BILL C-51 BACKGROUNDER #5: OVERSIGHT AND REVIEW: TURNING ACCOUNTABILITY GAPS INTO CANYONS?

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2571245

Social Science Research Network

Craig Forcese    University of Ottawa – Common Law Section
Kent Roach     University of Toronto – Faculty of Law
Leah Sherriff     University of Toronto
February 27, 2015

Canada’’s system of national security ““oversight”” is imperfect. Its system of national security ““review”” is frayed, perhaps to the breaking point. The government’’s anti-terrorism law, bill C-51, will accelerate this pattern. Without a serious course correction, we risk the prospect of avertable security service scandals.

There is often a misunderstanding about the distinction between “”oversight”” and “”review”.”

In Canadian practice, oversight is usually an executive branch function. This system has not always worked – the Air India Commission suggested (and the government rejected) new centralized oversight systems for reconciling competing national security interests.

C-51 does not introduce new reforms in this area. The government instead points to judicial warrants authorizing the new CSIS powers – a form of oversight. But this is, at best, a partial form of oversight. CSIS will not always require warrants. Judges will issue warrants in secret proceeding in which only the government side is represented. Nor will they always know what is then done in their name. There is no formal “”feedback”” loop between CSIS and the judge concerning the execution of the warrant, a key concern where (as with CSIS warrants) the conduct is covert and the warrant never disclosed.

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Bill C-51 A Legal Primer: Overly broad and unnecessary anti-terrorism reforms could criminalize free speech

C. Ruby , N. R. Hasan
Canadian Centre for Policy Alternatives
February 17, 2015
Bill C-51: A Legal Primer

by Clayton Ruby and Nader R. Hasan

Six Muslim young adults stand in front of a mosque late at night in heated discussion in some foreign language. They may be debating the merits of a new Drake album. They may be talking about video games, or sports, or girls, or advocating the overthrow of the Harper government. Who knows? There is no evidence one way or the other. Just stereotypes. But the new standard for arrest and detention – reason to suspect that they may commit an act – is so low that an officer may be inclined to arrest and detain them in order to investigate further. And now, officers will no longer need to ask themselves whether the arrest is necessary. They could act on mere suspicion that an arrest is likely to prevent any terrorist activity. Yesterday, the Muslim men were freely exercising constitutional rights to freedom of expression and assembly. Today they are arrestable.

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‘Anti-petroleum’ movement a growing security threat to Canada, RCMP say

The RCMP has labelled the “”anti-petroleum”” movement as a growing and violent threat to Canada’’s security, raising fears among environmentalists that they face increased surveillance, and possibly worse, under the Harper government’s new terrorism legislation.

In highly charged language that reflects the government’’s hostility toward environmental activists, an RCMP intelligence assessment warns that foreign-funded groups are bent on blocking oil sands expansion and pipeline construction, and that the extremists in the movement are willing to resort to violence.

“There is a growing, highly organized and well-financed anti-Canada petroleum movement that consists of peaceful activists, militants and violent extremists who are opposed to society’’s reliance on fossil fuels,”” concludes the report which is stamped “”protected/Canadian eyes only”” and is dated Jan. 24, 2014. The report was obtained by Greenpeace.

““If violent environmental extremists engage in unlawful activity, it jeopardizes the health and safety of its participants, the general public and the natural environment.””

The government has tabled Bill C-51, which provides greater power to the security agencies to collect information on and disrupt the activities of suspected terrorist groups. While Prime Minister Stephen Harper has identified the threat as violent extremists motivated by radical Islamic views, the legislation would also expand the ability of government agencies to infiltrate environmental groups on the suspicion that they are promoting civil disobedience or other criminal acts to oppose resource projects.

The legislation identifies “activity that undermines the security of Canada” as anything that interferes with the economic or financial stability of Canada or with the country’-s critical infrastructure, though it excludes lawful protest or dissent. And it allows the Canadian Security and Intelligence Service to take measures to reduce what it perceives to be threats to the security of Canada.

The British Columbia Civil Liberties Association has already launched challenges to the RCMP complaints commission and the Security Intelligence Review Committee–which oversees the Canadian Security Intelligence Service–over alleged surveillance of groups opposed to the construction of the proposed Northern Gateway pipeline in B.C.

“”These kind of cases involving environmental groups–or anti-petroleum groups as the RCMP likes to frame them–are really the sharp end of the stick in terms of Bill C-51,”” said Paul Champ, a civil liberties lawyer who is handling the BCCLA complaints. “”With respect to Bill C-51, I and other groups have real concerns it is going to target not just terrorists who are involved in criminal activity, but people who are protesting against different Canadian government policies.””

RCMP spokesman Sergeant Greg Cox insisted the Mounties do not conduct surveillance unless there is suspicion of criminal conduct.

“”As part of its law enforcement mandate, the RCMP does have the requirement to identify and investigate criminal threats, including those to critical infrastructure and at public events,”” Sgt. Cox said in an e-mailed statement. “”There is no focus on environmental groups, but rather on the broader criminal threats to Canada’s critical infrastructure. The RCMP does not monitor any environmental protest group. Its mandate is to investigate individuals involved in criminality.””

But Sgt. Cox would not comment on the tone of the January, 2014, assessment that suggests opposition to resource development runs counter to Canada’’s national interest and links groups such as Greenpeace, Tides Canada and the Sierra Club to growing militancy in the “”anti-petroleum movement.””

The report extolls the value of the oil and gas sector to the Canadian economy, and adds that many environmentalists “”claim”” that climate change is the most serious global environmental threat, and “”claim”” it is a direct consequence of human activity and is “”reportedly”” linked to the use of fossil fuels. It echoes concerns first raised by Finance Minister Joe Oliver that environmental groups are foreign-funded and are working against the interests of Canada by opposing development.

“”This document identifies anyone who is concerned about climate change as a potential, if not actual–the lines are very blurry ––‘anti-petroleum extremist’’ looking to advance their ‘‘anti-petroleum ideology,'”’” said Keith Stewart, a climate campaigner for Greenpeace.

““The parts that are genuinely alarming about this document are how it lays the groundwork for all kinds of state-sanctioned surveillance and dirty tricks should C-51 be passed,”” he said.

A spokeswoman for Public Safety Canada said Bill C-51 does not change the definition of what constitutes a threat to Canadian security, and added CSIS does not investigate lawful dissent.

“”CSIS has a good track record of distinguishing genuine threats to the security of Canada from other activities,”” Public Safety Canada’’s Josée Sirois said. “”The independent reports of the Security Intelligence Review Committee attest to CSIS’’s compliance with the law.””