By John Feldsted Political Consultant & Strategist Winnipeg, Manitoba
I have some serious concerns over C-51. It looks to me like this was thrown together hurriedly and some sections are very poorly worded. I have listed some of my concerns below:
1. The following definitions apply in this Act.
“activity that undermines the security of Canada” means any activity, including any of the following activities, if it undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada:
a) interference with the capability of the Government of Canada in relation to intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada;
b) changing or unduly influencing a government in Canada by force or unlawful means;
c) espionage, sabotage or covert foreign-influenced activities;
d) terrorism;
e) proliferation of nuclear, chemical, radiological or biological weapons;
f) interference with critical infrastructure;
g) interference with the global information infrastructure, as defined in section 273.61 of the National Defence Act;
h) an activity that causes serious harm to a person or their property because of that person’s association with Canada; and
i) an activity that takes place in Canada and undermines the security of another state.
j) For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.
I am concerned with the last section of definition 1 a) – or the economic or financial stability of Canada.
This would appear to make numerous activities such as public sector strikes and other strikes involving essential services illegal under this act. That would include strikes and work stoppages at railways, airlines, ports, pipelines, telecommunications networks, air traffic controllers to name a few. Government has so far handled these issues with back-to-work legislation, but the issues are taken up in parliament. It would certainly appear to have a substantial effect on labour legislation and collective agreements.
There may be legitimate reason to deal with threats to our economic and financial security, but that is not terrorism in the usual meaning of the term and should be dealt with separately.
Definition 1 b) changing or unduly influencing a government in Canada by force or unlawful means
This is an odd choice of words. Unduly influencing government by unlawful means appears aimed at those who engage in murder or kidnapping and hostage taking in an attempt to coerce our governments, but why not say so rather than be so vague?
The Criminal Code of Canada, Section 46 (2) states:
Every one commits treason who, in Canada,
(a) uses force or violence for the purpose of overthrowing the government of Canada or a province;
(b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;
(c) conspires with any person to commit high treason or to do anything mentioned in paragraph (a);
The Criminal Code of Canada, Section 51 states:
Every one who does an act of violence in order to intimidate Parliament or the legislature of a province is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Definition 1 c) espionage, sabotage or covert foreign-influenced activities. Espionage is covered under the Criminal Code S 46 (2) (b).
Criminal Code Section 52 reads:
(1) Every one who does a prohibited act for a purpose prejudicial to
(a) the safety, security or defence of Canada, or
(b) the safety or security of the naval, army or air forces of any state other than Canada that are lawfully present in Canada,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
(2) In this section, “prohibited act” means an act or omission that
(a) impairs the efficiency or impedes the working of any vessel, vehicle, aircraft, machinery, apparatus or other thing; or
(b) causes property, by whomever it may be owned, to be lost, damaged or destroyed.
(3) No person does a prohibited act within the meaning of this section by reason only that
(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;
(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or
(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.
(4) No person does a prohibited act within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.
The Anti-terrorism Act appears to remove the protections for employees found in CC S 52 (3)
Definition 1 d) terrorism;
It is incredible that anti-terrorism legislation would not define terrorism. It would seem natural to define terrorism:
Terrorism: meaning the unauthorized use of violence and threats of violence to intimidate or coerce Canada, her governments and Canadians, in Canada and elsewhere in the world and including:
a) Planning or plotting acts of terrorism;
b) Counselling or inciting any one to engage in acts of terrorism; and
c) Aiding and abetting others engaged in terrorism.
Definition 1 e) proliferation of nuclear, chemical, radiological or biological weapons
This would seem better suited as an addition to the definition of terrorism:
d) Unauthorized creation, use, planning for or possession of nuclear, chemical, radiological or biological agents or weapons;
Definition 1 f) interference with critical infrastructure
This appears aimed at those who would plot to damage or destroy bridges, rail lines or pipelines but would also make most if not all ‘occupy’ protests illegal. There is a substantive difference between those who plot the destruction of a bridge or rail line and those who occupy a roadway and the latter does not quality as terrorism. This would appear to be covered under CC S 52 (2). This also appears to be a duplication of ‘sabotage’ under definition 1 c).
Definition 1 g) interference with the global information infrastructure, as defined in section 273.61 of the National Defence Act;
The definition is: “global information infrastructure” includes electromagnetic emissions, communications systems, information technology systems and networks, and any data or technical information carried on, contained in or relating to those emissions, systems or networks.
That would include the internet as well as all public and private intranet and communications systems, radar, telephone, cellular, satellite, radio and many others.
The unanswered question is what constitutes ‘interference’. That would appear to include any actions a government might take to counter use of the internet for the purpose of promoting terrorism.
