Since October’s shooting and attack on Parliament Hill, the Harper government has introduced or passed four pieces of legislation that impinge on civil liberties in ways that almost certainly contravene legal protections in Canada’s Charter of Rights and Freedoms. Though the government claims these reforms are meant help security agencies confront new terrorist threats to Canada, they could be used to hassle and spy on a larger group of people at home and abroad, in particular those opposed to the government’s energy agenda. Equally worrying is that the laws are being introduced without any corresponding oversight of security activities.
In the order they were introduced, there is Bill C-13, highly unpopular and long-delayed online spying legislation that passed the Senate in November and received royal assent December 9. The bill creates legal incentives for Internet service providers to voluntarily intercept and hand over personal information on their customers to law enforcement agencies that request it, even when they don’t have a warrant. David Christopher with the group OpenMedia says “important parts of this legislation have already been ruled unconstitutional by the Supreme Court.”
Then came Bill C-44, tabled in Parliament in the immediate aftermath of the Michael Zehaf Bibeau attacks, which expands CSIS’s surveillance reach, removes legal hurdles to agents operating abroad (even in contravention of foreign or international law), grants anonymity to CSIS informants, and alters the conditions under which a person’s Canadian citizenship can be revoked. Bill C-44, which was deemed “highly problematic” by the Canadian Civil Liberties Association (CCLA), passed third reading on February 2 and was with the Senate at time of writing.
Where the government’s security and energy agendas more clearly overlap are in Bill C-639, introduced as a private member’s bill by Conservative MP Wai Young on December 3, and Bill C-51, the Anti-Terrorism Act 2015, tabled on January 30. Both refer to the protection of “critical infrastructure,” disruption to which would “produce serious adverse economic effects,” and are obviously aimed at ongoing protests against tar sands expansion and pipeline projects.
Threats to critical infrastructure
Young’s private member’s bill, which is supported by Harper’s justice minister, Peter MacKay, creates a new Criminal Code offence for anyone who “destroys or damages any part of a critical infrastructure; renders any part of a critical infrastructure dangerous, useless, inoperative or ineffective; or obstructs, interrupts or interferes with the lawful use, enjoyment or operations of any part of a critical infrastructure.”
This language could criminalize peaceful and (currently) lawful protests if they interfere, even temporarily, with “critical infrastructure,” defined broadly in the legislation as “including services relating to energy, telecommunications, finance, health care, food, water, transportation, public safety, government and manufacturing, the disruption of which could produce serious adverse economic effects or endanger the health or safety of Canadians.” The bill imposes a mandatory minimum sentence of two to 10 years and fines of $500 to $3,000.
Toronto lawyer Ed Prutschi told the National Post in December the fact that energy infrastructure was included in this definition has one obvious purpose: “It would have application for pipeline protests.” He noted the legislation doesn’t necessarily require any damage to have been done, just that a person be in the way, as many people were during a protest in Burnaby last year against Kinder Morgan’s Trans Mountain pipeline expansion. As the Post noted, Young is the MP for Vancouver South, which is adjacent to the mountain.
From November 19 to 27, at least 100 protesters were arrested for crossing a police line in a municipal conservation area on Burnaby Mountain where Kinder Morgan crews have been doing preliminary work—before approval of the project—in preparation for tunneling. Bill C-639 would appear to offer the police a bigger stick for discouraging these protests, since participants could face new fines and jail time just for exercising their right to dissent.
The BC Civil Liberties Association (BCCLA) considers the Conservative private member’s bill a direct attack on our constitutional and Charter rights, suggesting Canada is “borrowing tactics from dictatorial governments.” Executive Director Josh Paterson slammed the bill during a meeting in Bangkok in December where he was participating in an investigation of political rights violations in the context of natural resource development.
“We are at the United Nations to cry foul on Canada’s latest attempt to criminalize peaceful protest,” Paterson said in a news release. “Now striking flight attendants and kids protesting pipelines on Burnaby Mountain could be considered criminals? Either of these lawful protests could count as a crime under this law if they interfere with something of economic value. That is simply ridiculous and it violates the fundamental freedoms of Canadians.”
Paterson further stated: “We are meeting in Bangkok with representatives from non-democratic countries where protest is a serious crime… Canada has not only broken with our own constitution in criminalizing protest, spying on First Nations, and denouncing community groups, it’s also breaking its international commitments to protect the freedom of expression and freedom of assembly of Canadians.”
RCMP critical infrastructure team
In Young’s media release presenting Bill C-639, Minister MacKay claimed it was “the product of extensive, cross-Canada consultation, consistent with our Government’s priority to create safer communities.” But the bill is obviously based on a March 2011 report written by the RCMP’s Critical Infrastructure Intelligence Team, which consulted primarily with private energy companies.
The document, recently obtained by Carleton University criminologist Jeff Monaghan, warned, “Environmental ideologically motivated individuals including some who are aligned with a radical, criminal extremist ideology pose a clear and present criminal threat to Canada’s energy sector.” It said Canada’s law enforcement and security agencies “have noted a growing radicalized faction of environmentalists who advocate the use of criminal activity to promote the protection of the natural environment. ”
This is from the same RCMP team that spied on Quebec residents opposed to shale gas development, among other groups.
