KENT ROACH and CRAIG FORCESE, The Globe and Mail
Kent Roach teaches at the University of Toronto law faculty and worked with both the Arar and Air India commissions. Craig Forcese is a law professor teaching national security law at the University of Ottawa and a participant in the Canadian Network for Research on Terrorism, Security and Society. Their analysis of C-51 is at antiterrorlaw.ca.
We must exercise caution in judging the government’s amendments to its security law, C-51. We have received what appears to be the official government language. There is some good, some bad and much that remains ugly.
First the good: it is helpful that the proposed changes will now exclude from the national security information sharing regime protests of all sort, and not just protest complying with each and every regulatory law. The amendments will also temper language that might have authorized further sharing of information to “anyone”, including in disregard of security caveats attached to that information.
But in all other respects the government has disregarded warnings of the Privacy Commissioner (and many others) about the reach and potentially ungovernable nature of this vast privacy-limiting power. Downstream sharing can still take place so long as it is “in accordance with law”, which include many exceptions to privacy.
Even more distressingly, the government refuses to redress in any intelligible way concerns with proposed new CSIS powers. Instead, its amendments seem to offer a simple proviso that CSIS shall not have “law enforcement powers”.
But that expression, a colloquial one rarely used in Canadian law, raises new interpretive headaches. We assume it means that CSIS will not have Criminal Code powers of arrest. We never thought it did. But arrest does not exhaust all the forms of detention exercised by state agencies.
If CSIS wishes to detain or interrogate, it will do so for threat disruption purposes, not “law enforcement”. The government’s peculiar language does precisely nothing to dispel concerns about a system of CSIS “security detention” or “detention for security interrogation.” Given the disturbing experience in other jurisdictions after Sept. 11, 2001, the absence of an express, emphatic bar on detention is alarming.
More than this, the government continues to avoid hard questions about security, liberties and C-51. On security, bill C-51 suggests a government with no clear security end-game. It does nothing to facilitate terrorism prosecutions. The government has not answered concerns that the new CSIS measures will “conflict” with RCMP police investigations or terrorism prosecutions. As retired Supreme Court Justice Major has pointed out, there is a need for real central government management of CSIS/RCMP relations.
C-51 does nothing in terms of counter-radicalization, likely our most important tool deterring the move to violence. The government appears to have no clear answer to concerns that CSIS “disruption” and C-51’s new speech crime might undermine counter-violent extremism initiatives in communities that are targeted.
It is still not clear to us whether the changes to preventive detention and peace bonds respond to real legal impediments, or simply offer a legal response to what are resource and operational problems. More than this, these tools are at best temporary solutions. They may be too weak to restrain determined terrorists. They may be too strong when applied to others swept into their reach.
In sum, the government has not made its security case.
Meanwhile, the major liberties concerns in C-51 remain, including: the privacy issues; a new speech crime that comes without defences and will reach speech far removed from threats of terrorist violence; and, continued, stubborn disregard of reforms to our national security accountability system, already strained without C-51.
Most shocking are the new CSIS powers to do things to people anywhere in the world, including things that violate the law and potentially any Charter right, so long as CSIS inflicts no bodily harm, no obstruction of justice and no violation of sexual integrity.
The government promises that such lawlessness would first be blessed by a court – in secret; with only the government side present or aware of the matter; with no appeal and no certainty the target will ever know the source of their subsequent misfortunes. As a number of witnesses before the Commons committee have suggested, this system turns our constitutional system on its head.
Bill C-51 substitutes the rule of law for a system in which the guarantee against abusive overreach will simply be internal government prudence, resource constraints, and an increasingly pious hope that an antiquated independent review system will outperform its limitations and detect error.
This is not satisfactory. Much work needs remains to be done to improve C-51 to better respect rights and to better protect Canadians from real security threats.