Definition 1 h) an activity that causes serious harm to a person or their property because of that person’s association with Canada
Who decides what constitutes ‘serious’ harm? Either we are protected from harm or we are not.
Definition 1 i) an activity that takes place in Canada and undermines the security of another state.
This would not ordinarily be classed as terrorism. It would appear that this would include our action to combat ISIS in Iraq where our objective is to eliminate terrorism taking place outside Canada. The terms ‘allied or friendly’ appear to be missing.
Definition 1 j) For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.
This definition leaves much to be desired. It is unclear as to what types of advocacy, protest, dissent and expression are ‘lawful’. The devil is in the details and the Anti-Terrorism Act (AA) provides for the government to make unfettered regulations that will not be under the scrutiny of parliament.
The extremely poor wording of this key section of the AA suggest that the remainder of the AA is no better framed.
Security of Canada Information Sharing Act (CISA)
The definitions in this Act are the same as those discussed in Part A of this analysis
“Government of Canada institution” means
(a) a government institution as defined in section 3 of the Privacy Act other than one that is listed in Schedule 1; or
(b) an institution that is listed in Schedule 2.
Let’s see who we are talking about here. Under the Privacy Act, we find:
“government institution” means
(a) any department or ministry of state of the Government of Canada, or any body or office, listed in the schedule, and
(b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act;
Under the schedule we find listed:
GOVERNMENT INSTITUTIONS
DEPARTMENTS AND MINISTRIES OF STATE
1. Department of Agriculture and Agri-Food
2. Department of Canadian Heritage
3. Department of Citizenship and Immigration
4. Department of Employment and Social Development
5. Department of the Environment
6. Department of Finance
7. Department of Fisheries and Oceans
8. Department of Foreign Affairs, Trade and Development
9. Department of Health
10. Department of Indian Affairs and Northern Development
11. Department of Industry
12. Department of Justice
13. Department of National Defence (including the Canadian Forces)
14. Department of Natural Resources
15. Department of Public Safety and Emergency Preparedness
16. Department of Public Works and Government Services
17. Department of Transport
18. Department of Veterans Affairs
19. Department of Western Economic DiversificationOTHER GOVERNMENT INSTITUTIONS
20. Administrative Tribunals Support Service of Canada
21. Asia-Pacific Foundation of Canada
22. Atlantic Canada Opportunities Agency
23. Belledune Port Authority
24. British Columbia Treaty Commission
25. Canada Border Services Agency
26. Canada Emission Reduction Incentives Agency
27. Canada Employment Insurance Commission
28. Canada Foundation for Innovation
29. Canada Foundation for Sustainable Development Technology
30. Canada–Newfoundland and Labrador Offshore Petroleum Board
31. Canada-Nova Scotia Offshore Petroleum Board
32. Canada Revenue Agency
33. Canada School of Public Service
34. Canadian Advisory Council on the Status of Women
35. Canadian Centre for Occupational Health and Safety
36. Canadian Environmental Assessment Agency
37. Canadian Food Inspection Agency
38. Canadian Government Specifications Board
39. Canadian Grain Commission
40. Canadian Human Rights Commission
41. Canadian Institutes of Health Research
42. Canadian Museum for Human Rights
43. Canadian Museum of Immigration at Pier 21
44. Canadian Northern Economic Development Agency
45. Canadian Nuclear Safety Commission
46. Canadian Polar Commission
47. Canadian Radio-television and Telecommunications Commission
48. Canadian Security Intelligence Service
49. Canadian Space Agency
50. Canadian Transportation Accident Investigation and Safety Board
51. Canadian Transportation Agency
52. Canadian Wheat Board
53. Civilian Review and Complaints Commission for the Royal Canadian Mounted Police
54. Communications Security Establishment
55. Copyright Board
56. Correctional Service of Canada
57. Director of Soldier Settlement
58. The Director, The Veterans’ Land Act
59. Economic Development Agency of Canada for the Regions of Quebec
60. Energy Supplies Allocation Board
61. Federal Economic Development Agency for Southern Ontario
62. Federal-Provincial Relations Office
63. Federal Public Service Health Care Plan Administration Authority
64. Financial Consumer Agency of Canada
65. Financial Transactions and Reports Analysis Centre of Canada
66. First Nations Financial Management Board
67. First Nations Tax Commission
68. Fraser River Port Authority
69. Grain Transportation Agency Administrator
70. Gwich’in Land and Water Board
71. Gwich’in Land Use Planning Board
72. Halifax Port Authority
73. Hamilton Port Authority
