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Bill C-51: An Attack on Privacy

Photo under CC license by Wikipedia Commons
Photo under CC license by Wikipedia Commons

Bill C-51 continues its high speed trip through Parliament, rocketing through the Commons and now being rushed through the Senate.

This bill has generated a level of controversy since its introduction in parliament, reminiscent of the outrage that accompanied the much-despised online spying bill brought in by former Public Safety minister Vic Toews. The government’s Anti-Terrorism Bill has been widely criticized for fundamentally changing Canada’s legal and security systems in a way that deeply compromises rights and freedoms.

The bill puts forward a remarkably broad definition of “security” that includes “interference” with “critical infrastructure” or with “the economic or financial stability of Canada.” This definition would allow an astounding array of activities to be susceptible to government scrutiny or interference. The bill includes provisions to criminalize speech that is divorced from any intent to commit “terrorist” activities. The expansion of “no-fly” lists and an extension of CSIS’s powers without a correlated expansion of review and oversight are additional issues of concern.

The list of activities that may “undermine the security of Canada”, as defined by Bill C-51, is accompanied by a fundamental change in the scope and scale of the state’s surveillance apparatus that constitutes nothing less than an attack on privacy. It is for this reason that, as privacy expert Michael Geist states, “virtually everyone in Canada’s privacy community opposes it.”

Photo under CC license by Flickr: Tamara Herman
Photo under CC license by Flickr: Tamara Herman

Embedded within the lengthy text of Bill C-51 is the “Security of Canada Information Sharing Act (SCISA).” The SCISA would allow information-sharing across 17 government departments for a wide range of purposes that fall outside of what most Canadians would consider even remotely related to “terrorism.” In one of the minor improvements to the bill, the government introduced an amendment to remove the word “lawful”, which would have captured “unlawful activities like illegal strikes or civil
disobedience within the scope of the new measures. Equally problematic is the fact that the SCISA would allow big-data propelled information sharing by government departments, taking advantage of weaknesses in the outdated Privacy Act.

In terms of accountability, the various intelligence review bodies themselves have stated that they do not have the means to keep up with the expanded role being proposed in C-51. Furthermore, the watchdogs have complained that they are not able to coordinate their review capabilities, which is an even bigger problem since the security agencies are doing more and more of their work jointly. And these are review bodies – only looking at things after the fact. The Harper Government got rid of the CSIS Inspector General, who flagged operational problems with the spy agency, in 2012. In FIPA’s submission on Bill C-51, we argue that even the successor to the infamous War Measures Act provides more opportunities for oversight and consultation than Bill C-51, and that would be in an actual time of war.

Professors Craig Forcese and Kent Roach’s in-depth examination of Bill C-51 includes a chapter on the SCISA in which they argue that the Act would authorize a “total information awareness” approach that constitutes a “radical departure from conventional understandings of privacy.”

Incredibly, Privacy Commissioner Daniel Therrien was not called as a witness in the Commons Committee hearings on Bill C-51, but was finally called to testify in the Senate. He told the upper house that the “bill would potentially lead to disproportionately large amounts of personal information of ordinary, law-abiding citizens being collected and shared. This sets up the prospect of profiling and Big Data analytics on all Canadians. In short, the means chosen are excessive to achieve the end.”

Furthermore, every single Privacy Commissioner in Canada – with the exception of New Brunswick – joined Therrien in signing a joint letter opposing the Bill, stating the SCISA would “significantly expand the power of the state to surveil and profile ordinary, law-abiding Canadians.” The letter points out that massive state surveillance “would be inconsistent with the rule of law in our democratic state and contrary to the expectations of Canadians.”

The government responded to growing opposition by proposing amendments, most of which have been widely dismissed as failing to respond to fundamental critiques of the Bill. Meanwhile, pressure continues to mount to scrap the Bill, with early support for the bill melting like spring snow once Canadians became more aware of what it actually contained. A recent Forum poll indicates that barely half of those surveyed supported stronger anti-terrorism laws, and of those who said they were aware of bill C-51, 56% disapproved of the bill while only 33 percent approved. The poll also found that 40% of people in the Conservative stronghold of Alberta now oppose the bill.

