The flaws in C-51 that must be addressed

As noted in Wednesday’s edition, the Conservative government has failed thus far to make a coherent case for Bill C-51, its broad suite of anti-terrorism measures. It has disdained to submit it to proper scrutiny, refusing even to allow the Privacy Commissioner to testify at committee, and displayed a degree of haste that ill befits such a serious and far-reaching piece of legislation. Canadians’ lives will not be one whit less safe for taking the time to get this right.

The numerous threats to Canadians’ freedoms in play here, on the other hand, are demonstrably serious, as our own review of the evidence has led us to conclude. To begin, Bill C-51 prescribes a maximum term of five years imprisonment for “every person who … knowingly advocates or promotes the commission of terrorism offences in general … while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed.”

The need for this is unclear. The Criminal Code already provides for life imprisonment for “instructing” or “facilitating” a terrorism act; the definition of terrorism itself includes “counselling” such acts. Government MPs have claimed existing laws require the instructing, facilitating or counselling of a specific act of terrorism, but as law professors Craig Forcese and Kent Roach have noted in their exhaustive critiques of the bill, this contention does not survive any plain-words reading of the law.

It is one of the fundamental precepts of lawmaking that citizens must know what exactly is illegal and what is not. This measure in particular falls well short of that goal — “promote” and “advocate” are undefined — and invites a chill on free speech that is not just philosophically objectionable but quite conceivably counterproductive: As numerous experts have observed, the public airing of extreme views offers law enforcement an excellent chance to intervene and steer those espousing them away from violence.

Bill C-51 further allows for the deletion of “terrorist propaganda,” defined in the same vague terms — “advocate,” “promote,” etc. — from the Internet (or anywhere else), on the order of a superior court judge. This is still worse — not just prosecution of speech after the fact, but prior restraint.

Much less ambiguous threats present themselves in the sweeping new powers C-51 grants to the Canadian Security Intelligence Service (CSIS) — namely “to intervene in order to disrupt threats to the security of Canada.” CSIS’s mandate has since its creation excluded such “kinetic” operations, leaving those to the police, specifically because the RCMP, in the era when it held both policing and intelligence-gathering mandates, had so flamboyantly violated Canadians’ rights. There is perhaps a case to be made for combining them again, given the changed security environment. This government has not made it.

More to the point, such a measure could only be countenanced if accompanied by the most stringent safeguards, to prevent a recurrence of past abuses. Yet the safeguards C-51 proposes are breathtakingly weak. The only absolute limitations on CSIS agents are that that they mustn’t “cause … death or bodily harm,” “obstruct, pervert or defeat the course of justice” or “violate the sexual integrity of an individual”; and that the measures taken must be “reasonable and proportional in the circumstances.” Indeed, in a remarkable and troubling precedent, CSIS will be permitted to engage in “measures” that “will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law.” All it will need is a warrant — issued in a closed courtroom by a Federal Court judge, with no representation from the subject.

Note “will contravene,” not “may contravene.” Note, more importantly, that this turns the role of judges com- pletely upside down. “In the world of search and seizure, judicial warrants are designed to prevent — not authorize — Charter violations,” Profs. Forcese and Roach write. “The Charter protects against ‘unreasonable’ searches and seizures and a search under a warrant is prima facie proper.”

Under C-51, however, judges would be tasked with authorizing violations of any section of the Charter. This is not the usual “reasonable limits,” as defined through decades of jurisprudence. It is not even the notwithstanding clause, which must at least be invoked openly. It is an “astonishing rupture,” as Profs. Roach and Forcese say. “There is (and has never been) a concept of ‘reasonable’ cruel and unusual punishment, for instance.” That judges can likely be trusted not to indulge abusive requests is cold comfort.

Bill C-51 greatly threatens Canadians’ privacy, in particular via new information-sharing measures that encourage 17 government agencies, from the taxmen to the border guards, to share any information “relevant” (not “crucial” or “necessary”) to their jurisdictions with respect to “activities that undermine the security of Canada” — vague language, again, that obviously contemplates activities well short of terrorist threats — and that allow those agencies to pass the information along to “any person, for any purpose.”

As Privacy Commissioner Daniel Therrien wrote in his submission to the parliamentary committee that wasn’t interested in hearing him, two separate post-9/11 inquiries have concluded that reckless informationsharing has resulted in the torture of Canadians abroad. Yet while authorizing these myriad agencies to share more information, C-51 doesn’t even authorize their respective oversight and review bodies — where they exist — to do likewise. This is practically a formal invitation to abuse.

Indeed, while the government protests otherwise, C-51 conspicuously fails to expand oversight and review powers in anywhere near proportion to those granted to CSIS and other arms of government. At the very least, as Profs. Forcese and Roach suggest, the Security Review and Intelligence Committee (SIRC) — much lauded by the government for its robust oversight — ought to be resourced and mandated properly. Even if Canadians trust CSIS, judges and other government agencies to “do the right thing,” it’s untenable in a society of laws that they be forced to.

Buried in C-51 are a few legitimate solutions to real problems. Police had reportedly sought to place Michael Zehaf-Bibeau, the Parliament Hill shooter, under a peace bond that would have authorized monitoring his movements, but were rebuffed by a judge.

C-51 fails to expand oversight powers in proportion to those granted to CSIS

C-51 lowers the threshold for such measures from a reasonable fear that someone will commit a terrorist act to a reasonable fear that someone may. The Canadian Bar Association, for example, has supported this measure. It does not support similarly lowering the threshold for preventive detention, a much more serious incursion on an individual’s liberty, or lengthening the allowed holding period from three days to a week, or eliminating the existing “sunset clause” for those measures.

“The fact is that these powers, extraordinary though they might be, are necessary in the current threat environment,” Justice Minister Peter MacKay told the House of Commons in February. “Extraordinary” powers deserve vastly more precision, scrutiny and caution than Bill C-51 and its attending parliamentary process are offering. The government has announced limited amendments — to clarify that legitimate civil protest would not fall under the bill’s ambit and that CSIS agents cannot arrest suspects (at least on Canadian soil — the same constraint, worryingly, would not appear to apply abroad), and to place some mild limits on information sharing. If this bill is to make it to the governor-general’s desk in any defensible form, it will need many more amendments.

The bill turns the role of judges completely upside down