RE: Public Safety Act, 2002

INTRODUCTION

The British Columbia Civil Liberties Association (“BCCLA” or “Association”) is the oldest and most active civil liberties group in Canada. We are a group of citizens who volunteer our energy and talents to fulfill our mandate: to preserve, defend, maintain and extend civil liberties and human rights in British Columbia and across Canada.

The BCCLA is a non-partisan, autonomous and charitable society.

The Association has prepared the following submissions which we believe will assist the Committee in carefully reviewing the provisions of Bill C-17, the Public Safety Act, 2002 (“Act”). These submissions are intended to augment our oral presentation before the Committee on January 30, 2003.

This is the third time around for the Public Safety Act, which was previously introduced by the government in November 2001 as Bill C-42, and again in the Spring of 2002 as Bill C-55. Each time the government has re-introduced this piece of legislation, it has filed off some of the sharper edges and more reduced the scope of some of its more draconian provisions. This may have the effect of making the bill less obviously intrusive and perhaps more politically palatable, but the original scheme remains in place. It is that overall approach which is worrying to those of us who want to maintain a free and democratic society against all threats.

The Act is an omnibus bill, making amendments to 21 different statutes, not counting the coordinating amendments nor the bill implementing the Biological and Toxin Weapons Convention. The press release announcing the new bill lists 15 different media contacts, and this committee will have heard from nine different ministers.

Before getting to specific comments and concerns regarding provisions of the Bill, we have several general arguments.

The Association is concerned that a number of discrete and disparate proposals which will have major and probably negative effects on civil liberties are being included in the same piece of legislation. This Bill covers the waterfront, from terrorism and biological weapons to offences against the environment. It will amend 22 different pieces of legislation, with eight acts being amended to add the power to make interim orders. This is not including the consequential amendments.

When an omnibus bill will have a substantial effect on civil liberties, it is vital that it be given careful scrutiny. The Association urges the Committee to take whatever time is necessary to completely and careful review this bill’s provisions. There may well be unintended impact on our free and open society which careful review may help prevent. The fact that this bill has been significantly changed by the government itself indicates that it was a long way from perfect when it was first introduced.

The Association will first set out the principles which we say must guide the Committee in reviewing the legislation. We then turn our attention to those provisions which we find most objectionable or problematic from a civil liberties perspective even though other provisions may also cause us concern. As much as possible, the Association has tried to provide concrete proposals for how the Act can be amended to address those concerns.

GUIDING PRINCIPLES

To say that civil liberties can be qualified when an open society encounters extraordinary threats to its institutions is almost a truism. No rights are absolute, and security is a fundamental condition of the exercise of all other rights. But this does not mean that simply saying “security” allows a government carte blanche to do what it likes. We still require some principled basis to set out the appropriate limits of government action.

In our November 7, 2001 submission to the Standing Committee on Justice and Human Rights on Bill C-36, the Anti-Terrorism Act, the Association set out some guiding principles. At the core of our position is the following :

“One guiding principle should be evident and unassailable:

“Restrictions to established basic rights and freedoms are justified only if they are necessary ultimately for the sake of those very same rights and freedoms.” (p.2)

Any retreat from this principle signals a retreat from what we have accomplished as a society, from what is arguably our most remarkable moral and cultural contribution to history, one that has been achieved not only with the most careful thought and effort but with great personal sacrifice as well.

A fundamentally important implication follows from this principle. Restrictions on basic rights and freedoms must be no greater than are reasonably necessary to address the problems at hand. In this respect, the onus is clearly on the government to demonstrate where existing institutions of law enforcement are inadequate to protect our basic institutions of rights and freedoms.

The Association respectfully submits that the government has not met this onus with this legislation.

First, the Act displaces the role of Parliamentarians in determining and describing our fundamental rights. Interim orders, emergency measures and security measures across a wide area of federal jurisdiction are to be implemented on Ministerial discretion, largely without review and largely without consultation. Most of these measures can be delegated to officials either generally or in particular circumstances, further reducing accountability for what is being done. These measures will directly or indirectly affect the civil liberties of Canadians.

Second, and of even greater concern, is the displacement of judicial involvement in supervising discretionary decision-making and investigation by the Executive which may affect the rights and obligations of Canadians and others. For example, the Act would introduce warrantless searches to enforce the provisions of the Biological and Toxin Weapons Convention. The courts may well strike that provision down as being unconstitutional, but there are other parts of this Act which are more insidious and less obviously contrary to the Charter of Rights and Freedoms.

