Over the past two years, I have written on a number of occasions about legislation being debated in Parliament, and often there has been much controversy over them. However, the Anti-Terrorism Act 2015 (C-51) being debated in Parliament trumps them all. While its proponents claim that it will help the Canadian government fight terrorism, its opponents fear it would lead to a loss of freedoms for Canadians (and 1984 comparisons have already been made). It has already been covered twice in this newspaper: our Tech Ethics columnists asked whether engineers should work for CSIS, and our esteemed editor wrote a critique of the bill in Issue #3, but I believe the resounding chorus opposing the bill deserves another article.
History of Anti-Terrorism Laws
Before I discuss the latest bill, I thought it would be useful to review previous anti-terrorism laws. After the attacks on New York and Washington in 2001, Jean Chrétien’s government introduced an Anti-Terrorism Act (Statutes of Canada, 2001 c. 41), which controversially enshrined the investigative hearing and preventative arrest in the Criminal Code.
An investigative hearing is basically a special interrogation session to which anyone – even if they have done nothing wrong – can be summoned. All it takes to summon you to an investigative hearing is for a cop to suspect that you might be a terrorist or personally know a terrorist, and a judge to agree to supervise the hearing. It is your civic duty to attend and participate in an investigative hearing. If you skip it, the police can arrest you and force you to attend, and if you refuse to answer a question, the judge can put you in jail. Also, if the police suspect that a terrorist attack is imminent and that you’ll have some role in it, you can be arrested without a warrant at any time. Once you’ve been arrested, you can be held for up to 72 hours to allow the police to gather evidence. If they are not able to convince a judge that you are likely to be involved in terrorism within 72 hours, then you can go free. However, if the judge believes you are likely to be involved in terrorism (even if you haven’t been found guilty beyond a reasonable doubt after a fair trial), restrictions can be placed upon your movements (similar to when a convict is being let out on parole).
These provisions, as you might imagine, were criticized for suspending people’s Charter rights to remain silent, not to be arrested without charge, and freedom of movement. As a compromise, the government decided to make the provisions expire after five years. The provisions expired in 2007, but they were restored for another five years in 2013, when the Conservative government passed the Combating Terrorism Act (S.C. 2013 c. 9).
The Current Bill
The latest Anti-Terrorism Act being debated right now goes a bit further. It consists of five parts: the Security of Canada Information Sharing Act (SCISA), the Secure Air Travel Act (SATA), and amendments to the existing Criminal Code, CSIS Act, and Immigration Act. For review, if any of you haven’t read our previous articles on this subject:
A) The SCISA would allow government departments to share information on suspects with each other. For example, CSIS could ask the CRA to hand over your tax returns if they suspect you’ve been paying terrorists.
B) The SATA would force all airlines flying into Canada to comply with a secret no-fly list maintained by the Canadian government. That’s right, if an airline refuses to let you go on your vacation to Hawaii and you ask them why the hell you’re on the no-fly list, they won’t be allowed to tell you why. You are allowed to challenge the government’s decision to put you on the list, but if you’re too poor to afford a lawyer, tough luck.
C) The Criminal Code amendments would add a 5-year prison term for saying anything which might cause people to want to commit “terrorism offences”, and judges would also gain the power to take away your passport and impose two years of parole conditions after a preventative arrest, even if you haven’t been found guilty of anything.
D) The CSIS Act would be amended to give them extraordinary powers: if a judge issues a warrant for it, they would be permitted to temporarily break Canadian law (including the Charter) if they think it could prevent a terrorist attack (the only things they wouldn’t be allowed to do would be physically harm or sexually harass you). Such a warrant would be active for 120 days, and be renewable twice. Yep, CSIS would become a secret police.
E) The Immigration Act would be amended so that, in a court case where the government is trying to deny a refugee or immigrant the right to enter Canada on security grounds, the government would be allowed to hide evidence from the lawyer representing the refugee or immigrant.
Protests
On March 14th, protest marches were held from coast to coast – sizable gatherings loudly opposed the bill in Vancouver, Calgary, Edmonton, Winnipeg, Toronto, Ottawa, Montreal, Moncton, and Halifax, among other cities.
