill would correct problems with sharing information on the use of violence and involveC-51ment in terrorist activities. This information sharing within government is of a kind with which few would disagree. If someone is involved in terrorism or the use of violence, obviously, government organizations need to be able to share that information.

What Bill C-51 does instead is it creates sweeping new powers to share information among a vast array of government departments and agencies on almost anything, not just on terrorism and violence. Yes, there would be information sharing on terrorism, but also on national security, which is given a new and very broad definition, one which includes threats to Canada’s economic stability, threats to Canada’s infrastructure, such as pipelines, and even threats to Canada’s diplomatic relations with other countries. The list goes on for an entire page of legal descriptions of the kinds of things about which information could be shared.

It is quite easy to see why Canadians are legitimately concerned that there would be a significant loss of their privacy contained under the excuse of necessary information sharing about terrorism. The information sharing proposed is so broad that the Privacy Commissioner concluded that it would potentially allow the government to create a personal profile on each and every Canadian.

We tried to have the Privacy Commissioner appear before the committee. He is an officer of Parliament. He is officially our advisor, as parliamentarians, on privacy rights. Therefore, we put the motion to the committee that he should come so we could discuss his concerns about the bill. The Conservatives blocked the Privacy Commissioner’s appearance at the public safety committee.

Conservatives like to insist that legitimate dissent could not possibly be caught in this information sharing, yet we had a police witness testify in committee that this was exactly his concern. He also raised the question of the ineffectiveness of collecting too much information on Canadians. The argument is often made, especially in the law enforcement community, that looking for terrorists is like looking for a needle in a haystack, and the last thing the police need when they are doing this is more hay. Collecting information about all of us would pile up information so that we would risk missing the real threats to our public safety.

The Liberals, on this point, say that the bill could be fixed later, after the Conservatives are defeated. However, it is important to note that the information-sharing part of the bill is not one of the parts they propose to fix. They actually support this broad information-sharing, even though it presents a great threat to our civil liberties.

The second area about which I have great concern is the granting of new powers to CSIS to disrupt terror threats before they take place. This is also a provision of Bill C-51 supported by the Liberals. These activities of CSIS, first and most importantly, would conflict with the existing activities of the RCMP. The very reason CSIS was set up was to divide information-gathering from the disruption of terrorist threats. There is a redundancy created here that is a great danger, which even Justice Major, whom the government likes to cite, acknowledged might create confusion about who is actually responsible for what when it comes to disrupting terror threats.

What is most disturbing about this is the very broad granting of power to CSIS this bill proposes. Bill C-51 specifically says that CSIS’s new powers would only be limited by prohibiting murder, sexual assault, and interference with the justice system. This is an amazing granting of power for secret activities in a democratic society and would be of great concern to all Canadians.

The government likes to say not to worry, because it requires a warrant. Well, these CSIS activities do not always require a warrant. It is left to CSIS to decide. If it believes its activities might violate a charter right, then it would apply for a warrant. What is allowed without a warrant? There are a whole range of things that would clearly be allowed.

One of the concerns that has been raised by those who work in the Internet industry is that it might involve CSIS going online and changing people’s posts or deleting their posts, things that may not necessarily violate a charter right and therefore, in CSIS’s mind, would not require any kind of warrant.

The government goes further and asks why we are concerned, as these warrants are just like the warrants now used by the police. The problem is that they are not at all like the warrants used now by the police. The warrants police seek now in criminal cases are to make sure that their activities comply with the charter. They are not warrants to violate the charter. What is proposed in the bill is exactly that: a judge would be asked to authorize, in advance, charter violations. This raises serious questions about the role of the judiciary in our society and very serious questions about the rule of law.

