When the previous government passed its Anti-Terrorism Act 2015, better-known in some circles as the controversial Bill C-51, the Liberals voted in favour of it, with the caveat that they would fix what was wrong with it when they were elected.
A year after taking office, the Liberal government has started to make good on its promise, with the tabling of Bill C-22 to create a Parliamentary security and intelligence committee, and with the release of its National Security Green Paper last fall to stimulate discussion about the issue and what policies, procedures and laws need to be in place in order to combat terrorism.
When it came to Bill C-51, the CBA agreed that it was important to protect Canadians from acts of terror, but that was one of the few areas of accord with a bill that it said was in some important ways unconstitutional.
In its response to the Green Paper, the CBA worries that its concerns may not be rectified by the current government.
The Green Paper is peppered with scenarios that ask about appropriate state responses to posited threats, and do not show how the proposed legislation might curtail civil rights, therefore presenting an unbalanced perspective that doesn’t give readers the opportunity to make informed choices, the CBA says.
“The CBA agrees that protecting the safety and security of Canadians preserving Canadians’ constitutional values are equally fundamental responsibilities of the federal government,” the submission says.
“Unfortunately, the scenarios in the Green Paper seem to favour implementation of the most controversial sections of Bill C-51, despite the government’s commitment to carefully reconsider that Bill.”
The CBA submission presents a total of 23 recommendations in areas including accountability, the prevention of radicalization, the impact of information-sharing on privacy rights, and the terrorism measures that the ATA, 2015 added to the Criminal Code.
The submission calls for strong oversight mechanisms for Canada’s national security agencies, and a “comprehensive review mechanism for the national security infrastructure as a whole.” It also calls on the government to amend the judicial warrant provisions in the ATA, 2015 “so that CSIS warrants can never violate the Charter,” and to also amend the Act so that CSIS may not arbitrarily detain individuals, or subject them to psychological harm – neither of which is currently expressly prohibited.
As with the 2015 submission on Bill C-51, the current CBA submission points out that registered charities can find anti-terrorism legislation “overly broad and confusing.”
“Charities operating internationally often report that a lack of clear rules or guidelines from the federal government means they do not know exactly how to comply with Canada’s anti-terrorism legislation,” the submission says. “Lawyers cannot safely advise charities that adopting, implementing and complying with a comprehensive anti-terrorism policy that imposes due diligence on projects, partners and donors will be a sufficient defence to allegations of directly or indirectly facilitating terrorism.”
The submission makes a number of recommendations for amendments to solve this problem, including instituting “a clear mens rea requirement” – a charity must know its resources will be improperly used – and developing guidelines so that charities “can show due diligence in complying with anti-terrorism legislation.”