Civil liberties, First Nation rights compromised by C-51, committee hears

Part one of today’s two-part committee hearing into the Anti-Terrorism Act 2015 (C-51) has just wrapped up, with five of six witnesses opposing many aspects of the legislation for their potential impacts on civil liberties, the right to protest (without fear of surveillance, or being labelled a terrorist), and possible legal violations of First Nations rights, in both the democratic process (lack of consultation) and substance of C-51.

But the day started off with a CBC article wondering why Canada’s privacy commissioner, Daniel Therrien, has still not been invited to present. There was some back and forth about it at committee on Tuesday, with Public Safety Minister Blaney telling MPs his office had consulted Therrien and intends to meet with him, and that there are “embedded mechanisms in Bill-C51…such as the privacy impact assessment, that will apply to the measures planned in this bill.”

But look at Therrien’s written submission to committee and you quickly realize the legislation is dripping with language that undermines the privacy of just about anyone in Canada, not just people who pose an alleged threat of committing a terrorist act. Michael Geist of the University of Ottawa says the bill should be renamed the “Anti-Privacy Bill” for its “evisceration of privacy protection.” The privacy commissioner makes five recommendations for safeguards for the types of information that can be shared between the 17 government agencies listed (and with foreign governments), for example that it meet the necessity standard rather than the relevance standard proposed, and that the information be destroyed quickly if it is not useful.

Carmen Cheung, a senior counsel with the British Columbia Civil Liberties Association was the first to present today, and raised the same concerns as Canada’s federal and provincial privacy commissioners, that C-51s information sharing provisions are “fundamentally flawed,” based on an “unbounded scope of what it means to undermine Canadian security.” (See the BCCLA’s “8 things you need to know about Bill C-51.”) Cheung questioned government assertions this poses little threat to legitimate protest and dissent, pointing out the RCMP and CSIS already monitor environmentalists and First Nations, as closely, sometimes, as they do alleged terrorist threats.

The BCCLA further questioned the need to expand on Canada’s no-fly list (Passenger Protect), which catches people “deemed too dangerous to fly but too harmless to arrest.” Cheung said the C-51 expansion of Passenger Protect creates a system where people won’t know if or why they’re on the no-fly list, and worsens a secret review process with a dangerous lack of due process. The ability of Canada to share the information of people on that list, with virtually no caveats, puts people’s lives at risk when they travel to other countries, she explained.

In his presentation later this morning, Paul Champ, representing the International Civil Liberties Monitoring Group, explained that repeated requests, since 2007 (when there were 2,000 people on Canada’s list), for more information on the no-fly list (e.g., the number of people on it now) have gone unanswered by the government. He asked why we were “doubling down” on the no-fly list system when we should be reviewing it for its efficacy and impact on rights. Champ told committee U.S. courts found the U.S. no-fly list violated the equivalent of Section 7 of Canada’s Charter (life, liberty and security of the person).

Both the ICLMG and BCCLA also opposed expanding the definition of promoting terrorism in the criminal code, of lowering the threshold for preventative arrests, and of giving CSIS the power to disrupt what they consider to be threats, based on a much broader definition of what threatens the security of Canada, and by violating Charter rights if a court warrants it.

During the question and answer period, Conservative MP Ted Falk asked Champ if there was anything in Bill C-51 he liked, as if there is some requirement to see the silver lining in every piece of terrible legislation. Nonetheless, Champ found something—its section on peace bonds, which would give police the ability to limit the actions of people suspected of posing an immediate threat. The witness said this one clause would address most of the concerns he has heard from the police and government about improving the Criminal Code to make it easier to stop potential terrorist acts.

Joanna Kerr presented on behalf of Greenpeace Canada, starting off by asking committee if women would have the vote today, or if the civil rights movement in the U.S. would have succeeded, or if democratic or colonial governments would ever have been overthrown if peaceful but illegal protest actions had not occurred. She explained that Greenpeace has engaged in many successful non-violent direct actions that got results on acid rain, toxic dumping in oceans, nuclear testing at sea, and clear-cutting on the West Coast, and worries that C-51 “could be used to target democratic protests engaged in such struggles.” Kerr and Greenpeace colleague Keith Stewart pointed out to committee that the RCMP and CSIS already consider climate activists almost as terrorists, and expanding the definition of what constitutes a threat to Canada will put a chill on legitimate, and important, dissent.

You can read the BCCLA presentation here, Champ’s presentation on behalf of ICLMG is here (watch his interview with CBC here), and the Greenpeace Canada submission here.

Ron Atkey, a former Progressive Conservative MP and Canada’s first chair of the Security Intelligence Review Committee, also spoke, mostly on the need for proper oversight of Canadian agencies and departments engaged in anti-terrorism and security work. He repeated many of the points he made on CBC’s The Current on Tuesday (listen to that interview here). He asked why CSIS’s budget has increased exponentially since 1984 while SIRC’s is “frozen in time.” More substantively, he questioned why CSIS’s powers would be expanded to allow them to violate a person’s Charter rights and freedoms absent use of the notwithstanding clause by the government. He suggested that committee should redraw those provisions so that CSIS will not be allowed to break Charter rules in any disruption activities C-51 authorizes.

The final witness worth noting (because I’m not sure what to make of Barry Cooper of the University of Calgary, and the long-winded questions to him about support for terrorism in academic institutions by Conservative MP Diane Ablonczy) is Assembly of First Nations Chief Perry Bellegarde. “The key issues at stake in Bill C-51 are the state’s power to place individuals or groups under surveillance, to monitor their everyday activities, to create criminal offences that affect our ability to exercise our legally recognized rights, and the overall relationship of State power to fundamental human and Indigenous rights,” he told committee. You can read the full presentation here.

First Nations are already labeled as terrorists when they stand up for their rights to land, clean water and sovereignty, said Bellegarde, a point made by earlier witnesses, and especially Greenpeace, in relation to anti-pipeline battles. He also emphasized that First Nations rights were violated already by the process in which C-51 is making its way through Parliament—without the government’s prior consultation with Canada’s First Nations as per Section 35 of the Charter. Bellegarde asked the government to withdraw the legislation and develop a process with First Nations by which all federal legislation impacting the assertion of Section 35 rights can be reviewed.

Opposition and government MPs questioned the process of the hearings so far, worried that too many witnesses have been put into too few spots, creating time crunches for both witness presentations and MP questions. Conservative MP Roxanne James asked the chair to reduce the usual 10-minute maximum for witness presentations to seven or eight minutes, which the chair said he’d consider doing in upcoming sessions.

The committee meets again at 6:30 p.m. today with presentations from the National Airlines Council of Canada, University of Toronto professor Kent Roach, the National Council of Canadian Muslims, Amnesty International Canada (their brief is here), and Carleton University professor Elliot Tepper. Committee takes a break next week before resuming on March 24.

Stuart Trew is the CCPA’s Senior Editor. Follow Stuart on Twitter @StuJT.

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