The preamble to the Emergencies Act specifically states that:

WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;

AND WHEREAS the fulfillment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times;

AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency;

Bill C-17 contains no such overall recognition of the need to balance our rights and liberties with the need to protect those rights and liberties in extraordinary times with extraordinary measures.

In s. 61, the Emergencies Act requires every order or regulation made pursuant to the Act to be laid before each House of Parliament within two sitting days after it is made. It also requires these regulations and order to be referred to a Parliamentary Review Committee within two days after it is made . These measures are also subject to a confirmation vote in Parliament.

The Association is of the view that if regulations made during wartime can be made subject to this level of oversight and review, then the orders and measures being proposed by this Act should be given at least the same level of scrutiny.

Similarly, this legislation and its effects on civil liberties cannot be looked at in isolation. Since September 11, 2001, Canadians have seen the passage of the Anti Terrorism Act, which contains a number of extraordinary measures. Amendments to the Customs Act introduced in the Senate in the form of Bill S-24 have resulted in the API-PNR database. The API-PNR database already provides access to air passenger and other data for the Canada Customs and Revenue Agency (CCRA) which is retaining it for 6 years and sharing it across the government. We have criticized both these measures for their overbroad application and the unusual way they were brought into being.

The most recent initiative is the Lawful Access proposal from the Department of Justice, which proposes a vast expansion of the government’s ability to carry out electronic eavesdropping and tracking of Canadians. We are waiting to see what legislation will be introduced as a result of these proposals and we will have more to say if and when that happens.

In justifying these intrusions into personal privacy and civil liberties, the government has moved away from the war against terrorism, and has begun promoting the other ‘benefits’ it sees in the war against drugs, the war against pornography and the war against child abduction. This is precisely why we are so concerned about the vast increase in bureaucratic power contained in this bill. The original justification used to get parliamentarians to approve and Canadians generally to support these powers inevitably results in function creep once the bureaucracy discovers how many other tasks can be made less onerous (for government) by using warrantless searches and constant intrusive surveillance.

SUBSTANTIVE CONCERNS

1. Interim measures: [ss.11, 27, 34, 66, 67, 95, 99, 102, 103 and 104 of the Act;]

Recommendation #1

The BCCLA recommends that interim orders be subject to Parliamentary scrutiny, at minimum the requirements of s.61 of the Emergencies Act.

Interim orders would allow certain ministers to circumvent the regulation approval process in situations where he or she believes “immediate action” is required in order to protect health, safety or the environment. The only test is the Minister’s discretion. In most of the affected acts the Minister’s word is law for 14 days after which it must be approved by the Governor in Council. If approved, the order is law for a year, or until a formal regulation takes its place. In most cases (exceptions are the Aeronautics Act and Environmental Protection Act), the order must be published within 23 days of issuing in the Gazette, and must be tabled in both the House and the Senate (or with the Clerks if Parliament is not sitting) within 15 days of the order being issued.

Although there may be provisions in a very few existing statutes which allow for such orders (e.g. Aeronautics Act), this Act contains a very large expansion of these powers across a broad spectrum of activity. These powers are granted to enforce new rules that would previously have been regulations under the Aeronautics Act, Canadian Environmental Protection Act, Department of Health Act, Food and Drugs Act, Hazardous Drugs Act, Navigable Waters Protection Act, Pest Control Products Act, Quarantine Act, Radiation Emitting Devices Act and the Canada Shipping Act.

Many of the current procedural safeguards that are in place to ensure legal and Charter compliance as well as parliamentary scrutiny of subordinate legislation have been specifically removed by exempting these orders from the Statutory Instruments Act. Unlike regulations, there is no approval, publication or consultation process before the interim order becomes law; all restrictions on the power of an interim order come after it is implemented.

Because these interim orders can be made effective for a year (two in the case of CEPA), with cabinet approval, it is a matter of great concern that such orders be subject to a greater level of outside scrutiny or parliamentary approval than is provided in this Act.

The Association is extremely wary of legislation that would create orders which are issued entirely at the Minister’s own discretion, with no consultation, no publication of the order for weeks and little or no parliamentary scrutiny.

