Submissions on Bill C-51
Canadian Council of Criminal Defence Lawyers
Conseil Canadien des Avocats de la Défense
The attacks of 9/11 were clearly and obviously acts of organized terrorism. To describe them as such does not invite debate upon the definition of “terrorism”. In 2001 Canada enacted a series of amendments to respond to the threats posed by terrorism after consultation and evidence before the House and Senate Committees.
The Canadian Council of Criminal Defence Lawyers appeared before the Senate Committee to assist in the consultation process.
Almost fifteen years later, the Conservative government continues to expand state powers and the reach of the criminal law in the absence of any evidence that existing laws are inadequate. We are concerned that laws which were justified on the basis of a an emergency of unknown dimensions have now slid into a state of de facto permanence. We are also concerned that high rhetoric and partisan dispute, rather than evidence based decision making is being used to justify the need for more and greater powers. At the very least, a careful inventory must be taken of existing investigative powers and offences and any gaps or deficiencies within that inventory be clearly and specifically identified. It is only in this way that we can determine whether changes in the law are needed and whether they are tailored to meet real needs.
The CCCDL urges that the current proposals be considered and evaluated on the basis of whether they meet constitutional standards, whether they reflect good and informed policy and, whether they are consistent with the ideals and values which shape and define Canada. As the majority of the Supreme Court of Canada affirmed in a landmark 2004 judgment dealing with one of the extraordinary investigative powers introduced in 2001:
in a democracy, not every response is available to meet the challenge of terrorism. At first blush, this may appear to be a disadvantage, but in reality, it is not. A response to terrorism within the rule of law preserves and enhances the cherished liberties that are essential to democracy. As eloquently put by President Aharon Barak of the Israeli Supreme Court:
This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.
(H.C. 5100/94, Public Committee Against Torture in Israel v. Israel, 53(4) P.D. 817, at p. 845, cited in Barak, supra, at p. 148.).[1]
Writing in dissent, Binnie J. also urged a cautious approach. “Every legal system has its not-so-proud moments when in times of national upheaval or wartime emergency, civil rights have been curtailed in ways which were afterwards regretted” (para.114). Binnie J. also observed that there is risk that legislative measures which shift the balances within our democracy, and which are justified on the basis of the need to respond to terrorism, “may well slide into a state of de facto permanence” (para.115). Thus: “The danger in the “war on terrorism” lies not only in the actual damage the terrorists can do to us but what we can do to our own legal and political institutions by way of shock, anger, anticipation, opportunism or overreaction” (para.116).
The CCCDL is gravely concerned that all these words of warning from the Supreme Court are being proven true.
Since the 2001 amendments, the number of offences contained within Canadian criminal law has grown, punishments have tended to become more severe with the increased use of mandatory minimum sentences, and greater powers of investigation have been given to state authorities. Further, it appears that recent events within the world are being used by some as a basis to expand the meaning of “terrorism” or to justify the need for added laws or protections. It is against this background that we make our submissions upon bill C-51.
We do not debate the fact that people within Canada must enjoy safety and security nor do we debate the fact that law enforcement must be given the tools which are needed to effectively fulfill its proper functions. However, safety, security and effective law enforcement does not as a matter of constitutional principle, common sense or good policy automatically or necessarily justify the erosion of rights in favour increased state powers. A balance, which recognizes and protects individual rights, must be struck.
When a government actor or agency is given power which, when exercised, will affect the rights, liberty or interests of people within Canada, there is an expectation and trust that the power will be exercised lawfully. However, this trust cannot be a blind trust. When a government actor or agency is entrusted with these powers, there must be transparency, accountability and oversight to regulate the use of the power.
When rights are compromised on the basis of a need, there must be effective oversight for ensuring that the stated justification for the law exists and that the balance which has been struck between rights and security is the proper balance. This can only be accomplished through ongoing and independent oversight.
Similarly, all laws must be drafted with sufficient clarity such that those who are subject to the laws will understand the boundaries of the law. This is required whether a particular law confers a power upon law enforcement or some other government agency or whether a law creates an offence. In either case, the extent of the power and the circumstances under which an individual may be subject to state sanction must be defined with clarity.
Both fairness and effective control upon state actors requires that the boundaries and contours of these laws not be left to the discretion of law enforcement. Laws must not be vague, the purpose or objective of a law must be clearly defined, the scope of a law must not be broader than is necessary to achieve its purpose and a law must not be applied arbitrarily. These are the basic requirements of fairness and these are the basic essentials of Canadian democracy.
