Repeal Bill C-51 Submission

Bill C-51 Will Not Make Us Safe

These are my answers on the Online Consultation on National Security.  I was trying to get them posted before midnight, but we’re in the middle of a blizzard and my In ternet connection went out, so I wasn’t sure if I’d be able to get the last 2 submissions posted, but that worked out fine.  If they haven’t closed the consultation in the morning, I may do more… I’d append it to the bottom of this if I do.  These were my answers, everything off the cuff as I knew I was under a strict deadline; I haven’t proofed it or checked to see if I made any sense at all.  I’m sure there are dozens of things I’ve forgotten to say, but I’m too tired to worry about it now.


Accountability

Q: Should existing review bodies – CRCC, OCSEC and SIRC – have greater capacity to review and investigate complaints against their respective agencies?

A: Yes: they need the staff to be able to review EVERYTHING thoroughly.

It seems to me Independent Commissions of Inquiry are exercises in futility if the resulting recommendations are ignored, as happened in Bill C-51.

Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: Should the existing review bodies be permitted to collaborate on reviews?

A: Sharing information: YES. It would be good for the review bodies to understand what is happening across the board.

Collaborate: NO. Each review body has its own mandate and needs to do its own work. My opinion about collaboration has shifted dramatically PsPAfter the four Liberal MPs in Waterloo Region “collaborated” with The Honourable Maryam Monsef’s Democracy Tour, then passed this off as their own electoral reform consultation.

Q: Should the Government introduce independent review mechanisms of other departments and agencies that have national security responsibilities, such as the CBSA?

A: There needs to be actual SUPERVISION, which is not the same as review.

Reinstate the Office of the Inspector General.

Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: The proposed committee of parliamentarians will have a broad mandate to examine the national security and intelligence activities of all departments and agencies. In light of this, is there a need for an independent review body to look at national security activities across government, as Commissioner O’Connor recommended?

A: Yes. What would be refreshing would be a review body that was not made up of the usual suspects; A Citizens Assembly, composed of ordinary Canadians much like like those struck in Ontario and B.C. to study electoral reform would be a truly independent review body.

Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: The Government has made a commitment to require a statutory review of the ATA, 2015 after three years. Are other measures needed to increase parliamentary accountability for this legislation?

A: The BEST review would be a nation wide referendum. Canadians need to be consulted when Parliament pushes through legislation that eviscerates the Canadian Charter of Rights and Freedoms.

Repeal Bill C-51, the Anti-Terrorism Act, 2015


Prevention

Q: The Government would like your views about what shape a national strategy to counter radicalization to violence should take. In particular, it is looking to identify policy, research and program priorities for the Office of the community outreach and counter-radicalization coordinator. What should the priorities be for the national strategy?
There must be actual two way communication with communities.

Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: What should the role of the Government be in efforts to counter radicalization to violence?
A: Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: Research and experience has shown that working with communities is the most effective way to prevent radicalization to violence. How can the Government best work with communities? How can tensions between security concerns and prevention efforts be managed?
A: Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: Efforts to counter radicalization to violence cannot be one size fits all. Different communities have different needs and priorities. How can the Office identify and address these particular needs? What should be the priorities in funding efforts to counter radicalization to violence?
A: Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: Radicalization to violence is a complex, evolving issue. It is important for research to keep pace. Which areas of research should receive priority? What further research do you think is necessary?
A: Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: What information and other tools do you need to help you prevent and respond to radicalization to violence in your community?

A: Civil rights protections need to be restored. The government and government agents and agencies need to reverse the “us against them” mentality where all Canadians are treated like foreign spies from enemy counties. Connecting with Canadians as human beings, treating us with respect is a priority.

Working to ensure racists are not on the front lines would be an excellent start.

Repeal Bill C-51, the Anti-Terrorism Act, 2015


Investigative Capabilities in a Digital World

Q: How can the Government address challenges to law enforcement and national security investigations posed by the evolving technological landscape in a manner that is consistent with Canadian values, including respect for privacy, provision of security and the protection of economic interests?

A: The first step would to stop acting as though the digital realm is different than the real world.

The Canadian Charter of Rights and Freedoms must be in force for Canadians whether we are online or off.

