Bill C-51 Charter Of Rights And Freedoms Essay

Christian Leuprecht is associate dean and associate professor at the Royal Military College of Canada, affiliated with Queen’s University.

In debating the federal government’s anti-terrorism legislation, Bill C-51, we would do well to remember that there is a reason even Pierre Trudeau insisted on protecting freedom of expression rather than “freedom of speech” in the Canadian Charter of Rights and Freedoms: unlike the United States, there was a broad consensus that we did not want to afford neo-Nazis constitutional protection to march through Jewish neighbourhoods (National Socialist Party of America vs. Village of Skokie, 1977). Similarly, we do not want salafist Jihadists abusing their adulterated interpretation of Islam to lure the unsuspecting back to the moral ice age.

Democracies, by definition, cherish the Lockean principle of limited state. Its intervention needs to be justified in an effort to advance freedom (and, subsequently, equality and justice). Life is the ultimate human right: It is difficult to enjoy your freedom when you are dead. No one knew that better than John Locke himself: He fled Oxford fearing for his life, only to return from his Dutch refuge on the same ship as William of Orange.

Far from creating a police state, C-51 is merely getting Canada caught up to the rest of the civilized world. Living thousands of miles from the world’s hotspots, Canadians have until lately enjoyed the privilege of being able to bury their heads in the sand. But globalization has made Canada as vulnerable to violent extremism as our allies. The difference is that most of them have long had in place the provisions in C-51 that have caused such heated debate in Canada: measures of detention that are clearly distinct from arrest, risk-diminishment mandates for security intelligence, more robust provisions to stop people from boarding planes, and very robust provisions for sharing data.

While controversy on C-51 abounds, all critics agree on one fundamental question: “How can the government assure me that my rights and freedoms have not been violated?” The question is hardly new. Roman satirist Juvenal famously probed: Quis custodiet ipsos custodes? Who is watching the watchers? The government points to the Security Intelligence Review Committee. The problem with SIRC is it has (almost no) jurisdiction beyond the Canadian Security Intelligence Service.

First, C-51 should extend SIRC’s remit to be able to follow intelligence that originated with CSIS throughout the Canadian security food chain. For example, within the RCMP, SIRC should be able to follow the entire “intelligence to evidence” thread. To be clear: SIRC should not have purview over entire RCMP investigations that were based on or involve CSIS evidence. SIRC’s sole responsibility should be the ability to follow CSIS intelligence throughout federal agencies to ensure that intelligence is handled in accordance with the law and the Constitution.

Second, the SIRC reporting process needs to be sped up. Many of SIRC’s reports become public domain, but it takes a couple of years. Due to the steps involved, that glacial pace is unlikely to change. In the interim, why not follow the example of the United Kingdom: clear select members of the opposition to read SIRC’s report (and the CSE Inspector General’s, for that matter).

The precedent for clearing select members of the opposition was set during the Afghan detainee debate. Since parliamentary procedure would prohibit this being done in committee, the opposition instead forwards to the Prime Minister a list of names from which the Prime Minister picks at his or her discretion. Rather than having to trust the Prime Minister, Canadians would sleep better if, for example, former Solicitor General Wayne Easter and well-versed defence critic and lawyer Jack Harris had a chance to read these reports in a timely fashion and corroborate that they are satisfied that Canadians’ rights and freedoms had, indeed, not been violated.

And by virtue of being sworn in as Privy Councillors, the opposition members privy to the reports would never be able to talk about them in public, or Question Period, anyway. So, the risk to the government of sharing this information is negligible compared to the benefits of added oversight.

Compared to standing up a whole new review bureaucracy or vastly expanding the scope of existing ones, the legislative fix for both these remedies would be relatively easy and cost little or no treasure.

Cpl. Nathan Cirillo’s son should not have to grow up without a father, and parents across this country should not have to grieve children who have been pulled into radicalism by some of history’s most cruel murderers and rapists. Canadians, long insulated from much of the troubles of the world, need to develop a more mature understanding of what it means to reconcile freedom with security.

Christian Leuprech is among the 48 witnesses called to testify on Bill C-51 before the House of Commons Standing Committee on National Security.

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When Canada's national police force is found guilty of fabricating terrorist attacks and its security intelligence has a reputation for complicity in the torture of innocent citizens, one would think the next logical step would be to hold those responsible to account.

Yet with the draconian Bill C-51, the Canadian Security Intelligence Service has been granted sweeping powers to act as a secret police force. Instead of only collecting intelligence, CSIS can now disrupt what they perceive to be a security threat, violating laws and the Charter of Rights and Freedoms if they find it necessary.

The anti-terrorism act is dangerous legislation because it legalizes misconduct and allows the violation of civil liberties while Canadians are not made any safer.  