Bill C-51
This omnibus-like bill, which changes numerous pieces of legislation, dramatically alters the foundation of Canadian society too significantly to be considered in its current format. What is at stake is simply too important to be consolidated into one omnibus piece of legislation.
We are concerned that some critical definitions do not comply with these basic requirements of law. For example, “activity that undermines the security of Canada” (s.2) includes “terrorism” as but one of the nine activities that are captured by the proposed definition.
Section 3 of C-51 expands the way in which personal, private information may be shared.The uncertainty of the meaning of key phrases within this section, such as “undermines the security of Canada”, “interference with the capability” coupled with the open-ended definition (“including any of the following”) causes this critical definition to be both unacceptably uncertain in meaning and unacceptably broad in its scope and potential application.
- The purpose of this Act is to encourage and facilitate the sharing of information among Government of Canada institutions in order to protect Canada against activities that undermine the security of Canada.
Notably, the expanded information sharing, and consequential erosion of privacy in that information, is based upon the expansive definition of activities which might undermine the security of Canada. The open-ended nature and breadth of that definition will justify a massive expansion of information sharing.
Section 4(d) is a “feedback” provision but it does not provide a mechanism of independent oversight, control or review. Indeed, its focus appears to be whether the information sharing is “useful” but not, how much information is being shared, what information is being shared, how the shared information was used and was the information shared in accordance with lawful standards.
Moreover, Section 6 provides that any information received may be used or disclosed to “any person, for any purpose.” That provision is so broad as to undermine the privacy that Canadians expect, even beyond law enforcement uses.
Section 16, which amends s.83.22, is equally problematic. This is an offence provision which would cause it to be an offence to communicate statements or advocate or promote “the commission of terrorism offences in general…”. The phrase “in general” imports a meaning into the definition of “terrorism” which we cannot discern. More problematically, an uncertain definition creates a risk that the law will be applied according to or at the discretion of law enforcement, rather than on the basis of principle and this risk is inconsistent with the rule of law.
Section 16 would also permit a warrant of seizure for “terrorist propaganda” and, where a warrant has been authorized and the materials seized, the onus is on the “owner and the author of the matter seized” to show cause why the seized materials should not be forfeited.
Placing an onus a person to show why materials should not be forfeited, and where seizure and forfeiture is based upon an uncertain definition of “terrorist propaganda” is another example of the over-reach of C-51.
Section 17 of C-51 amends s. 83.3 of the Criminal Code. As currently worded, this section of Code is already constitutionally suspect and the amendments will almost certainly render this section of the Code unconstitutional (if it is not there already). That is, s.83.3 of the Code is directed at arrests to prevent terrorist activity. Under the current wording, in order to arrest without warrant a police officer must (a) believe on reasonable grounds that a terrorist activity will be carried out; and (b) suspect on reasonable grounds that a recognizance with conditions or arrest, is necessary to prevent the terrorist activity and (c) suspect on reasonable grounds that the detention of the person is necessary in order to prevent a terrorist activity. It can be seen the current section of the Code authorizes preventative arrest even though two of the requirements can be met on the low threshold of “reasonable suspicion”. This is constitutionally suspect because the Supreme Court of Canada has generally taken the position that only brief investigatory detentions can be justified on the basis of a reasonable suspicion threshold whereas “arrests” require the more robust standard of reasonable and probable grounds to believe. (See R. v. Mann, 2004 SCC 52 , and R. v. Chehil, 2013 SCC 49 at para_24).
Section 17 of C-51would propose to further water down the requirements for preventative arrest. This is tremendously significant because we are talking about arrests where no crime has been committed.
By virtue of section 17, if Bill C-51 passes, it will no longer be necessary for the police to have a belief on reasonable grounds that a terrorist activity “will be carried out”, rather the officer will need only to reasonably believe that it “may be carried out”. Similarly, the police will no longer have to show that arrest and detention is “necessary” to prevent the terrorist activity; rather, the police officer will need to only reasonably suspect that arrest and detention of the individual is “likely to prevent”. These changes are subtle but constitute a very significant erosion of the arrest requirements.
In addition to employing low standards to curtail essential freedoms the offences created within the Act are deemed to be offences unless “due diligence” is exercised. Offences which have only “due diligence” as a defence are typically restricted to regulatory offences as opposed to serious offences such as crimes of terrorism.