The reason privacy is a protected human right in the Universal Declaration of Human Rights and the Canadian Charter of Rights and Freedoms is because privacy is an important part of how human beings protect ourselves from the wider world, including and especially protecting ourselves from the state. Government is far more powerful than any citizen, so it is important to protect citizens from being crushed under it.

The only way to be consistent with Canadian values, including respect for privacy and the provision of security would be to Repeal Bill C-51, the Anti-Terrorism Act, 2015, and any other laws which infringe on the Charter Rights of Canadians.

There is an incredible disconnect in that this question includes “the protection of economic interests.” Canadians are talented, clever and resourceful; we are capable of competing on the world stage without requiring state sponsored spies and dirty tricks. We’re better than that. If Canada’s security forces have so much time on their hands they need top busy themselves spying on Canadian citizens and the competitors of Canadian businesses, we would do better to pension them off instead of turning it into a workfare scheme for public servants.

Q: In the physical world, if the police obtain a search warrant from a judge to enter your home to conduct an investigation, they are authorized to access your home. Should investigative agencies operate any differently in the digital world?

A: In the physical world, if the police obtain a search warrant from a judge to enter your home to conduct an investigation, they are authorized to access only that part of our home spelled out on the warrant. A warrant to search a home does not confer the right to search someone’s safety deposit box.

Investigative agencies must follow the rule of law, substantial probable cause should be required before a judge should be granting warrants into private areas of our lives, whether physical or digital, because the Canadian Charter of Rights and Freedoms applies in both places.

If a warrant would be required before investigators can breach the privacy of a citizen’s physical home, likewise a warrant should be required before investigators can breach the Charter protected privacy of a citizen’s digital space. The Charter is meant to protect the rights of Canadians, period.

Which is why it is necessary to repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: Currently, investigative agencies have tools in the digital world similar to those in the physical world. As this document shows, there is concern that these tools may not be as effective in the digital world as in the physical world. Should the Government update these tools to better support digital/online investigations?

A: No, the government should most certainly not have extra-judicial access to “back doors.” It should not be conspiring to compromise the digital security of citizens, whether by bringing the weight of government to bear on the security of digital standard, or by introducing invasive spyware into our digital devices under cover of digital locks. Such machinations would not only make it easier for government agents to break through citizen digital security protections, it would similarly make it easier for criminal breaches of our security.

In the same way law enforcement agencies are not routinely given master keys to our physical abodes, or copies of our safe deposit keys, or passwords to our bank accounts such extrajudicial access is not at all acceptable.

Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q:  Is your expectation of privacy different in the digital world than in the physical world?

A: No.

Repeal Bill C-51, the Anti-Terrorism Act, 2015

Basic Subscriber Information (BSI)

Q: Since the Spencer decision, police and national security agencies have had difficulty obtaining BSI in a timely and efficient manner. This has limited their ability to carry out their mandates, including law enforcement’s investigation of crimes. If the Government developed legislation to respond to this problem, under what circumstances should BSI (such as name, address, telephone number and email address) be available to these agencies? For example, some circumstances may include, but are not limited to: emergency circumstances, to help find a missing person, if there is suspicion of a crime, to further an investigative lead, etc…

A: .”In 2014, in R. v. Spencer, the Supreme Court of Canada decided that the police could not request the name and address of a person in relation to his or her IP address where it would reveal intimate details of his or her anonymous online activities, except in an emergency situation or pursuant to a reasonable law. The Court concluded that the manner in which the police in this case obtained such information interfered with privacy interests protected by the Charter.”
~ Basic Subscriber Information, Our Security, Our Rights: National Security Green Paper, 2016

In spite of the biased way the question was posed, I was able to put this in context, thanks to your backgrounder. In a world where citizen privacy is increasingly under attack, citizen privacy is indeed protected by making it difficult to obtain Basic Subscriber Information (BSI) that ” reveal intimate details of his or her anonymous online activities.”

The problem as I see it is that government agencies act as though they were entitled to our personal information at the drop of a hat. Canadians are expected to cheerfully allow such institutional voyeurism so as not to limit the ability of government agencies to “carry out their mandates.” What we really need is a proper nation wide conversation where the public can be made aware of these issues. When properly informed, Canadians can decide whether the mandates government agencies are willing to sacrifice citizen privacy for are actually worth such a stiff price.