Given that Parliament has seen fit to pass extensive and comprehensive legislation governing emergency situations and the measures governments take to deal with these situations, we see no reason why the measures being proposed here should not be subject to the same regime. That system mandates parliamentary oversight of government actions to handle emergency situations of all types.

2. Security Measures [s.5 of the Act; s.4.72 of the amended Aeronautics Act]

Recommendation #2

The BCCLA recommends that security measures be subject to Parliamentary scrutiny, at minimum the requirements of s.61 of the Emergencies Act.

This provision poses problems similar to interim orders, as well as some problems particularly its own.

The Minister again has the power to make regulations that do not have to go through the same scrutiny procedure as other regulations. This a transgression of the principle of parliamentary scrutiny of subordinate legislation.

For Security Measures – unlike Interim Orders – there is a requirement for consultation with everyone the Minister considers appropriate unless, in the opinion of the Minister, the measure is immediately required for aviation security. So even this minimal protection is actually illusory.

The Act also provides the Minister with the ability to delegate this power to make security measures to officials in situations where an aviation security regulation could be made and aviation security would be compromised if this matter were to become public knowledge as a regulation. Again, there is no outside scrutiny, and this time the discretion is not that of an elected official, but of a public servant.

In addition, these measures will be in effect for up to a year, unless a regulation is passed taking their place or the minister is of the view that secrecy is no longer required. This decision is based entirely on the Minister’s discretion.

Although it will likely be airlines or airports or other parts of the transport system which will be most directly affected by any security measures proposed in the Act, there will likely be an effect on the travelling public. An over-zealous (or over-cautious) minister of public servant could wreak havoc if they were to, for example, require that all passengers born in specified countries provide finger prints and DNA samples or perhaps subject them to body cavity searches. There would be no advance notice, no appeal and no public outcry before the imposition of the measure because the security measure, by definition, is secret.

3. Emergency Directions [s.5 of the Act; s.4.76 of the amended Aeronautics Act]

Recommendation #3

The BCCLA recommends that Emergency Directions be subject to prior judicial review as well as Parliamentary scrutiny, at minimum review by the Parliamentary Review Committee within 48 hours of coming into force.

This power is again entirely at the discretion of Minister, and can also be delegated to the officials in the Department of Transport on such conditions as the minister sees fit. Emergency Directions are orders given by the Minister to direct anyone to do or refrain from doing anything in order to protect: (i) aviation security (ii) aviation facility security or (iii) the safety of the public, passengers or crew members. These directions can include, but are not limited to: evacuation of airplanes or facilities; diversion of aircraft; and the movement of aircraft or people. These Directions are not limited to the areas that would be covered by regulations under the Aeronautics Act. Emergency Directions prevail over existing regulations and Security Measures.

The Association notes that the proposed Emergency Directions, unlike Interim Orders and Security Measures, are focused on air transport and limited (72 hours) in terms of their life span. However, the lack of any oversight or review of the use of this power is troubling. It is the view of the Association that it would be preferable to have a judge review any proposed Emergency Direction before it comes into effect, in camera and ex parte if need be. This is necessary because the Parliamentary oversight would probably not be able to take place until the Emergency Direction would be two-thirds of the way through its lifespan, making such reviews almost historical in nature.

4. Expansion of AIP-PNR database to include ‘transportation security’ and other issues [s.5 of the Act; s.4.82 of the amended Aeronautics Act]

Recommendation #4

The BCCLA recommends that in the interest of consistency and the protection of privacy, that s. 107 and s. 107.1 of the Customs Act be amended to require destruction of information collected under API-PNR within seven days.

The Act would allow designated CSIS and RCMP members to have access to the airline database for the purpose of transportation security. It would also allow them to search the database and match it with any other information under RCMP control. This amounts to treating all passengers as potential criminals or terrorists, and runs counter to the underpinnings of our laws governing privacy, criminal law and other civil liberties.

The Act proposes the destruction of the information being collected within seven days, unless it is “reasonably required” for investigation of transportation security or “threats to the security of Canada”.

Unfortunately, the AIP-PNR database now being run by the Canada Customs and Revenue Agency under the authority of the Customs Act will provide much of the same information for a period of six years. This information will be available to both RCMP and CSIS, so the period of retention under this proposed Act will likely be completely circumvented in practice by its availability under the Customs Act.

