Liberals’ bill on terrorism adds serious problems

C-59 raises new rights issues, writes Brenda McPhail.

When Parliament gets back to work next week, one of its priorities will be the new national security bill, C-59. During the last election, the current government promised to fix “problematic aspects” of C-51, the former government’s notorious anti-terrorism law.

But some parts of C-51 were beyond problematic: They were irresponsible, unconstitutional, unnecessary and threatening to the rights of many people, and in particular certain marginalized groups.

At the Canadian Civil Liberties Association (CCLA), we acted quickly to file a constitutional challenge, contesting parts of C-51 that violated charter-protected rights.

This summer, we dove deep into the new bill, C-59, which purported to fix long-standing issues in Canadian national security law and respond to critical flaws introduced by Bill C-51. Our assessment? C-59 gets some things right, misses many, and adds some serious new problems.

In our legal challenge, CCLA identified five key components of Bill C-51 as unjustifiable violations of charter rights, only one of which has been fully addressed by C-59.

The criminal offence of “advocating or promoting terrorism offences in general” created by C-51 was vague, overly broad, and threatened freedom of expression. C-59 has replaced it with a specific, clear and reasonable counselling offence.

Bill C-51 introduced a new informationsharing law that allowed excessive sharing, defined “security” in overly broad terms, and lacked privacy protections and oversight. C-59 reins in some of these problems, while recasting information-sharing as “disclosure” (to underline that no new information is collected under the Act). It tries to define security more narrowly, and introduces a new proportionality requirement. Unfortunately, the bill doesn’t go far enough to protect political advocacy and dissent, jeopardizing the rights of everyone from anti-pipeline protesters to international human rights activists.

The no-fly list and the serious problems it creates for individuals’ mobility and due process rights are not corrected. “No fly list” appeals still happen through a complex process in a secret hearing, using secret evidence. At a minimum, in CCLA’s view, if the government seeks to rely on secret evidence, there must be a special advocate (a security-cleared lawyer) to represent the individual’s interests and rights.

C-51 undermined the special advocate regime in security certificate proceedings under the Immigration and Refugee Protection Act, despite rulings from Canada’s highest court that emphasize the constitutional importance of fully informed special advocates. C-59 does not address this at all.

Finally, in Bill C-51, the Canadian Security and Intelligence Service, CSIS, was given new powers to engage in “active disruption” and could ask a judge for a warrant authorizing otherwise charter-violating actions. C-59 attempts to put the process on better constitutional footing, while imposing additional restrictions on what CSIS can do, but fails to fully fix the contentious warrant provisions. There is also still no clear justification for granting disruption powers to CSIS in the first place.

In fairness, correcting C-51 is not the only aim of C-59. It also offers an ambitious renovation of the national security oversight regime, and incorporates many of the recommendations made by commissions of inquiry and civil society groups, including CCLA, over decades.

Less positively, it gives rise to a number of new — and very serious — problems, all of which must be discussed and addressed over the coming months when Bill C-59 is debated by Parliament, and by the public.

But to be clear: C-59 does not go far enough in addressing the egregious issues created by Bill C-51. All Canadian laws must be charter-compliant, including national security laws, and the tweaks in C-59 that only partly improve charter compliance of the items identified in CCLA’s constitutional challenge are simply insufficient.

C-59 has the potential to completely reimagine the Canadian national security landscape — and our rights and freedoms along with it. There’s hard work to be done, and there’s never been a more important time to make sure the government gets it right on national security. Brenda McPhail is the director of the privacy, technology and surveillance project and a member of the national security team at the Canadian Civil Liberties Association. CCLA’s C-59: Get It Right! campaign can be found at ccla.org/C59.