The Canadian Charter of Rights and Freedoms, like the Canadian Bill of Rights before it placed reasonable constraints on government agencies, requite law enforcement agents to respect the privacy of citizens, “except in an emergency situation or pursuant to a reasonable law.” Law enforcement agencies have successfully fulfilled their mandate within the legal framework that exists to protect Canadian Charter rights for many years — decades, even — in the physical world. There is no good reason for our Charter protections to be invalidated in the digital realm. Our rights are our rights, period.

The Court was absolutely correct in concluding “that the manner in which the police in this case obtained such information interfered with privacy interests protected by the Charter.”

Judicial warrants are a good thing; they help to uphold the protections guaranteed us by the Canadian Charter of Rights and Freedoms.

Anyone reading this should make a point of seeing the excellent East German movie, “The Lives of Others,” because it is a powerful demonstration of the necessity for personal privacy rights.

Clearly we need to Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: Do you consider your basic identifying information identified through BSI (such as name, home address, phone number and email address) to be as private as the contents of your emails? your personal diary? your financial records? your medical records? Why or why not?

A: Yes.

Because it is none of your business.

“If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.”
~ Cardinal Richelieu, on Privacy

Repeal Bill C-51, the Anti-Terrorism Act, 2015

Cardinal Richilieu on Privacy

Q: Do you see a difference between the police having access to your name, home address and phone number, and the police having access to your Internet address, such as your IP address or email address?

A: Yes. My home address is static; it is also public information. IP and email addresses are neither

When you add up all the bits and pieces of digital data, it can reveal far more information than anyone deserves.

Repeal Bill C-51, the Anti-Terrorism Act, 2015

Interception Capability

Q: The Government has made previous attempts to enact interception capability legislation. This legislation would have required domestic communications service providers to create and maintain networks that would be technically capable of intercepting communications if a court order authorized the interception. These legislative proposals were controversial with Canadians. Some were concerned about privacy intrusions. As well, the Canadian communications industry was concerned about how such laws might affect it.

A: And we are incredibly lucky that there are people who were aware of the issues far earlier than most; fortunately they tend to be good citizens who have worked to educate the less digitally literate that we might understand and so be able to protect ourselves online.

That the government would try to enact legislation requiring the service providers Canadians pay for digital service to create and maintain networks -that would be technically capable of spying on Canadians — with or without a court order authorizing interception of our private communications is incredibly galling. Perhaps the most offensive part is that we would effectively be footing the bill to allow our communications to be insecure.

It is well known that most domestic communications service providers, small and large, have shown willing to give up their customer’s private data without a court order, simply by being asked.

Here’s the thing; Canadians are footing the bill for the government that seems to believe spying on is 24/7 is somehow in the public good. in spite of the fact the few bona fide experts allowed to testify at C-51 hearings both before the Parliament and the Senate. Fortunately for Canadians, the Harper Government’s agenda was to pass Bill C-51 in spite of its copious flaws, and so much valid expert testimony was turned away; but since this is the Internet age, many of those potential expert witnessed shared their testimony with Canadians online. This had the result of creating an exceptionally a well informed population, and once informed, even middle aged moms like myself found ourselves well enough informed to be truly horrified about this legislation. No doubt this is why Canadians all across Canada had both the information and motivation to hold Stop Bill C-51 rallys in big urban cities and small rural backwaters.

Yes, such legislation was and is controversial, and well it should be. DON’T DO IT.

Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: Should Canada’s laws help to ensure that consistent interception capabilities are available through domestic communications service provider networks when a court order authorizing interception is granted by the courts?

A: When the Canadian government is willing to pick up the tab for our digital access (without dipping into tax dollars… perhaps CSIS agents could host chocolate bar campaigns and other fundraisers much like families are obliged to hold public school fundraisers to make up for school funding shortfalls), then we can talk about whether service providers should in fact be compelled to build special infrastructure which can be used to spy on their customers (with or without a warrant.)

Encryption

Q: If the Government were to consider options to address the challenges encryption poses in law enforcement and national security investigations, in what circumstances, if any, should investigators have the ability to compel individuals or companies to assist with decryption?

A: The idea that government might compel individuals or companies to betray family, friends, customers and the public good through undermining the encryption and the the quality of personal security is staggering.

