The Anti-Terrorism Act (Bill C-36) grants police expanded investigative and surveillance powers, allows for preventative detention, undermines the principle of due process by guarding certain information of “national interest” from disclosure during courtroom or other judicial proceedings and calls for the
de-registration of charities accused of links with terrorist organizations. All of these changes occur on the basis of a vague, imprecise and overly expansive definition of terrorist activity.

The entire legislation of Bill C-36 was subject to a three-year review and it included a sunset clause on powers of preventive arrest and investigative hearings. Those two provisions were expected to expire in five years, unless they were renewed in a vote by both houses of Parliament. (See Bill S-7 below). Several bills have been tabled in order to reintroduced the controversial expired dispositions:

Bill S-3: An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) was amended by the Special Senate Committee on 5 March 2008, passed by the Senate on 6 March 2008, and had reached the debate at second reading stage in the House of Commons in April 2008, before it died on the Order Paper at the end of the 39th Parliament.

Bill C-19: An Act to amend the Criminal Code (investigative hearing and recognizance with conditions), 2nd Session, 40th Parliament. This bill reached second reading stage in the House of Commons in June 2009 and died on the Order Paper when Parliament was prorogued on 30 December 2009.

Bill C-17: Introduced in the House of Commons on 23 April 2010, Bill C-17, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) (short title: Combating Terrorism Act) contains the provisions found in the former Bill C-19. The bill was never adopted.

More information about these bills can be found here

ICLMG’s position on the Anti-terrorism Act of 2001: In the Shadow of the Law, ICLMG Report in response to Justice Canada’s 1st Annual Report on the Application of the Anti-Terrorism Act (Bill C-36)

The PPP which came into force on June 18, 2007 remains a highly secretive government initiative. In 2007, Transport Canada estimated the cost of its implementation at $13.8 million over the first five years, and $2.9 million per year after that. To this day, it has never been discussed nor reviewed by Parliament. Yet a handful of bureaucrats, with CSIS and RCMP input, are placing individuals considered an “immediate threat to aviation security” on a no-fly list with serious consequences. Individuals have no way of finding out in advance whether they are on the list, why they have been singled out, how to correct erroneous information in their files, or how to defend themselves.

ICLMG’s position on the PPP

On February 23, 2007 the Supreme Court unanimously ruled that certain provisions of the Immigration and Refugee Protection Act were unconstitutional as they were incompatible with the Canadian Charter of Rights and Freedoms, notably with respect to the non-disclosure of information used in a decision to detain and remove a person under a security certificate. The Court found that the use of “secret evidence” violates section 7 of the Charter, which guarantees the right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

The only major difference between Bill C-3 and the previous security certificate regime is the introduction of the special advocate. And even here the government has adopted a flawed and minimalist version of “special advocate” — essentially the U.K. model that is characterized as “unfair” by the special advocates themselves. The presence of a special advocate might offer some improvements over the current situation, but ultimately does not resolve the basic problem that the individual is denied a full opportunity to know the case, and to meet the case.

Consequently, Bill C-3, in our opinion and contrary to the Supreme Court’s Harkat 2014 decision, still violates a person’s “right to know and meet the case against him, or the right to have a decision made on the facts and the law.” It does not save or sanitize the security certificate process. There is still no due process, and section 7 of the Charter is still not respected.

More information on the Harkat case: Supreme Court upholds security certificate law in Mohamed Harkat terror case

ICLMG’s position on C-3

An Act to amend the Aeronautics Act. This legislation gives US officials final say on who may board a plane in Canada if they are to fly over the US en route to a third country. Canadian law used to prohibit companies from disclosing personal information to foreign entities. Bill C-42 allows the disclosure.

The BQ didn’t want to affect the business for Air Transat and the Quebecers travelling in the winter to the South destination like Mexico, and Cuba. The Liberals originally opposed the bill then voted for it.

Source

ICLMG’s position on Bill C-42

In the omnibus Bill C-38, the act to implement the Budget 2012, the government moved to abolish the Office of the Inspector General of the Canadian Security Intelligence Service (CSIS).

Before this decision, CSIS used to have two oversight bodies: the Inspector General and the Security Intelligence Review Committee (SIRC). Now, only SIRC remains.

The suppression of this oversight body means less accountability.

Source

Bill C-31 was introduced in 2012. It gives the power to a Minister to designate groups of migrants or asylum seekers and incarcerate them for 12 months without judicial review. Also, the bill gives the power to a Minister to designate a list of countries as supposedly “safe”.

Moreover, under this new law, refugees will have only 15 days from the date they make a claim to file a form, which sets out for the basis of their case. According to refugee lawyers and experts, it will be impossible to get a legal representation and to get any corroborating evidence for their claim in so little time.

Source

ICLMG’s position on C-31

This legislation has opened the door for the violations of the International Convention Against Torture by stating that RCMP officers are not entitled to form a complaint against directives given by the government of Canada in the interest of national security. Per example, it doesn’t allow Mounties to question intelligence information that has been obtained illegally, such as information that may have been obtained through torture.

