Tuesday, May 12, 2015

Law professor answers questions about Bill C-51

Recently, the House of Commons passed the federal government's controversial anti-terrorism law, Bill -C-51, with a few small amendments. In the build up to the vote, numerous Canadians spoke against it including former Prime Ministers. Law Professors from across the country wrote a letter detailing numerous issues with the bill. Among those professors was Dr. Jula Hughes of the University of New Brunswick.

An associate professor of law at UNB, Hughes main research areas are judicial ethics, particularly disqualification, and the application of criminal law to marginalized and vulnerable populations. Her interest in labour law stems from her years in practice as a union-side lawyer in Ottawa and her involvement with the Association of University of New Brunswick Teachers as chief negotiator and president.

The New Brunswick Union asked Prof. Hughes some questions pertaining to Bill C-51, here are her responses.

1. Why were you opposed to this piece of legislation?

Prof. Hughes: The legislation will not protect Canadians from terrorism, it creates secret police powers that threaten essential civil liberties, and Canada already has all the laws it needs for the effective policing and prosecution of terrorism-related activities.

As union activists have known for a long time, some laws that seem to be aimed at criminal behaviour can be used to stifle speech, limit hard won labour rights and criminalize political opposition. Bill C-51 is one of those laws. It grants huge powers to the Canadian Security Intelligence Service (CSIS) including an express invitation to violate Charter rights. I am especially concerned about the following three features of Bill C-51:

  • A broad increase of policing powers based on definitions of activities that are not limited to “terrorism”. This increase in power is not met with a proportional increase in funding or capabilities for the SIRC (CSIS review board). The lack of accountability, coupled with the broad definition of what types of activity “could” be caught under this bill are areas of concern for many in the legal profession;
  • This bill has no value-added applications to counter-terrorism initiatives, while simultaneously encompassing activities that should not attract criminal liability. The Criminal Code already criminalizes activities performed by terrorist organizations. The new “terrorism” offence in Bill C-51, is redundant to the bill’s express purpose while going too far in criminalizing activities that may contribute to someone else deciding to commit another terrorism offence. The implications of this over-broad definition engages concerns with Charter protected freedom of expression.
  • Of particular constitutional concern is the new role Bill C-51 requires judges to fill. It effectively turns judges into agents of Canadian Securities Intelligence Service (CSIS). It requires judges to pre-emptively grant CSIS the power to infringe individual rights in the name of intelligence gathering, in scenarios and by means that have yet to be defined or limited.  Furthermore, these new warrant proceedings are secretive.  This contravenes criminal law principles that allow for a full defence of accusations. Currently judges act as a fail-safe to infringements and oversee the state’s warrants to ensure they comply with Charter protected rights. This bill will completely transform this judicial role, for the worse.

2. Are there specific portion(s) of Bill C-51 that cause concern?

Prof. Hughes: Potential use against activists, particularly environmental and aboriginal

The bill defines the phrase “activity that undermines the security of Canada” to include the “changing or unduly influencing a government in Canada by force or unlawful means” and “interference with critical infrastructure”. It excludes from this definition “lawful advocacy, protest, dissent and artistic expression”. Presumably, the word lawful applies to the entire list, so that only lawful protest, lawful dissent and lawful artistic expression are excluded.

This could be used to thwart attempts of assembly by labour, environmental and Aboriginal activists, to name but a few obvious examples. It should be remembered that even if the activity was ultimately found to have been lawful by a court, the civil liberties of people can be affected where there are reasonable grounds to believe that the protest or dissent were unlawful. We only need to remember the search and seizure carried out in the Charles LeBlanc criminal libel case to realize the serious consequences that can flow from such enforcement activities. Who will decide what activities fall within the scope of this bill? Who will oversee those with the discretion to make that interpretation? Such broadly defined powers require equally stringent means of accountability which are not present in the bill.

Activities that “interfere with critical infrastructure” fall within the definition of this bill and the consequences this could have for strikes, secondary pickets, community engagement and activism for the protection of environmental resources are disconcerting. Even without Bill C-51, we have seen police action in relation to fracking that should make us all concerned about any additional powers of the state to protect infrastructure projects including pipelines. The Globe and Mail recently reported that “the National Energy Board worked with the RCMP and Canadian Security Intelligence Service to monitor the risk posed by environmental groups and First Nations in advance of public hearings into Enbridge Inc.’s Northern Gateway project, documents released under Access to Information regulations reveal.”[2] The CBA has published a similar report for Bill C-51.[4] His research was then cited in the majority reasons in R v Nur, when that provision was held to violate the section 12 Charter right not to be subjected to “cruel and unusual punishment.”[6] But before it does, it will have cost Canadian tax payers dearly. An additional cost is incurred to our public confidence in public institutions and our trust in the rule of law. In this context, it certainly did not help that Calgary MP Diane Ablonzcy was dismissive of the rule of law and of principles of fundamental justice in parliamentary committee hearings.[8]The Canadian Bar Association weighed in on this concern in their submission and stated that the “combination of the proposed section 12.1(3) and the warrant provisions in section 21.1 appear to provide for judicial warrants to authorize not only contraventions of the criminal law and Charter rights, but the violation of any Charter rights – making the entire Charter at risk. This is unprecedented.[10]

5. The talk surrounding Bill C-51 from government was its intent is to make citizens safer. Does this piece of legislation make Canadians any safer?

Prof. Hughes: No.

Ok, you probably want a more elaborate answer. The Criminal Code already provides provisions to investigate and prosecute traditional terrorist organizations. Worse, the bill will actually make us all less safe. Less safe from terrorists. Less safe from the state. This bill goes beyond the scope of criminal law into territory that will expressly infringe constitutionally protected rights. One of the main criticisms of this bill is that it is counter-productive to its purpose.  It will only serve to make radicalized youth harder to identify and further alienate them from any process of engagement or rehabilitation. In the open letter, we identified what is needed to increase safety is “concrete, effective measures that have been proven to work, such as working with communities ‎on measures to counter radicalization of youth”.

[2] CBA. “Submission on Bill C-10” http://www.cba.org/cba/submissions/PDF/11-45-eng.pdf

[10]Forcese& Roach. “Bill C-51 Backgrounder #2”