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Anti-Terrorism Law Passed by Canada’s Senate

  • June 10, 2015
  • Clayton Rice, Q.C.

On May 25, 2015, criticism of Bill C-51, the Conservative government’s reckless Anti-terrorism Act, 2015, went up a notch when the Organization for Security and Co-operation in Europe (OSCE), the world’s largest security oriented intergovernmental organization based in Vienna, released its legal analysis. OSCE concluded that Bill C-51 violates Articles 13 and 19 of the Universal Declaration of Human Rights (1948) that protect mobility rights and freedom of expression. Canada joined OSCE in 1973. The OSCE report condemned the expansion of no-fly lists; the overly-broad provisions of the Bill that outlaw promoting terrorism; and, the erosion of privacy rights by information sharing among government institutions that will exert a chill on freedom of expression.

On June 2, 2015, traditional Conservative Party supporters published a letter to the Prime Minister asking the government to “Kill Bill C-51”. The signatories included conservative organizations such as the National Firearm Association and Free Dominion. It was facilitated by OpenMedia as part of its campaign against the legislation. Describing themselves as “principled conservatives and libertarians” they called the Bill “reckless, dangerous and ineffective”. On June 5, 2015, protests resumed across the country. At a rally in Toronto, constitutional lawyer Rocco Galati described the Bill as “dictatorial” legislation. “It chills, censors and criminalizes free speech, free association and constitutional rights of assembly,” he said. (See: Vassy Kapelos. Conservative groups’ last minute plea to Harper: stop C-51. GlobalNews. June 2, 2015; and, Ryan Maloney. Constitutional Lawyer Rocco Galati: C-51 A ‘Fascist And Dictatorial Piece Of Legislation’. The Huffington Post Canada. June 6, 2015.)

But on June 9, 2015, the Senate predictably passed the Bill by a vote of 48-28. The majority was comprised of all Conservatives and two Liberals. The minority consisted of 26 Liberals as well as Independent Progressive Conservative Elaine McCoy and Independent Anne C. Cools. I will not review again the impact that the new law will have on Canada’s legal landscape. Professors Craig Forcese and Kent Roach have mounted a sustained attack on the law since it was introduced in Parliament and I have attempted to summarize their critique, and the opinions of other experts, as the Bill was debated in the House of Commons elsewhere on this Blog. It is enough to endorse the conclusion of Professors Forcese and Roach who recently wrote: “We do not doubt the threat of terrorism – ISIS-inspired and otherwise. Unfortunately C-51 is the legal equivalent of an enforced error, one that manages to complicate our ability to meet our security challenges, while at the same time causing unnecessary collateral damage to civil liberties that inevitably will result in Charter of Rights challenges.” (See: Craig Forcese and Kent Roach. Why Can’t Canada Get National-Security Law Right? TheWalrus.ca. June 9, 2015.

At this point, it is the international context in which the Bill was passed that is particularly telling. At virtually the same time, the United States Senate passed a new Bill to end the bulk collection of Americans’ telephone records that had been rampant under s. 215 of the Patriot Act and the National Security Agency’s (NSA) “Collect It All” program. And in the wake of the USA Freedom Act, Privacy International commenced legal proceedings against the domestic spying practices of the UK’s Government Communications Headquarters (GCHQ).

The USA Freedom Act is the most significant surveillance reform in the United States since 1978 and came two years after Edward Snowdon blew the whistle. In an article titled Congress passes NSA surveillance reform in vindication for Snowdon published in The Guardian edition of June 3, 2015, Sabrina Siddiqui wrote:

“The passage of the USA Freedom Act paves the way for telecom companies to assume responsibility of the controversial phone records collection program, while also bringing to a close a short lapse in the broad NSA and FBI domestic spying authorities. Those powers expired with key provisions of the Patriot Act at 12.01 am on Monday amid a showdown between defense hawks and civil liberties advocates.

The American Civil Liberties Union praised the passage of the USA Freedom Act as ‘a milestone’ but pointed out that there were many more ‘intrusive and over broad’ surveillance powers yet untouched.”

Ms. Siddiqui quoted Jameel Jaffer, the deputy legal director of the ACLU, as saying that the passage of the USA Freedom Act indicates that, “…Americans are no longer willing to give the intelligence agencies a blank check.”

