Understanding the 2015 Anti-Terrorism Act: Surveillance, Privacy and The Spectre of Terror in Canada

For the first time since the USA Patriot Act was signed into law in the aftermath of September 11, the United States has scaled back the scope of its security provisions with the USA Freedom Act of 2015. A consequence of Edward Snowden’s revelations in 2013, it has signaled a normative shift in American policy on issues of mass surveillance, government secrecy and information privacy. North of the border in Canada, the national debate on privacy and security is taking a different path. Over the past year, the Conservative government has introduced multiple pieces of legislation that affect security, privacy, and the power of policy agencies.

Most recently, the Anti-Terrorism Act 2015 officially came into Canadian law on June 18 following months of deliberation among a Conservative-majority Parliament. Also known as Bill C-51, the legislation ensures enhanced powers to Canada’s spy agency, the Canadian Security Intelligence Service (CSIS). It criminalizes the promotion of terrorism and provides police with new powers of preventative surveillance and arrest, among other provisions. Conservatives proclaim the bill is necessary to combat the threat of domestic and international terrorism, while critics believe it constrains too many fundamental freedoms in the process. Some fear C-51 establishes criminal offences that infringe upon the right to free expression, granting security agencies unprecedented and intrusive powers to monitor and share information about Canadians with little proportionate oversight or accountability.

Public support for the bill in the face of sustained criticism can best be explained by two deadly incidents targeting soldiers that raised concerns of terrorist activity in Canada last fall. On October 20, Martin Couture-Rouleau killed Warrant Officer Patrice Vincent in St-Jean-sur-Richelieu, Quebec. Two days later, Michael Zehaf-Bibeau shot and killed Corporal Nathan Cirillo at the War Memorial in Ottawa, before storming Parliament. The federal government was quick to declare both incidents terror attacks and vowed to take steps to strengthen Canada’s abilities to identify and neutralize potential threats to national security. The sustained campaign of the Islamic State, as well as international terror incidents including the Paris and Copenhagen attacks of January 2015, have facilitated public support for enhanced security powers in Canada. In March, for instance, a poll by the Angus Reid Institute found that 82 percent of Canadians surveyed supported the bill, while 36 percent believed it did not go far enough. Prime Minister Stephen Harper unveiled Bill C-51 on January 30, stating that his goal is to deal with the threat posed by supporters of the Islamic State and other anti-Western terror groups. The legislation is the most comprehensive reform of Canadian security policy since the 2001 Anti-Terrorism Act became law following the September 11 attacks.

According to an official government press release, here is what Bill C-51 will implement:

1. Stop those who promote terrorism by creating a new Criminal Code offence that will criminalize the advocacy or promotion of the commission of terrorism offences (now in force);
2. Counter terrorist recruitment by giving our judges the authority to order the seizure and forfeiture of terrorist propaganda material and the removal of terrorist propaganda from Canadian websites (now in force);
3. Provide the Canadian Security Intelligence Service (CSIS) with the ability, under the authority of a court, to intervene to prevent specific terrorist plots (now in force);
4. Enhance the Passenger Protect Program by further mitigating threats to transportation security and preventing travel by air for the purpose of engaging in terrorism-related activities (these amendments to the Secure Air Travel Act and related amendments will come into force on a date fixed by an order of the Governor in Council);
5. Make it easier for our police forces to temporarily detain and apply to a court to have conditions imposed on suspected terrorists before they can harm Canadians and toughening penalties for violating court-ordered conditions on terrorist suspects (these amendments to strengthen the terrorism recognizance with conditions and peace bond powers will come into force in 30 days);
6. Enable the responsible sharing of relevant national security information across federal departments and agencies (the Security of Canada Information Sharing Act and related amendments will come into force on a date fixed by an order of the Governor in Council);
7. Ensure that the Government is better able to protect and use classified information when denying entry and status to non-citizens who pose a threat to Canada; (these amendments to the Immigration and Refugee Protection Act will come into force on a date fixed by an order of the Governor in Council); and,
8. Provide witnesses and other participants in national security proceedings and prosecutions with additional protection (most of these amendments are now in force).

