Prominent security expert says legislation is fatally flawed

When a wise, universally respected, Yoda-like lawyer such as Paul Cavalluzzo speaks, Justin Trudeau should listen.

The prime minister should heed the Toronto constitutional lawyer’s advice because Cavalluzzo is, arguably, one of Canada’s leading authorities on the inner workings of this nation’s vast, largely unaccountable security-intelligence infrastructure.

He is also intimately familiar with the legislative framework that affords extraordinary, often unchecked, powers enjoyed by the many little-known federal departments and agencies that populate the world of secrets, police and spies.

Indeed, Cavalluzzo’s singular standing and reputation led Associate Chief Justice Dennis O’Connor to appoint him lead counsel on the commission of inquiry that probed what happened to Canadian torture survivor, Maher Arar, why it happened and who was responsible for the state-sanctioned horror he endured.

(Cavalluzzo was also lead counsel for the Walkerton commission of inquiry. More recently, a Conservative Justice Minister appointed him special advocate on national security certificate cases.)

Despite Cavalluzzo’s exemplary resumé and deep wealth of experience, knowledge and understanding of what amounts to the security state, I was mildly shocked to learn when I interviewed him recently that no one in Trudeau’s government has sought his counsel on two profoundly contentious pieces of socalled “national security” legislation: Bills C51 and C22.

Taken together, C51 and C22 will grant Canada’s spies and police new, unprecedented powers, money and resources, while failing to provide commensurate powers, money and resources to existing and newly envisioned mechanisms designed ostensibly to hold those spies and cops accountable.

So Cavalluzzo’s unsolicited advice to Trudeau and company with regard to C51 is blunt and clear: The fatally flawed bill must be scrapped. If it’s not scrapped, then in must be amended substantially.

“My initial instinct is that (C51) is so flawed that it should be repealed and the government should start over again,” Cavalluzzo says. “However, if you’re going to change the (bill), there have to be substantial amendments in a number of areas.”

Cavalluzzo believes C51 should be repealed for several crucial reasons.

First, C51 lacks real, “adequate” oversight by an independent experts’ tribunal that would have the power, money and resources to look into all of the agencies that make up Canada’s cobweb-like security intelligence matrix.

“In order to have effective review, we have to have an independent body looking across all government jurisdictions,” Cavalluzzo says.

As he points out, the establishment of an independent experts’ tribunal to keep watch over the watchers was a key recommendation of Justice O’Connor’s 2006 report.

Although Cavalluzzo welcomes the Liberal government’s proposal — as part of C22 — to set up a small parliamentary committee to review spy services, like CSIS and CSE, he insists it’s not nearly enough.

The committee will only, for example, deal with “policy matters.” As such, the committee won’t be able, Cavalluzzo says, to examine “after the fact illegality” that may be committed by the security services in the amorphous name of national security.

Second, Cavalluzzo says C51allows 21mostly anonymous federal agencies to share personal information about “you or me” with little, if any, constraints, transparency or accountability. In fact, most of those departments and agencies have no existing oversight.

Third, in Cavalluzzo’s view, C51, in effect, “criminalizes speech” since the wording contained in the law around the “promotion” or “advocating” of “terrorism” is too broad and vague and could see an untold number of Canadians being charged with an indictable offence.

“The problem with that,” Cavalluzzo adds, “is that no one knows, in general, what terrorism means.”

Finally, and, for Cavalluzzo, perhaps most offensively, C51 gives CSIS the ability to go to federal court to get authorization “to violate” the Charter of Rights.

“The Charter of Rights is the supreme law of the land and no judge in this country can authorize its violation,” he says.

Cavalluzzo doesn’t necessarily fear that spies and police will intentionally abuse their powers, but, rather, he’s discovered that they are prone to cross the line “unintentionally” in pursuit of what they believe is the defence of national security.

Intentional or not, the law is “violated,” often in secret during national-security investigations. Hence the long-overdue need, Cavalluzzo says, for effective oversight by way of a well-armed independent tribunal made up of individuals with a keen understanding of national-security issues to probe “what’s happening behind closed doors.”

Cavalluzzo told me he’d seriously consider heading up the tribunal if asked. Trudeau should finally call at least to hear him out, if not to offer him that vacant job.

The fatally flawed bill must be scrapped. If it’s not scrapped, then it must be amended substantially