Bill C-51 incompatible with Canada’s commitment to constitutional supremacy and rule of law

Sukanya Pillay, General Counsel and Executive Director, Canadian Civil Liberties Association

Bill C-51 creates new laws and amends existing laws to create new powers and crimes. One of these new laws is the security of Canada information sharing act, which I will refer to as SCISA. We do not question that government needs to share information to protect against the terrorist threat. Proper information sharing as an effective and indispensable counterterror tool has been recognized by the Arar commission, the Air India commission and by the international community, particularly after 9/11 and UN Security Council Resolution 1373.

But such information collected and shared must be subject to critical legal safeguards, including targeted surveillance and collection, with limits on dissemination, use, retention, with destruction protocols and with caveats reduced to writing. SCISA does not provide these legal safeguards. It increases the scale and scope of information sharing far beyond that related to terrorist activities through the exceptionally broad language of “activity that undermines the security of Canada.”

SCISA and the recent amendment to section 6 refer to existing legal safeguards, but as the Arar commission and Air India commission revealed, existing legal safeguards have been tragically inadequate. SCISA exacerbates these failures of accountability and completely disregards the recommendations of the Arar commission regarding integrated review.

We also point out that it is not helpful to say that the Privacy Commissioner and the Auditor General will cure these accountability deficits. I know the Privacy Commissioner has already submitted his concerns to you, and we are concerned that the necessary review of information sharing among 17 agencies and also to foreign governments and to domestic and foreign actors requires proper review and oversight. Such an absence of accountability exposes Canadians to serious risks and is incompatible with the accountability requirements of a free and democratic country.

Mass surveillance and information sharing will not result in efficacious security, but it will result in mistakes, where every individual is not viewed as an individual with constitutionally protected privacy rights but rather as a suspect.

Second, I would like to talk about the proposed amendments to the CSIS Act. We are concerned by amendments that confer broad new powers upon CSIS, transforming it from a recipient agency collecting intelligence into an agency that can act at home and abroad to disrupt threats. While we recognize and respect the value and importance of SIRC, we recognize that they, by their own findings, are constrained in their resources with respect to the review of current existing intelligence-gathering operations. Further, the warrant provision, read as drafted, allows CSIS to act in a manner that would contravene the Charter or any other Canadian law if authorized by judicial warrant and to do so on an ex parte and in camera basis with no adversarial process built in.

In our view, this is incompatible with Canada’s commitment to constitutional supremacy and rule of law. Warrants are not meant to allow laws to be broken — period. Rather, warrants ensure compliance with the law and legal safeguards.

Coupled with Bill C-44, Bill C-51 provides a green light for CSIS to act in contravention of foreign domestic laws and international law and in our view sends a problematic signal to foreign allies and agencies and undermines the international framework that is essential in global counterterror efforts.

Lastly, I want to address the proposed amendments to the IRPA that would permit the minister to withhold relevant evidence from special advocates in security certificate cases. We are very concerned by this. For us, it represents a regression from the understanding of the scope of protection contained in section 7 of the Charter.

Special advocates are top-security-cleared lawyers entrusted with national security secret information. We respectfully remind the committee that as the Supreme Court of Canada stated in its unanimous decision in Charkaoui, which led to Parliament’s creation of the special advocate scheme, the whole point of the principle of fundamental justice is that a person whose liberty is in jeopardy must know the case to be met. The court went on to say that the national security context cannot be used to erode the essence of the section 7 protection, which is meant to provide meaningful and substantial protection.

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.

That is a quote from the Supreme Court of Canada in the Air India case, which also reminded us in Suresh, decided in the months after 9/1, that it would be a pyrrhic victory if we defeated terrorism at the cost of sacrificing our commitment to values that lie at the heart of our constitutional order.

[Photo Credit: Amy Kishek]

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