74. Historic Sites and Monuments Board of Canada
75. Immigration and Refugee Board
76. Indian Residential Schools Truth and Reconciliation Commission
77. Law Commission of Canada
78. Library and Archives of Canada
79. Mackenzie Valley Environmental Impact Review Board
80. Mackenzie Valley Land and Water Board
81. Military Grievances External Review Committee
82. Military Police Complaints Commission
83. Montreal Port Authority
84. Nanaimo Port Authority
85. The National Battlefields Commission
86. National Energy Board
87. National Farm Products Council
88. National Film Board
89. National Research Council of Canada
90. Natural Sciences and Engineering Research Council
91. Northern Pipeline Agency
92. North Fraser Port Authority
93. Nunavut Surface Rights Tribunal
94. Nunavut Water Board
95. Office of Infrastructure of Canada
96. Office of Privatization and Regulatory Affairs
97. Office of the Administrator of the Ship-source Oil Pollution Fund
98. Office of the Auditor General of Canada
99. Office of the Chief Electoral Officer
100. Office of the Commissioner of Lobbying
101. Office of the Commissioner of Official Languages
102. Office of the Comptroller General
103. Office of the Co-ordinator, Status of Women
104. Office of the Correctional Investigator of Canada
105. Office of the Director of Public Prosecutions
106. Office of the Information Commissioner
107. Office of the Privacy Commissioner
108. Office of the Public Sector Integrity Commissioner
109. Office of the Superintendent of Financial Institutions
110. Oshawa Port Authority
111. Parks Canada Agency
112. Parole Board of Canada
113. Patented Medicine Prices Review Board
114. Petroleum Compensation Board
115. The Pierre Elliott Trudeau Foundation
116. Port Alberni Port Authority
117. Prairie Farm Rehabilitation Administration
118. Prince Rupert Port Authority
119. Privy Council Office
120. Public Health Agency of Canada
121. Public Service Commission
122. Quebec Port Authority
123. Regional Development Incentives Board
124. Royal Canadian Mounted Police
125. Royal Canadian Mounted Police External Review Committee
126. Saguenay Port Authority
127. Sahtu Land and Water Board
128. Sahtu Land Use Planning Board
129. Saint John Port Authority
130. Security Intelligence Review Committee
131. Sept-Îles Port Authority
132. Shared Services Canada
133. Social Sciences and Humanities Research Council
134. Statistics Canada
135. Statute Revision Commission
136. St. John’s Port Authority
137. Thunder Bay Port Authority
138. Toronto Port Authority
139. Treasury Board Secretariat
140. Trois-Rivières Port Authority
141. Vancouver Fraser Port Authority
142. Vancouver Port Authority
143. Veterans Review and Appeal Board
144. Windsor Port Authority
145. Yukon Environmental and Socio-economic Assessment Board
146. Yukon Surface Rights Board
Schedule 1 of the CISA is currently empty.
Schedule 2 of the CISA adds:
147. Office of the Communications Security Establishment Commissioner
“people of Canada” means
(a) the people in Canada; or
(b) any citizen, as defined in subsection 2(1) of the Citizenship Act or any permanent resident, as defined in subsection 2(1) of the Immigration and Refugee Protection Act who is outside Canada.
PURPOSE AND PRINCIPLES
Purpose
3. 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.
Guiding principles
4. Information sharing under this Act is to be guided by the following principles:
(a) effective and responsible information sharing protects Canada and Canadians;
(b) respect for caveats on and originator control over shared information is consistent with effective and responsible information sharing;
(c) entry into information-sharing arrangements is appropriate when Government of Canada institutions share information regularly;
(d) the provision of feedback as to how shared information is used and as to whether it is useful in protecting against activities that undermine
the security of Canada facilitates effective and responsible information sharing; and
(e) only those within an institution who exercise its jurisdiction or carry out its responsibilities in respect of activities that undermine the security of Canada ought to receive information that is disclosed under this Act.
We know who ‘ought’ to receive information but that is no guarantee that information sharing will be confined to institutions that ‘ought’ to receive that information.
More importantly we will have bureaucrats in 147 different departments and agencies deciding whether a given act fits within the definitions of “activity that undermines the security of Canada” means any activity, including any of the following activities, if it undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada”
There is no central clearing house to determine if alleged actions do or do not fit into the definition. There can be several hundred people exercising their judgement on actions they observe or become aware of. That is a nightmare open to substantial abuse.
