Cutting Through the Rhetoric of Bill C-51: A Legal Perspective

On May 7, 2015, the Canadian federal government’s controversial anti-terrorism bill, C-51, won the approval of the House of Commons. Many Canadians are extremely distressed over the introduction of Bill C-51, arguing that fundamental freedoms will be violated. It is crucial to cut through the rhetoric created by both the government and the protestors to find what the true consequences of Bill C-51 will be for Canadian society.

The overarching theme of many protests staged against Bill C-51 is that the government is using the bill to “crack down on dissent.” Protesting groups have asserted that the federal government is using terrorism as an umbrella term to cover a variety of actions related to activism. A number of advocate groups are concerned. First Nations, environmental groups and civil liberty advocates have expressed their fears. These groups fear that this bill will be used to harass and collect large amounts of personal information on activists that do not have ulterior or malicious motives. The underlying fear is that this bill will violate the fundamental freedoms of Canadians without lawful justification.

Conversely, the government asserts that this bill is necessary to prevent acts that threaten national security. The bill was introduced shortly after the deaths of two Canadian soldiers, which were the consequence of two separate terrorist attacks on Canadian soil. Stephen Harper made it clear that while these two deaths were catalysts for the introduction of the bill there was a larger goal at hand; to attack the threat posed by supporters of ISIS and other anti-Western groups. The bill is specifically directed to material that advocates, glorifies or incites terrorist activity.

It is important to keep in mind that this bill is not yet law. It does not govern the people of Canada’s form of expression or actions — yet.

From a legal perspective, one which cuts through the rhetoric of both the Canadian government and the protestors, the overarching question one needs to ask is whether the bill strikes the right balance between enhancing state powers to manage risk and safeguarding Canadian citizens privacy rights and personal freedoms.

Protesting Bill C-51

Consider this: Part 4 of Bill C-51 contains amendments to the Canadian Security Intelligence Service Act. These amendments will alter the function of CSIS. CSIS’s function will shift from an intelligence-gathering agency to an agency whose role will include taking “measures” to prevent “threats to the security of Canada.” This wording is extremely vague. The term “measures” can be interpreted to mean any number of strategies, while the wording “threats to the security of Canada” can also be interpreted to include any number of activities that are not lawful. It could include a protest that fails to apply for a municipal permit, under a specific municipal by-law. This is a role that is already undertaken by the RCMP and other police forces in Canada.

The bill includes limitations that preclude CSIS from taking measures that will contravene the Charter when acting to reduce a “security treat. This should be reassuring to those concerned about the consequences of the bill. However, if one looks more closely, this limitation will have no concrete force or effect on CSIS officers. This is because under section 21.1 of the bill CSIS can apply for a warrant which authorizes a CSIS officer to act without regard for the Charter. To qualify for a warrant CSIS simply needs “reasonable grounds to believe” that national security is at risk.

This means that in an effort to reduce threats to Canadian security, a member of CSIS can apply to a federal court judge for a warrant. If awarded, this warrant would authorize any reasonable action taken by CSIS for the purpose of reducing national security threats superseding Canadian laws. This includes the rights and freedoms guaranteed under the Charter. Judges are being asked to bless, in advance, a violation of a Charter right, in a hearing that is not subject to appeal and where only the government side (CSIS) is represented. This unprecedented and creates a very dangerous situation. In short, CSIS employees will not be subject to the Charter when conducting investigations that have been warranted by the federal courts.

Bill C-51 presents the need for a balancing act in policy formation that has not been achieved. The protection of national security and the prevention of terrorism is an important and necessary goal. It is important to protect public safety, this cannot be denied. However, the government must balance the protection of public safety with the protection of personal rights and freedoms that are fundamental to Canadian society.

An Alternative:

Bill C-51, with an important goal, is over-broad. This bill unnecessarily overreaches. It  includes measures that exceed what is needed to meet the government’s objective of protecting national security. Safety cannot be won, or attempted to be won, at the expense of the rights and freedoms that are so fundamental Canadian society.

The aim of Bill C-51 should not be to fundamentally change CSIS’s breadth of powers, but rather, to address it’s existing shortcomings. The bill, in its current state, fails to address a number of issues in Canadian security law that directly affect CSIS and the RCMP. Bill C-51, or any other antiterrorism bill, should focus on and oblige information sharing by CSIS with the RCMP to address on-going coordination problems between the two entities.

Barriers to effective information-sharing are rampant across government agencies. In a national security context, the lack of information sharing can put Canadians at risk. The consequences of inadequate information sharing is evident in the Air India tragedy. Often times, the RCMP has been forced to start it’s own investigation from scratch once it has been tipped off to a certain threat. This is often too late. This delay should be alarming and frustrating to the Canadian public. Wesley Mark, an intelligence historian, has asserted that the RCMP and CSIS are meant to “seamlessly hand off cases back and forth.” This has yet to happen.

The federal government should move in this direction, rather than shifting and increasing CSIS’s powers.

About Samara Zaifman

Samara graduated with an Honours Specialization in Political Science from the University of Western Ontario. Her undergraduate thesis focused on comparative American foreign policies in a number of South American nations. Samara has just finished her first year at Western Law School in pursuit of a JD. Her political interests range from international human law issues to security issues stemming from refugee and migrant conflicts.