What is C-51 for?

May 1, 2015

The high-profile Duffy trial is said to have put a spotlight on the inner workings of the federal government and notably the chain of command from the PMO downwards—the who-knew-what of the Nigel Wright cheque exchange, for example (if anyone still cares). So far, Duffy’s lawyers have hammered on the vagaries of Senate spending rules, with witness testimonies exposing how a supposedly non-partisan arm of government is used for political ends by Liberals and Conservatives alike. Omnibus anti-terrorism legislation still before Parliament offers a much better example of how thisgovernment in particular abuses our democratic institutions for political gain. 

Bill C-51 has attracted special condemnation from the legal community and privacy watchdogs for its own vagaries. What are “terrorism offences in general?” Will the power to clandestinely disrupt potential security threats, including by draining bank accounts or shutting down websites, also permit CSIS to detain people without charge contra Charter rights? Why is the government ignoring the opinion of its privacy commissioner that the Security of Information Sharing Act, the first of five parts in C-51, “would potentially lead to disproportionately large amounts of personal information of ordinary, law-abiding citizens being collected and shared?” Who is going to oversee this consolidation and expansion of the government’s national security activities? (If the answer is still SIRC, the CSIS review body still doesn’t have the money or capacity for the job, even after the 2015 budget increase.) 

When these and other questions came up during marathon hearings of the parliamentary public safety committee, government MPs lectured some witnesses on why they were wrong and suggested others had terrorist sympathies. At the end of the charade, the government majority on committee voted down all opposition amendments to C-51, but agreed to table four minor changes, no doubt handed to them by the PMO, that leave the bill’s most overreaching and threatening parts intact. We’ve come to expect a heavy-handed, borderline authoritarian approach to legislating by this government. Remember the Fair Elections Act, passed last year despite near unanimous opposition from the legal profession for how it will disenfranchise thousands of voters while making it no easier to prosecute electoral fraud. In the case of C-51, the challenge to our democracy is just as serious if not more so. 

Civil liberties advocates, First Nations and environmental groups feel directly threatened. They worry the legislation will be used to harass and collect vast amounts of personal information on well-meaning activists and hapless innocents. Certainly the combination of new disruptive powers for CSIS, the information-sharing provisions in the bill, and its overly broad definition of what constitutes a threat to Canada could put a chill on free speech of all kinds. We know from internal memos the RCMP has been closely watching and in some cases infiltrating what it calls the “anti-Canada petroleum movement” since before Harper was an MP. (We should keep this in mind every time RCMP chief Bob Paulson complains about a lack of officers to handle terrorism cases.) This history suggests neither the RCMP nor CSIS needs C-51 to continue performing their shared role as subsidized private security for Canada’s oil, gas and mining sectors. 

Neither do they seem to need the legislation to successfully prosecute potential terrorism cases. Since January, the RCMP has arrested and prosecuted several people on terrorism-related charges using existing legislation and existing information-sharing channels. It is already a crime to travel for the purpose of committing a terrorist act, or to counsel someone to do the same. CSIS already has the authority to speak to parents about children they suspect are engaging in potential terrorist activity. And nothing in the anti-terrorism bill requires our civilian spy agency to share information about possible terrorist threats with other agencies as recommended in the Air India Commission. 

So what is C-51 for? A cynic might say it’s most useful for scoring a few more tough-on-crime votes in the next election. Probably, though, we should take the government for granted when it says the targets are young Muslims or recent converts, mostly men, who have been “radicalized” by conflicts in the Middle East and are spoiling for a fight, either as part of Islamic State or else here in Canada. Does this make the reforms in C-51 any more justified? Not at all. The government has not made a good case for why existing laws and practices are insufficient, and it has ignored recommendations that might ensure the proposed disruption and enforcement measures in C-51 will not be abused. 

In his presentation to the public safety committee, Ihsaan Gardee of the National Council of Canadian Muslims said that since at least September 11, 2001, Muslims have feared “who is watching, who is tracking and what assumptions are being made” when they are simply going about their business, enjoying the freedoms everyone enjoys in Canada. Those fears are based on routine visits by CSIS, underreported instances of people being denied boarding at airports, and the terrifying high-profile cases where a Canadian resident has been detained, rendered, tortured and later absolved because the national security threat assessment was incorrect. 

Craig Forcese and Kent Roach, law professors who worked with both the Arar and Air India commissions, have warned repeatedly that C-51 could increase the likelihood that mistakes will be made, and might actually undermine the successful prosecution of terrorism-related crimes while further obscuring the work of CSIS. Writing in The Walrus, they chillingly suggest this could be the point: “From what has been said on the record by government witnesses…we can infer that one government priority is to give CSIS the power to detain, if not formally arrest, suspects who are being investigated. Some government statements on the record also suggest that the bill could even facilitate foreign renditions.” 

In a recent poll, only 14% of people felt the Senate should continue to exist in its current form. The Duffy trial clearly isn’t helping. For better or worse, we need ours senators to step up on C-51—to live up to their constitutional role as a check on government overstep. What do they have to lose? 

Stuart Trew is the editor of the CCPA Monitor.