On January 30th, Prime Minister Stephen Harper introducedBill C-51, the Anti-Terrorism Act, 2015. The Bill amends the Criminal Code, the CSIS Act, the Immigration and Refugee Protection Act, and several other pieces of legislation. Generally speaking, the Bill permits more latitude for greater information sharing between government agencies, lengthens the time for preventive detention, permits police lower thresholds for peace bonds, expands the Canadian No Fly List (i.e. Passenger Protect Program), broadens CSIS’s powers significantly, and creates new crimes that may criminalize legitimate speech.
“New laws and new powers don’t necessarily guarantee security” said Sukanya Pillay, General Counsel and Executive Director of the CCLA, “But new laws that violate constitutional rights are a prescription for mistakes, and mistakes won’t keep Canadians safer.”
Pillay questioned the necessity of the many amendments introduced by Bill C51, arguing that Canada has had strong anti-terror legislation in place, including the strong police powers under the Criminal Code. “There are still no answers as to why our existing laws and powers didn’t work – or if they didn’t work,” said Pillay, with reference to the tragic killings of two Canadian soldiers in 2014. “Canadians have a right to know precisely what failures existed in the laws that could have prevented the tragic deaths of Officer Vincent and Corporal Cirillo this past year.”
Bill C51 provides for enhanced information sharing among agencies. The CCLA has long argued that the recommendations of Justice O’Connor in the Arar Inquiry be implemented. Justice O’Connor had a series of recommendations targeting essential accountability and oversight of national security agencies, including his observation that the work of these agencies is increasingly integrated and as such, he recommended an integrated oversight process. To increase information sharing without implementing the lessons learned is folly. Broad unchecked powers without sufficient accountability and oversight will only create future problems.
The CCLA is seriously concerned that the powers of CSIS have been broadened within and outside of Canada, giving CSIS greater latitude in its operations including with respect to disruptions. CSIS, who are currently limited to investigative powers, would be given police-like powers, and be allowed to directly intervene, “disrupt” and “counter-message” communications and activities both in Canada and abroad that they believe are threats to national security. As such, it appears these powers would allow CSIS to intervene or interfere with travel plans, financial transactions, telecommunications, among other possibilities.
The CCLA is concerned that CSIS will be exercising greater powers on the basis of intelligence, which is by nature, not subject to the exacting criteria preserved for evidence collected by the RCMP or police. Of equal concern is the blurring of the line between the functions of CSIS and the RCMP, although going back to the MacDonald Commission, CSIS was created to have distinct features from the RCMP. In this regard the CCLA continues to argue for the government to heed the lessons and findings of the Air India Inquiry.
CCLA is also concerned with the lower legal thresholds for arrest, detention, and peace bonds the Bill proposes. Under the new legislation, enforcement agencies would be able to arrest someone on the basis that they think a terrorist act “may be carried out,” rather than the current legal standard of “will be carried out” contained in the Combatting Terrorism Act, legislation the government introduced less than three years ago. Furthermore, it would increase the period of preventive detention from three days to seven. Police have long held powers under the Criminal Code to arrest and detain an individual if there is a reasonable suspicion of an impending crime — and the controversial preventive detention powers introduced by the Anti-Terrorism Act 2001 and renewed last year were never used, thus raising questions of why the new broad provisions are required.
The Bill also threatens freedom of expression as it would criminalize ‘advocating’ terrorism. The CCLA finds the wording overbroad and is concerned the provision could be triggered even where the speaker has no intention of committing a terrorist act. The danger here is clearly to freedom of speech, and the criminalization of legitimate speech. The potential chilling effect on academics and journalists and bloggers is easily imagined, and the loss would be to a free exchange of ideas so necessary in the pursuit of truth and in combatting radicalization.
The CCLA is also concerned with the expansion of information sharing and lack of transparency within the proposed measures. The Bill grants government departments explicit authority to share private information with law enforcement agencies and allows for court proceedings to be sealed, despite the Federal Privacy Commissioner’s report released just 2 days ago recommending measures to increase transparency and protect individuals’ privacy.
CCLA has also over the past five years raised its concerns about Canada’s Passenger Protect Program (No Fly List), the failure of a clear and comprehensive legislation framework prescribing its operations and the need for proper legal procedures to be followed, for proper legal procedures to be identified and followed, for privacy protections, and for proper administrative process in accordance with natural justice. The program has had serious errors, and we are concerned that greater elasticity in this process without indication of proper corrections being made will result in more errors – which does not keep Canadians safer.
When asked in Friday’s press conference how he could guarantee these laws won’t be in direct conflict with people’s civil liberties, Prime Minister Harper responded that the new measures have “considerable oversight” and stated, “I think Canadians understand that their freedom and their security more often than not go hand and hand. Canadians expect us to do both, we are doing both, and we do not buy the argument that every time you protect Canadians, you take away their liberties.”
The CCLA actually agrees that civil liberties and security do go “hand in hand”, and we have long argued that civil liberties are actually a prerequisite for effective security. The CCLA believes that Canadians know rhetoric is not enough from any stakeholder – rather, there must be clear civil liberties protections in compliance with constitutional safeguards and there must be clear security gains: we are still working on a detailed analysis of Bill C51, but our first read indicates that the new anti-terror legislation does create serious civil liberties concerns, and as such it is difficult to forecast concrete security gains.
Canadian Civil Liberties Association
(416) 363-0321 ext. 230