OpenMedia

Privacy Plan

Case Study 1: Bill C-51: Sweeping new spy powers but no new oversight

CASE STUDY 1: BILL C-51: SWEEPING NEW SPY POWERS BUT NO NEW OVERSIGHT

In February 2015, the government published its new Anti-Terrorism Act, Bill C-51. Government lawyers were reported as wrestling with the Charter implications of the Bill right up to its publication26 — and it’s easy to see why.

The Bill amounts to a sweeping expansion of the surveillance state, a shift that has been described by one former Conservative senator as “unprecedented in peacetime."27  The Bill makes provision for broad new spy agency powers and undermines the privacy of Canadians. At the same time, it does nothing to improve insufficiencies in oversight and accountability mechanisms for law enforcement and surveillance agencies. At the time of writing, the Bill is currently before Parliament, with the government seemingly determined to rush it through as speedily as possible.

Internet Voice: “I am a card-carrying Conservative member that does not agree with the current direction and lack of transparency the Government is taking in regards to protecting the privacy of Canadians over the right to security. I do not want quick reactionary legislation as it does not fully take into account the citizens' rights and needs.” - Andrew J.

Secret Police in Canada?

 

Bill C-51 contains a number of deeply troubling proposals. Most notably, it expands the powers of CSIS to the point where The Globe and Mail’s editorial team has warned it amounts to the creation of a secret police force:

“Prime Minister Stephen Harper never tires of telling Canadians that we are at war with the Islamic State. Under the cloud of fear produced by his repeated hyperbole about the scope and nature of the threat, he now wants to turn our domestic spy agency into something that looks disturbingly like a secret police force.”28 - The Globe and Mail editorial team

For example, Bill C-51:

  • empowers CSIS to detain subjects without charge for up to 7 days;
  • allows CSIS to interfere with and “disrupt” people or organizations it views as a “threat to the security of Canada”29
  • makes it far easier for CSIS to place Canadians on a no-fly list.

CSIS is even explicitly empowered to undertake illegal activity and breach people’s Charter rights. The Bill doesn’t bother to specify what such activities may include, although it does prohibit CSIS from harming, torturing, murdering, or “violating the sexual integrity” of an individual.30 In the context of such sweeping new powers, this clause offers scant reassurance.

Canadians are coming up with creative ways to push back against Bill C-51

 

Anyone could be a target

 

All this raises a critical question: who will be targeted by these unprecedented new secret police powers? How does Bill C-51 define a “threat to the security of Canada”? Given that the government justifies the legislation by pointing to global terrorism, and to the threat posed by ISIS in particular, you might expect that Bill C-51 would apply strictly to these targets.

Unfortunately, many elements of Bill C-51 use broad language that could well be unleashed on law-abiding, non-violent protesters around the country. As Green Party leader Elizabeth May notes, “The words that are found under the definition of activities, which affects ‘the security of Canadians’, is so broad that it can apply to almost any activity including nonviolent civil disobedience. This bill could now treat peaceful protesters as potential terrorists.”31

This prompts an obvious concern— you may think you have “nothing to hide,” but what if the government disagrees? Professors Craig Forcese and Kent Roach are two of Canada’s foremost privacy experts. They have outlined in detail how C-51’s new spy powers could be applied to democratic protest movements:

“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 group’s 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'."

The Assembly of First Nations has also expressed32 its concern, warning that the Bill could lead to the “unjust labelling of First Nations activists as ‘terrorists’.”

Forcese and Roach conclude that Bill C-51 threatens a return to the widespread abuses committed by the RCMP during the 1970s when they were responsible for domestic security— abuses that were precisely why CSIS was first established in 1983.33

Thousands of Canadians demonstrated in over 70 communities across Canada against Bill C-51, as part of a Day of Action organized by Leadnow.ca, the BCGEU, and OpenMedia.

 

A chilling effect on Free Expression

Given this context, it is clear that Bill C-51 will have an impact on Canadians’ willingness to speak out and engage in the democratic process. As Jim Emberger of the New Brunswick Anti-Shale Gas Alliance says:

“It has a chilling effect on the public. For instance … if I stand in front of a truck, or parade in front of a business, if I don't know if that's going to put me in jail with a criminal record for terrorism, I'm much less likely to voice my opinion or take part in public discourse."34

These concerns have been compounded by the fact that CSIS, even with its existing powers,  has already been caught spying extensively on law-abiding Canadians,35 and sharing the information they collected with private companies. By instilling fear in law-abiding citizens, the vague and sweeping measures set out in Bill C-51 will chill free expression and curtail public debate on issues that are critically important for Canadian democracy.

One of the Bill’s provisions directly criminalizes the advocacy or promotion of terrorism. As it stands, it is illegal to aid or abet in a terrorist act, but the new Bill bans the advocacy or promotion of terrorism based on what many worry will be a loose interpretation.

