The NDP and Greens Are Right—We Need to Repeal Bill C-51

Graphic Laura Lalonde

Even though Bill C-51 has received a considerable amount of media attention since its introduction in the House of Commons in January, much confusion remains about the Conservatives’ anti-terrorism act, which was passed and became law in June.

But a close reading of the 60 page-long bill reveals many threats to rights and freedoms that we often take for granted in Canadian society. If there’s truly a need to update the laws governing Canada’s national security agencies, we must start with a blank slate. Bill C-51 is so fundamentally flawed that the only solution is to repeal it entirely.

Bill C-51 gives dangerous new powers to the country’s spy agency, the Canadian Security Intelligence Service. If there are “reasonable grounds to believe that a particular activity constitutes a threat to the security of Canada,” CSIS will now be able to “take measures, within or outside Canada, to reduce the threat.”

The bill remains deliberately vague on what form these “measures” could take. We’re supposed to find comfort in the fact that it specifically prohibits CSIS from taking actions that could cause “death or bodily harm,” obstruct or pervert the judicial process, or “violate the sexual integrity of the individual.”

The end result of conferring these new powers on CSIS is to move the agency away from being merely an intelligence service, towards being a secretive police service.

It’s worth noting that CSIS was never intended to become a policing agency.

Prior to the creation of CSIS in 1984, intelligence work was done by the RCMP. In the 1970s, the RCMP allegedly engaged in illegal activities that included forging documents, illegally opening mail, stealing the membership list of the Parti Québécois, and burning a barn where the Front de Libération du Québec and the Black Panther Party were rumoured to be planning a meeting.

The subsequent inquiry into the RCMP’s activities, known as the McDonald Commission, recommended that the Canadian government remove national security from the RCMP’s mandate and instead make it the responsibility of a new civilian spy agency. Now, incomprehensibly, we’re ignoring history and conferring policing powers on CSIS, while simultaneously asking the RCMP to get more involved in intelligence work as part of the fight against terrorism.

The Conservatives say their bill does not empower CSIS to arrest individuals. Still, it gives the spy agency unprecedented powers to intervene in the physical world in an attempt to disrupt terror plots and other “threats.” It’s unclear how these new powers make Canadians safer, since the government has failed to explain why CSIS can’t simply work, as it has in the past, with the RCMP and other police services when intervention is necessary.

Legal experts say Bill C-51 may even make terrorism prosecutions more difficult. If CSIS uses its new powers before a suspect commits a criminal act and before it refers the case to the RCMP, the subsequent criminal investigation could be tainted, according to the Canadian Civil Liberties Association. “The evidentiary record needed for a criminal prosecution may also be tainted,” they note in a backgrounder on the bill.

This legislation might thus hamper efforts to fight terrorism, despite that being its stated goal.

Beyond expanding CSIS’s role, the bill also created the Security of Canada Information Sharing Act, which allows for more information sharing across government about people who engage in “activity that undermines the security of Canada.” For example, the bill allows confidential data held by Passport Canada and the Canada Revenue Agency to be shared with the RCMP, the Canadian Security Intelligence Service and the Canada Border Services Agency, among others.

The definition for “activity that undermines the security of Canada” is so broad that the Act’s reach extends far beyond terror cases. It includes any activities that undermine “the economic or financial stability of Canada” or interfere with “critical infrastructure,” which could include everything from oil pipelines to railroads.

The bill, when introduced in the House of Commons, specifically exempted “lawful protest, advocacy and dissent.” The inclusion of the word “lawful” raised the ire of First Nations and environmental activists, who feared that the bill would allow federal agencies to share information about individuals who engage in acts of civil disobedience, such as strikes that don’t comply with labour law or illegal but peaceful blockades of a roadway. Eventually, the Harper government bowed to public pressure and removed that qualifier from the bill. Still, this entire section of C-51 remains highly problematic.

Sometimes, advocacy, protest and dissent can take on violent forms, as in the case of the Black Bloc protesters or certain radical environmentalists who engage in acts of sabotage or pipeline bombings. Such groups should be subject to surveillance and information-sharing.

This is why University of Ottawa law professor Craig Forcese has argued in several blog posts and articles that Bill C-51 should have included the same language used in the Criminal Code’s definition of terrorism, which exempts protests (even unlawful ones) only insofar as they are not intended to cause bodily harm or pose a threat to public health. With its imprecise language, Bill C-51 simply encourages Canada’s security forces to play semantic games in an effort to define groups as something other than “protesters” or “activists” in order to justify surveillance or information-sharing.

And just when you begin to think Bill C-51 can’t possibly get any worse, it does. The bill gives Federal Court judges the ability to issue warrants that would allow the spy agency to infringe on rights protected by the Canadian Charter of Rights and Freedoms. It’s unclear how this new warrant system could possibly work, since Charter-protected rights are supposed to be absolute and inalienable, and judges are supposed to protect our rights, not enable Charter violations. Still, the potential for abuse is real and unnerving.

In this election campaign, Liberal leader Justin Trudeau has tried to gain political advantage with a middle-of-the-road approach on Bill C-51. The Liberals voted alongside the Conservatives to pass the bill in the spring, ensuring that the party didn’t alienate voters concerned about security, yet they’ve pledged to amend it, allowing them to avoid alienating those concerned for their rights.

If elected, the Liberals say they’ll make CSIS subject to the direct oversight of an all-party committee of parliamentarians. Currently, an understaffed and underfunded civilian agency—the five-member Security Intelligence Review Committee—is supposed to oversee all CSIS activities. They’ve also promised to introduce a “sunset clause” that would cause Bill C-51’s new provisions to automatically expire after a certain amount of time, requiring a future government to study the consequences of these provisions and pass the bill again for them to remain in effect.

Unfortunately, the Liberal position simply doesn’t go far enough. Bill C-51 poses too great a threat to our freedoms and liberty to remain in place. Much of the bill is dangerously vague and its definition of what constitutes a threat is overly broad. Parts of the bill are almost certainly unconstitutional. A wide variety of non-governmental organizations and civil-society groups—from Amnesty International to environmental groups, First Nations activists to the Canadian Bar Association—agree this bill is ill-considered and will limit our freedoms without making us safer.

The New Democratic Party and the Green Party, who have promised to repeal Bill C-51, have the only defensible position on this issue. Hopefully, Canadians will elect a government on Oct. 19 that is committed to undoing the damage done by the Conservatives to our rights and liberties.