DISCLOSURE OF INFORMATION
Disclosure of information
5. (1) Subject to any provision of any other Act of Parliament, or of any regulation made under such an Act, that prohibits or restricts the disclosure of information, a Government of Canada institution may, on its own initiative or on request, disclose information to the head of a recipient Government of Canada institution whose title is listed in Schedule 3, or their delegate, if the information is relevant to the recipient institution’s jurisdiction or responsibilities under an Act of Parliament or another lawful authority in respect of activities that undermine the security of Canada, including in respect of their detection, identification, analysis, prevention, investigation or disruption.
Further disclosure under subsection (1)
(2) Information received under subsection (1) may be further disclosed under that subsection.
Further disclosure other than under this Act
6. For greater certainty, nothing in this Act prevents a head, or their delegate, who receives information under subsection 5(1) from, in accordance with the law, using that information, or further disclosing it to any person, for any purpose.
No presumption
7. The act of disclosing information under this Act does not create a presumption
(a) that the disclosing institution is conducting a joint investigation or decision-making process with the recipient institution and therefore has the same obligations, if any, as the recipient institution to disclose or produce information for the purposes of a proceeding; or
(b) that there has been a waiver of any privilege, or of any requirement to obtain consent, for the purposes of any other disclosure of that information either in a proceeding or to an institution that is not a Government of Canada institution.Non-derogation
8. Nothing in this Act limits or affects any authority to disclose information under another Act of Parliament or a provincial Act, at common law or under the royal prerogative.
PROTECTION FROM CIVIL PROCEEDINGS
No civil proceedings
9. No civil proceedings lie against any person for their disclosure in good faith of information under this Act.
POWERS OF GOVERNOR IN COUNCIL
Regulations
10. (1) The Governor in Council may, on the recommendation of the Minister of Public Safety and Emergency Preparedness, make regulations for carrying out the purposes and provisions of this Act, including regulations
(a) respecting the manner of disclosure under section 5;
(b) requiring records to be kept and retained in respect of that disclosure; and
(c) respecting the manner in which those records are kept and retained.Amendments to Schedules 1 and 2
(2) The Governor in Council may make an order adding the name of an institution to Schedule 1 or 2 or deleting one from either of those Schedules.
Amendments to Schedule 3
(3) The Governor in Council may make an order adding the name of a Government of Canada institution and the title of its head to Schedule 3, deleting the name of an institution and the title of its head from that Schedule or amending the name of an institution or the title of a head that is listed in that Schedule. An addition is authorized only if the institution has jurisdiction or responsibilities under an Act of Parliament or another lawful authority in respect of activities that undermine the security of Canada, including in respect of their detection, identification, analysis, prevention, investigation or disruption.
Let’s look at the listings on Schedule 3 – they should be the agencies who deal with threats to Canada:
1. Canada Border Services Agency
2. Canada Revenue Agency
3. Canadian Armed Forces
4. Canadian Food Inspection Agency
5. Canadian Nuclear Safety Commission
6. Canadian Security Intelligence Service
7. Communications Security Establishment
8. Department of Citizenship and Immigration
9. Department of Finance
10. Department of Foreign Affairs, Trade and Development
11. Department of Health
12. Department of National Defence
13. Department of Public Safety and Emergency Preparedness
14. Department of Transport
15. Financial Transactions and Reports Analysis Centre of Canada
16. Public Health Agency of Canada
17. Royal Canadian Mounted Police
This list is far more manageable, but again, there is no priority for who should be informed first and no central authority for assessing the degree of risk presented. One would think that the Department of Public Safety and Emergency Preparedness (DPSES) would be the first priority for reporting and that DPEPS would in turn notify appropriate agencies that deal with a given risk. Although there is provision for information sharing there is no organization to ensure that suspected threats are properly analysed and that the agencies best suited to the risk presented are informed.
More importantly, there is no provision to ensure that following analysis, if there is no threat presented that the information will be expunged. There is a very real possibility that threat databases will be filled with information on innocent people who present no risk to our security. Canadians have no assurance that incorrect or false information respecting their actions will not be shared amongst various agencies without any attempt at analysis or investigation.
It is frightening to think that investigations may occur without any prior analysis of actual risk presented. We do not need our police forces and security agents busily chasing shadows.
There is no provision for a Canadian who suspects he has been reported to authorities for inappropriate actions to determine what information is held by agencies or who that information has been shared with.
The complete lack of recourse is not acceptable. The sections on Collection and Disclosure of Information, Administrative Recourse and Appeals set out in Part Two, The Secure Air Travel Act need to be duplicated, with appropriate amendments, in the Security of Canada Information Sharing Act.
Proper disclosure and recourse will do far more than any oversight agency can. There has to be a disclosure and appeal process to avoid having honest citizens caught up in a fervour of false or unwarranted accusations and listing in a terrorism database which can affect everything from employment eligibility to travel restrictions.
