Concerns that Liberal anti-terror bill looks to protect rights at expense of security

Posted on June 6, 2017 in Governance Policy Context – Full Comment
June 5, 2017.    JOHN IVISON

MPs stood in solidarity with one another, and with the British people, after another terrorist outrage in London.

Yet, even as Justin Trudeau and Andrew Scheer were united in their condolences in the House of Commons, clear differences in the way Liberals and Conservatives would protect Canadians were on show in a nearby Senate committee room, where Public Safety Minister Ralph Goodale was defending the government’s national security legislation.

Goodale was speaking about Bill C-22, which will create a parliamentary committee to oversee Canada’s national security operations. The bill has already made its way through the House but could yet face opposition in the Senate.

However, as Goodale made clear, the new committee is not the only measure the Liberals plan to introduce to amend “problematic elements” of the Conservatives’ Anti-Terrorism Act, the former Bill C-51.

The Trudeau government undertook months of national security consultations, receiving 58,000 responses. Legislation is expected before Parliament breaks for the summer, and it is likely to propose the repeal of measures in the Anti-Terrorism Act that security agencies claim have worked to avert more terror incidents in this country.

The government heard in its consultations that many people believe the pendulum has swung too far toward security, and too far away from human rights and privacy concerns.

“A majority of stakeholders and experts called for existing measures to be scaled back or repealed completely,” said the departmental summary.

Many participants called on the government to prevent terrorism through counter-radicalization measures, “including through public awareness and education campaigns to promote diversity in Canada, better support for new immigrants and at-risk groups, and addressing the root causes of radicalization by improving social programs dealing with such things as health (including mental health) and housing,” the summary said.

Those progressive sentiments were echoed by the House of Commons Public Safety committee. It issued a report last month calling for a repeal of a provision that allows Canada’s spy agency to violate constitutional rights, if a judge grants permission.

The worry from some quarters — such as the Conservative members of the committee, who issued a dissenting report — is that the new legislation will be tilted toward protecting rights and freedoms, potentially at the expense of security.

The problem is, as the government’s own report on its consultations makes clear, the “secret and complex nature” of national security work means Canadians have no idea whether law enforcement officers need additional powers.

Since trust in all institutions has declined in recent years, the default position of many is that they do not.

But perhaps we should be listening more closely to those who have a clearer picture of what is really going on.

Dick Fadden, the former CSIS boss, spoke to the National Post after the Manchester bombing on May 22. He urged Canadians not to forget this country was named as a target by ISIS.

Andre Forget/Postmedia/FileFormer CSIS Director Dick Fadden

“I believe the government should move with caution in removing some of the authorities Parliament has given to national security agencies. First, because the threat remains real, and, secondly, because the additional powers that might be scaled back have not, to my knowledge, either been abused or overused,” he said.

Michel Coulombe, another former CSIS director, told a Senate committee in March 2016 that the disruption power has been used “less than two dozen times” but has been successful in reducing threats.

“For every terror attack that takes place in Canada and abroad, many more are disrupted,” he said.

The disruption provision allows CSIS to seek a court warrant to break laws or breach Charter rights, short of causing bodily harm or obstructing justice.

The Security Intelligence Review Committee conducted its first post-Anti-Terrorism Act review last year and found CSIS’ threat reduction activity complied with all legislation. No warrants to breach Charter rights were issued or sought, it said.

The Anti-Terror Act did go too far, in that it did not provide the same parliamentary oversight that all of Canada’s security partners already possess.

The reason is that the Conservatives didn’t trust the NDP or the Bloc Québécois with security clearance.

But the idea is long overdue; it has been recommended by various reports and studies going as far back as 1981. Neither MPs nor senators have security clearance to receive classified information or testimony. C-22 would give Parliament the chance to “follow the thread” through the 20 or so government departments involved in national security activities.

The bill is not perfect. Civil liberties groups say the provision that allows the government to shut down oversight that might be “injurious to national security” is over-broad.

Also, the committee reports to the prime minister, not Parliament, and the membership is controlled by the government. Members take an oath of secrecy and cannot rely on parliamentary privilege to protect them if they disclose something deemed to be classified.

The International Civil Liberties Monitoring Group believes this will create a serious gap in oversight. “What is the committee’s recourse to put pressure on the government to correct and repair abuses if the members cannot disclose them to Parliament and the public for fear of reprisal?” it asked.

For every terror attack that takes place in Canada and abroad, many more are disrupted

But in Senate committee Monday, Goodale made a convincing fist of answering the doubters.

He said members would be able to discuss their work outside committee, and draw attention to deficiencies, provided no classified information was revealed.

“They can say they believe the government is offside and that will have a powerful public influence. They could make it very uncomfortable for the government of the day, and I think governments will go out of their way to keep the committee happy.

“The bill represents a giant leap forward for national security accountability in Canada,” he said.

CSIS has not endeared itself to the government or the courts in recent times.

A Federal Court judge complained last year that the spy agency had “breached again, the duty of candour it owes the court” for illegally keeping electronic data.

The solution, as suggested by academics Kent Roche and Craig Forcese, is to “trust but verify.”

The new committee will attempt to do just that.

But, by going further and hobbling the ability of the security agencies to protect Canadians, the government will be guilty of complacency.

The threat level in Western democracies is rising and, as Canadian parliamentarians saw first-hand in October 2014, no one is immune.

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