The other thing that is different in these warrants is that when police seek a warrant in a criminal case, that warrant ends up back in front of the courts as part of that criminal case, so there is supervision both at the front end and at the back end by police when it is a warrant under the Criminal Code. There is supervision at the front end by a judge and at the back end by a judge when it is a warrant under the Criminal Code. Neither of those things are true when it comes to these new warrants, which would authorize CSIS to violate the charter. They would be carried out in secret and judges would never see what has happened to a warrant should they grant one.

The third concern I want to talk about today is another favourite of the government. It would create a new offence of supporting terrorism in general and recklessly. “Recklessly” is a term we do find in the Criminal Code, but supporting terrorism “in general” is not a term we find anywhere in the Criminal Code. This would create a criminal offence lacking the basic requirements of a normal criminal offence. A criminal offence involves intent plus action. What is the intent involved in supporting terrorism in general? It is very difficult to see that there is an intent to do anything. What is the action? Clearly, there is no action involved here.

Some have concluded that this new offence really amounts to a kind of thought crime, that for one’s opinions, one might be subject to a criminal prosecution. It is certainly an offence that would produce a chill on free speech in this country as Canadians tried to understand what on earth this new offence would mean.

It also raises a question about why it is needed. Given the record we have in Canada of successful prosecutions under the existing Criminal Code, why do we need a new offence that would produce such a chill on free speech? It has simply not been established.

In committee, I asked the Commissioner of the RCMP if he would have been able to prosecute the perpetrator of the attack here in Ottawa last October. He said very clearly that, yes, the existing legislation would have been sufficient to prosecute him.

We had successful prosecutions of the Toronto 18. We have a prosecution going on in British Columbia right now. Clearly, the police do not lack powers to pursue those who are actually involved in violence and terrorism.

A fourth concern I have is one that runs in several places in the bill. This is about lowering the standard for police action from reasonable grounds to suspicion. It particularly applies to the idea of preventative detention and recognizance with conditions.

Currently, for the police to detain someone, there have to be reasonable grounds. In common language, that means that there has to be evidence. However, the bill proposes to allow the police to detain someone preventatively on the basis of mere suspicion.

I think this is another element that is of great concern to many Canadians, because we have a disturbing record in Canada on detention in times of crisis. We need only look at the detention of Ukrainians, Germans, and Italians during World War I; or in World War II, at the detention of Japanese Canadians; or even in the 1970s in Quebec, at the detention of many people under the War Measures Act, some 500 people, who were never subsequently charged with any offence, let alone convicted.

Many of the concerns we have expressed about the bill involve this apparent conflict with the Charter of Rights and Freedoms, and many witnesses expressed those same concerns.

We asked the government to table in committee the advice it received on the constitutionality of the provisions in Bill C-51. We expressly asked the Minister of Justice, and he used a very strange excuse. He said that this advice could not be tabled in committee, because it would violate solicitor-client privilege. What he did was stand solicitor-client privilege on its head. He is not the lawyer; he is the client, and clients can always waive that privilege. He could have very easily tabled the advice, and it makes one wonder how firm the opinion of the Department of Justice experts was on the constitutionality of Bill C-51.

The Conservatives were clear, on Bill C-51, from the beginning, about two things. The first, I would say, is that they really did not want Canadians to know what is in the bill. Second, they did not intend to listen to Canadians when they actually talked about what is in the bill.

When I allege that the Conservatives did not want Canadians to know, how do we know that? Well, they both rushed and limited the debate in this House. It is an important part of democracy that Parliament allows the public to know what the content of a bill is through the debate we engage in within this chamber. The debate was limited at second reading to three days. That sounds long, but when we look at how Parliament functions, it means that the official opposition, with 90-some members, was limited to six speakers on a very important bill.

The Conservatives attempted to limit the witnesses appearing at the public safety committee. They initially proposed three meetings and 18 witnesses. Now, I cannot, of course, talk about discussions that went on in camera, but at the end of those discussions, we ended up with eight meetings and 48 witnesses, but that was still fewer than half of those who wanted to appear before the committee. The Conservatives also insisted on a very short deadline for those witnesses to appear. In the end, we ended up having 36 witnesses appear before the committee in four days.

