Bill C-51, the Charter, and the Rule of Law

A guest posting by Fred Blair

Bill C-51 proposes amendments to the Canadian Security Intelligence Service Act to permit CSIS “to take, within and outside Canada, measures to reduce threats to the security of Canada, including measures that are authorized by the Federal Court.”

Who could argue with taking measures to reduce threats to the security of Canada? What could go wrong?

This is a radical change in the CSIS role. At present, CSIS is authorized only to “collect…and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada….” Actually taking measures to reduce threats is a whole new mandate – think break and enter, think aggressive hacking, think rendition, think “enhanced interrogation.”

Canadians have two shields against the willful or stupid abuse of the power of the state. Our general protection – the cornerstone in the foundation of democracy – is the Rule of Law. Canada is a country “where everyone is subject to the law; (where) no one, no matter how important or powerful, is above the law – not the government; not the prime minister, or any other minister; not the Queen or the Governor General or any lieutenant-governor; not the most powerful bureaucrat; not the armed forces; not Parliament itself, or any provincial legislature.” (Thank you, Eugene Forsey.) Our specific protections are enumerated in the Charter, which is, simply, “the supreme law of Canada.” Of particular interest are our rights to life, liberty and security of the person, the right to be secure against unreasonable search or seizure and the right not to be arbitrarily detained or imprisoned. What’s to worry about?

With these rights firmly in place, nothing.

That’s why C-51 is so wrong-headed, so dangerous, so objectionable. If enacted as written, C-51 will allow CSIS, with virtually no effective control or oversight, to ride roughshod over the Charter and our protections.

It’s important to understand some things about the Charter. First, it was designed to be very hard to change: our rights aren’t meant to be easily swept away. Specifically, the Charter cannot be changed by the Federal government alone.

Second, although the rights aren’t absolute, the state’s ability to limit them is severely constrained.* They are guaranteed, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (my emphasis). Keep that in mind.

CSIS officials will be able to apply in private to a Federal Court judge, for a warrant allowing them to contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms. Applications will be wholly one-sided, and will be based entirely on the wish list presented secretly by the CSIS official applying for permission to violate someone’s Charter rights.

If I were appearing before the Commons Committee looking at C-51, I’d want to know how the applicant’s wish list could conceivably be considered “prescribed by law.” I’d question the wisdom of handing a “reasonable limit” determination (a legal challenge that has been mastered only by the Supreme Court of Canada in a handful of complex and difficult rulings) to a single Federal Court judge who won’t be hearing both sides of the argument. I’d ask how appropriate it is to give that single judge the power to authorize contravention of a Charter right in a proceeding the record of which will almost certainly never see the light of day. I’d demand to know how that judge’s rulings on warrant applications will be appealed or reviewed (hint: there’s no provision for that in C-51, not even for a review by SIRC).

Does “police state” ring a bell?

There’s no convincing evidence that we need C-51 as it stands. Canada will be the worse for it.

* I have not mentioned the “notwithstanding” clause (section 33 of the Charter) which, within limitations, allows the government to override some Charter rights. It has never been used by the Federal government; the political cost of doing so would be incalculable.

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5 responses to “Bill C-51, the Charter, and the Rule of Law

  1. Fred, thank you for your wise and well-informed rebuttal. If only our Dear Leader were not so tone deaf to rational discourse!

  2. I hate to say this, but Heir Harper and his sycophants won’t have any incentive to be more receptive to rational discourse while our country gets further mired in it’s current “Zombie Apocalypse of Stupid” which Steve and Co. have been doing their very best to infect it with for the last 9 years..

  3. Many Americans have regretted the passage of the Patriot Act. Implications of C-51 on the ability of journalists to investigate misuse of this legislaltion are horrifying. But if present trends continue, the government may have little to worry about as media may simply continue their supine ways.

    • You’ve hit the nail on the head.
      Say CSIS secretly gets an authorization, for the purpose of addressing what it says is a threat to the security of Canada, to make someone disappear. Now say that a journalist proposes to investigate and report how and why that person disappeared. Wouldn’t that journalist’s activity constitute, at least in CSIS’ eyes, “a threat to the security” etc? Now what’s to stop the next application?

  4. I think, Tim T, the stupidity lies not in our stars – such as Mr. Harper, Ms. May, former politicians, and people who speak wisely & forcefully about Canada’s constitution – but in ourselves, that we are often underlings. “Underlings” in that we comment on important policy decisions, more than we act ourselves to make them happen. Or we act, but under cover of decorously soundproof doors and ambiguity.

    We’re getting better, though.