In my post dated March 16, 2015, titled Canada’s Bill C-51: Therrien v. Harper, I concluded with the CBC News report dated March 12, 2015, by Kady O’Malley that the Privacy Commissioner of Canada, Daniel Therrien, was blocked by the government from the witness list of the Standing Committee on Public Safety and National Security of the House of Commons. Public Safety Minister Steven Blaney claimed on February 18, 2015, that his office, “…consulted the Office of the Privacy Commissioner in the drafting of this bill.” Mr. Therrien’s office denied that claim saying it was only informed of the government’s intentions.

But it wasn’t only Mr. Therrien who was blocked from the witness list. On March 17, 2015, iPolitics ran an article titled Key legal voices blocked from C-51 committee debate where Kristie Smith wrote that the Conservatives also excluded the Criminal Lawyers Association, Information Commissioner Suzanne Legault, former CSIS Inspector General Eva Plunkett, chair of the Security Intelligence Review Committee Deborah Gray and former SIRC chair Chuck Strahl.

The CBC News report of March 12, 2015, coincided with the national day of protest organized for March 14, 2015. The national protest generated demonstrations from Halifax to Vancouver and received broad domestic and international media coverage. In an article titled Canada’s anti-terrorism bill: Let feardom ring, published in the March 21, 2015, issue of The Economist, the bill was described as “flawed” and “badly worded” although not “completely misguided”. The article highlighted the criticisms that have received prominence in the Canadian media: (a) the monitoring of all Canadians, not just terrorists, by intelligence agencies; (b) judicial warrants that would allow the Canadian Security Intelligence Service (CSIS) to contravene the Charter of Rights; and, (c) inadequate Parliamentary oversight.

Professor Craig Forcese of the University of Ottawa, Faculty of Law, continued to challenge the government’s position that Bill C-51 will upgrade CSIS’s powers to those of Canada’s closest allies. In an article published in the Ottawa Citizen on March 17, 2015, titled Expert challenges government claims that C-51 similar to allies’ powers, Ian MacLeod reported:

“Forcese recently reviewed national security law in the United States, United Kingdom, Australia and New Zealand, and spoke with experts. He concludes that ‘none of our Five Eye allies have seen fit to give their domestic covert service the power to do things domestically that the government wants CSIS to do in Canada. I have spoke to colleagues in the U.K. and they don’t seem to think MI5 has powers of the sort that the government is proposing for CSIS. The U.S. doesn’t have a CSIS-type organization, and the FBI is law enforcement. The domestic services of these countries simply do not have powers analogous to what Bill C-51 proposes for CSIS. Period.”

It appears that public support for Bill C-51 has dropped in the wake of continuing expert criticism and the national day of protest. In an article in VICE dated March 17, 2015, titled Support Plummets For Harper’s Anti-Terror Bill, New Poll Shows, Justicn Ling summarized the poll results as follows:

“Just weeks after one poll showed a convincing majority supported the Canadian government’s sweeping new anti-terrorism law, a new survey suggests that support is dropping, and fast. The Forum Research poll, provided exclusively to VICE, says support for the legislation now stands at 45 percent…with nearly the same amount opposed to the bill. And as scrutiny increases, that support can be expected to drop even further. Of those who are familiar with the provisions in the bill – nearly 70 percent of those asked – support drops even further, with half saying they disapprove of the bill, and only 31 percent supporting it. Opposition proves to be pan-Canadian. British Columbia, the prairies, and Atlantic Canada prove most opposed to the legislation, with only slim pluralities in Alberta and Quebec endorsing the bill.”

On March 20, 2015, the Canadian Bar Association finally entered the arena in an article by Jim Bronskill of The Canadian Press titled Canadian Bar Association Denounces Anti-Terror Bill. The main criticisms of the bill by the CBA may be summarized as follows:

• The Conservative government’s anti-terrorism bill contains ‘ill-considered’ measures that will deprive Canadians of liberties without increasing their safety.
• The bar association objects to the planned transformation of the Canadian Security Intelligence Service into an agency that could actively disrupt terror plots.
• The bill’s ‘vague and overly broad language’ would capture legitimate activity, including environmental and aboriginal protests – and possibly put a chill on expressions of dissent.
• The most worrying element of the bill is a provision that would give judges the power to authorize CSIS violations of the Charter of Rights and Freedoms. It potentially brings ‘the entire Charter into jeopardy, undermines the rule of law, and goes against the fundamental role of judges as the protectors of Canada’s constitutional rights’.

