Fix Bill C-51. Here’s how.

If the government must pass its anti-terror bill, it need not ignore wise amendments

In Thursday’s edition, we outlined our concerns with Bill C-51, the Conservative government’s proposed anti-terrorism legislation. Much of it is simply unnecessary. But as it seems guaranteed to pass in some form, the government might at least consider the many valuable amendments that have been proposed — amendments that would preserve the bill in its essentials while lessening the impact on civil liberties.

Some of C-51 is unsalvageable: for example, the ban on “promoting” or “advocating” “terrorism offences in general.” It bridges no identifiable gap in the existing criminal code; it is unclear what “promote,” “advocate” and “in general” mean in this context; and as such it invites an intolerable chill on free speech. Failing deletion, however, this measure could be made less objectionable by incorporating the statutory defences — for example of truth, good-faith religious opinion and public interest — found in existing hate speech and anti-terror legislation; by replacing “terrorism in general” with the defined term “terrorist activity”; or by stipulating that the accused must wilfully be advocating terrorism, not just be “reckless” as to whether terrorism “may” occur.

Allowing the proactive deletion of material deemed by a judge to be “terrorist propaganda,” defined in the same vague terms as above, is also a lost cause. But if the government must enshrine such prior restraint on free speech, it could soften the blow by redefining “terrorist propaganda” along the lines detailed in the previous paragraph, and installing similar avenues of defence; and by eliminating a measure that empowers the Canada Border Services Agency to seize such material without a warrant, particularly in light of CBSA’s history of overstepping its bounds in such roles.

The government has failed to make the case that CSIS needs new “kinetic” powers “to intervene in order to disrupt threats to the security of Canada,” let alone to do so via illegal activity. But if it is determined to grant them, it must also ramp up the safeguards. Rather than authorizing Federal Court judges to issue warrants authorizing CSIS to violate the Charter, it should explicitly stipulate that any illegal activity so warranted must not do so. It should also install safeguards in the (secret) judicial process: Allow special advocates to represent suspects; require that suspects be notified of the illegal activity within a reasonable period of time (subject to operational considerations); and require public reporting on how often CSIS is using these new powers and, generally speaking, what for.

The information-sharing provisions of Bill C-51, too, call out for safeguards, inasmuch as they encourage 17 arms of government to share data amongst themselves with respect to matters far less serious than terrorism. That they are empowered to share information with “any person, for any purpose,” rightly alarms civil libertarians who recall how recently Canadian information aided the torture of our citizens abroad. Those words have to go. The threshold for sharing, similarly, which is when information is “relevant” to the receiving agency and related to any “activity that undermines the security of Canada,” could easily be softened. The Privacy Commissioner has suggested stipulating the information must be “necessary” for the receiving jurisdiction, and that it must pertain to a “threat to the security of Canada,” a defined term in the CSIS Act. That makes good sense.

Finally, there is the question of oversight and review. Nearly all observers outside of government believe it is inadequate. Many have suggested Parliament should take on that role; the Canadian Bar Association suggests a new office be created “to act as an expert review body [for] all national security activity.”

Neither seems to be in the offing: government ministers insist the Security Intelligence Review Committee (SIRC) is all we need. So why not give it more resources, more power and a broader mandate — an “all of government remit,” as law professors Craig Forcese and Kent Roach recommend? This would allow SIRC, for example, to monitor how CSIS interacts with the 17 agencies newly empowered to share Canadians’ information, or how CBSA uses its powers (in the unamended bill) to intercept terrorist propaganda, and everything else this bill contemplates.

If, as the government maintains, Canadians have nothing to fear from this legislation, then the government has nothing to fear from regular reporting and more rigorous powers of real-time oversight and after-the-fact review. The terrorism threat is real, but Canadians ought not to be frightened into countenancing Bill C-51’s overreaches. Neither has the government any valid reason not to repair them.