Call to Action: Questions about proposed legislation remain unanswered as government hurries bill to next stage.
Questions about scope, oversight and whether protests are exempt from the government’s new anti-terrorism bill remain unanswered as the Conservatives rush C-51 from the House of Commons to committee.
Many of the responses from Conservative cabinet ministers and government MPs are at odds with the concerns raised by legal experts and opposition MPs. At the same time, the government is leaving open the possibility the bill will be amended when it gets to committee — an action it has in the past used its majority to avoid doing.
Defence Minister Jason Kenney said Thursday that the new powers provided for in the bill are really for judges, whose approval would be required on some of the proposed activities of the Canadian Security Intelligence Service (CSIS).
“It doesn’t give new powers to police or intelligence agencies but rather to judges, to courts, who, for example, can order the detention of a suspected terrorist for up to seven days,” Kenney said.
New Democrat public safety critic Randall Garrison said the judicial warrants cover only a small amount of what’s provided for in C-51.
“The disruption activities only require judicial warrants if they’re going to do something, which CSIS judges is illegal or unconstitutional,” he told CBC News.
“So all kinds of other activities can be carried out, disruptive activities, without any supervision from anyone.”
After warrant, judge’s role is over
Garrison said it’s wrong to consider that sign-off to be judicial oversight because the judge doesn’t supervise the execution of the warrant — how it’s actually carried out. With police warrants, he said, the information would usually end up in front of a judge again as part of a prosecution.
Disruptive activities could include things like erasing information on a subject’s computer, interfering with money transfers or shutting down communication services, Garrison said.
“None of those things would require a warrant … That’s why this question of oversight is so important. As I say, when the judge issues a warrant, the judge’s role is finished.”
In question period, Justice Minister Peter MacKay said there would be “judicial oversight” and “judicial input” into CSIS’s decisions about warrants and some detentions.
“Our security forces will have [a] better ability to protect Canadians in targeted and practical ways, Mr. Speaker,” MacKay said in the House, “with oversight, with the ability to have judges examining the type of activities that take place, with the oversight of the civilian SIRC [Security Intelligence Review Committee] … that is also there to ensure that they are complying with the law.”
SIRC oversight questioned
Liberal MP Wayne Easter, a former solicitor general of Canada, told the House that SIRC has been clear it doesn’t provide oversight. Its mandate is to review decisions through an annual report that could come more than a year after an event.
Easter was one of 18 former prime ministers, Supreme Court justices, justice ministers, solicitors general and SIRC members who signed an open letter Thursday to say that a lack of robust oversight for CSIS is a serious problem.
Bill C-51 would give police powers to CSIS and would cover any “activity that undermines the security of Canada,” which is so broadly defined in the legislation that it includes interference with the Canadian economy. The breadth of scope has raised concerns the bill would be used to limit protests and freedom of expression.
Both MacKay and Darryl Kramp, the Conservative chair of the public safety committee that’s expected to study the proposed legislation, said Thursday that C-51 exempts lawful advocacy, protest, dissent and artistic expression.
“You have to commit a criminal offence in order for them to be involved with that,” Kramp told CBC News.
“But if they’re not going to commit a criminal offence, my goodness, dissent and protest and that, that’s accepted within the Canadian society and within our laws and rules and regulations. And to my mind this security legislation does not impede that whatsoever.”
Independent MP Brent Rathgeber, who is also a lawyer, disagrees. He said the terms in the bill are “so imprecisely defined” that, for example, it’s possible environmental protesters could be considered to be disrupting the economy, and fall within the measures of the bill.
“It is conceivable that if you were having a protest of pipeline construction that that might fall under the definition of disrupting economic activity and therefore you could face an allegation that you’re involved in terrorist activity,” he said.
“That is indefensible in a free and democratic society if it’s a peaceful protest, which most environmental protests are.”
The government has moved to cut off debate on the bill and get it to committee next week. Both MacKay and Public Safety Minister Steven Blaney have left open the possibility that the bill could be amended at that stage.