Wednesday, February 18, 2015

Prof. Kent Roach and University of Ottawa Prof. Craig Forcese have continued their analysis of the Canadian government's proposed new anti-terrorism bill with a commentary in the Toronto Star about its impact on privacy ("Bill C-51 moves us one step closer to the end of privacy," February 17, 2015).

Read the commentary on the Toronto Star website, or below.


Bill C-51 moves us one step closer to the end of privacy

By Kent Roach and Craig Forcese

February 17, 2015

The new information sharing law in Bill C-51 will relax constraints on the flow of information between government agencies about “activities that undermine the security of Canada.” This change has not received as much attention as have other features of the bill. This is unfortunate because, as with other features of Bill C-51, this proposed law is not balanced.

“Big data” technology enables incredibly detailed and potentially intrusive monitoring and scrutiny of people’s behaviour. Law stands as the bulwark against the end of privacy, and this bill makes the law weaker.

Recent events raise real concerns about terrorism, and there may be a case for increased information sharing. The Air India Commission even recommended mandatory sharing by CSIS to prevent another such attack. So information sharing is required. But it must be reasonable in its scope and be countered with effective review to ensure that the information shared is reliable and respects privacy.

If the ill provoking this change is terrorism, then a law that relaxes rules on information sharing should be about terrorism. That is not what Bill C-51 is about.

The law creates a radical new concept of activities that “undermine the security of Canada.” It sweeps in anything “undermining” (whatever that means) the lives and security of Canadian people and the sovereignty, security or territorial integrity of Canada. The only exception is “lawful” protest, dissent or artistic expression. Note the reference to “lawful.” If your protest fails to comply with municipal permitting regulations, it is fairly characterized as “unlawful.”

The law names examples. They include activities aimed at changing or “unduly influencing” any Canadian government by force — or merely “unlawful means.” Students protesting tuition beware.

It names activities in Canada that undermine the security of another state. Any state. Diaspora groups denouncing repressive regimes should be attentive.

It names activities that interfere with “critical infrastructure.” Any interference. Environmental or Aboriginal protest groups pay heed.

Also included: threats to Canada’s territorial integrity. Sovereigntist and First Nations groups take note.

Bill C-51 speaks of information sharing aimed at “detection, identification, analysis, prevention, investigation or disruption” of these “threats.” And so the government may be empowered to distribute information pre-emptively, in anticipation of this sort of conduct that may be unlawful.

In sum, it is hard not to read this bill as aimed at “total information awareness” of real threats, and also more banal forms of dissent.

But even if it were more reasonable in its scope, this bill fails to include proper safeguards.

Information can injure. Improperly shared information may result in rumours and innuendo being reconceived as fact, and used to justify action.

Information sharing lay at the core of the Arar commission of inquiry. There, the RCMP shared inaccurate information with the U.S. that associated Arar with Al Qaeda. Information sharing played a role in Arar’s rendition to Syria as well as the torture of three other Canadians, Adbullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin.

The Arar commission recognized (wisely) that integrated information sharing must be matched and balanced with integrated independent and self-initiated review to ensure reliability, relevance, and compliance with Charter and privacy rights. The government has failed to act on its recommendations and continues to do so in this bill.

The government promises its conduct will be subject to review by the Privacy Commissioner. In 2014, the Privacy Commissioner issued a report that recognized that the Privacy Act had not been substantially amended since the 1980s and that the Commissioner required more powers to ensure integrated review of secret information. Those amendments are not included in Bill C-51.

Nor should we expect judicial oversight. As Justice Dennis O’Connor recognized in the Arar Commission report, standard judicial review cannot effectively review information sharing because so few cases end in prosecutions. People may not even know that secret information about them has been shared.

We may need good, modernized information sharing laws. We may even need mandatory information sharing in some cases. Bill C-51 is not this legislation. It is not balanced and it radically authorizes sharing of information unrelated to terrorism. It deserves the most careful debate in Parliament.