The act represents a drastic expansion of national security agencies’ powers - but without sufficient oversight
"Sunny ways my friends," Canadian prime Minister Justin Trudeau told his supporters on election night last year. "Sunny ways. This is what positive politics can do."
One of Trudeau’s main campaign promises was to hold public consultations to review and amend draconian national security laws (known as Bill C-51 at the time) that the outgoing Conservative government enacted prior to being thrown out in 2015.
After public consultations wrapped up last week, many are now awaiting to see if sunlight will disinfect the national security shadow.
Like most countries, Canada’s legal landscape underwent a seismic shift in the immediate aftermath of 9/11. The Liberal government, led at the time by prime minister Jean Chretien, enacted a slew of national security laws and policies. They included the 2001 Anti-Terrorism Act, which echoed the infamous American Patriot Act.
Despite a track record of rights violations, supreme court slapdowns and even a government apology for Canadian complicity in torture, a bad programme was made worse thanks to the Anti-Terrorism Act 2015 (ATA), which Conservative prime minister Stephen Harper railroaded through parliament before leaving office.
The ATA introduced several new acts and amended a heap of existing legislation. As we recently saw in the US, an ill-informed electorate may not be good for democratic ideals and principles - but it can often benefit politicians. An Angus Reid poll found that 82 percent of those questioned backed the legislation at the time, making it one of the most popular bills in Canadian history. The Conservative government's campaign of misinformation and fear mongering leading up to the bill certainly worked.
Indeed, 64 percent of those polled at the time believed that terrorism posed a serious threat to Canada - but the reality is otherwise. As others, including Paul Robinson, have argued, the biggest danger facing Canada is not terrorism but "self-inflicted threat inflation", whereby real threats are minimised while exaggerated threats dictate poor policy choices and lead to rights violations.
The Canadian flag flies at half-staff at the Consulate General of Canada in New York in October 2014 (AFP)
Thomas Muclair, the leader of the New Democratic Party (NDP) - the official opposition at the time - pointed out to no avail that all of the anti-terror successes in the past had been achieved under existing legislation. The NDP and Green Party took principled stands and voted against the bill.
But the Liberals were cowed into supporting the legislation. At the time, they indicated that while they agreed in principle with the intent of the plans, they pledged consultations and “swift” amendments to improve oversight and prevent abuse. Now, a little over a year later, Trudeau has an opportunity to do the right thing.
Real change - or a figleaf?
The government must decide whether they will make significant changes - or repeal the ATA. Unfortunately, given the way the act was packaged to the public, the fear is that Ottawa may use it as a figleaf to maintain the status quo with minor cosmetic changes.
Most reasonable Canadians would support improved security and severe punishment for convicted terrorists. But as highlighted by a growing chorus of opponents, there is more to the national security framework than what is apparent. In fact, the devil is in the details. These are some them...
1. Lack of oversight
There is a lack of meaningful accountability, oversight and review. One consolation from the polls which showed Canadians in favour of harsher laws was that a majority believed there should be greater oversight. It's a view echoed by numerous critics, including 22 prominent Canadians. Among their ranks are former prime ministers, Supreme Court justices and security officials.
Yet, the Liberal government’s answer - an emasculated parliamentary review committee to oversee the 17 federal agencies involved in security - is inadequate. At the bare minimum, the committee requires more powers, greater independence and broader stakeholder inclusion: as it stands, ministers can refuse to provide information if it “would be injurious to national security”.
“No committee or oversight bodies can provide meaningful accountability in the face of dangerous and recklessly over-broad powers granted to agencies working in national security,” says Michael Vonn. Moreover as he notes, the government’s consultation “used the concept of 'accountability' very narrowly.” In essence, it may be no more than smoke and mirrors.
What is needed is a single integrated and independent review and complaint body with full powers and the resources to conduct thorough investigations into all facets of national security.
2. Increase in information sharing
The exponential increase in mass information collection and sharing within domestic agencies as well as with foreign entities, which was authorised by the Security of Canada Information Sharing Act (SCISA), not only jeopardises the privacy but also the safety of Canadians travelling abroad.
Should law enforcement agencies be trusted with greater access to private information that they can then share with others but without appropriate oversight? The Arar Commission findings - which chastised authorities for sharing information with foreign agencies, resulting in the rendition and torture of citizen Maher Arar - have faded from Canadian memory, making it easy for the government to simply ignore them. Unless there are significant amendments, the SCISA must be repealed.
3. The no-fly list
Rather than addressing serious concerns regarding the earlier no-fly list - cleverly named the Passenger Protect Program (PPP) - the Secure Air Travel Act (SATA) made it even worse in many respects. SATA restricts the mobility rights of many Canadians (including at least 50 children on the list) without due process, adequate substantive or procedural protections or an effective redress system. Moreover, it exposes Canadians to serious risk of abuse by foreign entities, who will have access to the list and other personal information. Again, unless there are significant reforms, SATA should also be repealed.
4. Expands powers of spies
Canada’s spy agency, the Canadian Security Intelligence Service (CSIS), was created in 1984 as a civilian agency to address abuses of power that occurred when the Royal Canadian Mounted Police (RCMP) handled both intelligence and law enforcement. The Anti-Terrorism Act of 2015 radically expands the powers of the CSIS, and disregards constitutional protections.
Why does a secretive security agency need police powers without the attendant accountability? As the Globe and Mail editorialised, it enables the CSIS and law enforcement to target anything that its political masters label as being "behind closed doors" as a threat. Indeed, Greenpeace even pointed to leaked government reports that described anti-pipeline activists as an "anti-Canadian petroleum movement". Moreover, CSIS' own documents reveal that they now deem "sympathisers" as threats as well.