I often wonder if Blackberry personal user market would have gone so emphatically bad had it not become known that the end to end private communications RIM was selling was not private from any government who asked.

Judicial warrants, rule of law. Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: How can law enforcement and national security agencies reduce the effectiveness of encryption for individuals and organizations involved in crime or threats to the security of Canada, yet not limit the beneficial uses of encryption by those not involved in illegal activities?

A: Law enforcement and national security agencies can’t reduce the effectiveness of encryption for individuals and organizations involved in crime without reducing the effectiveness of encryption for Canadian citizens and Canadian businesses too.

I’m not sure why today’s law enforcement and national security agencies expect their jobs to be done for them. Nobody said it would be easy, it’s hard work. The thing is, they would have far greater resources to employ in breaking through criminal encryption if they moved all the resources currently deployed to spy on innocent law abiding citizens.

Repeal Bill C-51, the Anti-Terrorism Act, 2015

Data Retention

Q: Should the law require Canadian service providers to keep telecommunications data for a certain period to ensure that it is available if law enforcement and national security agencies need it for their investigations and a court authorizes access?

A: No.

Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: If the Government of Canada were to enact a general data retention requirement, what type of data should be included or excluded? How long should this information be kept?

A: No.

Repeal Bill C-51, the Anti-Terrorism Act, 2015


General Feedback

Q: Now that you have had a chance to consider the sections above, please consider taking the time to answer some general questions below. The questions below are in addition to the more specific and detailed questions that you will find in each of the 10 sections.

What steps should the Government take to strengthen the accountability of Canada’s national security institutions?

A: First and foremost, Repeal Bill C-51, the Anti-Terrorism Act, 2015

Reconstitute the Office of the Inspector General, staffed appropriately to ensure it is capable of providing direct supervision of intelligence agency activities.

Increase funding and staff to SIRC to ensure all intelligence activities are subjected to adequate review.

When Commissions of Inquiry are established to get to the bottom of a thorny issue, then determines a course of recommendations intended to prevent the same mistakes being repeated — as in the:

The Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar;
The Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin; and,
The Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 —

Such recommendations need to be seriously considered, and unless there are compelling reasons not to, the recommendations should be incorporated into subsequent policy.

Every one employed in Canada’s national security institutions should be very much aware of the terms of the Canadian Charter of Rights and Freedoms, and to follow this absent probable cause and a judicial warrant to the contrary.

Q: Preventing radicalization to violence helps keep our communities safe. Are there particular prevention efforts that the Government should pursue?

A: Repeal Bill C-51, the Anti-Terrorism Act, 2015

Sensitivity training; screening agents for racial/gender/protected class bias

Community outreach.

Implementation of a Universal Basic Income program would go a long way toward easing the ongoing financial marginalization faced by the under and unemployed, particularly youth.

Q: In an era in which the terrorist threat is evolving, does the Government have what it needs to protect Canadians’ safety while safeguarding rights and freedoms?

A: Experts agreed that Bill C-51, the Anti-Terrorism Act, 2015, did nothing to make Canadians safer, and most certainly failed to safeguarding rights and freedoms. Repeal the Anti-Terrorism Act, 2015.

Q: Do you have additional ideas or comments on the topics raised in this Green Paper and in the background document?

A: This can not be stressed enough: Repeal Bill C-51, the Anti-Terrorism Act, 2015

I’ve written more about this issue in:

Bill C-51 – The Antiterrorism Act 2015
and last year in
Liberal Leader Gets Bill C-51 Wrong



NOTE: After the Consultation Deadline, it was perfectly reasonable to close the consultation to the public.  However, there was absolutely no reason to take down the website pages. Canadians should be able to access those pages, reading both the questions and the background information.  Most especially,  we should still be able to read the National Security Green Paper Background Document which lays the foundation for the discussion on National Security Canadians should be having right now.  

Not only that, it’s terrible netiquette to do this, if for no other reason that it breaks the links to the consultation documents (mine here, the Toronto Star’s here,  the BC Civil Liberties here and no doubt many more).   



The Questions I Didn’t Get To

Threat Reduction

What do you think?

The Government wants to know what you think about CSIS’s new threat reduction mandate:

Q:  CSIS’s threat reduction mandate was the subject of extensive public debate during the passage of Bill C-51, which became the ATA, 2015. Given the nature of the threats facing Canada, what scope should CSIS have to reduce these threats?

