Bill C-51, the Security of Canada Information Sharing Act, passed its second reading on Monday, February 23rd with a vote of 176-87. It is nominally an anti-terrorism bill that would provide the police and intelligence agencies with more power – namely CSIS – to identify and oppose terrorist plots. It would also lower the burden of proof to arrest individuals suspected of terrorism.
Currently the bill is opposed by four former Prime Ministers and five former Supreme Court justices, who say that “given the secrecy around national security activities, abuses can go undetected and without remedy.”
The bill was introduced by Harper’s Conservatives and is supported by Trudeau’s Liberals. Only the NDP, headed by Thomas Mulclair, oppose the bill.
What is terrorism?
Terrorism as is defined rather broadly in Bill C-51, is any activity that “undermines the sovereignty, security, or territorial integrity of Canada or the lives or the security of the people in Canada.” It expands the original definition of Terrorism in the 1984 CSIS act (espionage, foreign-influenced threats, ideologically-motivated violence, and the overthrow of the Canadian government) to include threats to the “economic or financial stability of Canada,” or “public safety.”
As always, there is a clause that safeguards “lawful advocacy, protest, dissent and artistic expression.” But most protest isn’t exactly legal anyways. It might be nonviolent, but if Martin Luther King held hands with Nelson Mandela in the middle of the Yonge/Dundas intersection protesting Bill C-51, that would probably be illegal and classifiable as terrorism because they threaten public safety by blocking fire trucks in the street.
Promoting terrorism
Bill C-51 creates a new criminal offence that likely violates s. 2(b) of the Charter.
The newly proposed s. 83.221 of the Criminal Code provides as follows:
Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general—other than an offence under this section—while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.
Sounds harmless, but what are “terrorism offences in general”? Keeping in mind the expanded definition of terrorism, promoting “terrorism offences in general” could be as simple as the opinion that one should provide aid to Ukrainian insurgents, or expressing sympathies with pipeline protesters, or, if CSIS is having a slow day, this very article.
Anyways this is a potential violation of Section 2b of the Canadian Charter of Rights and Freedoms – the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
New powers for CSIS
CSIS was created in 1984 by Parliament to take on intelligence activities previously under the umbrella of the RCMP. It is subject to oversight by the Security Intelligence Review Committee, which is grossly underfunded, and was formerly reviewed by the Office of the Inspector General, an office that was abolished in 2012.
The philosophy behind CSIS was to separate intelligence activities from law enforcement activities to prevent abuse of power. However Bill C-51 allows CSIS to take “measures” against terroristic threats:
If there are reasonable grounds to believe that a particular activity constitutes a threat to the security of Canada, the Service may take measures, within or outside Canada, to reduce the threat.
In taking measures to reduce a threat to the security of Canada, the Service shall not
(a) cause, intentionally or by criminal negligence, death or bodily harm to an individual;
(b) wilfully attempt in any manner to obstruct, pervert or defeat the course of justice; or
(c) violate the sexual integrity of an individual.
CSIS is still allowed a wide range of powers, including physical and psychological torture (e.g. by waterboarding, which isn’t permanently damaging) or indefinite imprisonment.
CSIS needs a warrant first, though. But this isn’t particularly helpful, since it is only required that an act will “reduce a threat to the security of Canada,” and are “reasonabl[e] and proportiona[te]”.
This is more than a little bit odd. One might expect, as in the case of a warrant for arrest or search, that there are reasonable grounds to believe that a criminal offence has been committed or that there are reasonable grounds to believe that a search will yield evidence relevant to a specific offence. These are solid prerequisites for an arrest or search. But to say that an act will “reduce a threat to the security of Canada?” Heck, that could be anything.
Preventive arrest powers
The Criminal Code already includes provisions for preventive arrest and detention to curb terrorism, and for dangerous offenders. If an officer:
(a) believes on reasonable grounds that a terrorist activity will be carried out; and
(b) suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of the terrorist activity.
Then such a person may be arrested without a warrant.
Bill C-51 lowers the threshold for preventive arrest and detention by revising the Criminal Code to read as follows:
(a) believes on reasonable grounds that a terrorist activity may be carried out; and
(b) suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is likely to prevent the carrying out of the terrorist activity.
What an odd addition to the Code. Does Harper believe so strongly that potential terrorists are slipping through the fingers of the law that he needs to lower an already-lenient threshold? We’re going from a 99% level of confidence to a 50% level of confidence. 50% is for civil suits like broken contracts and AWOL landlords. A lot of innocent people are going to get caught in the net while Harper chases his phantom terrorists.
The No-Fly List
Finally, Bill C-51 allows the Minister of Public Safety to put Canadians on a no-fly list on the suspicion that they would endanger transportation security. Once on the list, one can only be removed by appealing to a Federal Court judge and proving that the minister was not only wrong to put them on the no-fly list, but acted unreasonably in doing so. The minister can also ask the Court to hear the government’s presentation of its case in secret, wherein the lawyer and the public are excluded from the courtroom.
This procedure of secret hearings was ruled unconstitutional in 2007 by the Supreme Court, violating Section 7 of the Charter (“the right to life, liberty, and the right not to be deprived thereof except in accordance with the principles of fundamental justice”), as it was possible for the individual to be prohibited from examining the evidence upon which they were being deprived of their rights.
The takeaway
Steven Harper is fearmongering and taking advantage of the ISIS threat in the Middle East to further his national security agenda. Well, you might say, I’m the one fearmongering by providing all these farfetched examples and warning y’all that CSIS will break into your house one day and spirit you away to a bunker where you’ll be waterboarded for your anti-government posts on Reddit. The government wouldn’t really do that, would they?
It’s unlikely, and I’m more offended by, than afraid of, Steven Harper’s willingness to jump on the anti-terrorist bandwagon with this bill by announcing it while standing in front of the largest Canadian flag I’ve ever seen.
I’m offended by the government’s willingness to lower the standard of proof against suspending someone’s civil rights from a confidence level of 99% to less than 50%.
I’m offended by the proposal of the no-fly list and the possibility that those on the list may never find out what they did to get themselves on the list.
But mostly, I’m offended by the sloppiness of Bill C-51. “Terrorism offences in general” is a phrase that should never, ever make it into a passed bill.
With both Liberal and Conservative support, I sadly predict that Bill C-51 will pass through its third reading in the House of Commons. I remain optimistic that the old appointed farts in the Senate might do their job as the “Sober Second Thought,” or failing that, the Supreme Court of Canada will eventually strike down large sections of Bill C-51.
That doesn’t mean you should just sit on your hands and read the Iron Warrior, though. Write your MP. Maybe go to some protests, block the sidewalk, and get reprimanded by the cops. Whoops, am I advocating terrorism again? Is that CSIS I hear knocking at my door? Are those my civil rights flying out the window?
Judy Morris
I only have one thing to say about that bill, I will never vote Conservative ever! You are right the conditions in this bill are very vague. In the event of war I don’t want to see happen in world war 2. Internment camps, where the Japanese people were interred, and anyone that was viewed as a threat. I am afraid for the future! And our world is about to get smaller.