Overall, the aim and effect of Bill C-51 is to increase the powers and reach of Canada’s security services. Implementing the above includes amendments to the Criminal Code, the CSIS Act, and the Immigration and Refugee Protection Act, as well as new laws to increase the scope of the national security network. The new laws are laid out in the Security of Canada Information Sharing Act and the Secure Air Travel Act. It gives CSIS powers beyond intelligence gathering (to actively target threats and derail plots); criminalizes terrorist propaganda and the promotion of terror; lowers the legal threshold to detain those suspected of terrorism; extends preventive detention for suspected terrorists from three to seven days; legally entrenches a no fly list; and grants government agencies authority to share private information with domestic and foreign entities. Sweeping and contentious, controversy surrounding the bill has initiated a national debate on privacy protections and the threat of terrorism in Canada.

Bill C-51 has sparked serious concerns about the potential impact on the basic civil liberties of all Canadians. Of special significance are the Canada Information Sharing Act and the amendments to the Criminal Code and CSIS Act, which could legitimize unlawful detainment of and the mass collection of surveillance data on Canadian citizens. Among others things, C-51 widens the definition of what might be encompassed under the category of “terrorist activity”; greatly expands the information-sharing capacity of the federal government; greatly expands the boundaries and conditions of the no-fly list; extends the length of preventive detention while lowering minimum conditions; creates new criminal offences for promoting or advocating terrorism (including an ambiguous “terrorism in general”); and enables CSIS to apply secretly for judicial disruption warrants that would permit it to break Canadian law and violate charter rights.

The bill has raised concerns about its use of intentionally vague language left open to broad interpretation, which could lead to abuses. The ambiguity of the wording allows the government to conduct surveillance on Canadians with unprecedented ease. If a department deems there is credible evidence of “terrorist activity”, it is allowed to conduct surveillance on citizens and share that information with all levels of government. Targeted activities are too broadly defined, making it likely that legitimate expressive activities will be sanctioned – including social protest, environmental / aboriginal activism and labor unrest. Further, the bill changes the conditions which dictate whether or not an individual can be detained without evidence, and probable cause for arrest, both of which drastically lower the necessary legal threshold for jailing suspected terrorists. Security agencies only need a warrant to take action against supposed extremists, and only when the action taken will violate a charter right or Canadian law. It is the first time any law in Canada has pre-authorized the potential breach of charter rights.

With the new and increased powers for CSIS and other agencies, the need for independent oversight and effective review mechanisms is greater than ever. The proposed expansion of intrusive state powers into civil society through C-51 is accompanied by no improvement to the framework’s accountability system. Even before C-51 became law, Canada was unique among Western democracies for having no parliamentary oversight to the activities of its security agencies. That has not changed. The independent watchdog that the Conservative government points to as providing necessary oversight to CSIS, the SIRC (Security Intelligence Review Committee), is under-resourced and under-staffed. Thus, critics believe the committee will be unable to effectively monitor the new powers CSIS will receive under the government’s proposed antiterrorism legislation. Its powers have not kept pace with the expanded mandate of the security services it reviews.

Founded in 1984, the SIRC’s responsibilities include providing an external review mechanism for CSIS and acting as a tribunal to consider complaints about activities carried out by CSIS. Yet the SIRC has just 14 staff members and received under $ 3 million CAD last fiscal year for its work investigating complaints against CSIS and reviewing the spy agency’s activities. By comparison, CSIS had over 3,000 staff and financial expenditures of $496 million CAD in 2012-2013. As a result, SIRC staff carries out retroactive reviews of only a small selection of CSIS activities. Recent SIRC reports have also noted issues in getting timely and full information from CSIS, and the secrecy surrounding CSIS means its reports have to be comprehensively edited and redacted. Conservative spokespersons argue the SIRC already provides robust accountability. The government has also made the claim that greater “judicial oversight” arises out of C-51, even though the disruption warrants constitute secret judicial enabling of law breaking, turning judges into agents of the executive rather than overseers of the law. Other agencies, such as the Canada Border Services Agency (CBSA), are not subject to a review body at all. Without a much larger investment in an already weak accountability system, Canada’s security agencies will be lacking legitimate and capable oversight mechanisms to address or correct practices and procedures that result in violations of Canadian’s rights.