A:  CSIS was designed and created to be a purely intelligence gathering operation. It should not have any operational powers at all.

First, because of redundancy: the RCMP re are already government agencies with such a mandate. Second, because needless duplication is expensive.

Third, and most important, operational powers will undoubtedly add to the problem of inter-agency communication. If CSIS has the power to act on the information it gathers, there is even greater risk the agency will be reluctant to share the information with the appropriate agencies, instead of cooperation there will certainly be heightened territorial competition, as agencies carve out their own fiefdoms.

None of these three are in the public good. Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: Are the safeguards around CSIS’s threat reduction powers sufficient to ensure that CSIS uses them responsibly and effectively? If current safeguards are not sufficient, what additional safeguards are needed?

A:  No. There is no actual operational supervision (why the Office of Inspector general needs to be reinstated even with the repeal of Bill C-51, the Anti-Terrorism Act, 2015), there is no effective political oversight, there is no citizen oversight or even any mechanism to ensure CSIS activities conform to the provisions of the Canadian Charter of Rights and Freedoms, and the SIRC review process is part time, underfunded and understaffed, and thus unable even to review all CSIS activity to ensure its powers are used responsibly and legally.

There needs to be a truly independent citizen body that can hold the government agencies and its political masters accountable to the public good.

What we do need is strong whistleblower support and protections to make it possible for any Canadian Snowdens to come forward should our government agencies stray into the realm of illegality.

And of course, we must repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: The Government has committed to ensuring that all CSIS activities comply with the Charter. Should subsection 12.1(3) of the CSIS Act be amended to make it clear that CSIS warrants can never violate the Charter? What alternatives might the Government consider?

A:  I understand there used to be a process (stemming from provisions in the Canadian Bill of Rights) which informed legislators of potential Charter conflicts before legislation was made. Frankly, it has been emphatically demonstrated in recent decades that Canadian Government needs to be made accountable to upholding the Charter. Law is meaningless when Government sets itself above it.

There needs to be provision to prevent law that contravenes the Charter from even being enacted. Perhaps at one time the Governor General could have performed this function by withholding Royal Assent before legislation came into force, but clearly today’s GG political appointees have failed to do so, instead functioning as a symbolic rubber stamp.

Perhaps the office of GG might be expanded, to have a legal section (perhaps populated at least in part by retired Supreme Court justices) which provide legal opinion when legislation is first drafted, that Charter conflicts might be addressed in the early stages of legislation. And another that protects and supports whistleblowers acting in the public interest.

Especially without robust independent and proven supervision, it has been shown that government agencies and agents should never be allowed extra-judicial powers to contravene the Charter. Similarly, legislators should not have the wherewithal to draft let alone pass law enabling the establishment of secret courts that require judges to issue warrants without being fully apprised of the facts, where people are prosecuted without the ability to see evidence against them or even know the exact nature of the charges, where evidence derived from torture is given full credence, where the rule of law is over ruled.

Canada must Repeal Bill C-51, the Anti-Terrorism Act, 2015


Domestic National Security Information Sharing

The Security of Canada Information Sharing Act

Bill C-51(the Anti-terrorism Act, 2015) created the Security of Canada Information Sharing Act (SCISA), which established an additional authority for national security information sharing.

It provides all federal government institutions with a new, explicit authority to disclose information related to an “activity that undermines the security of Canada” to certain designated federal institutions with national security responsibilities.

Importantly, this does not include activities of protest, advocacy, dissent or artistic expression. Information about these activities cannot be disclosed under the SCISA.

What do you think?

Q:  The Government has made a commitment to ensure that Canadians are not limited from lawful protest and advocacy. The SCISA explicitly states that the activities of advocacy, protest, dissent, and artistic expression do not fall within the definition of activity that undermines the security of Canada. Should this be further clarified?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  Should the Government further clarify in the SCISA that institutions receiving information must use that information only as the lawful authorities that apply to them allow?

A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q:  Do existing review mechanisms, such as the authority of the Privacy Commissioner to conduct reviews, provide sufficient accountability for the SCISA? If not, what would you propose?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  To facilitate review, for example, by the Privacy Commissioner, of how SCISA is being used, should the Government introduce regulations requiring institutions to keep a record of disclosures under the SCISA?

