Bill C-51: Why Liberals Have Much To Do

Politics
Opinion|Laurent Crépeau

If you follow current events, you’ve probably heard of Bill C-51, or the Anti-terrorism Act, 2015 as it’s sometimes called. There’s been some debate about it throughout this campaign. Journalists did manage to get some answers from party leaders when they didn’t try to gently, yet ubiquitously shift the scope of the question they were asked to include painfully tedious reminders that their platform is the best ever proposed to support the middle class. And while all parties have expressed a clear position on this issue, it remains one of the most underrated questions of this election campaign, which has just ended.

In case you need to freshen your memory, Bill C-51 was a 2015 omnibus bill passed in June 2015 that came as a response to the two successive terrorist attacks in Saint-Jean-sur-Richelieu and in Ottawa, last year. In a nutshell, its main purpose was to implement new security measures to protect Canadian citizens as well as granting more freedom in the sharing of personal information among Government of Canada agencies as well as increasing the Secret Services’ capacity to act in certain situations.

Now that Harper is no longer in power, Liberals can make big changes to Canada’s anti-terrorism strategy. From the legal perspective, they definitely should. C-51 is anything but a well-thought piece of legislation. Too many bugs have found their way into this law and keeping it in its current state is not only foolish, but possibly very dangerous, also.

A main problem with this bill is that it introduced legal terms that in addition to being unprecedented, are so broad that their effect is almost counter-productive. Instead of clarifying aspects of the law, it complicates things with overly broad concepts and definitions. The pillar of the Security of Canada Information Sharing Act (Part 1 of C-51), “activity that undermines the security of Canada” is poorly defined. Its definition leaves gray areas and opens the door to arbitrary suppression of protest and dissent.

Written as such, the law could be used to excessive ends. Considering a new definition could facilitate interpretation of this law. After all, let us point out that this was a recurrent point of contention brought up by experts during public hearings on the matter.

This isn’t the only problem with this law however. Another major issue is the lack of parliamentary oversight and independent review. Without proper examination of how the CSIS and RCMP decide to act, the door for abuse becomes wide open. One of the main intents of C-51 was to provide the aforementioned agencies with the capacity to act quicker in order to protect Canadian citizens. The only problem is that by allowing greater clearance the way it did, this law made it so that the fundamental freedoms of others might be put into jeopardy.

What many legal experts including Ken Roach and Craig Forcese, two professors of Law at the University of Toronto and University of Ottawa, respectively, fear is that the current legislation would make it so that information would not be sufficiently analysed before being used to take action. The cases examined by the Arar and Iacobucci commissions illustrate my point. In both cases, Canadian citizens were subject to extraordinary renditions– that is, the government sponsored abduction and extrajudicial transfer of a person from one country to another – by foreign governments and subsequently tortured as a result of the Government of Canada using and sharing unreliable information that was later proved to be flawed. Unfortunately, the current version of the law implemented through C-51 does not provide enough safety mechanisms to avoid such injustice from again taking place. Fortunately, however, Liberals have expressed their vague intention to work on that part of the law. Hopefully steps will be taken in the right direction.

Sunset clauses were also mentioned and would constitute good additions to this law. This would imply that renewing draconian provisions of the bill would need parliamentary approval every three years or so in order for them to remain in effect.

What Liberals said they would do isn’t enough, however. The law also poses important legal challenges in terms of redress and accountability. Insufficient means for redress and gray areas of the law make it fastidious for anyone to achieve any sort of compensation in the event of a false positive. Notably, in accordance to the Secure Air Travel Act (Part 2 of C-51) individuals prevented from boarding an airplane are not entitled to know whether they were put on a no-fly list and furthermore, for what reasons they were put on it.

And while Canadian citizens should be anxious regarding such suppression of their legal rights, the most worrying part of this bill is undoubtedly section 21.1 of the Canadian Safety Intelligence Service Act (Part 4 of C-51), which allows secret services to infringe on fundamental rights of the Canadian Charter of Rights and Freedoms if they have obtained a court warrant to do so. Here, the issue is not simply about breaking Charter Rights – there should be legal ways to do so in certain situations, though that’s another issue – the issue is about imposing additional duties on a judge (and a very difficult one at that) when time is of the essence. It is likely that rather than ensuring equal judgement under the law, C-51 will lead to inconsistencies and fundamental rights are too meaningful an issue to be judged without proper consideration.

Bill C-51 has too many flaws to remain as it is. Liberals claim they want to fix this law to some extent, yet what they propose is not sufficient. Adding more oversight and sunset clauses does help solving some problems, but not all problems, and some of these are grave to the point that they absolutely shouldn’t be ignored.

It is a shame that politicians never truly engaged the issue during the campaign. Bill C-51 is clearly one of the most important questions that the Harper years have left us with. Now that Liberals are in power, C-51 is definitely here to stay. What, hopefully, will done about this bill will be very interesting to follow, however, as major reforms are in order.

Laurent Crépeau is a second-year Liberal Arts student who takes interest in History, Politics, International Relations, Law and Philosophy.