Liberals elaborate on their plans for C-51, and they’re not encouraging at all

Image: A hand holds a cardboard sign reading “C-51 IS TERRORISM – REJECT FEAR”

The shape of Liberal reform of C-51 is becoming increasingly clear, and as I predicted, it doesn’t meaningfully address the most important issues with the law. There are, however, the slightest glimmers of hope for anti-C-51 advocates – which I’ll get to after the doom and gloom, so as to leave you with at least a bit of optimism.

But first, the bad news.

Public Safety Minister Ralph Goodale, in his interview last week with the CBC’s Rosemary Barton (who, by the way, is to be congratulated for her appointment as permanent host of CBC’s Power and Politics after doing a fantastic job during last year’s election), gave some indication of what the Liberal approach to C-51 will be:

Goodale is travelling to London next week for meetings on counter-terrorism, violent extremism and cybersecurity. He will also be gathering information about United Kingdom’s Intelligence and Security Committee of Parliament as he prepares to adopt a similar model for Canadian parliamentarians…

The Security Intelligence Review Committee, a civilian oversight body, will remain with an enhanced mandate.

Goodale said the government is committed to repealing key elements of the anti-terrorism legislation known as Bill C-51, including protecting civil protests and better defining “propaganda” and the expanded no-fly list. [my bold]

So, to recap: a parliamentary committee to oversee surveillance agencies, a beefing-up of SIRC, the protection of “civil” protests, and better definitions and parameters for “propaganda” and the no-fly list. Goodale also made clear that the Liberals would make good on a specific pledge to ensure that the law-breaking “disruption” that security agencies are allowed to engage in under C-51 would not include actions which violate people’s Charter rights.

That’s broadly in line with what I was predicting months ago, especially the tightly limited action on police/surveillance agency “disruption”, better known as legalized law-breaking.

But as more details emerge about the new oversight committee which is the centrepiece of the Liberals’s “reformist” agenda on C-51, I’m getting increasingly dour about the whole thing. 

The Ottawa Citizen provides some excellent detail on the new committee:

The Liberals are planning to table legislation by June creating the first all-party committee of parliamentarians to monitor the top-secret operations of Canada’s expanding national security establishment.

Veteran Ottawa Liberal MP David McGuinty will chair the committee, the Prime Minister’s Office announced Friday.

The news comes as Public Safety Minister Ralph Goodale, responsible for Canada’s spy agencies and national security policing, is heading to London Monday to learn about the workings of Britain’s long-standing intelligence and security committee of Parliament and its enviable track record of never leaking classified information.

OK so right there I have issues with this new process. The classification process is not conducted by God Almighty Himself, and is not, repeat NOT an infallible process. A lot of the time, material gets classified for no good reason – which is to say, it gets classified for a bad reason. Sometimes that reason is covering somebody’s ass when they’ve screwed up royally. Ought MPs to become complicit in this, all in the name of “protecting classified information”?

The Citizen points out that many national security agencies currently have no oversight bodies responsible for them, while the few that do, CSIS and the CSE, are only watched over by an arms-length body of appointees, not by Parliament directly. However, they warn in a follow-up article that the cure may be worse than the disease:

The Liberals have promised a new all-party, security-cleared committee to evaluate, post facto, the operations of every government department and agency with national security responsibilities. Members would be sworn to secrecy for life.

The tradeoff could be a less informed public, say some experts. Depending on how transparent a government chooses to be, sending controversial national security issues to a secret committee could effectively launder executive decisions by purposely routing them to the committee to limit or eliminate further public exposure. It also could potentially hamper the opposition’s ability to critique government.

While they agree with the need for such a committee, [legal scholars Craig] Forcese and [Kent] Roach, who led the expert assault on the Conservative’s controversial Bill C-51 security legislation last year, say it is probably not the best tool for detailed review.

That’s because this committee, by itself, doesn’t solve a single thing. It just puts all of these issues behind closed doors, where career politicians who have every incentive to buy into the security apparatus’s “national security”-based justifications for every action they take will be able to onanistically jabber on in secret about any and all abuses committed by these agencies.

Furthermore – and God help me here – the Conservative Party has made some insightful criticisms of the process of establishing this committee which suggest that it isn’t going to be the major remedy Trudeau et al have suggested it will be:

It’s unclear whether this committee is meant to be a new standing committee of Parliament, or some other kind of committee of parliamentarians, which could allow the Liberals to wriggle free of the pledge to elect a chair by secret ballot.