This may sound sensible on the surface— who wouldn’t want to safeguard people from being “seduced” by terrorist propaganda? But again, Bill C-51’s frustratingly vague wording could easily entrap everyday Canadians. For example, it criminalizes not just the advocacy and promotion of terrorism, but also “being reckless” as to whether a statement might encourage others to commit a terrorist offence.

As legal analysts at the Canadian Centre for Policy Alternatives (CCPA) point out, this new offence “will bring within its ambit all kinds of innocent speech, some of which no doubt lies at the core of freedom of expression values that the Charter was meant to protect.”36

The scope of these new measures are so wide that even the Conservative Party appears to have breached its own proposed law by posting a social media share image, depicting an Al-Shabab terrorist threat against the West Edmonton Mall.37 The image could be interpreted to contravene the clause in C-51 prohibiting “any writing, sign, visible representation, or audio recording that advocates or promotes the commission of terrorism offences in general.”

This Conservative Party communication could be illegal under Bill C-51

 

Luckily for the Conservative Party’s social media team, Bill C-51 was not yet in effect—but the incident does serve to illustrate how easy it would be for any Canadian to be criminalized and potentially face a 5-year jail term for innocent speech.

 

Warrantless access to your personal information

 

The Bill also proposes to allow CSIS to gain access to vast amounts of Canadians’ private, sensitive information without their knowledge or consent.

Canadians provide a great deal of personal information to the government during the course of their everyday lives. Whether it’s completing a passport application, filing your taxes, or applying for a new health card, it’s practically impossible to live one’s life in Canada without entrusting personal information to the government.

Under the Privacy Act, the government promises in return to keep such information secure and use it only for the purpose it was intended for. The Privacy Act also stipulates that government departments should not share your personal information widely38 with other government departments or agencies.

Internet Voice: “No one wants all their personal information collected and analyzed for the government to make a complete profile of you and everything you’re doing.” - Melissa B., high school student

We are on the cusp of losing these necessary checks on government power. If passed in its current form, Bill C-51 will undo these safeguards, allowing CSIS to access a vast range of private information about Canadians – including passport applications and sensitive commercial data – without any requirement to obtain a warrant.

The federal Privacy Commissioner, Daniel Therrien, has fiercely criticized the impact these measures would have on Canadians.

“The scale of information-sharing between government departments and agencies proposed in this bill is unprecedented. The new powers that would be created are excessive and the privacy safeguards proposed are seriously deficient. All Canadians – not just terrorism suspects – will be caught in this web. Bill C-51 opens the door to collecting, analyzing and potentially keeping forever the personal information of all Canadians in order to find the virtual needle in the haystack. To my mind, that goes too far."39

Following this criticism, the government barred Commissioner Therrien from testifying before the parliamentary committee studying the bill.40

Privacy expert and University of Ottawa law professor Michael Geist conducted a detailed analysis of these information sharing provisions, concluding that:

“The cumulative effect is to grant government near-total power to share information for purposes that extend far beyond terrorism with few safeguards or privacy protections.”

An expanded domestic spying role for the CSE

Finally, there are grave concerns that Bill C-51 will also result in a dramatically expanded domestic spying role for the CSE. As the next case study will explain, we already know that, contrary to government assurances, the CSE has long been engaged in large-scale surveillance of Canadians--and doing so is only going to get easier.

It looks like Bill C-51 will lead to a significant expansion of these domestic spying activities, given that the CSE is mandated to assist CSIS with its efforts. Michael Geist has described the Bill as a “punch in the gut” for privacy and civil liberties. He argues that the bill, combined with what we already know about CSE activities, will have serious negative implications for the privacy of Canadians’ online activities:

“Moreover, these programs point to the fundamental flaw in Canadian law, where Canadians are re-assured that CSE does not – legally cannot – target Canadians. However, mass surveillance of this nature does not distinguish between nationalities. Mass surveillance of a hundred million downloads every week by definition targets Canadians alongside Internet users from every corner of the globe. To argue that Canadians are not specifically targeted when it is obvious that the personal information of Canadians is indistinguishable from everyone else’s data at the time of collection, is to engage in meaningless distinctions that only succeed in demonstrating the weakness of Canadian law.”41

Canadians from across the political spectrum are speaking out against Bill C-51.

 

All this with no new oversight whatsoever

This enormous expansion of CSIS powers has not been paired with any commensurate increase in oversight - despite over two-thirds of Canadians42 and both leading opposition parties calling for precisely that.

In response, the government’s message amounts to not much more than “just trust us.” Officials from the Ministry of Public Safety even described additional oversight measures as “needless red tape.”43 Meanwhile, as we shall examine in more detail later,44 the current system responsible for oversight of CSIS is dangerously weak.

