By Carmen K. M. Cheung, Senior Counsel
For our full submission to the Standing Committee on Public Safety and National Security, click here.
For our full submission to the Senate, click here.
In this brief, the British Columbia Civil Liberties Association sets out its chief concerns with Bill C-51, the Anti-Terrorism Act, 2015.
1) The Security of Canada Information Sharing Act is fundamentally flawed and should not be enacted. It endorses a radical conception of “security” unprecedented in Canadian law and an unbounded scope of what it means to “undermine” Canadian security. Based on these expansive concepts, the Act authorizes warrantless information sharing across government and dissemination outside of government. Such widespread and relatively unfettered access to personal information poses serious dangers to individual privacy; such extensive data collection and information sharing may also not necessarily benefit security. Moreover, the Act deepens an already serious deficit in national security accountability.
2) The Secure Air Travel Act should be rejected. As a threshold matter, we question the efficacy of no-fly schemes in general. Even if they do improve aviation security, the system proposed here suffers from serious procedural deficiencies. The proposed Act creates a system where travelers have no concrete way of knowing whether they are on the no-fly list, where the reasons for listings are largely kept secret, and where the judicial process for reviewing delisting applications can be held in secret. This is a dangerous lack of due process. Where warranted, travel bans should be imposed pursuant to a court order.
3) We oppose the creation of an advocating or promoting terrorism offence in the Criminal Code. While any chilling of speech has serious consequences for democratic life, expressive chill in this context also impacts security and public safety. To the extent that monitoring extremist speech can aid in investigating security threats and protecting public safety, the chilling effect of the proposed offence may drive that speech offline or underground. We see no security interest in further criminalizing expression beyond what is already proscribed by law
4) Bill C-51 expands a troubling regime of preventative detention by lowering already low thresholds for detaining individuals on mere suspicion of dangerousness. Before asking what additional powers are required to protect public safety, we need to determine how well existing powers are being used and whether existing criminal law is being properly enforced. The proposed amendments relating to recognizances with conditions should be rejected.
5) By giving CSIS the power to engage in “threat disruption”, Bill C-51 blurs the line between spying and policing carefully drawn following the McDonald Commission. We are deeply troubled by the proposed CSIS warrant powers in this Bill, and the proposition that Canada’s courts should be tasked with authorizing measures that violate constitutional rights. This profoundly misconstrues the role of the court in our constitutional system. The proposed amendments to the CSIS Act are unwise and unnecessary, and should be rejected.
6) Bill C-51 ignores the Supreme Court of Canada’s teachings that the government cannot rely on secret evidence in security certificate proceedings without providing some way for the named person to know the case to be met, and a procedure by which the evidence could be tested. The proposed amendments to IRPA which would limit the scope of materials produced to special advocates should be rejected.