Bill C-51 submissions, redux

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House of Commons seatsThis week, the Senate’s Standing Committee on National Security and Defence continues its pre-study of Bill C-51, while an amended version of the Bill proceeds to third reading in the House of Commons.

The House of Commons Standing Committee on Public Safety and National Security (“SECU”) made just four amendments to the omnibus bill, despite hearing witness after witness express serious concerns about the Bill and its impact on basic rights and freedoms. We don’t think these amendments even begin to address the fundamental flaws in the Bill, and discuss why in our submissions to the Senate. These submissions also include our take on some of the comments made by government lawyers at the clause-by-clause review of the Bill at SECU – comments which deal with the scope of the new CSIS powers; accountability in cases where information sharing by government results in harm to individuals (as we saw with Maher Arar); and whether the Federal Court of Canada is being asked to authorize unconstitutional activities by CSIS agents under the proposed warrant regime.

Here’s why SECU’s amendments don’t change our core concerns about Bill C-51:

Occupy Montreal Protest by Wikimedia user Justinform, Creative Commons 3.01. The amended version now explicitly excludes all “advocacy, protest, dissent and artistic expression” from the definition of “activity that undermines the security of Canada” in the proposed Security of Canada Information Sharing Act (“SCIS Act”). (This is a change from the previous exemption, which was limited only to “lawful advocacy, protest, dissent and artistic expression.”) While this amendment is welcome, we remain concerned that the broad definition of security will continue to capture expressive activities – as we have said before, activities undermining the “security” of Canada under the proposed SCIS Act would include activities that relate to not just public safety, but to public life in general. Moreover, recent examples show that government already takes a very wide view as to what constitutes a threat to Canada’s security.

2. The amended version contains new language regarding the scope of information sharing under the proposed SCIS Act. Section 6 of the proposed Act, as it was originally tabled in the House of Commons, read as follows:

For greater certainty, nothing in this Act prevents a head, or their delegate, who receives information under subsection 5(1) from, in accordance with the law, using that information, or further disclosing it to any person, for any purpose.

The amended version of Bill C-51 now contains a revised Section 6, which reads as follows:

For greater certainty, the use and further disclosure, other than under this Act, of information that is disclosed under subsection 5(1) is neither authorized nor prohibited by this Act, but must be done in accordance with the law, including any legal requirements, restrictions and prohibitions.

In our view, the revised language is a distinction without a difference. While the formulation has changed, the substance of this clarification is the same: any receiving agency is free to further disseminate information to any person, for any purpose, so long as it is “in accordance with the law.”

A_corridor_of_files_at_The_National_Archives_UKThe concerns raised by Professors Roach and Forcese with respect to the original Section 6 have equal application here: existing law governing information sharing is thin, and to the extent that it exists in legislation like the Privacy Act, it is “riddled with exceptions and limitations” to its reach. For example, s. 8 of the Privacy Act sets out 14 different exemptions to the general prohibition against disclosure of personal information without the consent of the individual to whom that information relates.

One such exemption allows personal information under the control of a government institution to be disclosed for “any purpose where, in the opinion of the head of the institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure.” The public clearly has a strong interest in ensuring that Canada’s security is protected, but when Canada’s security is conceived of in terms as broad as those set out in the SCIS Act, the range of activities that could serve as justification for massive information sharing is dramatically expanded. And when the aim is to identify threats (as opposed to tracking known threats), there is nothing in this legislation and in the existing privacy legislation to prevent government institutions from either requesting or offering up entire databases for review by any of the other (at present, 17) scheduled institutions.

3. The third amendment recommended by SECU modifies the requirements imposed on airlines to give effect to the new no-fly regime under the proposed Secure Air Travel Act. We’ve set out our concerns on this proposed Act before, so we will not repeat them here. Nothing in this amendment – designed to protect the airlines and to mitigate their concerns about their ability to enforce the no-fly list – addresses our basic questions regarding the efficacy of no-fly regimes in general, or our serious concerns about the procedural infirmities specific to the no-fly scheme proposed in this Bill.

CSIS sign by Sean Kilpatrick, CP4. The final amendment relates to the proposed “threat disruption” powers for CSIS, and states that Bill C-51 is not giving any “law enforcement” powers to CSIS. This amendment gives us no comfort. “Law enforcement” is not a legal term, and it is unclear what it actually means in this context. Perhaps CSIS may not have the power to “arrest” and “jail,” but as the Department of Justice acknowledged during SECU’s clause-by-clause review, these new disruption powers would permit CSIS to “take measures to interfere with a person’s movement” – in other words, to capture and detain. The Department of Justice also noted that “rendition” or “removal to another state” are not “law enforcement powers,” which means that such practices remain available to CSIS as “threat reduction” measures. As Professors Roach and Forcese observe:

If CSIS wishes to detain or interrogate, it will do so for threat disruption purposes, not “law enforcement.” The government’s peculiar language does precisely nothing to dispel concerns about a system of CSIS “security detention” or “detention for security interrogation.” Given the disturbing experience in other jurisdictions after September 11, 2001, the absence of an express, emphatic bar on detention is alarming.

The range of activities authorized by this “threat reduction” power includes activities we traditionally think of as belonging to the police – detaining and holding individuals; interrogating them while in detention. As a result, we would say that despite the assertion that CSIS is not being granted “law enforcement” powers, it is clear that the new “threat reduction” power is, for all intents and purposes, a policing power.