The government abolished the Office of the CSIS Inspector General in 2012, despite the crucial role the office played in overseeing day-to-day CSIS operations. All we’re left with now is the underfunded, part-time Security Intelligence Review Committee, which barely has the capacity to review CSIS activities years after the fact, let alone provide day-to-day oversight.45

It is not that increased oversight and accountability alone will make up for Bill C-51’s other flaws— far from it. As Geist points out, “If we fail to examine the shortcomings within the current law or within Bill C-51, no amount of accountability, oversight, or review will restore the loss of privacy and civil liberties.”46

That said, greatly improved oversight, accountability and transparency measures are a critical piece of the puzzle. We will later examine in more detail how the current shortcomings in this area can be addressed.

Footnotes: 

[26] CBC News: CSIS to be given 'power to disrupt,' not arrest, in new anti-terror bill. Source: http://www.cbc.ca/news/politics/csis-to-be-given-power-to-disrupt-not-arrest-in-new-anti-terror-bill-1.2937123

[27] Toronto Star: Anti-terror law ‘unprecedented’ in peace time, says ex-Tory senator Hugh Segal. Source: http://www.thestar.com/news/canada/2015/03/04/anti-terror-law-unprecedented-in-peace-time-says-ex-tory-senator-hugh-segal.html

[28] The Globe and Mail: Parliament must reject Harper’s secret policeman bill. Source: http://www.theglobeandmail.com/globe-debate/editorials/parliament-must-reject-harpers-secret-policeman-bill/article22729037/

[29] CBC News: Anti-terrorism powers: What’s in the legislation. Source: http://www.cbc.ca/news/politics/anti-terrorism-powers-what-s-in-the-legislation-1.2937964

[30] CBC News: Bill C-51 bars CSIS from committing 'bodily harm,' sexual violation. Source: http://www.cbc.ca/news/politics/bill-c-51-bars-csis-from-committing-bodily-harm-sexual-violation-1.2938380

[31] Elizabeth May: Anti-terrorism Act must be rejected. Source: http://elizabethmaymp.ca/news/publications/press-releases/2015/02/02/elizabeth-may-issues-statement-anti-terrorism-act-must-be-rejected/

[32] APTN: AFN fears ‘unjust labelling’ of First Nations activists as ‘terrorists’ under proposed anti-terror bill. Source: http://aptn.ca/news/2015/02/26/afn-fears-unjust-labelling-first-nations-activists-terrorists-proposed-anti-terror-bill-document/

[33] We strongly recommend Profs. Forcese & Roach’s detailed analysis available at http://antiterrorlaw.ca

[34] CBC News: Bill C-51 will have 'chilling effect,' anti-shale gas group says. Source: http://www.cbc.ca/news/canada/new-brunswick/bill-c-51-will-have-chilling-effect-anti-shale-gas-group-says-1.2973670

[35] Vancouver Observer: Harper government’s extensive spying on anti-oilsands groups revealed in FOI. Source: http://www.vancouverobserver.com/politics/harper-governments-extensive-spying-anti-oilsands-groups-revealed-fois

[36] Canadian Centre for Policy Alternatives: Bill C-51 - a Legal Primer. Source: https://www.policyalternatives.ca/publications/monitor/bill-c-51-legal-primer

[37] Press Progress: Did Conservatives violate their own terror bill by sharing “terrorist propaganda” on Facebook? Source: http://www.pressprogress.ca/en/post/did-conservatives-violate-their-own-terror-bill-sharing-terrorist-propaganda-facebook

[38] It does allow for information to be shared in certain circumstances, according to strict criteria. For example, see these Treasury Board guidelines: http://www.tbs-sct.gc.ca/atip-aiprp/isa-eer/isa-eertb-eng.asp

[39] The Globe and Mail: Without big changes, Bill C-51 means big data. Source: http://www.theglobeandmail.com/globe-debate/without-big-changes-bill-c-51-means-big-data/article23320329/  

[40] iPolitics: Key legal voices blocked from C-51 committee debate. Source: http://www.ipolitics.ca/2015/03/17/key-legal-voices-blocked-from-c-51-committee-debate/

[41] Michael Geist: The Canadian Privacy and Civil Liberties Punch in the Gut. Source: http://www.michaelgeist.ca/2015/02/canadian-privacy-civil-liberties-punch-gut-csecsis-oversight-enough/

[42] Angus-Reid: February 2015 survey on Bill C-51. Source: http://angusreid.org/c51/

[43] CTV News: Additional oversight for security agencies just ‘needless red tape’: government. Source: http://www.ctvnews.ca/politics/additional-oversight-for-security-agencies-just-needless-red-tape-government-1.2215610#

[44] See “Recommendation 3: Embrace Accountability” in this report.

[45] It’s now taking SIRC an average of three years to investigate complaints against CSIS. CBC News: CSIS watchdog agency starved of staff, resources. Source: http://www.cbc.ca/news/politics/csis-watchdog-agency-starved-of-staff-resources-1.2965276

[46] Michael Geist: The Canadian Privacy and Civil Liberties Punch in the Gut. Source: http://www.michaelgeist.ca/2015/02/canadian-privacy-civil-liberties-punch-gut-csecsis-oversight-enough/