Repealing C-51 – an essential step in public safety and security

It is one of the stickier aspects of former PM Stephen Harper’s omnibus strategy.  Bills rammed through parliament as omnibus bills are harder to repeal and reform than stand-alone legislation. In fact, omnibus bills cannot be repealed.  After passage, the seventy laws gutted, repealed and replaced in Bill C-38 – the eco-disaster omnibus budget bill of spring 2012, can only be fixed by going back to each individual law and repairing it.  Similarly, after passage, C-51 ceased to exist.  It was also an omnibus bill in five parts.  Some of those parts touched on dozens of bills. C-51 cannot be repealed, but eliminating 90% of it is necessary.

The Liberals are pledging to get rid of any sections that are dangerous.  That’s pretty much the whole bill.  Here are its five parts and a rough sketch of what they do:

1) Information Sharing.  This is not about information sharing between spy agencies working together to stop criminal elements.  That would have been a good idea, but it’s not in C-51.  This ‘information sharing’ is about disclosing personal information about any Canadian to anyone who wants it.  This gives rise to the very scary deflection of those who seem to oppose civil liberties – “this does not worry me; I have nothing to hide.”  But you do have something to defend, and it’s called “your rights.”

2)  No Fly List Provisions. Pretty straightforward, but puts tremendous burdens on airlines to control the work of airport screening conducted by the Canadian Air Transport Security Authority (CATSA) – a group they do not manage or control.  This could be put down to bad drafting, but the committee was in such a rush to pass the bill, they could not be bothered to fix this. It also does nothing to reduce the confusion and inconvenience suffered by people with names or dates of birth similar to suspected terrorists.

3) The Thought-Chill Section. This one purports to deal with the promotion of terrorism on websites.  It adopted the unheard of notion of promotion of “terrorism in general.”  No one knows what that means, but the descriptors are so over-broad they could catch up a single image – a raised fist, a Che Guevara poster – as promotion of terrorism in general.  The impact of the limitations on even personal communication exceed other similar laws such as those to deal with hate speech and pornography on the internet.  C-51 does not exclude private communication and as a result it could put a chill on speech intended to persuade someone not to engage in terrorism.  Anti-radicalization efforts would be compromised.

4) Part 4 is the most dangerous.  It transforms CSIS, an agency designed to collect intelligence and share it with those who can act, to an agency empowered to disrupt plots.  Worse it sets up a private hearing before a sole judge, with no public interest advocate present, to grant warrants for constitutional breach.  None of our 5-eyes partners and no democracy in the world has any such provision.

5) Then there’s the final section. It is so opaque and incomprehensible that it received virtually no attention in committee.  No witness spoke to it.  It changes the way information going to a judge in support of a Security Certificate is handled.  Only Prof Donald Galloway of University of Victoria Law School figured out what its purpose was – to allow the use of evidence obtained by torture to be submitted to a judge, without disclosing that fact.

While the previous government claimed that we needed the extreme measures of C-51 to keep us safe from terrorism, the truth is that C-51 makes us less safe.  The approach of C-51, empowering CSIS agents to take action to disrupt plots, allowing the various security agencies of Canada (RCMP, CSEC, CBSA and CSIS) to operate independently of each other runs directly contrary to the advice of public security experts and to the conclusions of the Air India Inquiry.  So too is the Arar Commission report ignored in setting up the “information sharing” provisions of Part 1 of the bill, allowing virtually any information about any Canadian to be shared between and among all federal agencies and departments, as well as with foreign governments.  None of this makes sense, and none of it makes us safer.

In fact, according to Joe Fogarty a security expert from the UK who testified at the Senate on C-51, the way the bill is structured makes Canada’s security law a “tragedy waiting to happen.”    Mr. Fogarty gave specific recent examples of times when CSIS knew the RCMP was tracking the wrong people, but opted not to tell them.  Or when CSIS discovered a terror group in formation and also decided not to tell the RCMP.  As former Supreme Court Justice John Major testified to the House committee on C-51, it is an absolute certainty that security agencies will not share intelligence.  Major put it down to “human nature.”  But when CSIS agents are also empowered to give out “Get out of Jail Free” cards to people they are tracking, without warning the RCMP, or when CSIS agents have the right to get an exemption from the Charter of Rights and Freedoms in order to violate Canadian laws and/or Charter rights, the dangers of C-51 should be very clear.  The Liberals in opposition made a calculated political decision to vote for C-51.  Their most knowledgeable MPs, such as the Hon. Irwin Cotler, supported my opposition in the House and on the record.  They can leave in place and reform much of part 2; but the rest has to go.

Originally published in the Hill Times.