Bill C-51, the Anti-terrorism Act, 2015 arrived in the Senate this week from the House of Commons.
As the official critic of the bill, I gave a speech in the Senate on Wednesday and explained why I will be voting against this deeply flawed legislation.
The key issue is that in a properly functioning democracy, if police and national security powers are enhanced, then an abundance of care and caution has to be exercised to be sure that the balance with civil liberties and rights is maintained. This bill fails that important test.
What is left is classic big government with increasing power to intrude in citizens’ private lives and legitimate rights, but without the restraints we would expect and demand to ensure the protection of Charter rights and freedoms.
Here is an overview of the specific problems of this bill:
1. Assault on Rights:
a. Perhaps the greatest threat to rights in the bill is the creation of a new class of warrants that will allow CSIS to undertake disruptive action. Not only is such action not adequately defined, but it means that illegal activities that contravene the Charter of Rights can (and will) be warranted. This means judges will be put in the position of authorizing illegal activity. It is unprecedented in Canadian law and completely inconsistent with democratic values and principles.
b. The bill will extend powers related to individuals being placed on a “no fly” list, information that will be shared all over the world, and the government will not be required to tell them why they have been put on the list so that they might be adequately informed to appeal.
c. The bill creates a new and broad definition of advocating terrorism “in general” and specifies that you do not have to do it wilfully. There are all kinds of problems in this. Most pernicious from a rights perspective is that it will mean that activities that may be illegal but still within the bounds of legitimate protest, legitimate civil disobedience, (eg. an Aboriginal or environmental group blockading a road) will be defined as terrorist acts. In addition, it will put a real chill on free speech to the extent that academics and the media may not be able to discuss terrorist activities without falling into the net cast by these provisions. An added disadvantage from the policing point of view is that it may limit community members’ inclination to describe to police what they or others might be thinking, once again for fear of being caught in the broad net.
d. With respect to immigration and security certificate hearings, up until this point, a Special Advocate has been permitted to represent the individual’s interests and has had access to a broad range of security information. With this bill, the information that will be available to the Special Advocate will be determined not by the judge but by the government, which may lead to a Special Advocate missing sensitive information that is pertinent to a case.
2. Threat to Privacy:
It is a given now, after several commissions of inquiry, that there needs to be greater ability for government agencies and departments to share information that might be relevant to national security. What is not acceptable is that this sharing would be done without adequate respect for legitimate privacy protection. This bill will permit information sharing, but with many excesses that will threaten privacy rights, including:
a. Agreements (Memorandums of Understanding) between information-offering government agencies and departments and the 17 designated recipients of it are not required.
b. There are no particular restrictions on what the information can be used for, and the information can be passed along to other entities once it is received. This conjures up the possibility of repeating the Arar case.
c. There is not even a guarantee that the information has to be terrorism related.
d. There is no limit on how long any information can be held before being destroyed.
e. The CRA will be able to share information. It is not impossible that they could do a broad “sweep” of their databanks to identify donors to a given charity (possibly an environmental group) and then pass that along to whatever authorities they choose.
3. No Strategy:
We are not going to “arrest our way out of the terrorism threat.” All this bill does is give police and intelligence authorities, among other things, more policing-type powers, the power to exchange information but without safeguards, more arbitrary rules concerning “no fly” lists and an overly broad definition of terrorism advocacy. Some of these are of questionable necessity; most of them are too broad and ill-defined; and all of them are under-supervised.
To counter terrorist threats successfully, anti-terrorism legislation like C-51 (and C-44) must be part of a bigger strategy. A successful anti-terrorism strategy must include additional research to acquire a better understanding of terrorism and its causes; police and community preventative programs that apply to the “pre-criminal space” where individuals have only begun to radicalize; adequate police, intelligence service and community resources; and care to avoid stigmatizing certain groups or religious affiliations in ways that are both counter-productive and intolerant.
The strategy must also strike the balance between increased powers and safeguards for rights. These include adequate oversight, review and accountability of police and intelligence service activities, and clear definitions limiting powers to actual terrorism-related activities.
4. No Checks and Balances:
Many of the bill's flaws (although not all of them) could be addressed by proper oversight and review of police and national security agency activities. But no such provisions are made in this bill and the government continues to resist any. Oversight is on-going supervision, advice, and policy input and development by an independent group over a police or national security/intelligence agency. Review is after-the-fact evaluation by a group, or individual, of what has been done by a police or national security/intelligence agency. Neither is adequately considered in this bill:
a. All of Canada’s “Five Eyes” intelligence partners have Parliamentary Oversight bodies with high level security clearance. Canada does not.
b. Only 3 of the specified 17 agencies and departments with intelligence, national security or policing authority even have a review mechanism. CSIS has the underfunded Security Intelligence Review Commission (SIRC); CSEC has a lone Commissioner with 11 personnel; and the RCMP has the Civilian Review Complaints Commission (CRCC) which has to review all of the RCMP’s activities, not just national security related activity. No other agency, including CBSA, DND and DFATD, has any supervision or review at all.
5. Limited Resources:
One great irony is that while the government is happy to give the police and national intelligence/security agencies more powers, they are not funding them properly so that even if these were legitimate tools, they would not have the resources to use them properly and effectively. The RCMP has reassigned 600 personnel from other major crime files to terrorism investigations. Replacing those 600 personnel, to continue their original work, would come at an estimated cost of $110 million. And that amount still would not cover the additional cost estimated for surveillance of already identified persons of interest. CSIS too has indicated that they are past their limit to function fully under the terrorism pressures. It is not clear how much they need or whether the new budget has met their requirements. In the budget, the RCMP may receive an additional $20 million per year, however there is no indication of how the money will be spent, and it still falls short of the $110 million that would be required to replace those 600 personnel.
6. Lowering the bar for the restriction of freedom
The bill also lowers the bar on preventative detention and on peace bonds. At the moment, individuals can be detained for three days. Now, they will be able to be detained for seven days. With respect to peace bonds, the legal requirements to obtain a peace bond have been lowered.
The onus should be on the government to prove that lowering the bar on preventative detention and on peace bonds is necessary, and there simply isn't an adequate indication that this is the case. In fact, there is a question of whether the police actually do need to lower the bar for acquiring either tool in the first place, as they have been unwilling or unable to utilize them so far.