Pre-crime arrest shows Trudeau Liberals intend to leave C-51 mostly intact

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

For well over a year now, Justin Trudeau’s promise to “fix” the “problematic aspects” of Bill C-51 once his party formed government has been the source of considerable uncertainty. Just what exactly does he mean by “problematic”? Which parts will he keep, and which will he amend, and which will he discard? Neither the Prime Minister nor his Public Safety Minister, Ralph Goodale, have been particularly detailed in their public statements on the matter, although careful parsing of their interviews do glean some insights, at least about some things they intend to change.

The government’s focus so far has been on increased oversight of intelligence and security agencies, both by existing bodies and by a new committee of parliamentarians. (Although their major cuts to the budget of SIRC, the body which provides oversight to CSIS, raises serious questions about their commitment to robust oversight.) They’ve made vaguely reassuring noises about protecting “civil” protest and have promised to tidy up the bureaucratic Gordian Knot commonly known as the no-fly list.

But they’ve been silent about privacy concerns, and documents recently released in response to a Freedom of Information request begrudgingly acknowledged that Canadians’ private information has been shared by at least four agencies, one of which had its name completely redacted from the release. Given the responsiveness of CSE to Defence Minister Sarjit Hajjan’s demand that the signals intelligence agency stop sharing information with its foreign counterparts during the metadata scandal which erupted earlier this year, we have to presume that this inter-agency C51-approved info-sharing is happening with the Trudeau government’s blessing.

The government has been equally circumspect as to their plans for the controversially expansive new powers granted to spy agencies like CSIS. In fact, they’ve been frustratingly tight-lipped on the subject of how they have been using these new powers since they formed government last year, and are keeping their predecessors’ instructions to CSIS on how to use these powers top secret. This silence, as I’ve suggested, always seemed to indicate that they intended to leave these issues unaddressed.

And with the arrest of Kevin Omar Mohamed by the RCMP last week, the Liberal government has finally and conclusively tipped their hand – the security agencies’ new powers look to be here to say.

Mohamed, in case you missed it, was detained by the RCMP under a “fear of terrorism” provision contained within C-51. The provision allows police to arrest people and impose tight constraints on their behaviour through peace bonds on the grounds that they “may” commit a terrorist offence.

Amidst a negative backlash against the use of the provision and threats of a Charter challenge to his detention, the RCMP switched courses and filed charges against Mohamed. His mother alleges that the charges are related to a family trip to Turkey two years ago and that her son a victim of profiling, innocent of any wrongdoing.

One significant detail which didn’t get featured very prominently in the coverage of Mohamed’s arrest is that it required the permission of the federal justice minister, Jody Wilson-Raybould. In other words, the RCMP was only able to exercise its terrifying power to preemptively arrest Mohamed for what was essentially thought-crime with the approval of the Liberal government. And let’s not have any illusions that Wilson-Raybould made this decision all by herself – an act of this significance would definitely have been approved by the PMO.

This is a radical erosion of the rule of law. For any other crime, the police must be able to provide substantial evidence before being able to make an arrest. But under C-51, when it comes to “terrorism”, all they need are suspicions in order to impose an extremely restrictive peace bond on a possibly innocent person. People arrested under this provision are not entitled to the same right to a trial that folks arrested for other crimes have; instead, they are essentially given a take-it-or-leave-it choice between severe restrictions on their behaviour and jail time for a crime they never committed (and may never have intended to commit).

The most recent high-profile example of the use of peace bonds in this way was the case of Aaron Driver, a young man in Winnipeg who made posts supportive of the so-called Islamic State. He had a peace bond essentially imposed on him – “If I fought it, they would have added even more conditions than I’m already under,” he told the CBC – which compelled him to wear a GPS-tracking ankle bracelet, dictated where he was allowed to live, forebade him to use any social media, and required that he receive written permission from the court before he could own a phone or computer. All this despite the fact that the RCMP didn’t have enough evidence to charge him with anything:

But on closer examination, there doesn’t seem to be much of a case here. The Mounties feel that they have “reasonable ground to fear that (accused) will participate in or contribute to directly or indirectly, the activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity.”

Despite all the weasel words in that dense legalese, you’ve got to squint pretty hard to see the RCMP’s case. Sure, this guy seems pretty disagreeable – hateful, bigoted, mean-spirited. But reposting an ISIS video doesn’t amount to terrorism, nor does linking to publicly available instructions on how to travel to Syria. (As for following people who claim to have fought for ISIS in Iraq and Syria – well, I follow Jason Kenney on Twitter, and that doesn’t automatically make me an asshole too.)[…]

There may very well be evidence that the public doesn’t know about in this case. But that’s one of the big advantages of open-court convictions – we’re able to see for ourselves whether or not the police are just fear-mongering and attacking somebody for his beliefs.

Because that’s what this looks like – the criminalization of certain opinions and beliefs. Driver isn’t accused of plotting to build a bomb, or to send funds to ISIS, or to poison Winnipeg’s water supply. He’s in custody and facing restrictions on his movement and speech because of his opinions – because he’s been talking a lot of shit on the internet to get attention, basically.

However odious his opinions may be, that’s terrifying.

Aaron Driver’s case was the first high-profile terror-related arrest of the C51 era. It confirmed to many that the Harper government’s legislation was designed to criminalize certain thoughts and beliefs, and that the bill posed an existential threat to Canadians’ rights.

With the arrest of Kevin Mohamed, Justin Trudeau and his cabinet have accepted full ownership of Harper’s toxic C51 legacy. They’ve made clear that the provisions which were most concerning to the bill’s opponents will remain largely or wholly intact, and that the process of “reform” will amount to nothing more than political theatrics with a dollop of behind-closed-doors “oversight” on the side.

The paradox of the Liberal position on C51 has long been unsustainable. Ever since Trudeau indicated that he had serious reservations about the bill but would nonetheless be ordering his caucus to vote in favour of it, supporters and opponents alike have wondered where he really stood on this issue.

For anybody still in doubt: Justin Trudeau and his government largely support this poisonous law. The Harper government may have passed it, but the Trudeau government intends to fully implement and normalize it. History will judge which of then is the bigger villain.

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