Plotting terrorist attacks

The B.C. Supreme Court overturned the terrorist convictions of John Nuttall and Amandy Korody last summer, ruling that the RCMP entrapped the couple, coaxing them into planning to blow up the B.C. legislature.

The RCMP spent nearly $1 million imagining different scenarios, involving 240 police officers to realize their fabrication. 

On Canada Day in 2013, the RCMP and CSIS reportedly saved Canadians by disrupting their own fake plot and informed the media that Nuttall and Korody were self-radicalized, inspired by al-Qaeda.

Nuttall's and Korody's overturned convictions might have turned out differently if Bill C-51 had been implemented at the time with the offence of "advocating or promoting the commission of terrorism offences in general" (regardless of whether you actually meant it or whether you were led on in an illegal sting operation).

This broad and vague speech crime is worrisome, since we've already seen individuals flagged simply for espousing views that differ from the government's official narrative. 

Anti-war activist Ken Stone caught the attention of CSIS after visiting Iran and writing a 2012 op-ed for the Hamilton Spectator titled "Harper is wrong in demonizing Iran."

Stone said CSIS agents showed up at his house unannounced in an attempt to intimidate him.

In a Toronto Star op-ed, lawyer Faisal Kutty listed a sample of his clients and what they were flagged for, including "an engineering student searching, wait for this, engineering journals; hugging someone at an Eid gathering when this is part of the festive rituals; and attending lectures about rights."

Canadians tortured in foreign prisons

The 2008 Iacobucci report found CSIS and the RCMP complicit in the torture of innocent Canadians in foreign prisons. Canadian authorities made up accusations that Abdullah Almalki, Ahmad Elmaati and Muayyed Nureddin were terrorists and provided questions to the interrogators. The confessions obtained under torture were used to justify search warrants.

the fifth estate obtained internal documents revealing Canadian authorities knew the men were being tortured and collaborated with Syrian officials in interrogations.

CSIS labelled Almalki a potential member of al-Qaeda, but after following him, an RCMP case officer admitted in a memo, "O Division Task Force are presently finding it difficult to establish anything on him other than the fact that he is an Arab running around."

Authorities had no evidence he had done anything wrong, yet his name was still sent in a worldwide terrorist alert and upon arrival at the Damascus airport, instead of visiting his ailing grandmother, Almalki was taken to a prison and tortured for nearly two years.  

He falsely confessed to being Bin Laden's partner, but at that point in the torture, he would have admitted to being a duck if that's what they wanted, Almalki said. 

It's hard to believe CSIS will act responsibly with its new powers given a record of targeting innocent people based on no evidence. More dragnet surveillance and information sharing about innocent Canadians is expected. 

CSIS doesn't need to present any evidence why an individual is suspect in order to obtain a warrant to violate charter rights. Under the new act, CSIS is shielded from lawsuits regarding its information sharing among government institutions and now has authority to even operate abroad, breaking laws of sovereign countries to disrupt perceived security threats. 

Tough on terror

Additional anti-terrorism laws aren't necessary to thwart terrorist attacks. In Aaron Driver's case, the planned attack was thwarted after the RCMP received a tip from the FBI. Driver was already under a peace bond, a mechanism that has existed since 2001.

There is no evidence that this new, draconian legislation will make Canadians any safer.

"Our terrorism criminal law already sets the tripwire for terrorism crime very far from actual acts of violence," Craig Forcese, a national security expert and University of Ottawa law professor, wrote in his blog. "None of the two dozen or so persons in prison for post-9/11 terrorism crimes got further than plotting before they were charged and convicted."

Edward Snowden, the former National Security Agency contractor turned whistleblower, believes Justin Trudeau's support for the anti-terror law comes from fear of appearing soft on terror.

"A lot of what classifies as terrorism in the political context — individuals that the news calls terrorist — are really common criminals. But they do not constitute the kind of supercriminal threat that is represented by our terrorism legislation," Snowden told a Toronto audience via video, the Guardian reported.

In the post-9/11 frenzy, which continues to this day, it's also a trend in the U.S. to target vulnerable Muslims so state authorities can appear as the heroes of their own fabrications, as explained in Glenn Greenwald's Intercept article "Why does the FBI have to manufacture its own plots if terrorism and ISIS are such grave threats?"

Given its history of participating in torture, misrepresenting facts to courts to obtain secret warrants, destroying evidence, surveillance of dissident protesters and other manipulation, granting CSIS sweeping powers to legally act as a secret police force without any reliable oversight defies logic.

As lawyer Kutty correctly noted, Canada's national security framework requires a major overhaul.

​Mersiha Gadzo is a multimedia journalist currently based in Sarajevo.

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