For more information, to write to your MP or sign a petition: https://stopc51.ca

 

FIPA’s Submission on Bill C-51

FIPA prepared a submission on Bill C-51 to the Standing Committee on Public Safety and National Security, asking the committee to withdraw the bill. Our submission is attached and below.

INTRODUCTION

FIPA is a non-partisan, non-profit society that was established in 1991 to promote and defend freedom of information and privacy rights in Canada. Our goal is to empower citizens by increasing their access to information and their control over their own personal information. We serve a wide variety of individuals and organizations through programs of public education, public assistance, research, and law reform.

While our work focuses primarily on access and information rights in British Columbia, we have also played an active role in federal sphere, including in relation to the Personal Information Protection and Protection of Electronic Documents Act (PIPEDA) last month, and also on the issues related to lawful access going back to 2002.

We will keep our points brief, as many of the serious concerns about this bill have already been eloquently expressed by a number of individuals and organizations.

We hope you will look carefully at all the submissions, and hopefully recommend that this unjustified and unjustifiable piece of legislation be withdrawn.

What others have said about Bill C-51

For unknown reasons, this Committee has declined to call any of the Privacy Commissioners as witnesses, including the Privacy Commissioner of Canada. Fortunately, every Commissioner in the country has taken the initiative to sign a public statement on the many shortcomings of C-51, including a joint letter to this Committee.[1]

Perhaps the most chilling paragraph in their letter to you is the following:

Bill C-51 challenges fundamental rights and freedoms on several fronts, but the focus of our concern is on its mandate for overbroad, unregulated and intrusive sharing of the personal information of ordinary Canadians. If enacted, the portion of Bill C-51 comprising the Security of Canada Information Sharing Act (SCISA) would significantly expand the power of the state to surveil and profile ordinary, law-abiding Canadians.

Pointing out that Bill C-51 would allow virtually unlimited surveillance of law-abiding Canadians, the Commissioners point out that this massive state surveillance “…would be inconsistent with the rule of law in our democratic state and contrary to the expectations of Canadians.”[2]

Some of their key points relate to the excessive breadth of concept of what “undermines the security of Canada.” They also criticize the overbreadth of the scope for information sharing under the bill, and recommend that the proposed Security of Canada Information Sharing Act be withdrawn.

You have already heard from Professors Forcese and Roach about the shortcomings of C-51, and we will not repeat their remarks, but refer you to their excellent online blog for the catalog of shortcomings and overreach.[3]

Professor Michael Geist has put together a trenchant criticism of the privacy shortcomings of this bill, and you can find it set out on his blog.[4]

He refers to the proposed Security of Canada Information Sharing Act as a piece of legislation which would “eviscerate” the protections provided to personal information by the Privacy Act. We agree with his analysis and his conclusion.

Comparison between Bill C-51 and the successor to the War Measures Act

As the government has not seen fit to provide actual justification for the introduction of this bill beyond vague assertions of threats and platitudes about how security does not necessarily infringe on civil liberties, we thought it would be instructive to compare this Bill to current Canadians laws which provide extraordinary power to the government in emergency situations. Presumably the current situation is not an emergency, or else the government would have actually used its extraordinary powers under the Emergencies Act.[5]

  1. Preamble

The preamble is an important tool in statutory interpretation, and a guide to the intention of P:arliament in enacting the law.

The preamble of the Emergencies Act is set out below.

WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;

AND WHEREAS the fulfilment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times;

AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency.

This preamble sets out the need in times of emergency to take “temporary measures” to ensure safety and security AND “protection of the values of the body politic,” which may not be appropriate in normal times. The contrast with what is contained in C-51 is startling.