A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q:  Some individuals have questioned why some institutions are listed as potential recipients when their core duties do not relate to national security. This is because only part of their jurisdiction or responsibilities relate to national security. Should the SCISA be clearer about the requirements for listing potential recipients? Should the list of eligible recipients be reduced or expanded?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015

The Passenger Protect Program

What do you think?

Under the new Secure Air Travel Act (SATA), which came into being with the passage of Bill C-51, the Government can use the Passenger Protect Program (PPP) – an air passenger identity screening program – to identify individuals who pose a threat to transportation security or are seeking to travel to commit certain terrorism offences.

These people are placed on what is known within the Government as “the SATA list” (casually referred to as a “No Fly List”).

Individuals on this list may be subjected to a range of measures to mitigate the threat that they pose, including being denied boarding of an aircraft – or having to undergo additional screening measures.

Q:  At present, if the Minister does not make a decision within 90 days about an individual’s application for removal from the SATA List, the individual’s name remains on the List. Should this be changed, so that if the Minister does not decide within 90 days, the individual’s name would subsequently be removed from the List?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  To reduce false positive matches to the SATA List, and air travel delays and denials that may follow, the Government has made a commitment to enhance the redress process related to the PPP. How might the Government help resolve problems faced by air travellers whose names nonetheless generate a false positive?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  Are there any additional measures that could enhance procedural fairness in appeals of listing decisions after an individual has been denied boarding?
A:   Repeal Bill C-51, the Anti-Terrorism Act, 2015

Criminal Code Terrorism Measures

Since 2001, a number of people have been convicted of terrorism offences in Canada. Some have received life sentences. Our Criminal Code sets out a range of anti-terrorism powers for law enforcement and lists a range of terrorism-related offences.

With the Anti-terrorism Act, 2015, the Criminal Code was amended to:

  • make it easier to prevent the carrying out of terrorist activity or terrorism offences;
  • make it a crime to advocate or promote terrorism offences;
  • give courts the power to order the seizure and forfeiture or removal of terrorist propaganda;
  • give additional protection to witnesses and other participants in national security proceedings.

Let us look at each of these amendments, one by one.

Reasonable Conditions

Generally, Canadian criminal law focuses on the prosecution of offences that have already taken place. But courts can also impose reasonable conditions on an individual in an effort to reduce the risk of that person  committing an offence.

When it comes to potential terrorism, law enforcement has two tools at its disposal that it may use with the approval of a judge:

  • Recognizance with conditions, which allows police to intervene and seek to have the court impose conditions on an individual who is suspected of being connected in some way to terrorist activity.
  • A terrorism peace bond, which is used to prevent an individual from committing a terrorism offence, such as leaving Canada to commit an offence for a terrorist group.

With the passage of Bill C-51, it became easier for police to apply for, and use, these two tools.

For example, the thresholds to obtain a recognizance with conditions was lowered to apply to instances in which law enforcement officials believe terrorist activity “may be carried out” and suspect that the recognizance “is likely to prevent” it – rather than the previous thresholds of  “will be carried out” and “is necessary to prevent”.

And a terrorism peace bond can now be issued where law enforcement believes an individual “may commit”- rather than “will commit” – a terrorism offence.

People who are subject to a recognizance with conditions or a terrorism peace bond face the possibility of detention and other restrictions on their liberty, without having been charged with, or convicted of, an offence.

Promotion of Terrorism Offences

It is now a criminal offence for a person to knowingly advocate the commission of terrorism offences in general. The individual must know that an offence will be committed or be reckless as to whether an offence may be committed as a result of what they say or write.

Seizure and Forfeiture of Terrorist Propaganda

There are two new warrants in the Criminal Code that allow police to seize terrorist propaganda. This is material that encourages the commission of a specific terrorism offence, or terrorism offences in general. This material can be in printed, audio or video form, or it can be in electronic form on the Internet.

Related amendments to the Customs Tariff also allow CBSA border services officers to seize terrorist propaganda being imported into Canada without a warrant, as they would other contraband.

Protection of Witnesses and Other Participants in the Justice System

Under the Anti-terrorism Act, 2015, enhanced measures are now available to protect witnesses and other participants in national security-related proceedings.