 

If we wanted the public to be able to follow the debate and understand what witnesses were saying about the bill, we would not schedule 36 witnesses in four days.

This schedule also meant that some very important witnesses were not able to appear before the committee, because they were given only a very limited choice of dates: four days. Some witnesses were not available because of personal and other obligations on those days. One very important witness had a medical procedure scheduled, while another had professional obligations outside the country. If they were not available during those four days, they could not appear as witnesses.

It was clear last Thursday, when we began report stage and third reading debate, that the government was determined not to have the full ability to debate this bill, because it introduced time allocation for the 94th time. Conservatives prefer to call this scheduling, but in fact, we know what it is. It is closure. Therefore, we ended up with only two days of debate at report stage and with only today for third reading debate on this bill. I know that many of my colleagues in the NDP caucus who would like to stand in the House and represent their constituents are going to be denied that opportunity because of this limit on the debate.

I have also alleged that the Conservatives did not intend to listen to what Canadians had to say. Let me give some examples of why I believe that to be the case.

First, there were limits on the number of witnesses and a refusal to hear some witnesses. I have already talked about the government blocking the Privacy Commissioner from appearing before the committee.

Second, there was the treatment of witnesses before the committee. Some of it was reminiscent of the tapes I have seen of the U.S. McCarthy hearings in the 1950s. Shamefully, government members asked representatives of Greenpeace if they were or were not a threat to national security, and then they were told there was no time for them to answer that question.

The first Muslim witness who appeared, from the National Council of Canadian Muslims, was accused of being soft on terror, and Amnesty International was accused of supporting terrorist organizations and was given no opportunity to reply to that smear on its reputation.

Finally, of course, I would cite the fact that all 112 opposition amendments put forward were rejected by the government. The only changes to Bill C-51 came when the government adopted three of its own very minor and deceptive amendments.

On information-sharing, the Conservatives agreed to an amendment that says that information will have to be shared according to law. Of course it does. That is a meaningless amendment to this bill. They agreed to put in a provision that said there would be no arrest powers for CSIS. Of course, no one ever thought there were arrest powers under the Criminal Code for CSIS.

New Democrats moved a subamendment to put a ban on detention and rendition by CSIS, the taking of people into custody abroad and turning them over to other powers. Government members said there was no intention to have CSIS have detention and rendition powers, so we asked them to vote for this amendment and put in the bill that CSIS would not have the power to detain Canadians inside or outside Canada and would not have the power to turn Canadians over to foreign governments. They voted against that amendment.

As to the no-fly list, which the minister mentioned in his speech, it is going to be expanded, but it remains just as ineffective, and without a good appeal process, as it is now.

On the amendment the minister talked about, representatives of the airlines appeared at committee and said they had some problems with the bill. First, they had not been consulted before it was introduced, and second, there was a clause in the bill saying that the minister would have the power to order airlines to do anything to meet threats to national security. The airlines felt that the power to order them to anything was just a bit broad, so the government’s amendment now says that they can be ordered to do anything that is reasonable, in the opinion of the minister. It is not much of an amendment.

Here we are now under time allocation, just one day away from the passage of Bill C-51. It is clear that the Conservatives have not been listening, but it is clear that Canadians have been listening. They have seen what is in the bill, and they do not like what they see.

The Conservatives are stubbornly pressing ahead with Bill C-51 despite ongoing opposition from four former prime ministers, five former Supreme Court justices, almost all witnesses at committee, including their own witnesses, and despite the clear opposition of the vast majority of Canadians. This will leave Canadians opposed to Bill C-51 little choice in October but to defeat the Conservatives while at the same time remembering that electing the Liberals will not help on this one, because it is only the NDP that has pledged to repeal this dangerous and ineffective bill.

The good news is that 2015 is here, and in a few months, Canadians will get a chance to replace the Conservatives with the first national NDP government.

