About this Project

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Tuesday
Mar102015

Bill C-51: The Need to Read the Right Statute

I watched the entire testimony of Ministers MacKay and Blaney this morning.  Quite a long treadmill run, actually.  I have a number of observations about the content of that testimony. 

But I shall confine myself to a comment about the awkward response that the Ministers gave to this whole "lawful" advocacy issue.  It was a mess.  For my earlier comment on this issue, see here.

1. Minister Blaney was right that "lawful" advocacy, protest and artistic expression is the "carve out" from the vast information sharing security justification in Bill C-51.

2. Minister MacKay was wrong (or at least misleading, in the context) when, in response to a friendly question from a Conservative MP, he said this: "To your point about a peaceful sit-in, [the legislation] does not include lawful or unlawful protest, dissent or stoppage of work, unless there is intention to cause death or serious bodily harm, endanger someone’s life or cause risk to the safety of the public".  This statement would be true, if the Minister was talking about the definition of "terrorist activity" in the Criminal Code (see (b)(ii)(E) in the "terrorist activity" definition).  But as Minister Blaney was at considerable pains to underscore elsewhere in his presentation: the information sharing law and the criminal concept of terrorism are different.

3. And so, to be clear, the reason the Criminal Code reads the way it does is because colleagues in 2001 took one look at the original language in the 2001 antiterror law.  And that language included the qualifier that the protest, advocacy, etc. be "lawful".  And those colleagues went to the parliamentary committee and said "lawful may mean that any number of violations of the law -- protests without municipal permits, wildcat strikes etc -- will be captured by the definition of terrorist activity, assuming other elements were met.  And the government of the day agreed.  And the then-Justice minister came to committee and proposed dropping this word.  See the extract here.  And that is what happened. [For more on this, see the Canadian Bar Association's concerns about "lawful" protest in the original antiterror act: namely, that it could reach civil disobedience protests. (p.19)]

4. And so the question is: when the Justice Department said in 2001 that they were concerned the word "lawful" was too limiting, and that "unlawful" could include street protests that did not meet the letter of regulatory law, were they right then?  Or are the Minister who are now taking exactly the opposite view right?

5. Having spent some taking a spin through how the term "lawful" is used in other contexts, I think the Justice lawyers in 2001 knew what they were talking about.

6. Finally, Minister Blaney seemed to suggest that the new info sharing law won't reach protests, because those protests won't be security risks anyway.  Glad to hear that.  But the bill's concept of security is basically "everything", to be decided internally by the government with no real independent review.  The Act captures anything that "undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada" and the list of items of things that are either an illustrative list of such security risks or examples of where it might apply (depending on how you read the tortured drafting) include: "unduly influencing a government in Canada by...unlawful means" and "interference with critical infrastructure".

So maybe we can all agree to amend the bill so that unlicensed sit-in protests against critical infrastructure that the government considers essential to Canada's security aren't captured by the new info sharing regime -- a regime that the Privacy Commissioner has now condemned as unbalanced and without adequate checks and balances.

Excessive information sharing is not banal.  Ask Maher Arar about the consequences of improper information sharing.

Why the government feels the need to pick this fight is beyond me.  If it had used "threats to the security of Canada" from the CSIS Act as the basis for information sharing regime, it would have sidestepped much of the controversy AND addressed every one of its stated objectives for this part of the bill.