For example, judges can now order that witnesses testify behind a screen to conceal their identity, or use a pseudonym, or wear a disguise. And there is a broader range of instances under which charges can be laid against those who attempt to intimidate justice system participants.

What do you think?

Q:  Are the thresholds for obtaining the recognizance with conditions and terrorism peace bond appropriate?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  Advocating and promoting the commission of terrorism offences in general is a variation of the existing offence of counselling. Would it be useful to clarify the advocacy offence so that it more clearly resembles counselling?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  Should the part of the definition of terrorist propaganda referring to the advocacy or promotion of terrorism offences in general be removed from the definition?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  What other changes, if any, should be made to the protections that witnesses and other participants in the justice system received under the ATA, 2015?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015

Procedures for Listing Terrorist Entities

Formally listing an individual or group as a “terrorist entity” is a way of curtailing their support and publicizing their involvement with terrorism.

The most common method of listing is available through the Criminal Code.  An individual or group listed as a terrorist entity under the Criminal Code has its funds immediately frozen, and potentially seized and forfeited.

There are currently more than 50 terrorist entities which have been listed in this way. They include al-Qaida, the Taliban, Daesh, Boko Haram and more.

How Does a Group Get Listed?

It begins with an investigation by the RCMP or CSIS. The Minister of Public Safety and Emergency Preparedness may then recommend to Cabinet that the entity be listed, so long as there are reasonable grounds to believe that the entity:

  • knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity; or
  • is knowingly acting on behalf of, at the direction of, or in association with an entity that has knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity.

Many of Canada’s closest allies keep similar lists of terrorist entities.

What do you think?

The Government is interested in your views about the listing of terrorist entities.

Q:  Does listing meet our domestic needs and international obligations?

A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q:   The Criminal Code allows the Government to list groups and individuals in Canada and abroad. Most listed entities are groups based overseas. On which types of individuals and groups should Canada focus its listing efforts in the future?

A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q:  What could be done to improve the efficiency of the listing processes and how can listing be used more effectively to reduce terrorism?

A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q:  Do current safeguards provide an appropriate balance to adequately protect the rights of Canadians? If not, what should be done?

A:   Repeal Bill C-51, the Anti-Terrorism Act, 2015


Terrorist Financing

Canada’s approach to cutting off funds to terrorist groups involves 11 departments and agencies. Additionally, financial service providers – such as banks – have an obligation to know their customers, keep records and report certain transactions to help identify money laundering and terrorist financing.

Law enforcement and intelligence agencies can use some of the information from these reports to assist in their efforts to identify and disrupt terrorist activities.

Q: What additional measures could the Government undertake with the private sector and international partners to address terrorist financing?

A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q:  What measures might strengthen cooperation between the Government and the private sector?

A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q: Are the safeguards in the regime sufficient to protect individual rights and the interests of Canadian businesses?

A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015

Q:  What changes could make counter-terrorist financing measures more effective, yet ensure respect for individual rights and minimize the impact on Canadian businesses?

A:    Repeal Bill C-51, the Anti-Terrorism Act, 2015


 

Intelligence and Evidence

We all want to ensure that Canada’s national security information is protected. Indeed, the Government has an obligation to protect sensitive sources, capabilities and techniques. At the same time, there are instances in which this information may be required for a legal proceeding.

There are existing frameworks that govern the protection and use of national security information in a range of legal proceedings. For the most part, a Federal Court judge must decide whether disclosure of the information would hurt our international relations, national security or national defence. If so, the judge must then consider whether the public interest in disclosing the information outweighs the public interest in keeping it protected.

Sometimes, this means that a criminal court may be unable to hear the national security information – and may need to rely on an unclassified summary instead. Or it could be the case that, in a civil proceeding, a plaintiff may not have full access to the information required to make their case – or a defendant may be unable to mount a full defence. This raises the question of whether justice can truly be served in these examples.

There are also implications relating to immigration proceedings, where classified information is sometimes used. A good example is what is known as a “security certificate proceeding,” in which the Government makes the case that a non-citizen is inadmissible to Canada for reasons of security, violation of human or international rights, serious criminality or organized criminality.

