Thursday, March 26, 2015

Am I a Terrorist According to C-51?

Update: I just remembered that the "advocating terrorism offenses in general" provision was in part 3. So when I call it one of the least worrisome parts... well, let's just say I predict there will be a post about "terrorism offenses in general" in the next few days.

Update: During clause-by-clause review, an amendment was accepted that struck out the word "lawful" from the definition of "activity  that undermines the security of Canada". So read the post below with that change in mind.

Ok. This post is to address one of the major confusions/misunderstandings around this bill. People who oppose it, are passing around things like this:

While Conservative MPs in the committee hearings are telling people they're wrong about that, and I've seen several claims that conservative MP LaVar Payne dismissed concerns about the legislation’s information-sharing provisions as “conspiracy theories.”. I am behind on my committee-watching, so I didn't hear that directly, but I've heard similar statements and similar government responses. So, who's right? Who will be caught by the "Anti-terrorism act"? Just terrorists, or peaceful protestors and maybe regular people just going about their business? That's what I'll try to answer today.

For those who just want a short answer, something close-to-right is "If you're protesting something, unless you're very careful to be "lawful" (which is hard), a bunch of government departments can share information about you, but you won't be detained or charged with a crime or subject to CSIS regarding you as a threat to the security of Canada." But of course, it's a bit more complicated. Here we go...

First, a quick primer on the three parts of C-51 that apply to the following discussion. See, C-51 is a bill that contains within it a bunch of other bills, like a collage of pictures that is all contained within the same frame. That's why it's called an "omnibus" bill. There are 5 main parts, and it includes amendments to a bunch of other current laws. We'll be discussing parts 1, 3 and 4 in this post.

Part 1 is the information sharing part. I'm thinking I'll do an entire post on this later, but the bottom line is the privacy commissioner of Canada was excluded from the committee hearings even though the NDP and Liberals wanted him in, because the information sharing part raises very serious privacy concerns. If you want to read about them, he made a written submission to the committee. This part is meant to share information about "activity that undermines the security of Canada". Keep those words in mind for later.

Part 3 is the part that pertains to amendments to the Criminal Code. Surprisingly, this is one of the least worrisome parts in my opinion. Mainly because the provisions for dealing with terrorist offenses in the criminal code were already really strong after 9/11, and the amendments in C-51 just kind of tweak things a bit, allowing preventative detention to occur for 7 days rather than 3 days, and creating the idea of a peace bond, and a few other things (EDIT: Including provisions against advocating terrorism "in general" which is a legally ambiguous way of phrasing things, and could have an impact on deradicalization efforts). A peace bond is kind of like a restraining order, where someone commits not to do something, and the police can take action quickly if the person does what they have committed not to do. Maybe I'm not worried about it because the criminal code is complicated and I don't understand it all (it's hard to get a sense of the effect of an amendment, unless you've fully read the thing that's being amended, which in the case of the criminal code, because it's gigantic, I haven't) but in the hearings I've listened to, one person who was a former prosecutor spent his time telling the committee how horrible C-51 was. Roxanne James, parliamentary secretary to Steven Blaney (who proposed the bill in the first place) then decided that rather than asking clarifying questions, she'd ask him if he would like to take some time to tell everyone if there was anything, anything at all, that he thought was good about the bill. And he said the peace bond provisions were OK, and could be useful. Anyway, the definition of bad things that applies in that part is "terrorist offenses" as defined in the Criminal Code.

Part 4 is the most awful bit, which I've discussed in yesterday's post. It amends the CSIS act, which describes what CSIS can and can't do. As a side note, there's another bill currently before the senate (C-44) which also amends the CSIS act. Those great guys at have merged the changes proposed by C-44 and C-51 into the current act, so that people can read the amendments in context. It's an unofficial document, but you can find it here. And part 4 of bill C-51, because it's all about amending the CSIS Act, relies upon the definition of "threats to the security of Canada" found in that act.