The CBA summary also drew attention to: (a) the expanded no-fly list provisions that would introduce powers to search computers and mobile devices without a warrant; (b) the expansion of CSIS powers without a similar boost to already insufficient oversight and review of the intelligence sector; and, (c) the haste with which the bill is being rushed through Parliament without enough time for careful study.

As criticism of Bill C-51 has been on the rise and public support for it has declined, the “primary axis in Canadian legislative politics has shifted” according to Stewart Prest in a column in the National Post titled An informal coalition of experts has become the most effective opposition to the Tory government dated March 20. 2015. Mr. Prest said this:

“…[T]he relationship that matters most at the moment is not the one between governing and opposition parties, but between the government in office and a series of loose coalitions of actors normally existing at the periphery of politics.

A significant segment of these coalitions normally remain not just non-partisan but in fact studiously apolitical. They enter the political arena only reluctantly, and do so only out of a sense of alarm at the implications following from particularly contentious and controversial legislation that appears destined to be passed without effective challenge within formal institutions of government, whether by opposition parties or skeptical voices within the governing caucus.

Once engaged, they rely on a combination of professional experience, positional authority, and scholarly research in order to support their arguments.

Call it a coalition of experts.

Between C-51 and C-23 (the Fair Elections Act of 2014), we are gaining a good sense of what an effective contemporary opposition coalition looks like. In both cases, participation has extended far beyond what might be called ‘typical’ activism to include a range of principled, non-partisan and evidence-based opinions. Many members are drawn from civil society, but I would argue the coalition as a whole is not synonymous with it.

Key actors in both examples include academics working together in large groups, encompassing different disciplines and approaches; senior civil servants, both current and former; members of the legal profession; both partisan and non-partisan voices within what for lack of a better term I’ll call the country’s broader political class (former statesmen, editorial boards, columnists, and so on); maximal indigenous leaders; and dissenting voices within the country’s conservative movement.”

Let us look, then, are where we are in the Bill C-51 debate. The Conservative government is pressing the bill through the House with inexplicable urgency. The New Democrats, the official opposition, are against the bill. Those swords are crossed. Where, then, are the Liberals? They don’t seem to know. In the midst of the expert and public criticism of the bill that I have reviewed in previous posts, the question to ask is: What is going on here? And that is the question Mr. Prest asks. He answers:

“I think there are a number of factors playing out simultaneously. One is the decline in the effectiveness of formal Canadian political institutions. Another is the type of bills coming forward, with the government repeatedly challenging long-settled legislative norms in significant and indeed constitutionally problematic ways.

The situation is decidedly unhealthy for the Canadian political system in the long term. If the country’s politicians cannot rediscover some degree of compromise and humility in the legislating process, we will have to take another look at institutional reform, for this current arrangement is not sustainable. The country cannot rely on such coalitions to play the role of opposition indefinitely without eroding the legitimacy of our institutions and experts alike.”

Mr. Prest found the Forum Research poll noteworthy: “Even more interesting, a poll released this week by Forum Research indicates support for the law hovers at 45%. As Vice reports, that is down from 82% support reported in an Angus Reid survey back in February. While all caveats apply when speaking of a single poll, the sheer magnitude of the change is noteworthy. Half of all Canadians familiar with the bill now oppose it.”

As Mr. Prest has concluded, a coalition of experts has been “holding its own” against the majority Conservative government. To put it another way, free speech has been “holding its own”, but free speech alone cannot sustain a modern democracy.

If Bill C-51 is passed as it is presently drafted it will be abused by CSIS, the RCMP and any of the other information sharing departments and agencies. Just as I was about to post this piece, CTV News broke the story on March 22, 2015, that Professor Pam Palmater of Ryserson University, a well known First Nations activist and Mi’kmaq lawyer, is being tracked by the federal government. Professor Palmater told CTV’s Question Period that access to information documents revealed that she is being tracked by three departments. “I wrote an access to information request to CSIS (the Canadian Security Intelligence Service), National Defence, the RCMP and Indian Affairs to determine whether or not they were following (or) surveilling me in any way and three out of the group all confirmed that they were,” she said. According to CTV News: “Palmater said the ATIPs indicate the government started tracking her prior to her involvement in the highly publicized Idle No More movement, which swept across Canada in early 2013.”

Professor Palmater did not name the three departments.