Open Letter to the Federal Government on C-59: New National Security Bill Fails to Reverse C-51 And Introduces Serious New Problems

5023-07-parliamentOttawa — Today, over 40 organisations and individuals from across Canadian civil society issued a joint letter to government that lays out overarching concerns with Bill C-59, An Act respecting national security matters. Bill C-59 makes some meaningful and necessary improvements to Canada’s national security regime, but it fails to reverse the legacy of its unpopular predecessor, Bill C-51, and introduces serious new problems. It specifically falls short in mitigating the discriminatory impact national security activities continue to have on vulnerable minorities, which has in the past included conduct that contributed to the torture of Canadians.

The signatories all share the concern that — despite the message clearly delivered by Canadians during the federal government’s extensive public consultation on national security — the rights and freedoms guaranteed in the Charter are still not where they belong, at the core of Canada’s national security framework.

“Since 9/11, our disproportionate fear of terrorism has been used to slowly increase the powers of intelligence and security agencies without proof that these powers are necessary to keep us safe, and with always greater risks and impact on our civil liberties. This is called the national security creep,” says Tim McSorley, the National Coordinator for the International Civil Liberties Monitoring Group. “We must not allow C-59 to continue this dangerous and damaging trend.”

Bill C-59 introduces some improvements to our national security framework, while reversing some, but certainly not all, of former Bill C-51’s excesses. It creates important new bodies to review and control national security activities; introduces a detailed and explicit new law for Canada’s signals intelligence agency, the CSE; adds new protections for the rights of youth involved in terrorism-related offences; and reforms the terrorist speech offences introduced by Bill C-51.

The signatories also identify a number of specific aspects of Bill C-59 which we agree require serious attention and meaningful change, including:

  • The newly-renamed Security of Canada Information Disclosure Act still permits departments to disclose far too much information in their pursuit of questionable security objectives;
  • The no-fly list still lacks adequate due process while proposed redress mechanisms remain unfunded;
  • The bill fails to reverse the low threshold Bill C-51 set for terrorism peace bonds;
  • The preventative detention powers introduced in 2001 are still in place and remain deeply problematic;
  • The risk for abuse of CSIS disruption powers is reduced, but the government has yet to demonstrate either their necessity or constitutionality;
  • The newly created oversight agencies lack the guarantees necessary to ensure their effectiveness;
  • The general risk that our security activities will once again contribute to torture remains;
  • CSE “active” cyber security powers (i.e. offensive hacking) are introduced without a rationale for their necessity or measures to adequately prevent abuse;
  • The new bill fails to reverse the erosion of due process C-51 extended in security certificate proceedings; and
  • The bill legitimizes troubling conduct, including mass surveillance by our foreign intelligence agency and extensive data-mining.

ICLMG also wishes to highlight these additional problems with C-59:

  • Information-sharing in particular could disproportionally affect Muslim and Arab communities, Indigenous land and water protectors, and political and environmental activists (e.g. BDS supporters) under SCIDA, even with the changes to the definition of a threat to national security.
  • Surveillance and criminalization of dissent is an ongoing concern made even bigger with CSIS new powers and recent allegations of discrimination.
  • The bill leaves intact the possibilities of refoulement to countries where there are risks of torture and the ministerial directives on torture, although the latter have been under review since February 2016.
  • The creation of new review bodies should not be incumbent on the acceptance of new spying and hacking powers. The two should be considered and debated independently.
  • Finally, it would be useful to involve civil society, notably ICLMG, in the appointment process of the NSIRA members – to ensure the diversity, efficiency and transparency of the agency.

The letter discusses these issues, and more, in greater detail. Read the full letter here.

Here is what our members and other signatories have to say about Bill C-59:

“Bill C-59 improves on some, but certainly not all, of the troubling human rights problems that were at the heart of C-51. It also gives rise to new concerns and fails to address longstanding human rights failings that predate C-51. Human rights should be the very foundation to how Canada protects and delivers national security; with C-59 it is clear that there is still more work to be done to get us there.” – Alex Neve, Secretary General of Amnesty International Canada

“Some of the most egregious aspects of C-51 have been tamed, but the new bill still leave a lot to be desired. From no-fly lists to CSIS ‘disruption’ powers, there are many provisions that will need to be amended before C-59 passes.” – Vincent Gogolek Executive Director of the BC Freedom of Information and Privacy Association.

“We’re concerned that Canadians will see the positive aspects of this Bill, such as strengthened oversight of security agencies, and not notice the intrusive powers that it keeps or even strengthens – powers which will dangerously erode civil liberties.” – Kevin Malseed, Inter Pares

“Bill C-59 brings forward important and useful changes to Canada’s existing anti-terrorism laws, but it leaves us with ongoing concerns about the lack of due process around the no-fly list and the strengthening and deepening of CSIS powers, given the damage the spy agency has done to Canadian Muslims. Well known Canadian Muslims have been discriminatorily profiled and rendered to torture by Canada for no reason other than their faith and identity. At the same time, Canadian Muslims have been subject to rising hate crimes and violent attacks by individuals for the same reason. National security policy that is incapable of protecting all Canadians equally is not worthy of our endorsement, even if it is a significant improvement over more odious previous legislation.” – Ihsaan Gardee, Executive Director, NCCM – National Council of Canadian Muslims

“Major parts of Bill C-51 were contrary to the Constitution and common sense. With some improvements in Bill C-59, we are no longer at rock bottom lows for deprivations of our fundamental freedoms. However, amendments that only scratch the surface of oversight of agencies with unprecedented powers will not suffice. More safeguards and accountability measures against abuse of power are required.” – Faisal Mirza, Chair of the Canadian Muslim Lawyers Association

“All Canadian laws must comply with the Charter. Bill C-59 tries harder than its predecessor, but fails to fix some of the unconstitutional elements CCLA contested in our challenge of Bill C-51. Troublingly, C-59 also allows intelligence agencies to engage in conduct that threatens freedom of expression, freedom of association, privacy, and public safety. The government has taken a first step, but a great deal more is needed. Canada must get it right on national security.” – Cara Zwibel, Acting General Counsel, Canadian Civil Liberties Association (CCLA)

“While Bill C-59 contains many positive changes, including reforming the unconstitutional “terrorist speech” crime, it unnecessarily extends the powers of Canada’s spy agencies in ways that could seriously undermine our privacy and free expression rights.” – Tom Henheffer, Executive Director, Canadian Journalists for Free Expression (CJFE)

“Now that Parliament is returning, we are eager to see the government commit to improving the reforms brought about in Bill C-59, in line with the concerns expressed by Canadians throughout the government’s own consultation. In particular, we need to see mass surveillance devices such as Stingrays and extensive information sharing provisions addressed, as well as legislative protections for encrypted communication technologies.” – Laura Tribe, Executive Director, OpenMedia

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