In a letter we wrote to the Minister of National Revenue last November 13, the Association and other concerned groups pointed out some of the many shortcomings with the CCRA database, even compared with C-17:

“First, the information collected must be destroyed within seven days, unless it is “reasonably required for the purposes of transportation security or the investigation of threats to the security of Canada.” This is much shorter than the six years your ministry will retain it. Second, Bill C-17 requires that CSIS and the RCMP review the retained information at least once a year and order the information to be destroyed if there is no justification for its retention. Your ministry does not appear to be undertaking any such review and removal of personal information.” The API-PNR database was originally intended to contain information concerning airline travelers. Through the media, it has now come to our attention that the database has been expanded to include travelers arriving on ferries, cruise ships, busses and trains. This will greatly increase the personal information the government may sift through, making the database both more intrusive and probably less effective in preventing terrorist activities.”

If the personal information being collected and retained under the CCRA database is not restricted, the shorter retention period and terms of access under C-17 are of no practical protection to Canadians.

5. Warrantless searches for Biological and Toxin weapons [s.106 of the Act; ss.10,11, 12 and 20 of the Biological and Toxin Weapons Convention Act]

Recommendation #5

The BCCLA recommends that the regulations narrowly define “biological agent”, “microbial agent” and “toxin” to ensure that government official are not able to use this search provision to gain access to places other than dwelling houses for purposes other than intended under the Treaty.

Generally the Association is not opposed to a regulatory inspection regime that permits regulatory inspections of those involved in the trade and commerce of these agents or toxins.

However, the BCCLA is concerned that this provision could be used to sidestep the normal warrant requirement for the enforcement of the criminal law (e.g. narcotics) if there is a broad definition of substances subject to this law.

The key will be the definitions of “biological agent”, “microbial agent” and “toxin”, which are to be adopted by regulation. If long lists of widely available chemicals such as insecticides or industrial chemicals are included in the regulation, the number of businesses or vehicles which could be subject to searches without warrant will be considerable. If common chemicals or household substances are on the list, there will be a temptation for police officers who suspect other types of criminal activity but cannot get a search warrant for a car, boat or business to try to use this legislation to look for evidence.

Even more disturbing would be the situation where component chemicals for the manufacture of now illegal drugs would be put on this list. If the regulation were to include such substances, the Association sees a clear sign of dangerous confusion between the war on terrorism and the war on drugs.

An overly broad definition of the microbial and biological agents or toxins could open a huge hole in the existing system of judicial authorization that would essentially allow police to conduct pre-searches of any place, including computer systems and documents, as long as the inspector is along with his or her certificate of designation.

Canada used to have a system of pre-authorized warrants under the Narcotics Control Act. They were called writs of assistance, and they allowed the officers carrying them to conduct searches without warrants anywhere, anytime if they were looking for drugs. These writs were obviously in violation of s. 8 of the Charter of Rights and Freedoms, and Parliament eliminated them in 1985 before the Supreme Court forced them to do it.

It would be regrettable if these certificates were to become the writs of assistance of the 21st century, and the courts may well find them to be unconstitutional.

6. Hoaxes concerning Terrorist Activity [s.32 of the Act; s.83.231 of the amended Criminal Code].

Recommendation #6

The BCCLA is of the view that this section is unnecessary. If it is included, the BBCCLA recommends that the words “or procures” be deleted from the proposed s.83.231(1) of the Criminal Code.

The Bill would amend the Criminal Code to include a new offence of “Hoax Regarding Terrorist Activity.” This would build yet another possibility of criminal liability on the controversial and over-broad definition of “terrorist activity” passed as part of the Anti-Terrorism Act (Bill C-36) in the last session of Parliament.

Now found as s.83.01(1) of the Criminal Code, this definition includes a wide range of actions and omissions. It also specifically includes “a conspiracy, attempt or threat to commit any such act or omission”. The additional of a hoax related offence is yet another situation where a sledgehammer is being used where the existing tools under the Code are probably adequate. The Association is not convinced of the need for this section, given the existence of the offence of mischief in the Criminal Code. This is a hybrid offence which provides authorities with the opportunity to tailor the charge to the conduct and the proposed Hoax offence largely duplicates its effect.

High school kids phoning in a bomb threat to their school because they want the day off would appear to be at risk of conviction if this section were to be included in the Criminal Code, and the Association does not think that is appropriate.

