C-51 keeps getting worse the more we learn about it

This is the inaugural post in a new series: National Security Sundays. Each week, I’ll be doing a deep dive into issues related to Canada’s surveillance agencies, law enforcement, or armed forces. Today, we’re taking a look at a story that what hot this spring but which hasn’t gotten as much attention as it deserves lately, the 1984-esque surveillance law C-51.

With the benefit of hindsight, I think I’ve managed to pinpoint the lowest level to which the Conservative Party stooped in the recent election campaign in their desperate attempts to drum up enough fear and terror and anti-Muslim hatred to squeak back into office.

There were, I’ll concede, a lot of candidates for the Lowest Low, from their anti-niqab hysteria to their “barbaric practices hotline” to their cold bureaucratic indifference to the plight of refugees. But, for me at least, the Conservatives hit rock bottom on September 24, when they announced that they were laying charges under the recently-passed C-51 against a Canadian man, Farah Mohamed Shirdon, who left Canada in early 2014 to fight for the Islamic State.

Shirdon, charged in absentia, couldn’t have been prosecuted without the vital provisions of the government’s glorious Combating Terrorism Act, crowed a boastful Jason Kenney in a press release so self-congratulatory and hubristic it has to be read to be believed. One key quote:

The video of this individual burning and shooting his Canadian passport to express his violent hatred for Canada shocked many Canadians – and demonstrates how those who engage in terrorism betray the bond of loyalty and allegiance with Canada.

This one sentence has the whole Conservative Party reelection strategy, encapsulated perfectly. It uses loaded buzzwords designed to create indignation, fear, and hatred, says “Canada” and “Canadians” far too many times, conflates symbolic gestures with meaningful action, and baldly asserts the widespread prevalence of opinions which are in actuality much more marginal. It sets up a glowing ideal of Canadian patriotism and then demonizes and Others anybody who fails to live up to it, attempting to create a sense of solidarity among all “decent” folks. It’s truly a disgusting masterwork of divisive rhetoric.

But that’s not what’s most egregious about the charges laid against Shirdon. The truly outrageous aspect of all this is that Shirdon was almost certainly dead when the RCMP announced the charges.

In other words, the Mounties laid highly political charges based on year-old evidence against a dead man in the midst of a hotly contested and embarrassingly xenophobic campaign, and the Conservatives did their best to use it to their advantage by painting themselves as heroic defenders of Canadian values and the last line of defence against a jihadist genocidal women-enslaving reign of terror. That this story didn’t get the same kind of traction as some of their other race-baiting announcements does nothing to detract from the absurdity inherent in this situation.

In fact, this story’s low profile allowed the RCMP to escape further scrutiny for the latest in a long string of mutual back-scratches with the CPC. In this case, the Mounties’ top brass no doubt was also considering the widespread public sentiment surrounding C-51. This spring, the law was faced with widespread protests across Canada from privacy advocates, civil liberties organizations, bar associations, and folks from all walks of life. The laying of charges against the thoroughly unlikeable Shirdon under this noxious law was perhaps a way of easing public perceptions of the law.

That this didn’t quite work out is clear, but it’s not like that was the Mounties’ last chance to rehabilitate the law’s reputation. And given that they’re now going to be working with Justin Trudeau’s Liberal Party, which has committed to keeping C-51 on the books, they once again have a partner in government who could benefit from wrapping itself up in the flag and proclaiming itself a defender of freedom and a bulwark against terror.

Of course, Trudeau – who along with his caucus voted in favour of C-51 – has pledged to “fix” the law. The Ottawa Citizen, speaking this week with “a source knowledgeable about the Liberals’ thinking”, reported on high-level discussions in the party on the issue:

Already, the incoming Liberals have promised to amend C-51, dubbed the Anti-terrorism Act of 2015, to forbid disruption operations from breaching Canadians’ Charter rights and protections. And CSIS will, as set out in the original bill, continue to require a warrant from a Federal Court judge if it needs to break any criminal or other laws during operations.

But a source knowledgeable about the Liberals’ thinking says senior officials are keeping “an open mind” on many aspects of C-51, especially the controversial new disruption powers.

The source cautioned “they have not come out either for or against such powers, though they are at least nervous about the idea of warrant approval for disruption.”

Disruptive powers can take many forms, from cancelling someone’s travel plans and interfering with financial transactions, to covertly sabotaging extremist websites, and doing intrusive surveillance in which people know they are being watched. [my bold]

This anonymous source also reports that the Liberals initially planned to outline in detail their proposed changes to the law during the campaign, but shelved that plan in lieu of placing more vague statements in their platform.

Now, there’s a few things going on here. First of all, this source is almost certainly speaking with the full knowledge and blessing of the party leadership – this is a friendly leak to a friendly paper.

Second, the Citizen sure soft-pedals their descriptions of what kinds of disruption CSIS can engage in – I mean, yes, all the examples it lists are valid, but CSIS can go quite a bit further than cancelling your plane ticket under C-51.

Third, if the Liberals actually aren’t sure where they stand on the issue of CSIS’s disruption powers, that would be startling. This has been one of the key criticisms of C-51, and the party’s brain trust has had ample time to nail down a position on the issue, no doubt in consultation with the various security/intelligence agencies who would benefit from the preservation of the status quo.

