Thursday, March 26, 2015

The Single Worst Thing about C-51

This blog is partially to convince people who have no opinion about laws and such, that they should have one in this case, and tell their elected representative about it, before the bill comes before the House of Commons for the last time in a week or so. For busy people, or the 40% of Canada who didn't vote last time around, this is going to be a hard sell. But here goes. The single biggest reason you should care and contact your MP is because Bill C-51 explicitly allows the Canadian Security Intelligence Service (CSIS) to ignore the Charter of Rights and Freedoms. There are lots of bad parts of C-51, but in my opinion, that's the worst.

But what does that mean? What is the Charter? (you can skip this next bit if you know the answer)

In my opinion, the Charter of Rights and Freedoms is the part of the Constitution that makes Canada part of what some people call "the Free World". The Charter guarantees rights like:
  • Freedom of conscience and religion
  • Freedom of thought, belief, opinion and expression
  • Freedom of peaceful assembly
  • Freedom of association (Translation: to join or leave groups as you see fit)
  • The right to life, liberty, and security of the person
  • The right to be secure against unreasonable search and seizure
  • The right not to be arbitrarily detained or imprisoned
  • The right not to be subjected to cruel and unusual treatment or punishment
I really hope that everyone, whether they're for or against any law, can agree that those rights are important.

When I say "Bill C-51 explicitly allows the CSIS to ignore the Charter", what am I basing that statement on?

Section 12.1(3) of part 4 of the bill (go here and scroll down or search for "charter") reads:

The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1.

Which sounds OK, right? It's like the Charter guarantees you're protected against unreasonable search and seizure, except if a cop gets a search warrent - in which case the search isn't unreasonable.

But this particular type of warrant, and the circumstances under which CSIS could get it, are very troubling. I can't say it any better than Craig Forcese, a law professor at the University of Ottawa who has taught national security law for years and written several books on the topic, and been at the forefront of the legal analysis of the bill since it was first proposed. He said this when speaking during the committee hearings, on March 12th:
If bill C-51 passes, CSIS will be authorized to act physically to reduce “threats to the security of Canada”. Where authorized by Federal Court warrant, these “measures” may “contravene the Charter” or may be “contrary to other Canadian law”.

The government says it needs these powers so that, for example, CSIS can warn families that a child is radicalizing. No one in good faith could object to this. But the bill reaches much further. Indeed, the only outer limit is: no bodily harm; no obstruction of justice; and, no violation of sexual integrity, along with a more open ended and subjective admonishment that the Service act reasonably and proportionally. There is a mismatch between government justifications and the actual text of the law.

The current proposal is a breathtaking rupture with fundamental precepts of our democratic system. For the first time, judges are being asked to bless in advance a violation of our Charter rights, in a secret hearing, not subject to appeal, and with only the government side represented. There is no analogy to search warrants – those are designed to ensure compliance with the Charter. What the government proposes is a “constitutional breach warrant”. It is a radical idea, one that may reflect careless drafting more than considered intent.

In addition to the fact that the warrants would be obtained in a secret proceeding with only the government side represented, instead of an independent third party deciding that CSIS' proposed activity is illegal or unconstitutional and requires a warrant, CSIS gets to decide this for itself. And many of its activities are secret, and even some conservative MPs are now agreeing that more oversight is required than is available. It's like if I was to be on my honour to go ask permission before I secretly read my friend's diary. I'm an honourable person, but if I might not get caught, particularly if I thought getting information from that diary was doing something helpful to protect someone's safety, I might be tempted to skip the "I should ask permission" step, and just do it. In addition to that, it's been pointed out by Roach and Forcese that there is no mechanism in place to verify that what was actually done by CSIS complies with any limits set in the warrant.

And there's one more thing that makes this even worse. With a warrant, CSIS can compel other people to assist it in breaking the law or ignoring the constitution, and that warrant may require the person or group so compelled to keep it a secret. The language in the bill that pertains to this is section 21.1 and 22.3 of part 4:
21.1 (1) If the Director or any employee who is designated by the Minister for the purpose believes on reasonable grounds that a warrant under this section is required to enable the Service to take measures, within or outside Canada, to reduce a threat to the security of Canada, the Director or employee may, after having obtained the Minister’s approval, make an application in accordance with subsection (2) to a judge for a warrant under this section.

22.3 (1) A judge may order any person to provide assistance if the person’s assistance may reasonably be considered to be required to give effect to a warrant issued under section 21 or 21.1.


 (2) The judge may include in the order any measure that the judge considers necessary in the public interest to ensure the confidentiality of the order, including the identity of any person who is required to provide assistance under the order and any other information concerning the provision of the assistance.
To review: CSIS is empowered by bill C-51 to take almost any measures it wants, including breaking the law or ignoring the constitution. CSIS is on its honour to go ask a judge for permission if in its own judgement something it's doing is illegal or unconstitutional. This permission-asking process, assuming it takes place, will take place in secret without any representative of the person or group whose constitutional or legal rights are to be ignored being present, and there is no appeal process. Should the person or group wish to challenge CSIS' unconstitutional behaviour, this can only take place if CSIS' actions somehow become not-secret someday, and there is no provision for how this would happen (the review provisions in C-51 require CSIS to disclose how many warrants it asked for in a given year and general descriptions of the threats addressed and the measures taken, but not more detailed information that would allow the public or the review committee to determine what CSIS did to whom), or how this hypothetical challenge would be resolved, except to strike down C-51 as unconstitutional.

I hope that no judge would grant CSIS a warrant to break the constitution, since it's one of the judiciary's most important jobs to make sure the constitution is upheld. This probably has something to do with why 5 former supreme court justices have opposed this bill. But it worries me that if some judge did someday grant such a warrant, the public wouldn't know about it and there may not be any way to challenge it. And, giving CSIS the benefit of the doubt, they might with the best of intentions do something they believe is constitutional, but a judge would think is not. But no judge would ever get to decide, because under bill C-51, judicial oversight only happens when CSIS thinks it should.

If you oppose terrorism because you think our freedoms are important, then this erosion of our freedoms should worry you as much as it does me, and you should contact your MP and tell him or her so.