Why Can’t Canada Get National Security Law Right?

By Craig Forcese and Kent Roach

Published in The Walrus, June 9, 2015

Bill C-51—also known as the Anti-terrorism Act, 2015—has now passed Parliament, and its effect on the Canadian legal landscape will be radical. To update those who have been not been following the debate, here is a synopsis of the bill’s ugliest bits:

  • C-51 gives CSIS a new mandate to “reduce threats to the security of Canada” (and not just in regard to terrorism). This includes using means that may violate Canadian laws and the Charter of Rights and Freedoms, if CSIS persuades a judge that such means are necessary. The law provides for all this despite the fact that CSIS was deliberately created in 1984, amid various RCMP scandals, as a pure intelligence-gathering agency.

C-51 reaches further in constraining speech than any other Canadian law that has survived constitutional challenge.

  • Invoking a broadly defined concept of security, C-51 accelerates the sharing of information throughout virtually the entire Canadian government (with the exception of information pertaining to protest and dissent). At the same time, it fails to match these powers with effective review by elected politicians or independent bodies. With the enactment of Bill C-51, Canada remains an exception among its allies: a democracy that does not trust any of its legislators with secret information. Moreover, the move to permit accelerated data swapping without bolstered safeguards suggests the government has learned nothing from the brutal treatment of Maher Arar (who ultimately was a victim of ill-conceived information sharing among intelligence agencies).
  • C-51 contains provisions that will chill free expression. In particular, a new speech crime created by the law will target—as the government explained it to a Senate committee—those who “actively encourage some sort of unspecified action should be taken to do something bad against Canadians or our allies, or to do something to support extreme jihadism.” We already have laws that penalize real terrorist propaganda—and at least one person is in jail because of them. But this new offence swallows up a vast range of non-violent speech; indeed, C-51 reaches further in constraining speech than any other Canadian law that has survived constitutional challenge.

Beyond this, we also fear that C-51’s expansive new speech-crime provisions will work at cross purposes with the important (and fragile) counter-radicalization programs that probably constitute our most viable response to the siren call of ISIS. It is not clear that anyone who framed this bill considered the possibility that even the theoretical prospect of speech-crime prosecution might deter those most vulnerable to radicalization from participating in a program requiring them to candidly discuss their beliefs. Unlike UK legislation enacted this year, C-51 fails to place such programs on a firm statutory footing. At a time when the government should be working more closely with Muslim communities, C-51 appears to be pushing them away.

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This is not the first time Canada has had an anti-terror law debate. Immediately after 9/11, the government enacted wholesale changes to Canadian security laws that created a bevy of novel new terrorism offences. But in doing so, it did not break from long-standing expectations about the role of government agencies and the Charter of Rights and Freedoms.

C-51 is different: It empowers CSIS to perform any action necessary to protect security—except inflict bodily harm, violate a person’s sexual integrity, or obstruct justice. In cases where CSIS’s actions would violate the Charter rights of Canadians, CSIS can ask a court to provide an exemption through a secret warrant process.

It is true that judges have long been tasked with issuing advance search and arrest warrants. These are secret proceedings with only the government side present. We traditionally have accepted this sort of state intrusion because of the precise nature of the rights affected: Under the Charter, invasions of privacy or detentions are unconstitutional only if, respectively, “unreasonable” and “arbitrary.” The process of obtaining a court warrant allows judges to distinguish legitimate government actions from those that are illegitimate, and thereby preserves the integrity of our Charter rights. But now with C-51, the government has extended this very narrow and specific warrant model to all rights—free speech, free association, right of citizens to leave or return to Canada, habeas corpus, the bar against cruel and unusual treatment. These are rights that, in our system, have not been fair game for a secret judicial warrant—until now.

We recognize that proportionate and reasonable limits on basic rights can be justified, as stipulated under Section 1 of the Charter. But such limits are supposed to be set out in advance in democratically enacted and debated legislation. Bill C-51 does not do this: It is utterly impossible to know which rights might be limited when CSIS comes to Federal Court in secret proceedings. The scope of our Charter rights becomes, in this fashion, something to be negotiated behind closed doors between a covert security service and a solitary judge. We can only hope that the court balks at this new role, which contorts its historical function.

See also:

The government wasn’t compelled to embark on this constitutional adventure. Rather than writing CSIS a blank cheque with C-51, the government could have opted for a legislated, closed-list enumeration of CSIS’s new “disruption” powers. This is what the UK did when it legislated powers to prevent citizens who engaged in terrorism abroad from returning to British shores. The merits (or not) of such an explicitly articulated law could have been democratically debated and, if enacted, challenged in Canadian courts—but the process would be open and transparent.

All this would have required the government to do the difficult intellectual work of answering the question: “What precisely does CSIS need to do? ” That is not a question addressed by the government, or in any credible way in the legislative process….

Read the rest of this story at The Walrus

Kent Roach teaches national security law at the University of Toronto

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