The offence is defined as including someone who actually conveys as well as someone who “procures” to be conveyed information that is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur. The offence requires the fault element of intending to cause a fear of death, bodily harm, damage to or interference with property.

The words “procures to be conveyed” seems problematic, especially in light of the existing Criminal Code section on attempts. It is foreseeable that if this Act were to pass unamended, that a person could easily be charged with ‘attempting to procure information to be conveyed that is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur.’

The Association is of the view that all that is needed to meet the legislative objective is a charge of attempted conveying of information.

7. Controlled access zones [removed from C-17; Royal Prerogative/Order in Council]

Recommendation #7

The BCCLA recommends that Controlled Access Zones not be established on the basis that there is no demonstrated need for a potentially unlimited infringement on civil liberties. If the government insists on going ahead with this proposal, it should undertake to provide a period of consultation with affected parties before passing the Order in Council establishing such Zones.

Although they are not included in the text of the bill, the government’s press release and backgrounder relating to C-17 describe what they are now calling “controlled access zones” and are to be instituted by Order in Council.

The previous “Controlled Access Military Zone” set out in Bill C-55 would have been established by the Minister personally, on recommendation of the Chief of the Defence Staff, in relation to (a) a defence establishment (b) property provided for the Canadian Forces or (c) a vessel, aircraft or other property under the control of a visiting force, and includes an area of land or water, a portion of air space that is fixed or moves with the designated vessel or aircraft. The zone may not be bigger than is “reasonably necessary” to ensure the safety of the person, thing or property for which it is designated and is only valid for as long as is specified in the designation, unless renewed by the Minister or Governor in Council (only necessary if for longer than one year). The Zone must be published in the Gazette within 23 days after the designation or renewal.

Under C-55, the Canadian Forces would have been empowered to permit, control, restrict or prohibit access to a Controlled Access Military Zone, and could have forcibly removed any person, or anything under that person’s control (vehicle, animal, etc.) from the Zone.

The Association has a number of concerns about what will be done under C-17.

First, we don’t know what is being proposed in terms of scope. There will be an Order In Council which will apply to an unknown area around Halifax, Esquimault and Nanoose Bay. It may also be used in other areas of the country, again, apparently at the Minister’s discretion and approval by the Governor in Council.

Second, its terms will be unknown until published, and it may incorporate some or all of the objectionable provisions of the Controlled Access Military Zones of Bill C-55.

Third, the authority for passing such an Order is also unclear, which makes it difficult to ascertain just how far the government may be able to go in restricting civil liberties. The Minister of National Defence has said in his testimony to this committee that the government will rely on the Royal Prerogative to provide authority for creating these Orders-in Council. It should be noted that the Royal Prerogative has been steadily whittled away by Parliaments going back to 1688 and the Bill of Rights. It may provide authority for the federal government to sign treaties or to declare war, but it is not at all clear that the Royal Prerogative would allow the government to create these Controlled Access Zones. In addition, the Supreme Court of Canada has ruled that exercise of the Royal Prerogative is subject to the Charter. (Operation Dismantle v. The Queen {1985] 1 S.C.R. 441)

There seems to be no good reason why current trespass and other criminal laws would not be sufficient for the purpose of maintaining order and preventing criminal activity in and around military installations.

1 260.1(4) of the National Defence Act as revised by s.74 of Bill C-55.

2 260.1(7) of the National Defence Act as revised by s.74 of Bill C-55.

3 260.1(11) of the National Defence Act as revised by s.74 of Bill C-55.

4 260.1(13) of the National Defence Act as revised by s.74 of Bill C-55.

5 260.1(13) of the National Defence Act as revised by s.74 of Bill C-55.

SUMMARY

The BCCLA thanks the Committee for the opportunity to present our thoughts on this important piece of legislation. We hope that both our personal attendance before the Committee and these written submissions will assist members of the Committee in carrying out their review of the Act.

In limited and special circumstances, the end may justify the means, but it is vital for this Committee to ensure that the means are proportionate to the end and that the least oppressive means is chosen.

However, this Act is the latest in a series of measures which blur the line between criminal acts and terrorism. Our criminal law and the Charter of Rights and Freedoms provide protections for those charged with offences or facing state action which infringes civil liberties. Ultimately, it is the courts which will have their say on whether the legislation the government adopts is proportionate to the threat.

We look forward to the Committee’s report on this challenging and extensive set of legislative proposals.