The RCMP report, and Young’s proposed legislation, dovetails with the Canada–U.S Beyond the Border Action Plan, the result of perimeter security and economic integration talks launched by Canada and the United States in late 2010. The protection of shared critical infrastructure is listed as a priority in security documents on the government’s Beyond the Border website.
“Canada and the United States share a significant quantity of critical infrastructure assets and systems, including pipelines, the electric grid, and transportation systems,” they say. “It is imperative that our countries work together to protect these assets. To effectively do this, our governments will require a close collaboration with the private sector, as they own much critical infrastructure in question.”
The plan mentions a pilot project between New Brunswick and Maine, “to learn how best to work together on each of the elements.” But according to news reports, that pilot project has been delayed since July 2013 because the U.S. has requested that its cross-border police officers be exempt from Canadian law. Internal RCMP briefing notes regarding this “sovereignty issue” apparently stymied the project temporarily.
On October 28, U.S. Secretary of State John Kerry was in Ottawa to express his government’s condolences for the killings of two Canadian soldiers during separate attacks the previous week. Reinforcing the importance of policy alignment, Kerry said the U.S. and Canada would “work quietly and carefully” to strengthen security between the two countries, “making certain that every possible stone is turned over, every possible policy is reviewed because our obligation is obviously to protect our citizens.”
Kerry’s October meeting in Ottawa, and the Burnaby Mountain pipeline protests afterwards, provided convenient cover for the introduction of Bill C-639. Then came the Charlie Hebdo shootings in Paris in January. Just weeks later, the government tabled more alarming security legislation: Bill C-51, the Anti-Terrorism Act 2015.
Harper’s proposed update to the existing anti-terrorism legislation grants CSIS the authority to block Canadian websites. The bill further defines “terrorist propaganda” as “any writing, sign, visible representation or audio recording that advocates or promotes the commission of terrorism offences in general...or counsels the commission of a terrorism offence.”
The CCLA says the bill “broadens CSIS’s powers significantly” and “may criminalize legitimate speech,” noting a “potential chilling effect on academics and journalists and bloggers,” who could face up to five years in prison. The chilling effect comes from the vagueness of language in the bill, which allows government departments to share personal information related to activities that “undermine the security of Canada,” defined quite broadly to include “interference with critical infrastructure,” but also “interference with the capability of the Government of Canada in relation to...the economic or financial stability of Canada.”
C-51 exempts “lawful advocacy, protest, dissent and artistic expression” as threats to the security of Canada, but as a Globe and Mail editorial asked in February, “how well do governments define those things in times of ‘great evil’?” Privacy Commissioner Daniel Therrien expressed similar fears in his response to the legislation:
This Act would seemingly allow departments and agencies to share the personal information of all individuals, including ordinary Canadians who may not be suspected of terrorist activities, for the purpose of detecting and identifying new security threats. It is not clear that this would be a proportional measure that respects the privacy rights of Canadians.
The bill also lowers the threshold for “preventive arrests,” makes it easier to place people on no-fly lists, gives authorities the power to hold suspected “terrorists” without charge for seven days, allows a judge to impose up to a year of house arrest on someone who has not been charged or convicted of a crime, and allows CSIS agents to “disrupt” threats to Canadian security, including “covert foreign-influenced activities.”
Importantly, Bill C-51 would let law enforcement officials detain someone on the grounds they “may” have terrorist plans where currently the law allows for preventative arrests only when it is suspected they “will commit a terrorism offence.” Micheal Vonn, the BCCLA’s policy director, has warned “criminalizing people’s words and thoughts is misguided and won’t make Canadians any safer.” Vonn and others have said the bill is “likely unconstitutional.”
In Parliament on February 2, Green Party leader Elizabeth May asked Public Safety Minister Steven Blaney if the new anti-terrorism bill “will apply to nonviolent civil disobedience, such as that against pipelines?” He did not directly answer the question, saying only that terrorism “is a criminal act and those who go against the Criminal Code will meet the full force of the law.” May told MPs they “must not allow the Conservatives to turn CSIS into a secret police force.”
As of early February, the RCMP is still refusing to release what Commissioner Bob Paulson calls a “video manifesto” made by Michael Zehaf-Bibeau days before his October 22 attack on Parliament Hill. The RCMP claims the video shows the shooter's political motives and contains a religious reference. On the basis of this unreleased video, the Harper government is claiming the shooting was a "terrorist act,” rather than the actions of a deranged individual in need of help.
If the Harper government is so concerned about “home-grown terrorists,” maybe it should shut down the tar sands. In mid-January, the National Post reported at least three “radicalized youth” (including Zehaf-Bibeau) headed to the tar sands “to earn money to finance their terrorist activities.”
Joyce Nelson is an award-winning freelance writer/researcher and the author of five books.