On June 4, 2015, in an Op-Ed column published in The New York Times titled Edward Snowdon: The World Says No to Surveillance, Mr. Snowdon said:

“…[T]he balance of power is beginning to shift. We are witnessing the emergence of a post-terror generation, one that rejects a worldview defined by a singular tragedy. For the first time since the attacks of Sept. 11, 2001, we see the outline of a politics that turns away from reaction and fear in favour of resilience and reason. With each court victory, with every change in the law, we demonstrate facts are more convincing than fear. As a society, we rediscover that the value of a right is not in what it hides, but in what it protects.” (See also: Rebecca Ratcliffe. Snowdon: balance of power has shifted as people defy government surveillance. The Guardian. June 5, 2015)

It seems, too, that the British may be getting to the end of their tether as the new Conservative government is expected to introduce revisions to surveillance laws. On May 27, 2015, in an Open letter to UK Parliament about surveillance, prepared by 38 academic rearchers headed by Professor Andrew Murray of the London School of Economics and Paul Bernal, Lecturer at the University of East Anglia, the signatories said the following about various pieces of legislation affecting privacy rights including the Data Retention and Investigatory Powers Bill (DRIP), at pp. 4-5:

“As the law requires that surveillance powers must be employed proportionate to any harm to privacy caused (as required by Article 8 of the European Convention on Human Rights and Article 12 of the Universal Declaration of Human Rights) we believe that any expansion or change to the UK’s surveillance powers should be proposed in primary legislation and clearly and accurately described in the explanatory notes of any Bill. The Bill and its consequences must then be fully and frankly debated in Parliament. When reaching an assessment of the proportionality of any measure that restricts rights, both our domestic courts and the European Court of Human Rights place great stock on the degree and quality of Parliamentary involvement prior to any measure being adopted. If the matter ever came before the courts one issue examined would be the nature of any ‘exacting review’ undertaken by MPs into the necessity of extending these powers. The Government should not be permitted to surreptitiously change the law whenever it so desires, especially where such changes put our privacy and security at risk.” (See: An open letter to all members of the House of Commons: Ensuring the Rule of Law and the democratic process is respected as UK surveillance law is revised. TechnoLlama. May 27, 2015)

On June 8, 2015, Privacy International filed a legal complaint demanding an end to the collection of “bulk personal datasets” of millions of people by GCHQ who have no ties to terrorism nor are suspected of committing any crime. Eric King, the Deputy Director, said this:

“Secretly ordering companies to hand over their records in bulk, to be data-mined at will, without independent sign off or oversight, is a loophole in the law the size of a double-decker bus. The use of these databases, some volunteered, some stolen, some obtained by bribery or coercion, has already been abused, and will continue to be, until the practice is overhauled, and proper protections put in place. That the practice started, and continues without legal framework in place, smacks of an agency who sees itself as above the law.” (See: Privacy International. In Wake of USA Freedom Act, Privacy International Takes UK Spy Agencies to Court Over Bulk Domestic Spying. June 8, 2015. Press Release Files. mailto: info@privacyinternational.org)

On June 9, 2015, Canada changed. It changed in ways that can be described by the content of the Anti-terrorism Act, 2015, and in unknown ways until practices under the new legal regime come to light. Professors Forcese and Roach summarized the “ugliest bits” this way, at p. 2:

  • C-51 gives CSIS (Canadian Security Intelligence Service) a new mandate to ‘reduce threats to the security of Canada’ (and not just in regard to terrorism). This includes using means that may violate Canadian laws and the Charter of Rights, if CSIS persuades a judge that such means are necessary.
  • Invoking a broadly defined concept of security, C-51 accelerates the sharing of information throughout virtually the entire Canadian government (with the exception of information pertaining to protest and dissent). At the same time, it fails to match these powers with effective review by elected politicians or independent bodies.
  • C-51 contains provisions that will chill free expression. In particular, a new speech crime created by the law will target – as the government explained to a Senate committee – those who “actively encourage some sort of unspecified action should be taken to do something bad against Canadians or our allies, or to do something to support extreme jihadism.”

But the Conservatives refused to listen. As I concluded in my post titled Canada’s Anti-Terrorism Bill Is Destined For The Courts dated April 2, 2015, the constitutionality of the new law will be determined by unnecessary litigation at great social and economic cost to all Canadians.

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