The preamble to the proposed SCISA (s.2 of C-51) reads as follows:

Whereas the people of Canada are entitled to live free from threats to their lives and their security;

Whereas activities that undermine the security of Canada are often carried out in a clandestine, deceptive or hostile manner, are increasingly global, complex and sophisticated, and often emerge and evolve rapidly;

Whereas there is no more fundamental role for a government than protecting its country and its people;

Whereas Canada is not to be used as a conduit for the carrying out of activities that threaten the security of another state;

Whereas protecting Canada and its people against activities that undermine the security of Canada often transcends the mandate and capability of any one Government of Canada institution;

Whereas Parliament recognizes that information needs to be shared — and disparate information needs to be collated — in order to enable the Government to protect Canada and its people against activities that undermine the security of Canada;

Whereas information in respect of activities that undermine the security of Canada is to be shared in a manner that is consistent with the Canadian Charter of Rights and Freedoms and the protection of privacy;

And whereas Government of Canada institutions are accountable for the effective and responsible sharing of information;

This section repeatedly states that the primary obligation of government is to protect itself and its people, while suggesting in its first paragraph that there is form of guarantee to be free from even threats to Canadians’ lives and security. Eventually the preamble does acknowledge, somewhat grudgingly, that its exercise of these new information sharing powers is subject to the Charter of Rights and Freedoms, and that the massively increased information sharing is to somehow be done in a way that is consistent with “the protection of privacy”.

Presumably this choice of words, rather than actually citing the Privacy Act or its principles, will allow government to share information according to its interpretation of what constitutes “the protection of privacy.”

  1. Consultation with the provinces and territories

The Premiers of British Columbia and Quebec have voiced concern about Bill C-51, but have no direct mechanism to bring these concerns to the federal government other than normal intergovernmental channels.

In contrast, s. 44 of the Emergencies Act provides that:

  1. Before the Governor in Council issues or continues a declaration of a war emergency, the lieutenant governor in council of each province shall be consulted with respect to the proposed action to the extent that, in the opinion of the Governor in Council, it is appropriate and practicable to do so in the circumstances.

Note the use of the word ‘shall’, making this consultation mandatory. The method and timing are left to the discretion of Cabinet, but this does not remove the obligation to consult.

There is no equivalent to this in C-51.

  1. Time-limited Powers

The government also has to seek Parliamentary confirmation of a declaration of emergency under the Emergencies Act. It must put a motion before each House, “together with an explanation of the reasons for issuing the declaration and a report on any consultation with the lieutenant governors in council of the provinces” seven sitting days after the declaration is issued.[6]

First of all, under the Emergencies Act, before proclaiming that a “war emergency” exists, the government must believe, “on reasonable grounds, that a war emergency exists and necessitates the taking of special temporary measures for dealing with the emergency.” [7] The declaration must also “specify the state of affairs constituting the emergency” without jeopardizing any special temporary measures proposed to be taken for dealing with the emergency.” [8]

These declarations only last 120 days, but can be renewed. In contrast, C-51’s provisions do not have any kind of time limit or even a sunset clause.

  1. Parliamentary oversight

Bill C-51 provides no element of parliamentary oversight, despite a massive increase in surveillance and other powers to be exercised in vaguely defined circumstances.

This compares unfavourably with what Parliament saw fit to provide in an actual emergency in time of war, which is presumably a more serious threat to this country and its people than whatever threats we are currently facing.

Not only that, but this part of the Emergencies Act includes a Parliamentary Review Committee that examines the “exercise of powers and the performance of duties and functions pursuant to a declaration of emergency.”[9]

This Committee would have members from all parties in both Commons and Senate. Those members would be sworn to secrecy and its meeting would be private, but the Review Committee would report to Parliament on how the government is exercising its powers and functions every 60 days for as long as the declaration of war is in effect.[10]

The Review Committee also has the power to revoke or amend government regulations referred to it.

Once the war emergency is over, the Emergencies Act requires the government hold an inquiry within sixty days “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.”[11]

Nothing like this exists in C-51, nor has the government provided any rational explanation of why not.

CONCLUSION

The B.C. Freedom of Information and Privacy Association asks this Committee to recommend the government withdraw this bill.

[1] https://www.oipc.bc.ca/public-comments/1764

[2] ibid

[3] www.antiterrorlaw.ca

[4] http://www.michaelgeist.ca/2015/03/why-the-anti-terrorism-bill-is-really-an-anti-privacy-bill-bill-c-51s-evisceration-of-government-privacy/

[5] Emergencies Act R.S.C., 1985, c. 22 (4th Supp.)

[6] Emergencies Act, s.58(1)

[7] Emergencies Act, s.38(1)

[8] Emergencies Act s.38 (2)

[9] Emergencies Act s.62

[10] Emergencies Act s.62(6)

[11] Emergencies Act s.63