With that background out of the way: a key distinction is between "activity that undermines the security of Canada", as found in part 1 of bill C-51, and "threats to the security of Canada", as defined in the CSIS Act. In normal-person English these would mean about the same thing, so it's completely understandable that many people are confused by the fact that in C-51 they're completely different things.

"Activity that undermines the security of Canada" means:
any activity, including any of the following activities, if it undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada:
(a) interference with the capability of the Government of Canada in relation to intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada;
(b) changing or unduly influencing a government in Canada by force or unlawful means;
(c) espionage, sabotage or covert foreign-influenced activities;
(d) terrorism;
(e) proliferation of nuclear, chemical, radiological or biological weapons;
(f) interference with critical infrastructure;
(g) interference with the global information infrastructure, as defined in section 273.61 of the National Defence Act;
(h) an activity that causes serious harm to a person or their property because of that person’s association with Canada; and
(i) an activity that takes place in Canada and undermines the security of another state.
For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.
"Threats to the security of Canada" means:
a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,
c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and
d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the  constitutionally established system of government in Canada,

but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d).
Now, I could write a small book analyzing each of these definitions. Both seem over-broad and open to abuse to me, but there's one key difference when we're talking about whether to support or oppose bill C-51. That is, only the first of the two is up for debate. "Threats to the security of Canada" is a definition in the CSIS act, not in bill C-51 itself. Whether C-51 becomes law or not, will not affect whether that definition is in force. Whereas the definition of "activity that undermines the security of Canada" is in C-51 directly, and can be opposed or amended during this next week or so. So I'm going to focus on that definition for a bit.

To me, the definition of "activity that undermines the security of Canada" seems far more broad than would fit any reasonable person's definition of "terrorism" - which is what bill C-51 is sold to the Canadian public as being about. Plus we know that "activity that undermines the security of Canada" is not focused exclusively or even strongly on terrorism, because "terrorism" is point d on the list, below interference with the government, and changing or attempting to unduly influence the government. So that's one strike - an anti-terrorism act should be about fighting terrorism, and sneaking other goals into it is not cool. And I could see how "interference with the capability of the Government of Canada ... in relation to the economic stability of Canada" might be of concern to the First Nations and environmental activist groups who have spent the last several years protesting pipelines and forestry plans and the like, and often getting arrested for it. Being cast as engaging in activities that threaten the security of Canada in an anti-terrorism act... well, although Roxanne James might say it's a misinterpretation and LaVar Payne might call people's reactions conspiracy theories, it's not a giant leap, based on the definitions in C-51, for people to think "the government is classing us as terrorists!". And given that the RCMP has defined pipelines as critical infrastructure and warned of violent extremism within the environmental movement (source)... Ok, it's a house of cards stacking inference upon inference to conclude that a government whose leadership comes from the Alberta Reform party, might be using the pretense of terrorism-fear to push through measures that are really aiming to stifle environmental dissent to get pipelines pushed through. I'm not actually saying that. But the "optics", as the media people might say, are really bad on this one. And taking it as a given that the government is genuinely trying to do something good about terrorism with this bill wouldn't preclude the possibility that they're also trying to get pipelines pushed through even though many groups may object. And scaring people by confusing them about what qualifies you as a terrorist and removes your Charter protections... yeah, that would probably make people more reluctant to come out and protest things.

But me, I think open debate that includes all sides of an issue is how we come to the best decisions. So to those who are scared that protesting might turn you into a terrorist in the eyes of a new legal regime... not when it comes to the really scary parts, it won't - whatever happens with C-51, the definitions of threats to security or terrorist offenses in the criminal code and the CSIS act will remain as they were before. Yes, C-51 will make it easier for government departments to share information about you if you do something that isn't "lawful" (and the definition of "lawful" in this context will probably get another blog post), but you won't be disappeared. And if it's any consolation, not only the Federal privacy commissioner but also all of the provincial privacy commissioners have vocally opposed part 1. If C-51 does pass, I doubt all of the privacy commissioners will just forget what's in it and move on, so opposition is likely to continue.

And on that note, it's time for me to stop typing and let you all go do other things. Have a lovely evening :)