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Canada’s Bill C-51: An Attack on the Rule of Law

  • March 2, 2015
  • Clayton Rice, Q.C.

In my post titled Canada’s Anti-Terrorism Bill Fails Accountability Test dated February 22, 2015, I closed with the report in The Globe and Mail of February 20, 2015, that the Prime Minister sees no need for more oversight of the new powers that would be given to the Canadian Security Intelligence Service (CSIS) under Bill C-51. During the past week, the Conservatives remained inflexible in the face of mounting public criticism.

Following on the heels of the letter to the Editor of The Globe and Mail titled A close eye on security makes Canadians safer published on February 19, 2015, signed by four former Prime Ministers and five former justices of the Supreme Court of Canada, over one hundred academics weighed in with An Open Letter to Members of Parliament on Bill C-51 dated February 23, 2015, and published by the National Post on February 27, 2015. The academics represented a number of disciplines including law, history, political science and philosophy. Their Open Letter began this way:

“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.”

The Open Letter contains a critique of the anti-terrorism bill based in three main points: (a) security intelligence information sharing without enhanced protections for privacy; (b) the criminalizing of free speech; and, (c) the authority to carry out a potentially infinite range of “disruption” measures without adequate oversight. These are some extracts:

  • 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.
  • 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.
  • Bill C-51 would allow CSIS to move from its central 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…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’ mandate in the CSIS Act goes far beyond  a concern only with terrorism.
  • 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 C-51 limits – 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.
  • 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.
  • …[T]he defects…(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.

On February 23, 2015, Opposition MP Murray Rankin, a former legal counsel to the Security Intelligence Review Committee, delivered a speech in the House of Commons expressing some of the same criticisms:

“…[T]he Conservatives appear to be using national security as a wedge issue, using fear to divide us at the very time Canadians rightly demand non-partisan collaboration…The government has failed to make the case for the new powers it seeks. This is another omnibus bill by the Conservatives that would expand the powers of CSIS dramatically but would fail to strengthen oversight and review powers…The government will tell us not to worry, that lawful advocacy, protest and dissent does not matter, that the act will not affect dissent. If people are blockading a road, if Mahatma Gandhi or Martin Luther King were engaging in civil disobedience, that is, by definition, unlawful.”

At the same time that the Conservative government is attempting to implement a legal regime that is unaccountable and extraordinarily invasive of the personal autonomy of all Canadians, Apple CEO Tim Cook has been making strong public comments in support of privacy as a basic human right. On February 13, 2015, Mr. Cook spoke at the White House Summit on Cybersecurity and Consumer Protection at Stanford University. He said:

“History has shown us that sacrificing our right to privacy can have dire consequences. We still live in a world where all people are not treated equally. Too many people do not feel free to practice their religion or express their opinion, or love who they choose. A world in which that information can make the difference between life and death. If those of us in positions of responsibility fail to do everything in our power to protect the right of privacy, we risk something far more valuable than money, we risk our way of life. Fortunately, technology gives us the tools to avoid these risks and it is my sincere hope that by using them and by working together, we will.”

On February 27, 2015, The Telegraph published an interview of Mr. Cook titled Apple boss: We have a human right to privacy by Allister Heath who wrote:

“…[I]t soon becomes clear that Cook’s commitment is sincere; Apple’s views on the subject stand in stark contrast to the position taken by Facebook and most other US tech giants, which are much more relaxed about these issues. It is also entirely at odds with the position adopted by David Cameron and most governments around the world, who believe that they need ever-increasing monitoring powers to combat crime and terror, dismissing the concerns of civil libertarians.

Cook disagrees fundamentally. ‘None of us should accept that the government or a company or anybody should have access to all of our private information. This is a basic human right. We all have a right to privacy. We shouldn’t give it up. We shouldn’t give in to scare-mongering or to people who fundamentally don’t understand the details’.”

Those in the privacy and cybersecurity fields are well aware of the stand on restricting encryption taken by Mr. Cameron, the British Prime Minister, whose credibility is wanting in light of the expansive and illegal surveillance conducted by GCHQ. Mr. Cook believes that even security services would agree that eliminating privacy will not work: “If they are really honest,” he said, “they know that withholding encryption will penalize good people, not put a barrier up for bad people.”

On February 28, 2015, the Daily Mail Online carried an article by Khaleda Rahman titled Apple chief hits out at online snoopers saying governments and companies have no right to spy on emails and personal data that reported Mr. Cook’s position that privacy does not have to be sacrificed to stop terrorism. Monitoring would only lead to terrorists encrypting their data so the only people affected would be good people.

There are two spy agencies in Canada – the Canadian Security Intelligence Service (CSIS) and the Communications Security Establishment (CSE). CSIS is governed by an act of Parliament. CSE is not. As far as I have been able to determine, CSE was transferred to the Department of National Defence in 1975 by an Order in Council. CSE is accountable to the Minister of National Defence and, thus, the cabinet. That is inconsistent with what the Prime Minister said when he told Canadians on February 20, 2015, that the government would not move to a model where politicians do the oversight.

CSE is actively involved in domestic surveillance.  In an article titled Canada Casts Global Surveillance Dragnet Over File Downloads in The Intercept dated January 28, 2015, Ryan Gallagher and Glenn Greenwald discussed documents revealed by Edward Snowdon showing that CSE is using invasive surveillance by tracking millions of worldwide downloads as part of its foreign intelligence spying and Five Eyes information sharing. The Snowdon documents exposed the CSE program called Levitation. Yet, CSE has largely slipped under the radar in the present debate over Bill C-51. As Professor Ron Deibert of the University of Toronto, Munk School of Global Affairs, told the Straight in an article published on January 21, 2013, CSE operates “in the shadows” with little meaningful oversight.

But it gets murkier. Under Schedule 3 of the proposed Security of Canada Information Sharing Act (a bill within Bill C-51) both CSIS and CSE are institutions listed as part of the total information awareness structure condemned as “excessive and unbalanced” by Professor Craig Forcese and Professor Kent Roach in a paper published in The Walrus on February 13, 2015, titled Bill C-51: the Good, the Bad…and the Truly Ugly. How all of this will function is a question the Conservatives continue to evade.

In their latest paper titled Bill C-51 Backgrounder #5: Oversight and Review: Turning Accountability Gaps Into Canyons? dated February 27, 2015, carried by The Canadian Press, Professors Forcese and Roach criticize the Bill as “poorly constructed” and “inherently flawed”. They advocate expanding the Security Intelligence Review Committee (SIRC) to encompass all of the government’s national security activities since investigations often involve multiple intelligence agencies. This would include CSE as well as CSIS. They also call for a parliamentary committee that has access to secret material to complement SIRC. Otherwise, Canada faces the prospect of “often avertible security scandals that simply diminish the credibility of the services and suck time and resources out of keeping us safe.”

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