The case for this bill has yet to be made

Posted on April 1, 2015 in Governance Policy Context – Full Comment
March 31, 2015.   Editorial

As it has shown repeatedly since coming to office, Stephen Harper’s government tends to favour large catch-all bills that are difficult to explain in a few words, and even harder to understand. It’s safe to say, for example, that most Canadians are only marginally familiar with the contents of Bill C-51, the Conservatives’ sweeping anti-terror legislation. The bill is so broad and detailed that even normally well-informed Canadians may not grasp its full impact.

All the more reason to subject it to close, extended scrutiny, rather than the rushed process the Conservatives have imposed. The bill was given first reading on Jan. 30, then hurried through three days of debate before being packed off to the Commons public safety committee for a week of hearings (initially these, too, were to be limited to three days). The hearings were notable for the many witnesses requested by opposition parties, for example the privacy commissioner, who were not invited. Those that did appear were frequently subjected to accusatory harangues from Conservative MPs in place of questions.

Matching this unseemly haste has been a notable reluctance on the government’s part to explain the bill’s rationale. There is no question the terrorist threat is real and growing; we remain open to being persuaded either of the inadequacy of current anti-terrorism policies and procedures or the ways in which the measures the government proposes would improve matters. But in the weeks since the bill was introduced, the government has presented virtually no evidence of this — certainly none to suggest why it must be passed with so little time for democratic scrutiny. The only obvious deadline is the approach of October’s general election, in which the Conservatives would no doubt like to have tough new anti-terror laws to wave at the voters.

Yet Canada has a strong record of foiling terrorists under existing laws. While there have been a number of high-profile incidents — most notably the October assault on Parliament by Michael Zihaf-Bibeau and the hit-and-run attack by Martin Rouleau on two Canadian soldiers a few days earlier in Quebec — they are outnumbered by the successful prevention of other plots and the arrest of their planners, suggesting police already have powers that are proving largely adequate.

Perhaps there are other cases of which we are unaware in which only luck prevented a catastrophe — as it is often said, the terrorists only have to get lucky once. Security officials live with a sense of foreboding about the “next time,” and we are sensitive to their concerns. Fine: Show us how these expansive new powers would help, rather than hurt.

For example, the bill would transform the Canadian Security Intelligence Service (CSIS) from an intelligence-gathering agency that hands information to the RCMP for action, into an active participant alongside the Mounties. All right, maybe two heads are better than one. But what of concerns, expressed by no less formidable an authority than former Supreme Court judge John Major, that these overlapping powers, in the absence of some coordinating authority, could result in confusion, turf wars and buck-passing? What answer does the government offer? What answer has it offered, other than don’t worry, trust us and variants?

Similarly, while the government says CSIS would not be able to make arrests, it could break the law or violate a suspect’s Charter rights if granted a warrant from a judge. The request would be heard in secret, so that in many cases the judge would have nothing to go on other than the story presented by CSIS itself. The target wouldn’t know, so would have no opportunity to complain or offer a defence. What is the government’s answer to the many reasonable critics, including the Canadian Bar Association, who have voiced great unease with this unprecedented arrangement? Perhaps if it were not in such haste to pass the bill — exceeded, it seems, only by the haste with which it was drafted — it could provide one.

The government’s hurry has produced such an outcry of protest that it seems to have felt obliged to propose a few amendments to the bill, even as it has rejected all opposition amendments. Such grudging, belated concessions are not sufficient, nor do they address many of the most telling concerns about the bill. It is high time the government accepted its responsibilities in this regard. The onus is always on the state to show why the people’s liberties should be restricted, not on the citizens to show why it should not. That the government has not begun to discharge this obligation can only feed the growing unease over this bill.

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