The role of the judiciary is also undermined by the act, which authorises courts to issue warrants in violation of constitutional rights
The radical restructuring of the CSIS into a "kinetic" service while its oversight has been dissolved – as in the case of the Inspector General - or starved of resources - as with the Security Intelligence Review Committee - is troubling. A core maxim of national security is "trust but verify". Given the powerful and secretive nature of the entities involved, this is an almost impossible task, even without such deep cuts. As retired former CSIS chief of counterintelligence, Geoffrey O'Brian, noted that "fundamental changes are occurring at a time when Parliament has come under criticism for lax scrutiny of spying". This is simply irresponsible.
The role of the judiciary is also undermined by the act, which authorises courts to issue warrants in violation of constitutional rights. Moreover, provisions that empower CSIS to act without regard to international law or foreign domestic law is extraordinary, completely disregards Canada’s binding international legal obligations and sets a dangerous precedent for other countries.
5. Expands criminal offences
The Anti-Terrorism Act 2015 unduly expands criminal offences and powers. The new offences of "terrorist propaganda" and the "promotion of terror" are overly broad. What does "promote terrorism" mean? What is “terrorist propaganda”? Such imprecise terminology threatens dissent and free speech, which are central tenets of a democracy.
What does 'promote terrorism' mean? What is 'terrorist propaganda'?
A number of rights groups, including the British Columbia Civil Liberties Association fear (and rightfully so) that the law can be used to target opponents of government policy. In fact, national security experts Craig Forcese and Kent Roach argue that these new offences are too broad and that they will snare all kinds of innocent speech. Indeed, without the requirement of an actual terrorist purpose, it can be used against teachers, lawyers, activists, columnists and others.
Moreover, the lower thresholds for preventive arrest, detention and recognizances with conditions – which are already exceptional broad powers – are now amplified and undermine due process rights. The state now only has to establish the lower threshold of 'may 'carry out an offence from the previous 'will 'carry out an offence to trigger detention. Preventive detention of “suspected” terrorists is now extended from three days to seven days (inconsistent with the constitutional presumption of innocence).
These offences are drastic, imprecise, overly broad and unnecessary given the wide range of pre-existing criminal terrorism offences. Such provisions make a mockery of the rule of law.
6. Use of 'secret evidence'
The act’s amendments to the Immigration and Refugees Protection Act are contrary to the Supreme Court of Canada’s ruling, which chastised the use of “secret evidence” in immigration and refugee proceedings. The SCC has already held that such a procedure would be unconstitutional and that the government cannot rely on secret evidence in such proceedings without providing a procedure by which the evidence can be tested. The amendments effectively ignore this ruling.
7. Complicity in torture
The government’s shameful complicity in torture must cease immediately. The government did own up to the rendition and torture of Maher Arar in 2007 after a Commission of Inquiry. Sadly, despite calling for this while in opposition, the Liberals now refuse to apologise and compensate Abdullah AlMalki, Ahmad Abou El-Maati, and Muayyad Nureddin for suffering the same fate. Disturbingly, Ottawa is also not prepared to rescind a directive allowing Canadian agencies to use information obtained through torture.
Other Canadians, such as Mahboob Khawaja and Kassim Mohamed, have come forward publicly with allegations of Canada's complicity in their detention and even torture in Egypt, Saudi Arabia and Pakistan. Numerous others fear coming forward.
As noted by prominent national security lawyer Barbara Jackman, Canada has effectively, but quietly, adopted an indirect form of rendition by getting foreign governments with questionable human rights records to do the dirty work.
8. The security web
Thousands of Canadian Muslims and Arabs have had to submit themselves to “voluntary” interviews with the CSIS. The number and frequency will undoubtedly increase under the new laws. Many of these people are ensnared in the national security web merely through guilt by association and the inevitable false positives. Too many innocents are compelled to clear their name and participate in interviews without legal counsel. This can have serious implications for their immigration and citizenship status, livelihoods, fundamental freedoms and even physical safety (especially when the information gathered from these meetings is made available to foreign sources).
Legal aid must be made available to those caught up in the national security web.
The new threat to Canadians
The Anti-Terrorism Act 2015 represents a drastic expansion of national security agencies’ powers without sufficient oversight or safeguards in place. Moreover, national security powers, practices and policies disproportionately impact the Muslim and Arab communities.
Unfortunately, during times of crisis (real or imagined), when checks and balances are all the more necessary, the public is all the more willing to sacrifice liberty and fundamental rights in pursuit of security - especially when the liberties and rights are those of others.
What were once exceptions to the normal rule of law have now become permanent fixtures in the legal landscape
This, of course, ignores the creeping nature of such laws when they extend beyond their initial targets. Indeed, all of the new powers that are now the norm were once only enacted during declared states of emergencies. What were once exceptions to the normal rule of law have now become permanent fixtures in the legal landscape.
The new powers are not measured nor proportionate and have never been justified as necessary or effective. Given the inevitable reshaping of US national security policy in the coming months, these new Canadian security laws, policies and practices present an even more serious danger to the rights and security of Canadians.
It’s time for the Liberals to walk the talk on human rights and bring back the sunny ways to the national security shadow.
- Faisal Kutty is counsel to KSM Law, an associate professor at Valparaiso University Law School in Indiana and an adjunct professor at Osgoode Hall Law School of York University in Toronto. You can follow him on Twitter @faisalkutty
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.
Photo: A soldier stands guard at the Canadian National War Memorial, Ottawa during a ceremony in October 2014 after a lone gunman killed Cpl. Nathan Cirillo, before storming the main parliament building (AFP)