A year ago, the Canadian Journalists for Free Expression (CJFE), in partnership with the Canadian Civil Liberties Association, launched a Charter of Rights challenge of Stephen Harper’s police state anti-terrorism act, Bill C-51.
And not a moment too soon. C-51 handed Canada’s spy service grotesque new powers that are unconstitutional, indefensible and unnecessary. Short of killing or sexually assaulting ‘persons of interest’ in its quest to disrupt activities deemed to be ‘dangerous’ to national security, CSIS was handed carte blanche by the Harper government. Not a good situation when, at the time, Canada — unlike the United States, Great Britain, Australia and New Zealand — had no parliamentary oversight of the activities of the country’s spies.
As far as civilian oversight went, Harper starved the Security and Intelligence Review Committee of funding and never even bothered to fill a vacancy (the committee only has five members to begin with). Harper didn’t want oversight — he wanted a rubber stamp and zombie appointees. And if Arthur Porter hadn’t been accused in a kickback scheme in a Montreal hospital project, Harper’s personal choice to head up SIRC would have continued his oversight of SIRC. (As it happened, he died a fugitive from Canadian justice in a Panamanian jail.)
Basic civil rights went on the chopping block when the bill received Royal Assent in June 2015. The spy service could infringe on free speech because “promoting” terrorism was now a jailing offence. CSIS could make more arrests without warrants, even in cases where all the authorities had was the suspicion that an individual “may” carry out a terrorist act. The spy agency was no longer restricted to simply gathering intelligence, but now had the power to “disrupt” suspected terror plots. CSIS could even siphon personal information about an individual from 100 government departments, including the Canada Revenue Agency and Health Canada. And if the spooks planned to break the law or violate the Constitution, they could go before a judge in secret to get pre-approval of their illegal acts.
A lot of things in Harper’s governing record demonstrated his contempt for the Charter of Rights and due process. Nothing showed it better than C-51.
The Liberals, meanwhile, also have a checkered history with this iniquitous piece of legislation. When C-51, with all its warts and red flags, was being rammed through the House of Commons by the Harper majority, Team Trudeau voted with the government. Emotions were running high in October 2014 after Warrant Officer Patrice Vincent and Cpl. Nathan Cirillo were killed by lone-wolf extremists. Harper fast-tracked anti-terror legislation and in just two months came up with C-51.
(Ironically, Vincent’s killer, who made two well-documented attempts to leave the country to join ISIS, could have been arrested under existing pre-C-51 legislation. For some reason, he wasn’t.)
With an election in the offing, the Liberals did not want their young leader to be tarred as ‘soft on terror’ — hence their support for C-51. It was still a stunning abdication of the Charter principles Pierre Trudeau bestowed on the country, coming as it did from his own son. The NDP, by comparison, did their jobs — voting against C-51 and attacking it as one of the worst instances of Harper’s abuse of power.
Justin Trudeau did not offer blanket approval. Despite having helped to pass the bill, the Liberals vowed that they would amend it to ensure that it was Charter-compliant. Included in Minister of Public Safety Ralph Goodale’s mandate letter are explicit instructions to deal with the offensive sections of C-51. The Liberals promised to protect the rights of Canadians to lawful protest and advocacy, to require that government review all appeals by Canadians on the no-fly list, to rein in the Communications Security Establishment (CSE) by requiring a warrant to engage in surveillance of Canadians, and to hold a statutory review of the entire law after three years.
When the new government came to power after the October 2015 election, party officials assured the public that this deeply flawed “security bill” would be “overhauled without delay.”
A critical part of the Liberals’ promise to amend C-51 was a pledge to hold public meetings to get citizen and expert input on what needed to be changed. Though the government announced the meetings, none have been held — and C-51 remains in force. While it’s true that Goodale has a full plate in front of him — from prison reform to a broad-ranging national security review — critics of C-51 find the government’s inaction disquieting and unacceptable.
And they’re not taking it sitting down. With their court case in abeyance, the CJFE is renewing its campaign to repeal five offensive sections of the anti-terror legislation.
“We’re encouraging Canadians to make their voices heard through a new Parliamentary e-petition that calls upon the government to fully commit to a review of Bill C-51 and remove the aspects that violate Canadian Charter rights,” said CJFE Advocacy Director Duncan Pike. “This is a new system that allows citizens to digitally participate in the federal policy process. The petition needs 500 signatures to be presented in the House of Commons and compel a government response. Right now it has 370.”
That low number of petitioners should alarm every Canadian. According to the CJFE, the two most successful petitions out there right now have 35,000 and 25,000 signatures: The first calls on the Government of Canada to vocally defend the oil and gas industry, while the second demands an end to sales restrictions on the AR-15 semi-automatic rifle. When gun enthusiasts can so completely out-organize the people defending our civil liberties, you know something is badly wrong.
It’s as if Canadians have forgotten the woefully bad job the Standing Committee on Public Safety did under Harper when holding its clause-by-clause review of Bill C-51 back in March 2015. Green Party Leader Elizabeth May rightly called those deliberations a “sham.” Not a single major amendment of this police state legislation came out of those hopelessly partisan hearings.
It’s as if Canadians have forgotten that both CSIS and CSE were found guilty earlier this year of breaking this country’s surveillance laws. CSE unlawfully shared data on Canadians with foreign allies, while CSIS violated court orders by retaining communications intercepts it was supposed to destroy.
The reason for this collective amnesia on the perils of unleashing unconstitutional forces in the security establishment isn’t hard to nail down. It has something to do with the spate of mass killings — sometimes directly, often loosely, attributed to terrorism — washing across our TV screens recently. From Orlando to Dallas, from Nice to Munich, the maniacs appear to be on the loose. C-51 itself was the illegitimate child of fear and the promise of protection in the wake of similar events in this country.
That is what Donald Trump offers — a world of terror and scapegoats, of doomsday and denunciations. Trump’s America would be a land of bollards and security checks at every corner, of Uzi-toting police in every public square. I prefer the wise words German Interior Minister Thomas de Maiziere gave to Der Spiegel:
“No constitutional state in the world is in a position to prevent every crime, every massacre, or every terrorist act with absolute certainty.”
But every democracy in the world can refuse to barter away foundational civil rights for the illusion of protection. It’s time for Team Trudeau to get going on the hearings to amend C-51.
The old RCMP Security Service merely burned barns. The new CSIS, armed with C-51, could burn down a democracy.
Author: Michael Harris