In this case, a Federal Court judge rules on whether the certificate is reasonable. Former Bill C-51 made changes to immigration proceedings relying on classified information to better shield that type of information.

Q:  Do the current section 38 procedures of the Canada Evidence Act properly balance fairness with security in legal proceedings?

A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  Could improvements be made to the existing procedures?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  Is there a role for security-cleared lawyers in legal proceedings where national security information is involved, to protect the interests of affected persons in closed proceedings? What should that role be?
A:   Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  Are there any non-legislative measures which could improve both the use and protection of national security information in criminal, civil and administrative proceedings?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  How could mechanisms to protect national security information be improved to provide for the protection, as well as the reliance on, this information in all types of legal proceedings? In this context, how can the Government ensure an appropriate balance between protecting national security and respecting the principles of fundamental justice?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015
Q:  Do you think changes made to Division 9 of the IRPA through the ATA, 2015 are appropriately balanced by safeguards, such as special advocates and the role of judges?
A:  Repeal Bill C-51, the Anti-Terrorism Act, 2015


I don’t have time to answer the rest of these questions, many will require research,  not just a thorough reading of the Green paper (which is no longer available online ~ fortunately I had the presence of mind to download it for my own reference); but I really ought to familiarize myself with original documents, including the Canada Evidence Act, the Criminal Code, the Secure Air Travel Act (SATA),  the Passenger Protect Program (PPP), etc.

I’m not a lawyer, this isn’t my field of expertise, and there just isn’t enough time in the day.  That’s why I left this so long; as catastrophically bad for democracy and civil rights I believe Bill C-51, and indeed the government’s national security policy direction may be, I know they aren’t listening, and there are so many other urgent issues  where I may actually make a difference that take precedence.  It’s why we need Proportional Representation.
That isn’t to say this isn’t important; it is.  Bill C-51 has hastened the end of the legal foundation in the rule of law.  But the government is not listening.  I have already accepted the fact that every word I type online, ever email I write (until I get encryption set up) and everything I look at, everywhere I go online is not private.  Someone may be watching, but more likely it’s all just being downloaded to CSIS servers against the day my online noisiness makes someone with power decide I am a problem that needs to be dealt with.  This makes me so sad.  And it’s been building since before I was born:
Until now, law has strived to be clear and unambiguous to prevent loopholes from being exploited.  Legal language has carefully framed the parameters of laws so citizens had some hope of knowing what the law was, the better to avoid breaking it.  The UDHR and our own Canadian Charter of Rights and Freedoms spelled out the protections in place to uphold our rights.  If we were charged with law breaking, we could have our day in court, we were innocent until proven guilty, we could examine the evidence against us and face our accuser.  The rule of law was the foundation of our society, and our world.
Although the earlier post 9/11 anti-terrorism law began to erode Canadian civil rights in earnest, Bill C-51 has knocked the legs out from under our Charter Protections.  We are no longer innocent until proven guilty, we are guilty by association, we don’t even need to commit any criminal act, what remains of our liberty can be constrained because the state can decide we might do something.
I honestly don’t understand why more people are not concerned about these things.  Maybe its because I grew up reading science fiction that I can see so clearly where we are heading. Our government’s lip service to climate change while ratcheting up oil production is likely to lead to a Mad Max dystopia.  As we continue to pave over farmland we’re laying the groundwork for Trantor, creating the conditions that could lead to Silent Running.  As our privacy is sacrificed on the alter of state security, as we engage in perpetual war that doesn’t touch our world, even though it is in reality security theatre,  big brother is watching.   The hardest part is that it needn’t be this way.


PRIVACY
Personal Information (Optional)
Name:
Organization:
Location: (Province dropdown menu)
Which of the following best describes you?
  • Journalist/media
  • Academic
  • Student
  • Private Sector
  • Not-for-profit
  • Engaged citizen
  • Law Enforcement
  • Government
  • Other
 Providing feedbackFor more information on other ways to provide feedback please visit the Consultation on National Security webpage.

Please note that participation in this consultation – in whole or in part – is voluntary. Acceptance or refusal to participate will in no way affect any relationship with the Government of Canada or with any of its organizations. The information provided during to this engagement initiative can be subject to Access to Information and Privacy requests and will be administered in accordance with the Access to Information Act and Privacy Act.

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s