The additional review mechanism that the government claimed to introduce with this bill dealt only with internal complaints from members and not complaints from the public. Hence, there is no additional review mechanism introduced nor more accountability for the RCMP towards the public and parliamentarians.

Sources: https://openparliament.ca/bills/41-1/C-42/; http://www.straight.com/news/bill-c-42-gags-mounties-torture

ICLMG’s position on C-42

In 2001, the Liberal government of the day agreed to “sunset” the two controversial clauses in C-36, the Anti-terrorism Act of 2001: the preventative detention and the investigative hearing clauses. This means they would expire five years after they were enacted unless both houses of Parliament agreed to extend them. They expired in March 2007 when the minority Conservative government lost a vote to keep them, 159 to 124. The Liberals voted against the reinstatement of these provisions in 2007.

Bill S-7 proposed to reinstate the two provisions permitting a peace officer, in circumstances where a terrorism offence is under investigation, to apply to a judge for an order to compel an individual believed to have information relating to a particular offence to appear at an investigative hearing to answer questions and produce relevant information. A refusal to co-operate may result in an arrest and a one-year imprisonment. This provision introduces the notion of inquisitorial justice into Canada’s criminal law. The bill also reinstates provisions allowing for preventive arrest, and the placing of individuals under recognizance with conditions in circumstances where there is reason to believe that doing so is necessary to prevent a terrorist act, thus allowing the detention of an individual for a longer period than is usually legal on the basis of mere suspicions.

The two provisions rely on a very broad definition of terrorism which could be used to compel individuals to testify for challenging authority and engaging in dissent. Such a broad definition encourages the profiling of individuals labelled as “persons of interest”, on religious, political or ideological grounds.

From the time of their introduction in 2001 until their repeal in 2007, the only time they were used was in relation to the unfortunate Air India case, and we know what a police and legal fiasco that turned into — including the needless use of investigative hearings. Every major criminal terrorism-related incident in Canada since 2001 has been disrupted and prevented without the need for preventive detention or investigative hearings.

Meanwhile, new provisions in the bill include the creation of offences that prohibit people from leaving or attempting to leave Canada for the purpose of committing certain terrorism offences or engaging in terrorist activities. The bill also contains stiffer penalties of 10 to 14 years in prison for harbouring a person involved in terrorism.

The April 2013 attack at the Boston Marathon prompted the government to fast-track the third and final reading of the bill, though some questioned the timing of the decision which came days before authorities announced they’d arrested two men in connection with the Via plot. The law was enacted on July 15, 2013. S-7 includes sunset clauses for both provisions once again. They will expire in 2018. S-7 also will require the government to issue annual reports on the use of these clauses.

ICLMG’s position on Bill S-7

With the new legislation, the Canadian citizenship could be revoked from dual citizens if the person:
– served as member of an armed force or organized armed group engaged in an armed conflict with Canada;
– was convicted of treason, high treason, spying offences and sentenced to imprisonment for life; or
– was convicted of a terrorism offence or an equivalent foreign terrorism conviction and sentenced to five years or more imprisonment.

In many countries, allegations of terrorism are used to punish political opponents, facilitated by low thresholds for convictions and harsh sentences. An analysis of whether the conviction is the equivalent of a terrorism offence in Canada is complex, and would be at the discretion of an individual officer.

Fundamentally changing the concept of citizenship to permit those born here to be excluded because they have committed an offence and may have a claim to citizenship in another state, is of very serious concern. It appears to impose exile as an additional form of punishment. It introduces levels of citizenship rights for the first time in Canada. It is unfair and discriminatory. Canada’s tradition of allowing dual citizenship is undermined if dual citizens face the prospect of banishment.

The proposed grounds for revoking citizenship are broad. The rationale for the list of offences subject to revocation appears to be connected to loyalty to Canada or certain Canadian ideals. However, it is not clear why the loyalty of dual nationals should be put into question more than that of other Canadians. Once the precedent is established for banishing dual nationals, other forms of conduct may be added to the list.

Finally, Bill C-24 eliminates the right to a Federal Court hearing for those subject to revocation of citizenship, except in limited circumstances. In all other cases, the Minister will make the decision without being required to hold a formal hearing. But for a matter as serious as the revocation of citizenship, a formal hearing before an independent and impartial decision-maker should be maintained.

In June 2015, media outlets reported that the government started the legal procedure to revoke the Canadian Citizenship of the dual Iranian/Canadian citizen Hiva Alizadah after he was found guilty and convicted for terrorist activities in 2014. Another dual citizen Misbahuddin Ahmed found guilty in the same terrorist plot has also been served by the Canadian government with the notice of revoking his Canadian citizenship.

