Bill C-51 (Antiterrorism Act 2015): Short Primer on Key Aspects

"A short 15 min primer on the more controversial aspects of C-51, the Canadian governments proposed "anti-terror" law. If you have 15 minutes to figure this bill out, I hope this helps. For those who want more details, I will produce a more detailed version next week.
My discussion relates to the bill as it exists at 2d reading in the House of Commons, Feb 18, 2015.
(In a two spots, I misspoke and say C-59. I am always referring to to C-51.)

Detailed backgrounders can be found at www.antiterrorlaw.ca

================
Captions courtesy of the Radical Access Mapping Project, on the Un-ceded Coast Salish Territories of the xʷməθkwəy̓əm (Musqueam), Sḵwx̱wú7mesh (Squamish), and Səl̓ílwətaʔ/Selilwitulh (Tsleil-Waututh) peoples.
To learn more, see: http://radicalaccessiblecommunities.wordpress.com/subtitled-videos/
================

My name's Craig Forcese

I'm a professor of law
at the University of Ottawa

where I teach among other things

national security law.

Professor Kent Roach
of the University of Toronto and I

have been conducting what we call

real-time academic
legal analysis of Bill [C-51],

the government's anti-terrorism law.

You'll find our analysis and related commentary
archived on our special website.

www.antiterrorlaw.ca

I've prepared 2 video explainers
on Bill C-51.

This video is the short one,

designed for people who are mostly familiar
with the bills' features,

and who are looking for a means of
navigating its various moving parts.

In the longer video,
I provide the same navigational help,

but also amplify with more
about what the bill does that is troubling.

So let me begin with a circle.

Within this circle is a universe of behaviour.

Behaviour by people.

Not all behaviour.

A certain sort of behaviour.

This is behaviour that -

in the words of part of Bill C-51 -

"undermines the security of Canada".

This part of the bill

authorizes information sharing

within and potentially outside government,

and is concerned with any activity undermining

-whatever that means-

the lives and security of the Canadian people

and the sovereignty, security
or territorial integrity of Canada.

The things that fall into this category

and thus into the circle,

are vast in number.

But the bill says they include activities

aimed at changing or "unduly influencing"

-whatever that means-

any Canadian government by unlawful means.

I will come back to this concept
of "unlawful" in a second.

The bill also names activities in Canada

that undermine the security of
another state, any state.

So that would include repressive ones.

It names activities that interfere with
critical infrastructure. Any interference.

Also included are any threats
to Canada's territorial integrity.

So, presumptively, sovereignty groups.

My key point on this definition is this:

This is a law of behaviour,

including behaviour we generally accept
in a democratic society,

even if it may annoy us or we may dislike it.

But there is a safeguard.

This concept of undermining security

does not reach lawful protest,
advocacy or artistic expression.

So this line bisecting the circle

is what I shall call the line of lawfulness.

On the left hand side of the line

your behaviour is perfectly lawful,

and you are not captured by any feature of Bill C-51.

But pause here on what is required to be lawful.

By lawful I mean just that.

You comply with all laws.

Municipal, regulatory, provincial,
federal, criminal and non criminal.

If you participate in a street protest

without a municipal permit

it is unlawful.

If you participate in a wildcat strike

it is unlawful.

The list of examples of potential unlawfulness

could go on for some time.

If you do any of this

you are on the right hand side
of the lawful line in my circle.

And so you are now in the universe

in which C-51

could begin to apply to your behaviour.

Under the law that creates this
undermining security of Canada concept,

the government may share between

17 different agencies and maybe more

information about your conduct.

Now we drill down a bit to another circle.

So within this circle

we include matters that could be more pernicious.

This is a subset of all the things that
"undermine the security of Canada".

Here in this second circle

we are talking about state powers

that go well beyond information sharing.

In this second circle I am focusing on behaviour

that CSIS is able to investigate under its current law.

CSIS is the Canadian Security Intelligence Service.

It is designed, at present,

as an intelligence gathering operation.

Its mandate is tied to something called

"threats to the security of Canada",

a defined term found in its own statute.

The concept of threats to the security of Canada

includes a lot of things

that people would mostly all agree

should be investigated:

espionage and sabotage, political violence
and terrorism, violent subversion.

Violence of some sort is at the core
of each of these three items.

But note two things:

First, this definition in the CSIS Act

isn't and never has been just about terrorism.

And second, this definition
also includes a fourth threat:

so-called foreign influenced activities.

And so CSIS may investigate

foreign influenced activities

that are clandestine, and viewed by the government

as detrimental to the interests of Canada.

CSIS' review body, SIRC
[Security Intelligence Review Committee],

was very unhappy with this concept in 1989

when it reviewed the CSIS act

and made recommendations
for that act's amendment.

The definition of foreign influenced activities

contains too much eye-of-the-beholder ambiguity.

SIRC critiqued this ambiguity,

especially the use of "clandestine",

which means really, simply "secret".

And "detrimental to the interests of Canada"

was also critiqued.

"Detrimental to the interests of Canada"

is whatever the government says it is.

If you apply this ambiguity
to democratic protest movements,

it is possible that the threats definition

covers this sort of scenario:

A foreign environmental foundation

funding a Canadian environmental groups'
secret efforts

to plan a protest done without proper permits

in opposition to the Keystone pipeline project;

a project that the government of Canada sees

as a priority and strongly in the interests of Canada.

Note the reference to "without permits".

