C-51 changes don’t go far enough, TRU professor says

Law prof still not sold on proposed, now amended anti-terrorism bill

A TRU law professor isn’t budging in his criticism of the federal government’s new anti-terrorism bill, despite amendments made last week.

Robert Diab, who has previously criticized Bill C-51 for what he calls a lack of oversight and an expansion of power for Canada’s intelligence agency that Diab believes is too close to the power of a secret police force, said potential changes made during the House public safety committee’s clause-by-clause review do not address flaws in the legislation.

“Given the nature of what’s been described, the amendments are not substantial … I think the real question for the future is whether the concerns raised by civil libertarians and others about the potential misuses of this bill, whether in fact they will be born out and to what extent,” Diab said.

Four amendments were accepted after the review, all previously announced by the Conservatives. Dozens of opposition amendments, including amendments by the NDP and Green Party that would have seen more oversight built into the bill and stricter guidelines for the gathering of confidential information, were also presented, but not accepted.

Among the accepted changes, the public safety minister’s authority over airlines was narrowed, government sharing of confidential information must be done “in accordance with the law, including any legal requirements, restrictions and prohibitions,” and a new clause clarifies that CSIS does not have “any law enforcement power,” including the ability to arrest.

Protesters marched from Cathy McLeod’s office to Victoria St. on March 14 as part of the national “Day of Action.” (Sean Brady/The Omega)

Protesters marched from Cathy McLeod’s office to Victoria St. on March 14 as part of the national “Day of Action.” (Sean Brady/The Omega)

A fourth amendment struck the word “lawful” from the clause protecting advocacy and protest from prosecution under the bill. Critics of C-51 have previously argued that the words “lawful protest” would exclude non-violent but technically illegal advocacy, such as the recent Burnaby mountain demonstrations, putting a chill on civic engagement.

While Diab said it was good to hear that there would be amendments to the bill, he added that he does not feel striking the word “lawful” from the exemption clause protecting protest will make much difference in practice.

“The more significant change that [the bill] makes is that it allows for a much broader scope of information gathering and sharing, not on the basis of a kind of conventional threshold like the likelihood that the information is necessary or relevant into an investigation into an offense, but simply whether the information falls within the mandate of the information gathering body,” Diab said.

“There are little to no safeguards in terms of relevance, reliability, accuracy of information – no requirement for caveats or qualifications in the uses information can be put when it is shared with others or with other foreign governments and agencies.”

Measures allowing more information sharing between government organizations and the “lawful protest” clause, both of which were amended last week, were driving concerns in the recent “Day of Action” protests that took place across the country.

TRU student Nikki Ford, who helped organize Kamloops Day of Action demonstration last month, feels some of the issues critics have raised are being listened to, but added that amendments to bill may be meaningless without oversight to avoid misuse of powers.

“How are we supposed to know if they’ll implement [the amendments] and act on it? There’s no guarantee and there’s no authority to be a watchdog of CSIS either,” she said. “That’s the one thing we were kind of asking about this bill too – who’s watching the watchdog?”

The more things change the more they stay the same

Diab also raised concerns on one part of the bill that was not up for change: a clause allowing CSIS to violate Charter rights or other Canadian law, excluding physical harm or violation of a person’s sexual integrity, with a secret warrant issued by a judge.

“I mean, this is completely unusual; this is completely extraordinary is really what it is,” Diab said. “You might say, ‘Well if it’s really that troublesome, someone will just challenge its constitutionality and it’ll be struck down,’ but the trouble is how is anyone going to challenge it when this kind of warrant is always obtained in secret?”

In its submission on Bill C-51, the Canadian Bar Association formally protested the measure, stating “it is untenable that the infringement of Charter rights is open to debate, in secret proceedings where only the government is represented. Parliament should not empower CSIS or judges to disregard the constitutional foundations of our legal system.”

In a previous email to The Omega, local Conservative MP Cathy McLeod defended the bill, saying “The proposed legislation will provide Canadian law enforcement and national security agencies with additional tools and flexibility to keep pace with evolving threats and better protect Canadians here at home.”

“CSIS could only take reasonable and proportional measures to disrupt threats,” she continued. “To do this, CSIS would consider the nature of the threat, the nature of the proposed measures and the reasonable availability of other means to disrupt the threat. Intelligence services in most of Canada’s close democratic allies have had similar mandates and powers for many years.”

Both statements received from McLeod above are exact copies of statements made in earlier press releases by the federal government.

The amended bill returns to the House of Commons the week of April 6.