In conclusion, New Democrats believe that Bill C-51 is unfixable in its current form. That is why we moved to delete all of its clauses at report stage and voted against the bill. It is also why I am going to move the following amendment.

I move:

That the motion be amended by deleting all the words after the word “That” and substituting the following:

“this House decline to give third reading to Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts, because it:

(a) threatens our way of life by asking Canadians to choose between their security and their freedoms;

 

(b) provides the Canadian Security Intelligence Service with a sweeping new mandate without equally increasing oversight, despite concerns raised by almost every witness who testified before the Standing Committee on Public Safety and National Security, as well as concerns raised by former Liberal prime ministers, ministers of justice and solicitors general;

(c) does not include the type of concrete, effective measures that have been proven to work, such as providing support to communities that are struggling to counter radicalization;

(d) was not adequately studied by the Standing Committee on Public Safety and National Security, which did not allow the Privacy Commissioner of Canada to appear as a witness, or schedule enough meetings to hear from the many other Canadians who requested to appear;

(e) was not fully debated in the House of Commons, where discussion was curtailed by time allocation;

(f) was condemned by legal experts, civil liberties advocates, privacy commissioners, First Nations leadership and business leaders, for the threats it poses to our rights and freedoms, and our economy; and

(g) does not include a single amendment proposed by members of the Official Opposition or the Liberal Party, despite the widespread concern about the bill and the dozens of amendments proposed by witnesses.

 

“Bill C-51: Support For Anti-Terror Legislation Still Dropping, Poll Suggest”

The Huffington Post Canada    |  By  Ryan Maloney

http://www.huffingtonpost.ca/2015/04/10/bill-c-51-poll-anti-terror-legislation_n_7042460.html

Public support for Bill C-51 continues to slide as Canadians learn more about the Conservative government’s controversial anti-terror legislation, a new poll suggests.

According to numbers from Forum Research, released Thursday, 56 per cent of those aware of Bill C-51 disapprove of the legislation, while 33 per cent support it.

A Forum poll released just weeks ago showed 50 per cent of those aware of the bill disapproved, with 38 per cent in favour.

The latest numbers suggest opposition to the bill sits at 75 per cent among young Canadians between the ages of 18 and 34.

The poll also appears to point to some bad news for federal Liberals. The Grits support the legislation but aim to amend the bill if they win the next federal election to provide stronger oversight of national security agencies, among other things. Seventy-seven per cent of Liberal supporters told the firm they oppose the bill, compared to just 17 per cent in favour.

Among past Conservative voters, 72 per cent said they approve of the bill, with 13 per cent opposed. However, that’s still a nine-point drop from a Forum poll released on St. Patrick’s Day.

NDP supporters are overwhelmingly in line with the party, which has voted against the bill and sharply criticized the Grits for backing the Tory plan. Seventy-five per cent of NDP voters oppose the bill, while 16 per cent approve.

When it comes to the Greens, who have also derided the legislation, 74 per cent are opposed, and 16 per cent are in favour.

Forty-two per cent of those aware of the bill told Forum they believe it will negatively impact their lives.

“It appears that the more Canadians learn about Bill C-51, the less they like it,” Forum Research president Lorne Bozinoff said in the poll summary. “The need for the bill is seen to be diminishing, and voters recognize some provisions may impact their lives in ways they don’t like.

“With an election approaching, the government would be well-advised to determine whether this bill is the hill they want to stake themselves out on.”

The telephone poll surveyed 1,239 Canadians between March 30 and 31. It has a margin of error of plus or minus three percentage points, 19 times out of 20.

The Forum numbers represent a dramatic change from an Angus Reid Institute poll released in February that showed 82 per cent of Canadians supported the legislation.

Since then, Canada’s privacy commissioner, the Canadian Bar Association, First Nations groups, Amnesty International, and a variety of experts have expressed deep reservations about the bill. Thousands of Canadians have also taken to the streets in protest.

