On Polemics and Substance in Bill C-51 Antiterrorism Act

In another departure for this blog, I am adding a somewhat personalized commentary.

I am a mild-mannered middle aged law professor, not habituated to the world of high politics and sustained media involvement.  In dealing with Bill C-51, I have learned a lot over the last few weeks about both the media world and the world of politics.  In due course, I shall reflect on this in my blog on legal academia, Bleaching Law.

Here though, I pause over the feature in today's Ottawa Citizen that has a distressingly huge photo of me and a discussion in which I figure (disproportionately) as signalling significant concerns with Bill C-51, using what will be greeted by some as strong language.  To be clear: I do not, in fact, think that what is at issue is impunity.  Nor do I, as others have suggested, believe we are on the cusp of a "secret police". 

But I do think the changes represent a radical rupture with what has gone before.  I believe these changes will have foreseeable negative second order impacts.  I suspect there will also be unforeseeable second order impacts.  I do think that in some of their very key elements, they do "do violence" to well established norms and expectations of law, rejecting the insights of the past, implicating novel concepts of the role of the courts and the scope of the Charter, and by embarking on a new, untested course, without attention to sufficent safeguards (including, but not restricted, to an amped up security review system).

Having witnessed the patterns of the past, I confess to deep concern about this debate becoming about "experts and who they are" and not about (simply) the merits (or not) of the positions they take.  And I may be provoking that development by being so pointed. 

So to be clear: I lay no claim to some sort of omniscient expertise, and am not inclined (to use the Prime Minister's term) to "self-appoint" myself an expert.  I am simply someone who has spent the better part of the last 12 years steadily working my way though national security law, and along the way done teaching and writing in the area.  The focus on this area is idiosyncratic for a law professor. There is a reason that Professor Kent Roach (uToronto) and have been so active on this matter -- our areas of focus cross many traditional law school "silos" and over the years we have been forced to expand our range in a manner that allows us to look at this kind of bill with reasonable comfort. 

(If you wonder who we are, legal academics are among the most transparent people on the planet.  You will find our cvs on line, many of our publications, our teaching responsibilties and even some of our courses.  If you want, you can even look at the Ontario disclosure database and find out how much we are paid for our academic posts.)

I can say though that in the usual "not for attribution" way, that we are not so lonely in our concerns.  That said, there are others whose expertise and opinion we respect who do not, and will not, agree with us. 

Media coverage often focuses on the critique and the conclusions, and not always the full reasons.  That is the nature of limited column inches and time constraints.  If my conclusions in the media are expressed in language that seems strong, all I can offer to do is to thoroughly air the reasons for those strongly held assessments.  Readers like you can then evaluate the merits of my conclusion.  One of the potential tragedies of the current political environment is that readers will be in no position to evaluate the reasons of those who disagree with us, at least where they are based on grounds more compelling than political positioning.

And so those with no power offer as fulsome explanations as they can for their concerns, while those with power need not justify their rationale, or even acknowledge or respond.

Unlike in the UK or Australia, Canada has no arm's length, independent and resourced individual (and privy to secret information) empowered to critique government anti-terror law propsals.

And so we are the poor alternative.  We shall continue to post our detailed legal assessments with all the dispatch people with many other commitments can -- dealing with the complexities of just the five lines of text in the new speech offence required a sustained effort and 10,000 words.  You will find that on www.antiterrorlaw.ca.  The CSIS amendments, their potential second order impacts, and the like will take even more time and space.  I have already posted a digest of our initial concerns -- a hypothesis that we shall test thoroughly in our detailed analysis.  Our analysis, when ready, will also be posted on www.antiterrorlaw.ca

Along the way, if our understanding of the facts change, our opinions shall change.  Personally, I would dearly love to be persuaded that all is right in the most perfect of worlds, and that I can focus on my now delayed book on international law history.  Until then, however, it is my obligation as an academic who need not account to any client or take instruction in response to any master to continue raising (reasonably, but also forceably, and in any venue that will take me) concerns with the preoccupying changes to our law at issue in Bill C-51.

I apologize for contaminating this feed with such introspective reflections.