What should be done about C-51?

There have been few bills in recent years in this country that have been so debated – and so vilified – as C-51, an ambitious bill passed during the last Parliament by the former governing Conservatives to change how national security is protected in Canada.  The bill became law thanks to the majority Harper government and despite the opposition by the NDP.  The Liberals supported it as well, albeit with a promise to review it should it gain power.  Now that the Trudeau-led party has formed a government, it is having another look at the law’s provisions and consulting with various interested interlocutors.  It is still uncertain when those consultations and deliberations will result in a new national security law.

The bill covers a great deal, from information sharing to securing air travel to giving our national spy agency more powers, among other things.  Perhaps it was the scope of the act that caused such a stir and led some to cry that the legislation was both too powerful and a violation of human rights in Canada.

Fair criticism, but is it warranted?  It is worth taking a look at select parts of the bill – the most controversial ones – to see whether they are truly draconian and take away our freedoms.  The first section deals with information sharing.  This is a bad concept in the minds of many Canadians in light of the Maher Arar affair and other cases where the decision of the Canadian government allegedly led to ill treatment.

The act simply states that it seeks to “encourage and facilitate the sharing of information among Government of Canada institutions in order to protect Canada against activities that undermine the security of Canada.”  Note the limitation to “government of Canada institutions”.  It is hard to argue against this clause.  Information sharing is a perennial problem among agencies tasked with national security and there should be more, not less, with the requisite caveats (the “need to know” principle in place).  Information is the lifeblood of intelligence and law enforcement agencies and they should be encouraged to work more closely together: sharing data will help this collaboration.

The “Secure Air Travel” section (the so-called “no-fly list”) needs work, not from a legal perspective but from an operational one.  The US equivalent is known to be both overambitious and unwieldy and there are far too many stories of five-year olds stopped from boarding aircraft as they happen to share the name of a real terrorist.  Better biographical data needs to be gathered and used and officers should have the authority to overrule the list when an obvious error has been made (i.e. the five year olds).  One outstanding question is whether the list should contain only those who present a danger to air travel or should include those seeking to leave the country for terrorist purposes (the “foreign fighter” phenomenon).  The spirit of the section is valid and useful from an enforcement perspective.

One area that has caused justifiable unease is the “promotion of terrorism” section.  While some material may clearly be terrorist in nature (e.g. beheading videos) it is far from clear what other material would qualify under this definition.  Much more consultation is required to prevent situations where researchers end up charged for using terrorist propaganda in legitimate studies.  We don’t want to find ourselves in a Judge Potter Stewart world where terrorism is compared to pornography (“I know it when I see it”).

The one section that seems to have garnered the most criticism is that relating to the new powers granted to the Canadian Security Intelligence Service (CSIS), namely the “disruption” clause (“the Service may take measures, within or outside Canada, to reduce the threat”).  This measure has been grossly overanalysed and in fact does not introduce qualitative changes to what CSIS already does and has been doing for more than three decades.  CSIS is mandated to investigate threats to national security as defined in section 2 of the CSIS Act and has a broad avenue of methods to do so: it can interview people, it can investigate and recruit human sources and it can apply for federal court warrants to get access to private communications.  Two important restrictions are placed on the power to reduce the threat.  First, CSIS has to have reasonable grounds to believe a particular activity constitutes a threat to national security (this is a higher standard than the Service’s usual reasonable grounds to suspect).  Secondly, these measures can be used only after a federal court warrant has been obtained and such warrants are not given without careful scrutiny.  At the end of the day, “threat reduction activity” is about preventing terrorism from happening and is a useful tool to have when the evidentiary chain is not robust enough to lay criminal charges.

Canadians expect their security and law enforcement institutions to keep them safe, stop our citizens from joining violent extremist groups and prevent terrorist acts on Canadian soil.  C-51 provides needed amendments to what these agencies can already do and will be a necessary aid once minor changes are made.  This is not the time to throw out legislation that addresses a very real threat and does so in a reasonable way.

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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