Policy on Comments

UPDATE, 2015-04-13: I've enabled comments, with moderation. At first I was concerned that if I enabled comments, I'd be overwhelmed with the kind of comments that make me regret reading the comments section on news sites. After the first few weeks, since my viewership appears to be in the low double digits, I don't think that's going to be a problem. So now the friends of mine who appear to be most of the people reading this blog, get to comment! :)

Here's the original post...

Some people may have noticed that I've disabled comments on blog posts. This isn't because I want to stifle discussion (far from it), it's just that right now I don't have the time or energy to allow this to happen:

So, I won't be enabling comments. However, one useful function of comments is fact-checking, and I still want that to happen.

Note the difference between fact checking and opinion checking, though. I have opinions, I may slip a few in here and there, and debating opinions (although fun) is time consuming and messy, and I don't have time right now. But if I get a fact wrong, I want to know, so that I'm not accidentally spreading misinformation. So if you notice that I've got a fact wrong, e-mail me at c512015commentary@gmail.com, with a link to a reliable source of information which contradicts something I've posted. I'll send you something quick in reply like "message received", and depending on whether your source is good, I will (at my own discretion) edit the relevant post(s) and include an UPDATE: line at the top to indicate that an edit of substance has taken place. (By "edit of substance" I mean more than just fixing a typo, that the information in the post has changed significantly).

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 antiterrorlaw.ca 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 :)

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.

(source)

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.

 Confidentiality

 (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.

An Introduction, and a Disclaimer

Hi. This blog is probably going to be short-lived, but hopefully it will contribute something to people's understanding of bill C-51, the "Anti-Terrorism Act, 2015".

As a part of my job, I am required to keep up on laws that affect privacy and information security in Canada. But, disclaimer: I'm not a legal expert of any kind, whatsoever, at all, not even slightly. But I do sometimes find myself reading legislation and trying to understand what it means, so that I can explain the important parts to other people. When I have to do that, I always preface my comments with something like "if you need an official opinion, you should ask a lawyer, but here's what I currently understand" - and anything said in this blog should be read with that proviso. I might get some things wrong, but I'll do my best not to.

Right now (March 25th, 2015) a piece of legislation with some deeply disturbing provisions is at committee. What "at committee" means is that it's passed the House of Commons twice, and now has gone off into a process that is meant to allow Members of Parliament to hear from members of the public who are interested in having a say on the bill, and have some expertise or a unique perspective to offer. In the next couple of weeks, the committee hearings will finish, and the bill will go before the House of Commons for a third and final time. At which point, unless Canadians make it VERY clear to our elected representatives that voting for the bill will cost them politically, the bill will pass the House, and go on to be debated in the Senate, where it will probably pass too. I say that because the current government has a majority in both the House and the Senate, so unless the opposition and some government members vote against it, it will pass.

I don't have any party or political affiliations, and I don't intend to start now. Although I have opinions about things, I'm not normally someone who engages in political debate unless I see someone say something particularly stupid and I can't help myself. The first time in my entire life that I wrote my MP was a few weeks ago, about this bill. I'm going to take some of my evenings and weekends until the bill has come and gone, and explain, to the best of my ability, what's wrong with it, and why people like me who have never expressed their opinion to their MP before, should consider doing so. The short answer is "because this bill affects all of us, not just terrorists, and maybe they'll listen".

Lots of people have already explained a lot of things about this bill, and some of them are better at it than me. If you want some of the best I've found in a month and a half of research, go to antiterrorlaw.ca. But there's enough information out there that it can be overwhelming, so this blog will be a curated list of the things I think are most important to understand, or that people seem to be misunderstanding a lot. I'll try to keep the individual blog posts bite-sized, although I'm not good at that so be prepared for some reading. But 10 minutes a day for a week or so, reading about this, is worth it to understand a bill that gives our government and our intelligence services much more sweeping powers. Most bills, I go "meh". But this one's important.