Canada: Bill C-51 perverts the rule of law

by Catherine Morris

 Law Times (print edition) and Georgia Straight (online), 27 April 2015

One of the worst things about Bill C-51 is that it threatens the rule of law and undermines the integrity and independence of Canadian courts. Bill C51 would allow CSIS and the Minister of Public Safety to co-opt and harness judges in violations of the Charter of Rights and Freedoms (Charter) or other laws in or outside of Canada. This concern must be singled out in the clamour of worries expressed by hundreds of academics, judges, lawyers, indigenous leaders, human rights defenders and other experts who point out Bill C-51’s compromises to Canadians’ rights to liberty, fair hearings, privacy and freedom of expression.

In March, the gloves and masks of civility came off as several Conservative MPs insulted witnesses who criticized Bill C-51. In the House of Commons debates and committee hearings, criticisms have been disparaged as “conspiracy theories” and critics accused of preferring terrorists’ rights over the security of Canadians. MP Diane Ablonczy ridiculed concerns of the Canadian Bar Association (CBA) and sneered at the “rule of law” and “principles of fundamental justice.” A former lawyer, Ablonczy spoke as though these ideas are novel and eccentric and appeared not to realize these concepts are foundational to Canadian democracy and are set out in the Charter.

Government supporters defend Bill C-51 as providing for “checks and balances” through judicial oversight. Here’s why this claim is false.

Bill C-51 allows CSIS to take “reasonable and proportionate” measures anywhere in the world to disrupt any activity it believes on reasonable grounds to constitute a threat to the security of Canada. When CSIS plans actions that it knows “will” (not “may”) violate the Charter or other Canadian law, CSIS may seek the Minister’s approval to apply to a judge for a warrant to conduct the unlawful actions, including Charter breaches. This is a perversion of the role of the judiciary, which is to uphold the law, not authorize its violation.

What unlawful acts are contemplated? Almost anything, it appears. The only lawbreaking courts would be forbidden to permit are causing death, bodily harm, violation of sexual integrity or obstruction of justice. Might courts be asked to bless some forms of torture or ill-treatment (short of killing, bodily harm or sexual assault) or extraordinary rendition? This is a distinct possibility given the current state of Canadian law. Even though the UN Convention against Torture prohibits torture and ill-treatment absolutely, with no exceptions whatsoever, in the 2002 Suresh decision the Supreme Court of Canada was equivocal, refusing to exclude “the possibility that in exceptional circumstances deportation to face torture might be justified.” Despite urging from two UN human rights bodies, so far Canada’s government has not put into law its treaty obligation to ban deportation to torture. No comfort is provided by a government amendment saying CSIS will have no law enforcement powers; no one ever imagined they did. The government refused to amend Bill C-51 to preclude CSIS from detaining or transferring someone to another country.

Canadians may never know whether judges actually do issue warrants for CSIS lawbreaking, because the warrants will be obtained in secret hearings based on written evidence only. The judge will consider only CSIS views. There is no appeal. The CBA worries that this process would “conscript judges to authorize Charter violations and unlawful acts, under the guise of providing judicial oversight…”

Canada has a State duty to protect its citizens’ right to life and security. This includes the duty to take effective measures to prevent and prosecute crimes and violence of all kinds, including crimes such as the appalling attacks against Parliament and the murders of Canadian soldiers in October 2014. Bill C-51 fails to demonstrate how it will be better than existing legislation at ensuring the rights to life and security on the ground. But the language of Bill C-51 is clear in its intention to violate numerous internationally protected rights.

In response to public pressure, the government made minor amendments. While the Liberal Party doesn’t like Bill C-51, it plans to support it, trying to soothe worries with a bird-in-the-bush promise to amend Bill C-51 if elected later this year. However, no responsible parliamentarian, no matter what their political loyalties or ideological persuasion, can rightly support any law that will subvert Canada’s independent judiciary, violate Canada’s international human rights law obligations and pervert fundamental principles of justice and the rule of law.

Catherine Morris, BA, JD, LLM is an Adjunct Professor in the Faculty of Law at the University of Victoria and a researcher for Lawyers’ Rights Watch Canada.