Several civil liberty organizations, lawmakers, former CSIS employees and several former Canadian prime ministers have expressed concern about the lack of oversight and effective review mechanisms for the law. Edward Snowden himself has stated that “Canadian intelligence has one of the weakest oversight frameworks of any western intelligence agency in the world” and went on to point out the critical importance of real accountability in protecting liberal freedoms when under pressure from the national security state. The new law is currently being challenged in Canada’s Supreme Court by a journalists’ group and a civil rights organizations that call it an attack on constitutional freedom, an inversion of the judiciary’s role as a protector of constitutional rights, and a violation of judges’ independence from government. Moreover, a July report by the United Nations Human Rights Committee raised further objections about Canada’s new anti-terror legislation, saying it could violate the international covenant on civil and political rights. It is concerned sweeping powers in the law do not contain enough legal safeguards to protect people’s rights, and says the government should consider rewriting the law to ensure it complies with the international civil rights agreement. Bill C-51 is only part of a long list of issues the committee is raising on how well Canada is meetings its obligations under the civil and political human rights covenant. The government has dismissed these criticisms.

In a practical sense, the fearful and politicized context in which C-51 was introduced is not conducive to pragmatic recognition of the long-term causes and solutions to terror threats. The new powers provided to CSIS are best understood as powers of disruption: CSIS can disrupt and perhaps even detain, but even under C-51, it cannot arrest or charge. Its new powers are used in cases in which there is not enough evidence to justify laying criminal charges under existing terrorism and related offences. As such, they are likely to provide only temporary solutions to real security problems presented by those radicalized to violent extremism. Rather than potentially violating the rights of large numbers of its citizens, the Canadian government would be better off to put more focus on engaging in constructive dialogue with disaffected communities and individuals susceptible to radicalization. Without a comprehensive Hearts and Minds campaign dedicated to countering extremist sentiment and helping marginalized groups in Canada, the measures of disruption undertaken by the government to combat terrorism will continue to be counterproductive. Furthermore, there exists no evidence these new powers are even needed. In recent years, successful counterterrorism operations within Canada include the arrest of the Toronto 18; the foiling of a plot to blow up a VIA train; and the recent arrest of young people who allegedly planned to open fire on shoppers at a Halifax mall. All were accomplished under past laws.

In Canada’s intensifying war on terror, political battle lines are now clearly drawn. The law is to be a major factor in the country’s 42nd general election on 19 October, with the Conservatives expected to argue that they alone can be trusted to protect Canadians. The left-leaning New Democrats and Green parties oppose and have vowed to repeal C-51, and while the center-left Liberals voted in favor of the bill, they have promised to add effective oversight if elected. In the lead up to the vote, Prime Minister Harper has made several calculated decisions to capitalize on popular sentiments of terror and fear to secure another victory for his party. Exploiting international events to stoke fear in Canada, he has claimed the imminent threat of organized terror groups to Canadians and that an “international jihadist movement has declared war”. Fearful of such threats, some Canadians have turned to Islamophobia. Since the October shooting in Ottawa, several mosques across the country have been violently vandalized. In recent months, however, public support for C-51 continues to slide as Canadians learn more about the bill’s sweeping powers and lack of effective oversight. According to a Forum Research poll, 50 percent now disapprove of it, while just 38 percent approve. Meanwhile, Prime Minister Harper continues to attack critics of the bill as soft on terrorism, while fuelling fears and hatred of Islam by declaring that Muslims practice ways that are “contrary to our values”. Political leaders have the responsibility to empower and protect their citizenry instead of capitalizing on fear and oppression for electoral gains. The reality in Canada suggests otherwise.

Cover Image by Sally T. Buck under a CC-BY-NC-ND 2.0 Creative Commons license