ICLMG’s position on Bill C-24: The Canadian Bar Association’s paper on Bill C-24 (see page 16)

This bill was supposedly introduced by the government to target cyber bullying. In reality, Bill C-13 extends police surveillance powers to the online area. The police is given increased access to electronic communication of citizens when there is a only reasonable grounds to “suspect” a relation to a crime in the same way they can monitor a phone line. The requirements for acquiring these new warrants seem to be very low, according to many experts. This legislation also creates new warrants that allow authorities to collect “transmission data” through a software program and “tracking data” through a tracking device, again on a standard of reasonable suspicion.

The bill also grants immunity from lawsuits and even criminal charges to telecommunication companies who voluntarily hand over data to the government. Such broad range of data include subscriber information, wiretap requests, metadata, emergency location and other information. This appears to be in contradiction to the recent Supreme Court Spencer decision which came out before C-13 was adopted. The court ruled that law enforcement agencies needed a warrant to obtain subscribers’ information from telecom companies at all times.

Sources: http://www.thestar.com/opinion/commentary/2014/11/22/bill_c13_has_little_to_do_with_cyberbullying.html
http://www.theglobeandmail.com/news/politics/cyberbullying-bill-c-13-moves-on-despite-supreme-court-decision/article20885941/
http://www.theglobeandmail.com/news/politics/how-new-laws-are-about-to-change-your-privacy/article19054653/

Bill C-44 has amended the CSIS act by giving CSIS more powers of surveillance and by allowing surveillance operations on Canadians suspected of terrorist activities within or outside Canada, even if these operations violate the law of foreign countries.

What is very troubling with this legislation is that the spy agencies can now officially share information on suspected terrorists with members of the “Five Eyes” group of countries, i.e. U.S., U.K., Australia and New Zealand. In 2013, a Canadian judge, Richard Mosley, slammed CSIS and CSEC – when they applied for a warrant to intercept the communications of two Canadians overseas – for deliberately hiding from the court the fact that the spying agencies asked help from foreign intelligence allies. The judge explained his frustration that there is a very likely possibility that such “unwarranted” cooperation with foreign intelligence could lead to the arrest and harm of the suspects by the foreign agencies.

This legislation provides CSIS informants with “greater protection” without having to identify them in court even to the judge himself (with only few exceptions).

Source: http://www.cbc.ca/news/politics/csis-powers-beefed-up-under-new-bill-tabled-by-steven-blaney-1.2814314
http://www.cbc.ca/news/politics/csis-slammed-for-end-running-law-to-snoop-on-canadians-abroad-1.2472843

On June 18, 2015, Bill S-4, the Digital Privacy Act, which amends the Personal Information Protection and Electronic Documents Act (“PIPEDA”), came into force. The Act creates greater opportunity for organizations to disclose personal information to certain organizations and individuals without the subject’s knowledge or consent. The Act also restricts organizations from informing individuals that their personal information was shared with law enforcement and security agencies under certain circumstances.

For more information on how Bill S-4 amends current legislation, see Charity Law Bulletin No. 341, by Terrance S. Carter and Colin J. Thurston

Bill C-51 (now the Anti-terrorism Act, 2015) is an Act to Enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to Amend the Criminal Code, the Canadian Security Intelligence Service Act, and the Immigration and Refugee Protection Act, was tabled in Parliament on January 30, 2015. After many anti-democratic tactics to limit the debate on the bill and a few insufficient amendments, and despite a huge opposition from the population and from the national security experts, Bill C-51 has been adopted into law on June 18, 2015.

C-51 substantially broadens the powers held by CSIS – and it goes as far as to allow applications to judges to approve violations of the Charter of Rights and Freedoms – it facilitates the sharing of information on all Canadians amongst up to 17 government agencies, it creates a new vague crime of “promoting or advocating terrorism offences in general”, it codifies a system for establishing a Canadian no-fly list without providing a clear mechanism for how a person on the list becomes aware of their status, and severely limits their ability to challenge the listing, it lowers the existing thresholds for preventive arrest and peace bonds, and lengthens the amount of time someone can be held without being charged, and although it significantly increases information sharing and the powers held by CSIS, it does not include any stronger oversight and review mechanisms.

The bill added many concerning “novelties” to the Canadian anti-terrorist legislation. One of the most disturbing one is the broad definition of “security of Canada”. According to the new law, “terrorism” is only one in nine enumerated activities that “undermine the security of Canada” – others include activites that negatively affects important infrastructures, the financial stability and the economic interests of Canada and its allies – opening the door wider for the criminalization of dissent. Moreover, the new legislation gives government officials the responsibility for the “detection, identification, analysis, prevention, investigation or disruption” of these new activities listed as posing threat to the “security of Canada”. These new powers offered to government officials are very troubling as not all officials are trained in collecting and interpreting information. Arbitrary judgment, lack of understanding and subjectivity can open the doors to more cases of abuse. And since, there are no robust and strong review mechanisms for all the federal agencies, one can only expect that these new granted powers will lead to more victims like Arar, Almalki, El Maati and Nurredin, among others.

More info and ICLMG’s position on C-51