The Conservatives noted that not only did the Liberals promise committee chairs would be elected by secret ballot in this Parliament, but that comparable security oversight committees in the U.K. and Australia form the committee first and then allow those members to pick a chair.

Announcing McGuinty as a pre-ordained chair “confirms the intention of the government to politicize a new committee that is supposed to be free from political agendas,” the Conservatives charged in their statement.

I really (really!) hate to say it, but the Cons have a solid point here.

Additionally, the reforms to C-51 that Goodale touts quite simply do not cut to the heart of the issues many people have with the law.

For instance, there have been no proposals to do away entirely with the ability security agencies have to break laws to “disrupt” what they perceive to be threats to national security. And while Goodale insists that “civil” protests will be protected, we have as yet had no indication what the new government will and will not deem to be “civil”. This means that, for instance, the prospect of the RCMP and/or CSIS infiltrating and causing violent disturbances within the anti-pipeline movement, which I detailed a few weeks ago, could very well remain a realistic possibility even after the Liberals have “fixed” C-51.

There’s also been crickets from Goodale and the Liberals on the subject of privacy issues. In a grossly-overlooked letter to Parliament last month, Privacy Commissioner of Canada Daniel Therrien highlighted the long-term threat posed by C-51 to Canadians’ privacy rights:

Arguably the most controversial Harper government security bill is C-51, the Anti-Terrorism Act 2015. For all of its flaws, the one highlighted in the privacy commissioner’s report is the implementation of the Security of Canada Information Sharing Act (SCISA) — which allows every federal institution to share personal information collected from Canadians with any of 17 specifically listed federal departments and agencies relevant to Canada’s national security, including the RCMP, Canadian Border Security and CSIS.

Bill C-51 received royal assent in June and SCISA came into force by August, giving those agencies “virtually limitless powers to monitor and, with the assistance of Big Data analytics, profile ordinary Canadians, with a view to identifying security threats among them,” according to the report.

Therrien argued against this and other measures in a letter to the House of Commons, having been barred from testifying at committee. He also highlighted the lack of clear limits on how long the information is to be kept, as well as the failure to require that information-sharing be “subject to written agreements” or provide Canadians with any judicial recourse for improper collection, use or disclosure of their personal information.

“Taken together, these initiatives have resulted in what can only be described as a sea change for privacy rights in Canada. Ensuring government powers under these new Acts are exercised in a manner which respects privacy will be an ongoing focus of the Office in the months and years to come,” promises the report. [my bold]

So, in summary, then: even after the Liberals have “fixed” C-51, security agencies’ scandalous wrongdoing can be hidden behind closed doors in a politically-motivated committee which may have no official Parliamentary standing, security agencies may well have the ability to break laws in order to disrupt civil disobedience and popular protest, and the privacy of Canadians will continue to be violated as their personal information will be shared between seventeen agencies and their foreign counterparts..

But I promised you a glimmer of hope, and so here it is:

The government will give Canadians a chance to have their say before deciding what changes to make, Goodale said in an interview with The Canadian Press.

“If the consultation leads to a broader set of action items, obviously we would be guided by what that consultation tells us,” he said. “The subject matter is large, it’s complex, the solutions aren’t particularly easy to achieve. But our whole point in having consultations is to listen to what we hear. And if the messages indicate that something more needs to be done, obviously we would try to pursue that.”

Now, I’m not saying anti-C-51 advocates should pin all their hopes on this consultative process leading to a full repeal of this law, or even of its worst aspects. But this is an issue on which the Liberal Party is extremely vulnerable. A substantial part of their electoral coalition voted for them on the (IMHO extremely naive) expectation that they would deal with the widely-opposed C-51. Trudeau has gone out of his way to make public consultations one of his signature approaches to thorny issues like this. If it becomes obvious, through the process of consultation, that leaving any part of C-51 intact could prove to be politically toxic to the Liberals, they may prove entirely willing to toss the whole thing out to save their own skins in the long run, and turn a political burden into a victory.

This is not to say that opponents of C-51 should relax their efforts outside the halls of power. But we have literally nothing to lose by engaging in this consultative process to the maximum extent possible.

So, if and when these public consultations materialize, expect me to be among those making a ruckus about this unacceptable imposition on our rights and freedoms. Here’s hoping you’ll be right there with me.

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