Bill C-51: They Appear to Know Not What They Have Done

Yesterday, C-51 passed the House of Commons.  It now will run its course through Senate.

One of our chief complaints about C-51 is that it is incoherent -- either on its face, or in terms of how it will operate in the context of a broader security policy.

This seems an opportune point to mull this point in relation to the version of the bill now before the Senate.  And I want to focus on one area of great controversy, that the government then tried to defuse in one of the relatively minor amendments it made to the bill in the Commons: the famous carve-out from the definition of "undermine" security in the new information sharing Act, for "lawful" advocacy, protest, dissent and artistic expression.

Recall that any activity that "undermines" the vastly defined concept of security in the new info-sharing Act triggers the ability to exchange information between a long list of government agencies.  So the carve-out from this regime matters.

The qualifier “lawful” on the carve-out from this regime provoked controversy during the the Commons committee proceedings.  “Lawful” conduct would, of course, exclude blockades from the carve-out  It would also exclude workplace strikes inconsistent with labour law and street protests lacking the proper regulatory permits.  Put another way, “lawful” does not mean “non-criminal”.  It just means "without lawful authority".

The risk was that once labour, Aboriginal or environmental protesters broke one law -- including a municipal by-law -- they would fall outside the limited safeguards in the new Act.  They would subject to security information sharing to and among, at present (the number could increase) 17 different federal institutions including revenue, finance, health as well as CSIS, borders service, the RCMP and the CSE.

On this specific question, the government's language ignored the compromise approach found in Bill C-36, the original 2001 Antiterrorism Act.  That law codified the then-new concept of “terrorist activity” and extended its reach to serious interference or disruption of an essential service, unless done for lawful protest reasons.  However, after controversy, it then expanded the carve out to where the disruption stemmed from (even unlawful) protests, so long as they were not intended to cause death, bodily harm or endanger life or cause serious risk to health.

Predictably, exactly the same controversy reappeared during debate over C-51 over use of the word "lawful".  Under pressure from civil society groups (and after having regularly rejected their concerns, sometimes obnoxiously), the Conservatives amended the bill in the committee.  But how did they do this?  They simply deleted the word “lawful”. 

So the carve-out from the "undermine" concept now reads: "For greater certainty, it does not include advocacy, protest, dissent and artistic expression."

From a legal drafting perspective, this solution, ummm, perplexes.  Maybe I shouldn't mention this, but the carve-out is now almost as big as the definition of "undermine". 

Roach and I had proposed that “lawful” be dropped, but then recommended the same C-36 compromise noted above.  That is, we recommended excluding both lawful and unlawful protest and advocacy etc, but only so long as they were not intended to cause death, bodily harm or endanger life or cause serious risk to health. 

We recommended this because we don't think that all protest, advocacy or dissent should be exempted from the new information-sharing regime.  Violent protest, advocacy and dissent of a sufficient scale can be a national security issue, justifying information-sharing.  After all, anyone dimly aware of the history of terrorism appreciates that terrorism can be a form of “protest” or “advocacy”, depending on how you define those concepts.  Terrorism is certainly a form of “dissent”.

Indeed, after all, C-51 introduces a new crime of "advocacy" of terrorism offences ("in general"). We think this is a horrible, unnecessary and unconstitutional speech crime.  But having insisted on an "advocacy" crime, you'd expect the government to be concerned about how the same word "advocacy" is used elsewhere in the same bill.

But by simply dropping the word “lawful”, the new info-sharing Act seems to preclude application of the new information sharing powers in relation to any sort of advocacy, protest or dissent, no matter how criminal or indeed, how violent.  And so government officials will now need to spend a lot of time wondering if, e.g., violent conduct really is “protest” or “advocacy” or “dissent”, and whether they can still use the Act in relation to such conduct. 

Officials will also need to sit around and ask "shall we read the carve-out in the info sharing Act (now reaching both lawful and unlawful "advocacy" or whatever character) as excluding information sharing related to the new 'advocacy' crime?"

Officials will make it work: basically, they'll just ignore the incoherence and jam the round peg into the square hole of nonsensical legislative language.  And so, to do their jobs, they'll just have to ignore the law, because (as Shakespeare would say) the law is a total ass.  And the Privacy Commissioner, reviewing this work-around, would act very properly in tearing a strip off of these officials.

So this amendment is either intentional sabatoge by goverment MPs of their own bill, or a legislative "oopsy".  Keep all this in mind as you evaluate claims about the virtues of this bill.  It is riddled with problems of a similar nature.