Section 10 of the Secure Air Travel Act enlists not only Government agencies to assist in the enforcement of the Act but “any other person or entity prescribed by regulation”. This type of provision authorizes the use of civilians, potentially, as agents of the state to assist with enforcement. This type of provision is but one example of the revolutionary use of the citizenry as agents of law enforcement. That is a concept which until now has been foreign to and undesirable within Canadian society. It risks transforming Canada and our cherished liberties and freedoms into a society where we can be expected to watch and report on each other in aid of assisting the state.
Many sections of C-51 have already been the subject of considerable public discussion and debate and that has properly been focused on security interests of the country and the rights of the individual. It is however, worth noting that C-51 would also impose new obligations upon air carriers and it is proposed that corporations could be criminally prosecuted for contraventions of those obligations. A corporation convicted of an indictable offence could be subject to a fine not exceeding $500,000.
We do not represent corporate interests per se, but it is worth noting that C-51 would impose certain requirements upon corporate air carriers and these would be enforced not through regulation or administrative measured but through the force of criminal prosecution and sanction. Without suggesting an answer, we raise as a question as to when it is appropriate for government to require the participation and assistance of corporations in advancing criminal law objectives.
Finally, we address the new powers which C-51 would extend to CSIS. We are concerned that Bill C-51 erodes the distinction between intelligence-gathering by CSIS and law enforcement powers. Historically, there has been good reason to separate intelligence-gathering from law enforcement. The co-mingling contemplated by this legislation is especially troubling given the dearth of oversight of CSIS activities. Fears of a dangerous and unregulated secret police force are not speculative.
C-51 would result in two amendments to the Canadian Security Intelligence Service Act. First, without prior judicial authorization, the Service would be permitted to “take measures within or outside Canada” to reduce a threat, when it is believed that “a particular activity constitutes a threat to the security of Canada”.
Under this amendment, the “measures” may violate a right or freedom guaranteed by the Charter or violate some other law of Canada. It appears from a plain reading of the proposed amendment that the “measures” could include offences such as assault (but not assault causing bodily harm), uttering threats, extortion, kidnapping (as long as bodily harm does not result) and damage to property.
A second related amendment would allow an application for judicial authorization to which, if granted, could allow “measures” beyond those permitted without judicial authorization. It is proposed that: “Without regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize measures specified in it to be taken outside Canada.” (Emphasis added)
This is an extraordinary proposal that would appear to permit judges to authorize a vast range of measures which are otherwise unlawful.
The proposed amendment would also permit a Canadian judge to authorize a Canadian law agent to “take measures” outside of Canada which may be contrary to the laws of the foreign state in which the measures would be taken.
If the legal validity of this amendment rests upon Canada entering into an agreement with a foreign state, through which the foreign state has agreed that Canada may take these measures within that foreign state’s boundaries, then it would be beneficial to know which foreign states Canada has entered into these agreements with. On the other hand, if no such agreements exist, then this proposed amendment requires close scrutiny to ensure that it complies with all international laws that Canada is subject to.
It must be remembered that an application for judicial authorization is made ex parte. There is no counter balance to the materials being presented to the authorizing judge.
Regrettably, experience has shown that the duties which rest upon officers in making ex parte applications, to make full, fair and frank disclosure are not always strictly followed. In some instances this has been intentional. In other instances this has been inadvertent. Nonetheless, based upon this experience and having regard to the extraordinary measures which might be authorized by a judge, we recommend the use of an amicus for each of these applications.
Further, CSIS activities almost never become public in any meaningful way (even if a criminal charge eventually results from one of their investigations). As a result, the application materials will rarely if ever be disclosed or scrutinized through an open court process. Because of this, the checks and balances that may be achieved through independent oversight take on added importance.
At a minimum, we recommend that these extraordinary measures be subject to sunset provisions so the justification for their existence and use can be re-examined.
In conclusion, we return to the caution urged by Binnie J. about “not-so-proud moments [in a legal system] when in times of national upheaval or wartime emergency, civil rights have been curtailed in ways which were afterwards regretted.” History has shown that once enacted, laws are rarely repealed. It is therefore imperative that we be on guard to ensure that the laws which might be enacted to respond to the threats of terrorism, and the process of debate and discussion which culminates in the enactment of any such law, not become a “not-so-proud moment” in Canadian history.
[1] Application Under s.83.28 of the Criminal Code, 2004 SCC 42 at para. 6.