To me, the fact that they’re playing coy via an anonymous source, when this is an ideal opportunity to take a strong stand if they were ever going to, heavily implies that they’re inclined to preserve CSIS’s disruptive powers.

And when you look at the concrete changes that they have committed to (also detailed in the above-linked Citizen article), this impression is only further strengthened. The changes proposed are of the window-dressing variety – ensuring that CSIS’s disruption warrants don’t contravene the Charter of Rights and Freedoms, for instance, or mandating that CSE (Communications Security Establishment, the Canadian equivalent of the NSA) obtain a warrant before surveilling Canadian citizens.

One widely-touted reform, which was advocated by four former Prime Ministers this spring when C-51 was still being debated, is the establishment of an all-party Parliamentary oversight committee. Canada is the only member of the Five Eyes (an intelligence organization which also includes the United States, the United Kingdom, Australia, and New Zealand) which lacks this basic level of democratic oversight of its intelligence agencies, and such a step would obviously be positive.

But look: it’s shocking and appalling that CSIS is allowed to break laws and disrupt people’s lives without Parliamentary oversight, but why not go a little further and acknowledge that it’s also shocking and appalling that CSIS is allowed to break laws and disrupt people’s lives, period?

Furthermore, as documents released to Craig Forcese through an Access to Information request earlier this week reveal, the scope of CSIS’s disruptive activities will now extend far beyond Canada’s borders:

Internal government notes say the Canadian Security Intelligence Service is likely to team up with “trusted allies,” such as the American CIA and Britain’s MI6, on overseas operations to derail threats — plans that underscore concerns about CSIS accountability under new security legislation.

The omnibus bill known as C-51 allows CSIS to engage in joint “disruption” efforts abroad — including covert actions that break foreign laws — something the spy service previously had no authority to do, according to the government notes.

“In the international context, CSIS would likely first seek avenues to work jointly with partners in the local jurisdiction or trusted allies before engaging in independent action,” the notes say.

“In the past, CSIS has been invited to participate in joint operations abroad to disrupt threats or to provide assistance to allies, but has had no mandate to do so.”

The Canadian Press report on the revelations doesn’t delve into the potential for disaster inherent in this type of foreign intervention; for but one example of how intelligence agencies empowered to break laws can run amok and do far more harm than good, see here.

The CP does, however, delve into the difficulties that this type of foreign cooperation presents to oversight committees:

CSIS would co-ordinate threat disruption activity with other agencies such as the RCMP, Canada Border Services Agency and Foreign Affairs, and could use its statutory mandate to enlist the technical expertise of the Communications Security Establishment, Canada’s electronic spy agency, the government notes say.

However, the Security Intelligence Review Committee, the watchdog known as SIRC that keeps an eye on CSIS, is limited to examining the spy service alone.

The notion of CSIS teaming up with foreign and domestic partners to derail threats raises concerns about SIRC’s ability to “follow the thread” and look at the entire operation, said University of Ottawa law professor Craig Forcese, who obtained the government notes under the Access to Information Act.

“SIRC is stovepiped to CSIS — that is, it can only look at what CSIS does, not at what any partner might do,” said Forcese, co-author of “False Security,” a book that extensively critiques C-51, calling it a squandered opportunity.

As the scale and scope of joint operations expand, the prospect of “gaps in the accountability system” increases apace, he added.

And as for the possibility that a Parliamentary oversight committee would be able to fill in those gaps, Forcese is not optimistic. Nor is the Canadian Civil Liberties Association, which, along with Canadian Journalists for Free Expression, has launched a court challenge of C-51’s constitutionality.

For good reason, too – in the name of Combating Terrorism, law enforcement agencies are grossly infringing upon journalists’ ability to do their jobs.

Look no farther than this week’s revelation that in February of this year the RCMP served VICE Canada with a production order for all of its communications with Mohamed Farah Shirdon (remember him, from way back in the beginning of the article?):

VICE Canada’s head of content, Patrick McGuire, said complying with the RCMP’s demands would undermine the independence of Canadian journalism from state authorities.

“Sources should be able to speak with journalists without fearing that the cops will turn around and try and request the records of those conversations,” McGuire said in an email Friday. “We are not here to assist the RCMP with their work.” […]

MacKinnon said VICE has no interest in protecting Shirdon or making the RCMP’s investigation more difficult. Instead, MacKinnon said, the case is about ensuring journalists in Canada can protect their work — and their sources.

“People may be chilled and fearful of speaking to reporters, because they’ll start wondering is everything they say going to be just turned over to police,” MacKinnon said.

“People like whistleblowers and others would rather speak to a journalist than a police officer. And they should be free to do that.”

And remember – this exemplar of journalistic repression pre-dates C-51, as does the RCMP’s 2004 raid on the home of an Ottawa Citizen journalist in an attempt to find her source for a leak regarding Maher Arar, as does the RCMP’s whistle-blower witch-hunt in the Department of Immigration and Citizenship at the height of the recent campaign, and as does the Department of National Defence’s stated objective of “weaponizing” public information and punishing unfriendly reporters with spurious criminal investigations.

In other words, as bad as things have been, we’ve yet to truly see the type of journalistic repression that C-51 enables.

But if the Liberal Party is satisfied to make only cosmetic adjustments to this freedom-destroying law, it may not be long before its more disruptive implications start to make themselves known.

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