Others who have raised concerns with the bill include former CSIS officer François Lavigne, who believes that his former employer simply does not need the new powers being proposed for it and noted that terrorism was less of a threat than violence from gangs, the Assembly of First Nations, which believes that the law might be used against aboriginal protests, and representatives from Canada’s airlines, who fear that the government might ask them to go to impractical lengths to enforce the no-fly list. Former prime ministers Clark, Turner, Chrétien, and Martin signed a joint open letter calling for greater accountability for CSIS.
Among the federal political parties, the Official Opposition NDP and the Green Party are vehemently opposed. They see no reason why police and CSIS can’t just do their job using the existing anti-terrorism laws, and believe that the new powers are excessive and will do much more harm than good. Green’s leader Elizabeth May particularly worries that nonviolent civil disobedience might be lumped together with terrorism, and the new law would come down harshly on protesters.
Supporters
Minister of Public Safety, Steven Blaney, defended the bill on the grounds that CSIS could use its expanded powers to intervene early before wannabe terrorists get radicalized, and that the secret no-fly list and expanded police powers are necessary to disrupt terrorist plots and keep Canadians safe. Blaney further believes that the Security Intelligence Review Committee (SIRC), the independent committee overseeing CSIS, would see to it that abuses of the law can be avoided.
The Liberal Party is also in favour for now, although their support has been a little hesitant. Leader Justin Trudeau is on the record as having reservations. He held the SIRC to be insufficient for keeping CSIS accountable (and noted that a previous head of that committee was now in jail for fraud). They intend to propose amendments, including a mandatory review of the new law after three years.
The Bloc Québécois voted in favour of the bill at second reading, although MP Louis Plamondon was quick to add that they were doing so to send the bill to committee where it could be considered in detail and amended, and would vote against final passage of the bill if amendments were not forthcoming.
Outside of the political arena, relatives of Patrick Vincent, the soldier killed in the politically-motivated vehicular homicide in Saint-Jean last October, announced their support for the Anti-Terrorism Act, in the belief that the new provisions could prevent similar incidents in the future.
Flawed But Fixable?
The Canadian Bar Association has come out against the law as it is currently written. Its biggest beef is with the provisions that would allow judges to give CSIS licenses to break the Charter, and it also finds the new powers for government departments to share citizens’ private information with each other to be worrying. It would recommend that the law be amended and be implemented with a five-year expiry date, like the Anti-Terrorism Act 2001.
Two professors of law, Kent Roach and Craig Forcese, have written a detailed critique of the bill. While they too are worried about the bill as it currently stands, they have published dozens of amendments they recommend on their website. These amendments are paired with statements from Conservative MPs explaining the rationale for the bill, showing that they should satisfy the rationale while also guarding against abuses.
In Parliament, Conservative MP Michael Chong acknowledged that the other side had a point. Although he still maintained he supported the bill, he also agreed that it should be amended to put CSIS under greater accountability.
Future Prospects
The Anti-Terrorism Act is currently being studied by a committee of the House of Commons, with expert witnesses being called in to give their opinions on the bill. Given that the Conservatives hold a majority in Parliament, they will – if they choose to do so – be able to pass the bill, barring a large number of MPs defying the party line. However, it is not unheard of for this government to withdraw bills (they did for the internet surveillance bill in 2012, and they temporarily withdrew a copyright reform bill before re-introducing a more consumer-friendly version), and even if the bill goes on, it is possible that they may agree to amendments increasing the accountability of CSIS, or set an expiry date after which the law will be up for debate again.
As usual, you can contact your MP to let them know how you feel about the Anti-Terrorism Act. One person might not be able to do a lot, but what if a thousand people did the same thing? Nothing causes a politician to have second thoughts more than knowing that votes are on the line.
Even if nothing happens, remember that a general election is coming close – October 2015. We are a parliamentary democracy, and as the citizens of Canada we have the right to put any MP we don’t like out of a job. Get out and vote, or forever hold your peace!
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