The Canadian government has been walking a fine line between keeping Canadians safe from internal and external threats and protecting their civil liberties since 2001 and the passage of the first Anti-Terrorism Act, in the wake of 9/11.
It is fair to say that in the last several years there has been widespread disagreement, both philosophically and legally, over where that line needs to be drawn and the proper approach to walking it.
The CBA welcomed the new government’s throne speech and mandate letter to Ralph Goodale, the Minister of Public Safety, both of which signalled an intention to review legislation and policies that the association had argued in submissions to government should be amended and improved – for example, Bill C-51, the Anti-Terrorism Act 2015.
One of Goodale’s top priorities is to “work to repeal, in collaboration with the Minister of Justice, the problematic elements of Bill C-51 and introduce new legislation that strengthens accountability with respect to national security and better balances collective security with rights and freedoms.”
President Janet Fuhrer included the association’s submission on the controversial bill in her letter of welcome to Goodale, noting the CBA opposed the bill “for its lack of coherent Parliamentary oversight, conscription of judges to authorize Charter breaches by law enforcement, the impact on legitimate political expression and protests, and more.” The CBA would be happy to work with Goodale and Justice Minister Jody Wilson-Raybould to amend the law, she said. “In particular, we support creating a statutory committee with oversight responsibilities for all government departments and agencies with responsibility for national security, as outlined in your mandate letter.”
She also applauded Goodale’s recent announcement that he would review the policy on information sharing with foreign entities.
“The CBA would like to foster a strong and fruitful relationship with you, and we are pleased that your government has committed to address many issues of mutual concern,” Fuhrer wrote. “We look forward to working with you and your officials to convey the perspective of the legal profession on these and other issues.”
Some of the issues of mutual concern noted in Fuhrer’s letter are:
Preventing crime – The CBA encourages the government to consider recent changes to criminal justice law that have ignored evidence and research “on what actually prevents and deters crime and will have the greatest positive impact on public safety.”
Trusting Canada’s judges – Mandatory minimum sentences “remove judges’ discretion to impose appropriate sentences for offenders in the particular circumstances of each case,” and “exacerbate already serious problems inside Canada’s institutions, and notably worsen the longstanding problem of over-incarcerating Indigenous peoples.”
Solicitor-client privilege at the border – Noting that the CBA in 2014 urged the then-ministers of Justice and Public Safety to do so, Fuhrer in turn urged Goodale to “create a working group to define the issue of solicitor-client privilege claims at the Canada-U.S. border and to establish an official government policy on the matter.” She suggests a group with representatives from the CBA, Justice Canada and the Canadian Border Services Agency, which falls under the Public Safety mandate, could work together on such a policy.
Immigration concerns – Noting that the CBA has expressed serious concerns with sweeping changes made in the past several years to legislation and processes related to immigration, borders and security, Fuhrer identifies several priorities for Goodale’s consideration, including creating an independent body to provide oversight at the CBSA, creating units of “immigration specialists” to work at the borders, and facilitating the entry of refugees without compromising Canadian security.