This is added because

-like the "undermine" definition
that I started this discussion with-

the CSIS "threats" definition

includes an exception for lawful activities.

And remember what "lawful" means.

It means fully compliant with the law;

and more than simply compliance
with the criminal law.

It means full compliance with
regulatory and municipal rules and labour law,

including in relation to strikes.

So no wildcat strikes.

Or protests. No protests without city permits.

So what does Bill C-51 change for CSIS?

Well, it doesn't change this "threat" concept.

The circle doesn't get any bigger or smaller.

What it does change is what CSIS can do
in that circle.

Up to now it can only spy.

After C-51 it will be empowered

to take measures reducing the threat,

what the government calls "disruption",

and a power that Kent Roach and I
have called "kinetic",

that is, the power to do things to people and things

in the real world.

Again, remember,

these are powers that will apply
to all of CSIS' mandate,

not just its counter-terrorism activities.

I underscore again

the extent to which C-51
is about more than counter-terrorism.

So what are the safeguards

on this power of disruption?

Well the bill would prohibit CSIS

from inflicting bodily harm,

that is, physical or psychological injury;

obstructing justice, that is, interfering
with court proceedings for instance.

Or violating sexual integrity.

Anything else is permissible

so long as reasonable and proportional
in the circumstances.

But what about judicial oversight and warrants?

Well there has been some confusion
in the discussion of this.

First point:

CSIS will need to get a warrant

for its kinetic activities

where that conduct violates a law

or any of the rights
in the Charter of Rights and Freedoms.

Up to that point,

up to the point where the law is violated

or the Charter is violated,

there is no requirement for a warrant.

So let's say CSIS wanted to do something

that had the effect of limiting one's ability to speak.

Perhaps as simple as wrecking
their internet connection.

Or perhaps CSIS does something

that hinders a citizen's ability to return to Canada.

Those would be Charter breaches,

and so CSIS would need a warrant.

And that might sound OK to people,

but it is a radical concept.

CSIS may come to judges asking them

to bless in advance constitutional breaches.

The proceeding will be secret.

Only the government will be represented.

There is no appeal mechanism.

The person affected will not know about it.

They may never know who caused the problems

that they then would encounter.

That's because the whole thing is covert.

We just have never seen anything like this

in Canada before.

Personally, I would expect judges

to consider all this unconstitutional,

and that they could never let CSIS
breach the Constitution.

But you and I may never know

because as I've said,

this legal question will likely

be decided as part of secret proceedings.

OK. Now it's time to drill down even further,

to another circle.

This one is even smaller.

This is the actual crime circle.

So this circle covers all the bahaviour

that not only would undermine
the security of Canada

as defined in that information sharing
statute in Bill [C-51],

not only would it be a threat to
the security of Canada

as defined in the CSIS Act,

but it would also be criminal.

Lots of crimes possibly fall in this circle,

but among them would definitely be

the terrorism offenses in the Criminal Code.

The Criminal Code has
a very precise definition of terrorist activity.

Boiled to it's essence, it means basically

violent conduct done for political,
religious or ideological reasons,

for the purpose of compelling or intimidating
a government or person

to do or refrain from doing something.

Bill C-51 does not change any of this.

It does not expand the definition of terrorist activity.

What it does instead

is create a new speech crime tied to this definition.

The government wants to jail people

who by speaking, writing, recording, gesturing,

or through other visible representations

knowingly advocate or promote the commission
of terrorism offenses in general,

while aware of the possibility
that the offenses may be committed.

Did you understand that?

Roach and I tried to explain it in 10,000 words

and we still aren't sure what it means.

This offense raises many serious issues

and should at best be considered
extremely concerning.

The scope of the new offense is not clear,

and the offense is sweeping

in the amount of speech it captures.

Including speech potentially far far removed

from actual violence.

I want to talk about one final feature now of C-51.

The concept of preventive detention
and peace bonds.

What are these?

Well, these are tools the police can use

to deal with people who they fear, are,
or may be implicated in terrorist activity,

but for whom they don't have enough
to actually bring criminal charges.

And so, these tools enable police to act,

and go after people,

within this zone that I've demarcated on the diagram,

a little further out from actual crime.

With peace bonds,

the police will be allowed to limit
the liberty of someone

if they have reason to believe he or she [etc] might
be about to commit a terrorism related crime.

With the so-called preventive detention provisions,

they could hold such a person

and detain him or her [etc] briefly, right now,

for a maximum of 72 hours,

supervised by judicial order.

Neither of these tools are new.

But preventive detention has never been used,

and peace bonds have been used only 6 times.

What C-51 does is make it easier to use these tools.

They can be triggered sooner,

when the police are even less certain
someone is dangerous.

And preventive detention goes from
a maximum of 72 hours, to 7 days.

Roach and I can imagine circumstances

in which such provisions become a necessary evil;

but we believe that this necessary evil

needs to be closely scrutinized,

and carefully constrained.

We will have suggestions on this front.

There is, however, one core virtue

to this regime, as compared
to the CSIS powers that I've described.

All of this preventive detention
and peace bond activity

will be done in open court,

and with reference to terrorist offences that

-whatever their breadth-

do not reach as far as the CSIS circle does.

So there you have it.

Basically, C-51, not quite in a nutshell,

but as close as I can make it.

If you want more details,

I will produce a lengthier video;

and see also our writing on
www.antiterrorlaw.ca

Thank you.