In the lead-up to the 2015 federal election, the Liberal Party of Canada made a cynical deal: they would hold their noses and vote for the Conservative government's Anti-Terrorism Act, 2016, also known as Bill C-51. They claimed to do so in order to avoid allowing the Conservative Party to call them weak on security during the upcoming election. In return, they promised Canadians that a Liberal government would repeal the worst parts of Bill C-51 once elected.
This promise ignored the fact Bill C-51 was an incredibly unpopular piece of legislation, with only 33 per cent support and cross-country protests calling for its complete repeal. Civil liberty and legal experts questioned the bill's very constitutionality.
But that is the past. Let's look at the present: in June 2017, the Liberal government introduced Bill C-59, the National Security Act, 2017. Coming after months of consultation, this is the government's primary response to the problems with Bill C-51. At 150 pages long, it's a massive bill that creates various new acts and brings extensive modifications to existing laws.
Over the summer, we at the International Civil Liberties Monitoring Group (ICLMG), along with many of our coalition members and allies, pored over the bill. This past week, along with 38 other organizations and experts, we issued a strong statement: Bill C-59 does not fix the ills of Bill C-51 and fails to place the protection of Canadians' rights at the heart of our country's national security activities.
It's important to remember that many organizations, including the ICLMG, called for the complete repeal of Bill C-51. The Liberal Party has refused that call. Even by their own standards of repealing the most egregious sections of Bill C-51, the new National Security Act falls short.
In an open letter, the ICLMG and our allies point to a wide range of concerns. You can read the entire letter here.
Even by their own standards of repealing the most egregious sections of Bill C-51, the new National Security Act falls short.
Here are five major areas of concern:
1. Information sharing
One of the major concerns of with Bill C-51 was the new provision to allow government departments to more easily share Canadians' personal information with nearly 20 departments bearing a national security mandate — they range from spy agency CSIS to Health Canada. The renamed Security of Canada Information Disclosure Act would still permit departments to disclose far too much information in their pursuit of questionable security objectives. This information-sharing would also continue to disproportionately affect Muslim and Arab communities, Indigenous land and water protectors, and political and environmental activists, even with the government's proposed changes.
Over the past several years, both the Canadian Security and Intelligence Service (CSIS) and the Communications Security Establishment (CSE) have been found to overstep legal boundaries in their surveillance of Canadians. Instead of reeling in these powers, Bill C-59 legitimizes this troubling conduct by allowing for greater mass surveillance and extensive data-mining, both in Canada and internationally.
3. Spy agency disruption powers
Spy agencies are meant to spy; law-enforcement agencies are meant to take actions against criminals. That's because spy agencies operate in secret, while (in theory) law enforcement agencies work out in the open, with their tactics and evidence eventually being challenged in open court. Bill C-51 blurred these lines in a major way by granting CSIS new "disruption powers" that allow them to, for example, interfere with someone's movement, tamper with equipment or share false information. Some of these actions would need to be approved by a judge, but those warrants would be issued in secret and could never be challenged by the targeted person in court.
So, for example, if a person has not committed a crime, CSIS could still interfere with their movement and they would never be able to challenge the legality of that action — including whether it infringed on the rights under the Canadian Charter of Rights and Freedoms. Bill C-59 brings in some new restrictions on these powers, but does not go nearly far enough. And, to be clear, we believe that the only adequate solution would be the elimination of any secret disruption powers.
4. The no-fly list
While Bill C-59 would allow for parents to find out whether their children are (mistakenly) listed, it does little to provide redress for others who may be mistakenly refused access to a flight. It also does nothing to ensure that there is an open and transparent method for an individual to challenge their inclusion on the list (let alone find out if they are on the list before they go to board a plane).
The general risk that our security activities could continue to contribute to torture remains. The bill also leaves intact the possibilities of rendition to countries where there are risks of torture. Ministerial directives on torture, which allow Canada to use intelligence gathered under torture and share information with regimes that engage in torture, remain in place, even though they have been under review by the minister of public safety since February 2016.
The creation of new review bodies cannot make up for dangerous and unjustified national security powers.
Bill C-59 does introduce some improvements to our national security framework. In particular, it creates important new bodies to review and control national security activities. This is a strong start in the right direction (even if we see areas where these agencies can be strengthened). However, the creation of new review bodies cannot make up for dangerous and unjustified national security powers. We also question including the creation of new review and oversight bodies in the same bill that would grant troubling new powers to security agencies. The adoption of stronger safeguards should not be contingent on accepting these new national security powers.
The government has said throughout their consultations on national security that they believe in putting civil liberties at the heart of Canada's national security laws. We'll continue working to make sure that's what happens.
To support us in that work, visit our website here. You can also find out more by attending or live-streaming our discussion on Bill C-59's impact on human rights this Tuesday, Sept. 26 at 7:30 p.m. Details here.
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