The legislation would give the Canadian Security Intelligence Service new powers to thwart terror plots and increase the exchange of federal security information. It would also expand no-fly list powers and make it a criminal offence to encourage someone to carry out a terrorist attack.

Bill C-51 is currently being studied in Senate committee.

 

Bill C-51, Anti-terrorism Act, 2015

Prepared by the Canadian Bar Association

http://www.cba.org/cba/submissions/pdf/15-15-eng.pdf

EXECUTIVE SUMMARY

The 2001 Anti-terrorism Act signaled a fundamental shift in Canada’s approach to combatting terrorist acts, with significant changes to Canadian law to address those threats. After more than a decade of experience since the Anti-terrorism Act became law, some of its provisions have proven useful, while others have not. As the CBA and many others predicted in 2001, this experience has left little doubt about the discriminatory impact of anti-terrorism laws on some populations.

The CBA acknowledges that Canadians are concerned about terrorism – at home or abroad – and supports the government’s intention to reduce the risk of terrorist acts in Canada. The CBA supports measures to improve public safety that are necessary, proportionate and accompanied by adequate safeguards against abuse. The government must show Canadians that the further powers in Bill C-51 meet this standard.

The government should also be clear with Canadians about the limits of law. No law, no matter how well-crafted or comprehensive, can prevent all terrorist acts from occurring. Promising public safety as an exchange for sacrificing individual liberties and democratic safeguards is not, in our view, justifiable. Nor is it realistic. Both are essential and complementary in a free and democratic society.

The key question is, “Does the bill strike the appropriate balance between enhancing state powers to manage risk and safeguarding citizens’ privacy rights and personal freedoms?”

Our comments and legal analysis are offered to assist Parliament to improve the Bill, and we would be happy to provide further assistance on any specific issue. The CBA’s full submission provides a detailed analysis of all parts of the Bill. This Executive Summary focuses on three parts of the Bill, and one overarching concern:

  • CSIS Act changes that would conscript judges to authorize Charter violations and unlawful acts, under the guise of providing judicial oversight
  • Creating the Security of Canada Information Sharing Act (SCISA), to significantly expand information sharing powers without adequate definition and clarity, and without basic concepts of privacy protection
  • New criminal law powers and offences that are vague and too broad, making them vulnerable to constitutional challenge, and likely to impact legitimate political dissent
  • The absence of coherent expanded national oversight to balance significant proposed new state powers.

WHAT CANADIANS SAY ABOUT BILL C-51

https://stopc51.ca/testimonials

“Bill C-51′s information sharing provisions likely represent the most significant reduction in public sector privacy protection in Canadian history.”

-Professor Michael Geist, Canada Research Chair  in Internet and E-commerce Law.

“We should be very careful in Canada, in a country where so many people have sacrificed their lives to preserve our freedoms, to make sure that we aren’t — in the effort to protect ourselves against unknown threats – really diminishing our personal freedoms,” […]”We will regret that forever. When you give up personal freedoms, it’s very hard to get them back.”

-B.C. Premier Christy Clark

“The system we have in place was put in place in another time, when conditions were different and when maybe we hadn’t had these problems that brought the Arar inquiry and the other inquiries,” […]”When we’re revising these powers, why not at the same time look at the sufficiency of the measures for supervision?” he said. “I wonder why it’s so difficult for the government to accept to just have a look at it?”

-Former Supreme Court Justice Michel Bastarache

“This piece of legislation is a violation of our civil liberties and is unacceptable. It must be stopped. Canadians should not have to choose between security and their rights.”

-Paul Finch, Treasurer, B.C. Government and Service Employees’ Union (BCGEU)

“C-51 grants the Government of Canada extraordinary, vague and unnecessary powers that pose a risk to the civil rights and privacy rights of Canadians,” which are “contrary to the recommendations of the Arar Inquiry, as echoed by the Privacy Commissioner’s 2014 report, especially with respect to information sharing, independent review and accountability.”