We’ve said it before, but we’ll say it again: the government has simply not made its case for why this Bill is necessary and good for national security. And it has done nothing to dispel any of the concerns raised by us and so many others about its legality and constitutionality. This Bill is fundamentally flawed, and cannot be salvaged by any amendment, let alone these four here.

Read our submissions in their entirety here.


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12 thoughts on “Bill C-51 submissions, redux

  1. Thank you for providing this information – especially “BC-Civil-Liberties-Association-Submissions-on-Bill-C-51-Antiterrorism-Act-2015-Senate”.pdf.
    This pdf and “Bill C-51 submissions, redux” enabled me to see first hand the infringement that will take place against the Canadian Charter of Rights and Freedoms. I must admit, if it weren’t for BCCLA – in other words if I only had the MMedia to rely on – I would not have had a chance to realize how important it is to defeat this bill. I hope you are able to defeat this bill and protect Canadians.

  2. Stop Bill C-51 plus any version immediately. The topic of Canada’s security must be debated in a public form in its entirety prior to being voted upon by all Canadian voters. The magnitude and fallout from this Bill should not be left solely to Parliament or their lapdog Senators to rubber stamp our rights away.

  3. Thank you for the valuable detailed critique of C-51. On the website, you will find a vastly simplified analysis directed toward a hypothetical voter who is not inclined to care much about the issue, and would not be willing to parse the details. The post is part of a series that is an effort to oust this government in the election. If you think think the series would be helpful, please pass it on. Thanks again. WSG.

  4. IT’s right and fitting that you have represented us at these hearings. at Thank you BCCLA

  5. I think we’ve gone way beyond information sharing issues. What we’re looking at here is the rise of a Canadian CIA.

    The CIA was originally designed as an intelligence gathering organization too. It’s when it got the powers to disrupt (and to use military resources as needed) that the grotesque and omnipresent worldwide criminality began. And it’s then that the world began its nose dive toward Armageddon: where we now stand. It’s naive to think that just because CSIS isn’t uniformed its activities won’t be integrated with the New World Order agenda. And it’s simply crazy to think their use of CIA gangsterism tactics is going to make the world a better place. Once started down that road there’s not much chance of turning back. JFK sure tried. Political history is clear, we’re forcing the rest of humanity to defend themselves from longstanding insidious attack. And given an opportunity for quick pre-emptive resolve, they’re being pushed to do what would otherwise be unthinkable. At least, that’s the road that we’re facing it seems to me. We’re placing our bets on solving future world problems with gangsterism. No wonder we’re now facing Armageddon with Gorbachev’s Russia.

  6. I don’t want to live in a police state – last I checked this was CANADA where people have RIGHTS or used to. CSIS already has far too much power and no accountability to anyone. This Act nis just a version of The Patriot Act which has resulted in what even the American president has admitted is responsible for the detainment and torture of innocent citizens all other the globe and in their own country even though it’s common knowledge that thew LEAST important method of attaining information is by torture.

    Don’t let The Harper government turn Canada in to USA in miniature and create the same paranoia here that the citizens of the US now suffer from. This bill should never have reached second reading – it should never gotten as far as being a Bill at all. If I prayed that way I would say God Save Canada before it’s too late.

    I have an idea – why don’t we let the Muppets run the country – at least they’re not dangerous…

  7. Well done Carmen Cheung and thank you for your impressive work on this very important file. Any government that would come up with such a noxious bill infringing the rights and security of all Canadians must be considered traitorous to the long struggle of the people throughout history to arrive where we are today. If anything our governments should be striving to further democratic principals not reverse history. The reason we as Canadians might have to fear a “terrorist” act is because we have antagonized with our own acts of transgression against others. To have peace and security means we must live in peace and ensure everyone’s security. BCCLA, please keep opposition to this wrong headed act on going and all the way to the SOC if necessary and we will back you up with whatever it takes.

  8. Instead of “anti-terrorism” legislation we need “anti-dictator” legislation by limiting the number of terms a Prime Minister can have to 2.

    Harper did his most damage in his third term.

  9. Thank you for bringing to our attention, the implications of this Draconian Bill that is a threat to the freedoms of Canadian citizens and other freedom loving people around the world.
    This bill must be resisted.

  10. Thank you to everyone that is attempting to inform Canadian citizens of the dangers of Bill C-51 and with its defeat, help to wrest dictatorial powers from Harper.

    Don’t people know the history of fascism? Remove individual rights as guaranteed in the Canadian Charter of Rights and Freedoms. Harper has lost so many cases at the Supreme Court because he is just plain WRONG!

    Harper is not a good economist. He has usurped the word “economy” to pander poor people hoping to just get a job. What has he offered? Join the military or become a Harper crony if you wish to have shelter and food.

    Harper hasn’t a clue what makes a happy and healthy citizen. There are very few well-paying jobs for the majority of Canada’s citizens. Especially pacifists. Not everyone is cut out to work in the control industries such as the police force or military or prison/jail system because not everyone is filled with hatred toward others.

    It seems that Harper Ltd. have a problem with sharing of any kind and no problem with control and force. Canada used to be known as a peaceful nation. McKay and Harper want Canada’s image to be one of attack without intelligence.

    It was reported that Canadians were BOMBING targets/people without knowing what they were supposed to be bombing!!!

    Maybe the answer to what were they supposed to be bombing was, NOTHING!

    Harper’s warmongering is just one more example of a control freak when he’s out of control.

    Enough already!

    But thank you once again to the BC Civil Liberties for working so diligently on behalf of Canadians who know not what they voted for when they gave Harper Ltd. so much control and so little accountability.