What a difference a year makes.
Former Prime Minister Harper launched Bill C-51, the Anti-terrorism Act, 2015, at a campaign-style event in Richmond Hill, Ontario, on Jan. 30, 2015. According to Harper, C-51 was a response to "violent jihadism." That event was emblematic of the politicization of law and policy during the last decade.
Fear & Politics
Despite the rhetoric, C-51 brought unprecedented changes to Canada's national security landscape reaching far beyond "violent jihadism" or even terrorism. It was a bait and switch, exploiting fears still fresh from the killing of soldiers Patrice Vincent and Nathan Cirillo, to dramatically expand the national security apparatus.
The new law introduced:
Information Sharing: C-51 created a vast government-wide information-sharing regime predicated on the open-ended basis of "undermining the security of Canada." The new regime lacks effective safeguards and transparency. After Snowden's revelations we should be worried about information collection, manipulation and sharing in a Big Data world.
No-fly List: C-51 codified the no-fly list but left it shrouded in secrecy and failed to address whether no-fly lists are effective in keeping air travellers safe.
Criminal Code: C-51 relied on ambiguous terms to criminalize expression that may be far removed from actual criminal acts. This may silence unpopular but non-criminal expression either directly or through self-censorship. Furthermore, C-51 extended the period of detention without charge, which is a striking departure from our constitutional values.
CSIS Powers: C-51 gave the Canadian Security Intelligence Service (CSIS) dramatic new powers to "reduce" threats to the security of Canada. This ignores the rationale for creating CSIS in the 1980s in response to the illegal activities of the RCMP Security Service. CSIS was established to separate intelligence gathering from enforcement. The "reduction" powers mean that CSIS may engage in a wide range of enforcement-like activities in secret. This is a recipe for trouble not only in terms of dirty tricks and mistakes, but also because it dampens CSIS's incentives to co-operate with the RCMP in national security investigations. As well, under C-51 judges can authorize Charter of Rights violations, which perverts the judicial role in our legal system.
Secrecy: C-51 allows evidence to be withheld from special security-cleared lawyers in closed hearings involving immigrants and refugees. This flouts a key Supreme Court decision that found total secrecy in these proceedings contrary to Charter rights.
Support for C-51 eroded as Canadians learned more about it. Despite the public's discomfort, the Conservatives dismissed concerns out of hand and stooped to usingad hominemattacks against critics. The C-51 debate stands as a low point in our nation's public discourse because it mimicked the toxic political culture of contemporary America.
I advocated for the Canadian Muslim Lawyers Association on C-51, collaborating with a nationwide coalition of leading civil society organizations. Our concerns about C-51 fell on deaf ears in the halls of power.
A Fresh Start?
Canada has a new government with a markedly different tone. Gone are the cardboard villains and divisive rhetoric.
Despite voting for it, prime minister Trudeau promised that C-51 would be amended. However, because C-51 is deeply flawed the best approach is to scrap the legislation and start fresh. That brings these advantages: (i) it allows reasonable and focused legislation to be developed that responds to genuine national security needs while respecting the Charter and rule of law, (ii) it provides opportunities for broad-based engagement to foster trust and build social license for Canada's national security project, and (iii) it creates ownership in a critical public policy area that is not based on the flawed legislation of a predecessor with a starkly different worldview.
If the Liberals do not start fresh, they should begin with the following amendments to address C-51's most egregious defects:
Information Sharing: Tighten and limit the basis for information sharing. Introduce centralized transparency, safeguards and accountability over all national security-related information sharing. Limit and strictly control the sharing of information outside Canada's government. Remove government immunity from litigation for harms caused by information sharing.
No-fly List: Undertake a robust public review of the no-fly list system's effectiveness. Ensure fairness, transparency and an effective redress process for those adversely affected.
Criminal Code: Ensure that only expression directly linked to criminal activity is captured. Strictly control the use of detention without charge and limit police and security agencies' authority over detainees in these cases to avoid abuses of power.
CSIS Powers: Repeal CSIS's power to "reduce" threats to the security of Canada. Ensure that the exercise of all CSIS powers is consistent with the Charter.
Secrecy: Restore security-cleared lawyers' access to all evidence in immigration and refugee proceedings.
Reforming National Security
C-51 isn't the end of the road on national security reform; it's the beginning. Canada's national security sector requires transformative change. In that regard, the government should begin work on the following:
Accountability: In addition to a Parliamentary Committee on national security Canada needs a unified review body that will have: (i) jurisdiction over all national security functions across government, (ii) a strong mandate and appropriate security clearances to examine the work of the national security sector, (iii) sufficient resources to carry out its work, (iv) security-cleared lawyers on staff to test government claims and evidence in all national security-related secret proceedings, and (v) robust investigation, complaints and remedial processes. The government should also establish an independent watchdog similar to the UK's Independent Reviewer of Terrorism Legislation. These changes will help create a culture of accountability, build public trust and drive positive reform.
Secrecy: Where secrecy is used in national security proceedings security-cleared lawyers should be present to test government claims and evidence.
Torture: Abolish the "Suresh exception", where the Supreme Court left the door open for deportation to torture, by introducing an absolute prohibition against deportation to torture in the Immigration and Refugee Protection Act. Also, repeal the previous government's directives to the security agencies allowing the use and sharing of information linked to torture.
Arar Recommendations: Implement the Arar Inquiry recommendations.
National security is important because it is linked to things that matter to each of us, like public safety, human rights and civil liberties. That's why it's crucial to keep Canadians safe in a manner that doesn't compromise the spirit and values of the nation we are trying to protect.
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