-Canadian Muslim Lawyers’ Association

“This bill disproportionately targets indigenous communities, environmental activists, dissidents, and Muslims, many of whom are already subjected to questionable and overreaching powers by security officials. This bill will make it easier and ostensibly lawful for government to continue infringing upon the rights of peaceful people.”

-The Toronto Coalition to Stop Bill C-51

“The vagueness of this Bill and the accompanied heightened discretion granted to authorities have not been accompanied by an increase in oversight. The lack of accountability and transparency, or as the government has called it, “needless red tape”, is yet another example of the lessons not learned. It flies in the face of the 8-year-old report of the Ipperwash Inquiry, an inquiry precipitated by the killing of unarmed Aboriginal activist Dudley George in a police standoff.”

-Olthuis Kleer, Townshend LLP

“Bill C-51’s binaristic approach to ‘mainstream’ versus ‘extremist’ values reflects a fixation with, among other things, policing Muslims’ diverse and often divergent religious, cultural, and political practices.”

-The Canadian Association of Muslim Women in Law

“If the federal government is concerned about things that can kill Canadians, they would be prioritizing a Poverty Action Plan and an inquiry into missing and murdered Aboriginal women, amongst other things. We need to stand up against Bill C-51 and a government trying to scare us into giving up our civil liberties.”

-Vancouver Deputy Mayor and City Councillor Andrea Reimer

“The Libertarian Party of Canada opposes this legislation whole heartedly. Although everyone wants to stop terrorism, this bill is a huge step backwards. It is yet another example where Canadians are being forced to sacrifice privacy for what is being called security.”

-Tim Moen of the Libertarian Party of Canada

“Bill C-51 poses a grave threat to free expression and human rights in Canada. The unchecked powers it introduces threaten the freedoms at the core of our Canadian democracy.”

-Tom Henheffer, Executive Director at Canadian Journalists for Free Expression

“The proposed amendments threaten the most fundamental civil liberties that are identified under the Charter, freedom of expression, security of the person, freedom from unlawful search and freedom from arbitrary arrest.”

-Voices-Voix

“To say ‘freedom fighters in the Ukraine should resist the Russian occupation with violence, even if it means bringing the conflict to Russian cities’ does not directly threaten violence. It merely advances an argument in favour of that violence, leaving it to the listener to be persuaded or not of its merits. This is exactly the substance of free speech: the idea need not be palatable, but it remains an idea.”

-Professors Kent Roach and Craig Forcese

“Some of these tactics are taken right out of the fascist playbook.”

-Former CSIS officer Francois Lavigne

“When I first heard about this, I was like, wow, on one hand we are the victims of ISIS, and on the other hand we are the victims of the politicians in the West.”

-Mustafa Mustaan, former advisor to the Canadian Forces in Afghanistan

“It’s about creating a secret police. It’s the death of freedom.”

-Green Party leader Elizabeth May

“The problem with this bill is very simple. It lumps legitimate dissent together with terrorism. Indigenous peoples have a right to seek environmental and social justice through protest, communications and activism. This bill would call that work criminal. It would call that work terrorism.”

-Niki Ashton, NDP Aboriginal Affairs Critic

“While the potential to know virtually everything about everyone may well identify some new threats, the loss of privacy is clearly excessive… All Canadians would be caught in this web.”

-Canadian Privacy Commissioner Daniel Therrien

“CSIS may come to judges asking them to bless in advance constitutional breaches. The proceeding will be secret. Only the government will be represented. There is no appeal mechanism. The person affected will not know about it. They may never know who caused the problems that they then would encounter… We just have never seen anything like this in Canada before.”

-University of Ottawa Law Professor Craig Forcese

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About ryanmikeorr

I write at https://doonpress.wordpress.com/
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2 Responses to C-51: Comments and Criticism

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