Experts cautiously support Liberal legislation to overhaul Harper’s ‘unconstitutional’ Bill C-51

By ThinkPol Staff

Constitutional, public safety and human rights experts have extended their cautious support for a new Liberal government bill that will significantly overhaul Former Prime Minister Stephen Harper’s controversial anti-terrorism legislation Bill C-51, which many see as being unconstitutional.

Public Safety Minister Ralph Goodale introduced Bill C-59[1], An Act respecting national security matters, claiming it was aimed at “enhancing accountability and transparency, correcting problematic elements from the former Bill C-51, and updating our national security laws to ensure that our agencies can keep pace with evolving threats.”

The House of Commons Standing Committee on Public Safety and National Security (SECU) heard from four witnesses last week, all of whom expressed cautious optimism about the new bill.[2]

Professor Craig Forcese, a Professor at University of Ottawa’s Faculty of Law and a vociferous critic of Harper’s Bill C-51, expressed support for Bill C-59 but noted a serious concern with the new legislation.

“From a rights perspective, Bill C-51 lacked nuance. It opened the door to a violation of any charter right subject to an unappealable, secret Federal Court warrant,” Prof. Forcese told the committee. “The regime was radical, and in my view, almost certainly unconstitutional. It was, therefore, unworkable, whatever the strength of the policy objectives that propelled it.”

“Bill C-59 places the system on a much more credible constitutional foundation. It ratchets tighter the outer limit on CSIS threat reduction powers,” Prof. Forcese added. “By barring detention—a power I sincerely doubt the service ever wished—it eliminates concerns about the many charter violations for which detention is a necessary predicate. By legislating a closed list of activities that could be done where a warrant is authorized, Parliament tells us what charter interests are plausibly in play—essentially, free speech and mobility rights. I believe that if threat reduction is to be retained, this new system reasonably reconciles policy and constitutional issues.”

Prof. Forcese was concerned about the new bill’s impact on Canadians’ online privacy.

“To summarize my concern, while engaged in foreign intelligence in cybersecurity activities, CSE incidentally collects information in which Canadians or persons in Canada have a reasonable expectation of privacy,” Prof. Forcese said. “This is done without advance authorization by an independent judicial officer, and thus likely violates section 8 of the charter.”

“Bill C-59 attempts to cure this constitutional issue through a ministerial authorization process, one that involves vetting for reasonableness by an intelligence commissioner, a retired superior court judge,” Prof. Forcese added. “This is a creative and novel solution. It preserves a considerable swath of ministerial discretion and responsibility. It is not a full warrant system. Still, given the unique nature of CSE activities, I believe it is constitutionally defensible.”

“The new system will only resolve the constitutional problem if it steers all collection activities implicating constitutionally protected information into the new authorization process,” Prof. Forcese remarked. “The problem is this. Bill C-59’s present drafting only triggers this authorization process where an act of Parliament would otherwise be contravened. This is a constitutionally under-inclusive trigger.”

Professor Stephanie Carvin, Assistant Professor, Norman Paterson School of International Affairs, Carleton University, shared Prof. Forcese’s optimism about Bill C-59.

“I believe that for the most part, Bill C-59 takes Canada a great step towards meeting that elusive balance between liberty and security,” Professor Stephanie Carvin, Assistant Professor, Norman Paterson School of International Affairs, Carleton University, said. “In my view, where Bill C-59 defines powers and process, it should enable our security services to carry out their important work with confidence knowing exactly where they stand. Further, the transparency in the bill will hopefully go some way towards building trust between the Canadian public, Parliament, and our security services.”

Prof. Carvin expressed concern about the role of the Minister of Public Safety under the new legislation.

“Canada has an unfortunate history of ministers and prime ministers trying to shirk responsibility for the actions of our security services, which dates back decades,” Prof. Carvin told the committee. “Prime Minister Pierre Trudeau used the principle of police independence to state that his government could not possibly engage in review or oversight of the activities of the RCMP even though the national security roles of the RCMP are a ministerial responsibility.”

“There is simply a tension here with our constitutional requirements and with what has been the practice of our system for decades,” Prof. Carvin added. “If this bill is to pass through, it will be up to members of Parliament to hold the minister to account, even if he or she tries to blame the intelligence commissioner for actions not taken.”

Professor Wesley Wark, a professor at the Graduate School of Public and International Affairs, University of Ottawa, also spoke in favour of Bill C-59.

“Bill C-59 represents a very ambitious and sweeping effort to modernize the Canadian national security framework,” Prof. Wark said. “It should not be seen as just a form of tinkering with the previous government’s Bill C-51.”

Prof. Wark argued that the national security and intelligence review agency, created to provide oversight of intelligence activities, must be adequately resourced.

“Part 1 of the act creates aI fully support this concept and its rationale, and it is exciting to me to see it embraced by the government,” Prof. Wark told the committee. “The challenge will be ensuring that the architecture can be made to work.”

“To bring the legislation to light, it will be important to ensure that NSIRA, as I’ll call it, has the right fiscal and logistic resources, a high-quality talent pool in its secretariat, excellent working relationships with the security and intelligence agencies, and a viable work plan,” Prof Wark recommended. “It will also be important to ensure that the bodies that are to be reviewed have the resources and proper approach to the enhanced scrutiny they will undergo.”

Alex Neve, Secretary General of Amnesty International Canada, while generally support of Bill C-59, felt that the proposed legislation did not go far enough towards rolling back the more troubling aspects of Harper’s Bill C-51.

“We strongly welcome and support the provisions in part 1 of Bill C-59 creating the national security and intelligence review agency,” Neve told the committee. “Amnesty International has been calling for the creation of a comprehensive and integrated review agency of this nature since the time of our submissions to the Arar inquiry in 2005. This has been one of the longest-standing and most serious gaps in Canada’s national security architecture.”

Neve felt, however, that Bill C-59 did not strengthen Canada’s commitment to human rights.

“In the review that preceded Bill C-59, we urged the government to use the opportunity of the present reform to adopt a clear human rights basis for Canada’s national security framework,” Never told the committee. “That is an approach that is not only of benefit, evidently, for human rights, but truly lays the ground for more inclusive, durable, and sustainable security as well. Currently, other than the Immigration and Refugee Protection Act, none of Canada’s national security legislation specifically refers to or incorporates Canada’s binding international human rights obligations.”

“We recommended that those laws be amended to include provisions requiring legislation to be interpreted and applied in a manner that complies with international human rights norms,” Neve added. “That was not taken up in Bill C-59 except for one very limited reference to the convention against torture. This is important in that it sends a strong message of the centrality of human rights in Canada’s approach to national security. It is also of real benefit when it comes to upholding human rights in national security-related court proceedings.”

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