Tuesday, March 31, 2015

The Amendments Proposed by Each Party

UPDATE: When first writing this post, I somehow missed the web page off of Elizabeth May's personal page, where the Green party's amendments are posted, only catching a news release on the Green Party site which described them in general terms. I have updated the link, and may update this post later today to include more details on their amendments. Their amendments are 73 pages long, however, so it could take some time.

Because the NDP and Conservatives haven't released the specific text of their proposed amendments, I have struggled to summarize and compare them in table form. Also, addressing each of Roach and Forcese's proposed amendments would make for a long table. Instead, I'll offer a party-by-party summary of their amendments, as best we can currently determine what they are based on public information. The amount of information we have is about to change significantly (I think...) because the clause-by-clause review of C-51 by the committee will start today.

Before I get into that: There are many aspects of bill C-51 which I haven't yet had a chance to write about, but which are of concern. To give everyone an idea of the concerns that amendments ought to address (without having to read a GIGANTIC amount of text) I offer the open letter that was submitted to all MPs, by over 100 university academics across Canada, mostly professors or assistant professors of law. It's only 6 pages, and well worth a read. Since this was sent to MPs on February 23rd, they or their staff have had plenty of time to read it, so if a party's amendments don't address a point raised, it is unlikely to be because they are unaware there's an issue.

Open letter

Conservative proposed Amendments:
Note: information about these proposals is from sources who wish to remain anonymous, because the Conservative party is not permitting members to discuss proposed amendments publicly.
4 items:

  • Remove "Lawful" from definition of "Activity that Undermines the Security of Canada"
  • Make it clear CSIS can't arrest people
  • Remove "to any person, for any purpose" from part 1 (information sharing)
    • Other limits to information sharing?
  • Removal of language that would allow the public safety minister to tell air carriers to do "anything" that is "reasonably necessary" to prevent a terrorist act.

Liberal proposed amendments (specific amendment wording with line numbers)
Unamended text of C-51 (to put the text line number references in context)

  • Creation of a parliamentary oversight committee that keeps track of CSIS activity as it is occurring (the Security Intelligence Review Committee only reviews CSIS activity up to a year after it has occurred).
  • Sunset clauses after 3 years
  • Review of CSIS use of disruption power after 1 year, with potential recommendations for changes
  • Exclusion of advocacy, protest and dissent in part 1 unless done in conjunction with activity classified as a threat to the security of Canada per the CSIS act.
  • Removal of the ability for CSIS to get a warrant to contravene the Charter (although CSIS can still get a warrant for breaking Canadian law)
  • Add a requirement for the Privacy Commissioner to submit a report annually on the use of Part 1 information sharing.
  • Remove "to any person, for any purpose" from part 1
  • Require the Security Intelligence Review Committee to review "all aspects" rather than "at least one aspect" of CSIS' use of its expanded powers, each year.
  • Require the SIRC report to be made before parliament (which is not currently a requirement. Under the CSIS act, a report is made to the minister, but there is no provision for this report to be seen by Parliament).

NDP proposed amendments

  • Remove CSIS disruption powers
  • Somehow remove definition of "Activity that undermines the security of Canada". Unclear how. Roach and Forcese have suggested substituting the existing definition of "threats to the security of Canada" from the CSIS act, into the information sharing portion of C-51, rather than introducing a broader concept for this Part.
  • Remove the lower threshold for preventative detention (currently C-51 proposes to allow preventative detention if it is reasonable to believe that someone "may" commit a terrorist act, rather than "will", as the current criminal code states)
  • Strengthen existing oversight of CSIS (not clear how - also, does not make the distinction between "review", which currently occurs in a very limited fashion, and "oversight", which does not. Quick fact: "review" is after-the-fact, "oversight" is before/while activity is ongoing.)
  • Adopting a system of parliamentary oversight
  • More action on deradicalization (deradicalization is thought of by many as more effective than criminalization, in efforts to stop potential terrorists from becoming actual terrorists)
  • 3 year sunset clauses
  • Narrowing the grounds for listing individuals on the no-fly list and providing an appeal process.

Green party proposed amendments

  • 60 amendments total proposed, covering all sections of the bill. Would effectively heed the call in the open letter to Parliamentarians that "C‐51 not be enacted in anything resembling its present form."

I hope to provide more analysis soon, either as an update to this post or as new posts, but here are some quick thoughts:

  • It is very good that whatever happens (even if the Conservatives accept no amendments from any other party), civil disobedience will not be a cause for information sharing, because the word "lawful" will be removed from the definition of "activity that undermines the security of Canada.
  • It is unfortunate that none of the parties (except, presumably, the Greens) have brought forward amendments addressing the vaguely worded new criminal offense around advocating terrorism.
  • It is VERY unfortunate that the Conservatives have chosen to include no reductions whatsoever to CSIS' proposed ability to do unconstitutional things, and no amendments to make the warrant process even slightly more palatable (still done at the discretion of CSIS, in secret, with no devil's advocate representing the person or group whose rights are to be ignored, no appeal process, no effective means of validating that the permission granted in the warrant was what was actually done, and no oversight, only extremely limited review. A post to come on how limited the review will be, unless amendments are accepted that change the status quo).
  • Arresting people isn't the same as detaining people. I am concerned that the wording around arrest will make it seem to the public like CSIS can't take people into custody and hold them there, potentially indefinitely (with a constitutional breach warrant), while leaving them the wiggle-room to still technically be able to do just that. We'll see. 
  • Creation of a parliamentary oversight committee is definitely a good idea, but the Hill Times is reporting that all attempts to increase oversight will be ruled out of order.
  • Sunset clauses would be great. Whether they are in or not, if the next government isn't Conservative, it should review this legislation (and probably will - the Liberals have said they will, and one assumes the NDP and Greens would do so as well).
  • It is surprising that the NDP's discussion of their proposed amendments is so vague. It seems to me to mostly overlap with the Liberals, as well. Which I think is good, because the Liberals are the swing vote, so the Conservatives may adopt some of their amendments to get them on-side.