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Bill C-51 and the rush to insecurity for human rights

    Thursday, April 30, 2015 - 17:13

    By Alex Neve, Amnesty International Canada's Secretary General. Follow Alex on Twitter @AlexNeve Amnesty

    The rushed passage through Parliament of Bill C-51, the furthest-reaching national security reforms in Canada since 2001, continues.  It is soon to be passed by the House of Commons and then head off to the Senate.  And all signs are that the government intends to push it through the Senate as quickly as possible, with an eye to the Bill becoming law before the summer Parliamentary break.

    Debate in the House at both second and third reading has been limited.  The numbers of hearing sessions before the Committee charged with giving it careful and thorough review were far less than required.   It still defies belief, for instance, that faced with a Bill that will lead to a new statute establishing the most expansive information sharing framework Canadians have ever seen, the government refused to invite the country’s Privacy Commissioner to testify before the Committee.

    Despite the fact that feedback in front of and outside the Committee has been sweeping in its criticism of the numerous new powers, procedures and criminal offences included in Bill C-51, the government has only agreed to a tiny handful of amendments which, at best, could be said to tweak and tinker. 

    Advocacy, protest, dissent and artistic expression

    The only slight improvement in that minimal tweaking clarified that all forms of advocacy, protest, dissent and artistic expression, and not only those considered to be “lawful” (which was not defined but was thought to limit its reach to protests, for instance, which obtain municipal permits and do not involve civil disobedience) will be exempted from the reach of the new information sharing regime.  Amnesty International and many other organizations and experts had noted the obvious; the earlier formulation would almost certainly infringe rights to freedom of expression, association and assembly.

    That same change was not, however, made to the unprecedented new powers granted to CSIS to take action to reduce threats to the security of Canada.  Those powers are still subject to the much narrower limitation that it is only “lawful” (again not defined) advocacy, protest or dissent that is protected and thus excluded from the range of security threats that could be subject to these new powers.

    Notably, when we turn to the existing legal provision that defines ‘terrorist activity’ in the Criminal Code, we find yet another formulation of the protection afforded to those involved in protest and dissent.  Here it is “advocacy, protest dissent or stoppage of work” that is exempted from the scope of that criminal offence. 

    It leaves things, to say the least, in a confused state.

    Any protest, dissent or advocacy, lawful or not, is protected when it comes to information sharing and criminal prosecutions.  (Unless of course the protest involves violence or other action that clearly brings it within other aspects of the definitions of terrorist activity or security threats.)  But when it comes to CSIS disrupting security threats, only lawful protest is safe.

    Then we have the fact that ‘artistic expression’ is explicitly protected when it comes to information sharing, but not with respect to threat reduction and criminal powers.  Furthermore there is no explanation as to why it is limited to ‘artistic expression’ and not simply to all forms of expression.  Under international human rights law and the Canadian Charter of Rights, freedom of expression is, of course, by no means limited to artistic expression.

    And the inconsistencies continue. 

    ‘Work stoppages’ are specifically excluded from the definition of ‘terrorist activity’ in the Criminal Code but are absent in the information sharing and threat reduction provisions.

    Amnesty International has highlighted that at a minimum all three of these national security powers – information sharing, threat reduction and criminal law – must provide the same level of protection for advocacy, protest and dissent; and that it must align with international human rights standards.  We have urged that all be amended to exempt advocacy, protest, dissent, artistic and other expression, and work stoppages from the definition of threats to the security of Canada and of terrorist activity.

    But this of course is tinkering and tweaking.

    Fundamentally, the many deeply troubling provisions in Bill C-51 that either undermine or directly violate Canada’s international human rights obligations remain unchanged.

    CSIS threat reduction powers

    The new CSIS threat reduction powers top that list, with no definition of the scope of the new powers (other than specifying it does not allow killing, committing bodily harm, violating sexual integrity, or perverting justice).  The Bill actually contemplates that the powers might involve Charter violations, for which – stunningly – a judicial warrant would have to be sought.  Judges issuing those warrants are, outrageously, told to disregard other laws, including the laws of the country in which CSIS may be intending to carry out its activities.

    Still of concern, as well, is the new criminal offence of promoting or advocating commission of terrorism offences “in general” (of course undefined).  There has been across the board condemnation that this is a vague, broad over-reach that will violate free expression and, more insidiously, significantly chill free expression even before it reaches the stage of criminal charges.   The government has never explained why this new provision is needed in addition to the many existing offences which already criminalize, for instance, counselling, threatening, planning and conspiring to commit terrorist acts.

    Almost limitless information sharing

    Amnesty International continues to be deeply concerned about the expansive, almost limitless information sharing regime which fails to include limits and safeguards to ensure that irrelevant, inaccurate and inflammatory information is not shared.

    Also still troubling are the expanded powers of preventive detention, allowing arrests without charge; and a weak appeal process for individuals who seek to have their names removed from no-fly lists.

    In our recent updated submission to the Senate we have also called for provisions that would restrict the access that Special Advocates have to all the evidence that government lawyers put in front of judges in security-related immigration proceedings, to be withdrawn.   Procedures such as security certificates and other immigration hearings involving national security accusations are already unfair and highly secretive.  Special Advocates were introduced following a 2007 Supreme Court ruling that found the security certificate system violated the Charter.  They are hamstrung in the role they can play as they are generally not allowed to communicate with the individual concerned after they have seen the secret evidence. 

    Bill C-51 would make it possible for information that is not directly relevant to the accusations the individual faces to be withheld from Special Advocates, as long as it is not relied upon by the judge in the final decision and is returned to the government by the judge.  It is a rather sinister and kafkaesque prospect of presenting evidence to judges, withholding it from the ‘other side’ and then agreeing in the end it is irrelevant and should be taken back from the judge.  It does nothing to bring confidence and fairness to an already unfair and lopsided process and should be abandoned.

    Effective review and robust oversight

    Amnesty International has also flagged crucial overarching concerns that apply to the entirety of Bill C-51 and, in fact, all existing national security laws.  The first is the longstanding and urgent need to bring comprehensive and effective review, alongside robust parliamentary oversight, to national security in Canada.  We lag far behind our closest allies in this respect.  The second is to give some force to the oft repeated rhetoric that national security and human rights can and do co-exist, by legislating a clear human rights framework for Canada’s national security regime.  Both have been unequivocally rebuffed and rejected by the government.

    All expectations are that Bill C-51 will have very little time in the Senate before it passes into law.  Nevertheless it is crucial that we continue to speak out and voice our concerns.  At its heart Bill C-51 grounds itself in the flawed notion that human rights have to give way when national security is on the line. 

    We must continue to remind our own government and governments around the world that it the precise opposite is true.  Living up to the full range of human rights obligations is the best guarantee of security; security for all of us.

    Read Amnesty's brief on the government's proposed amendments to Bill C-51 amendments

    Learn more about Bill C-51

    Join Amnesty'ca call to WITHDRAW BILL C-51