The Fight Over Canadas Patriot Act

Prime Minister Stephen Harper's government has

introduced an ambitious and unpopular
intelligence reform agenda. Can anyone stop it?

BY JUSTIN LING-APRIL 24, 2015

TAWA, Canada When Michael Zehaf-Bibeau barreled through

the halls of Canadas Parliament on Oct. 22, 2014, he could have tried the door on his
left. If he had notwithstanding the blood he was losing, the security detail closing in
on him, and the pile of chairs and tables stacked behind the door he would have
been face-to-face with Canadas government. The room was full of members of
Parliament. The ministers of public safety and national defense were there. Prime
Minister Stephen Harper was just yards away, locked in a side room, guarded by his
caucus members.

They all survived, but one army reservist was killed and a security guard was wounded
that day. The attack was the second Islamic State-inspired strike in Canada in a week.
Just days before, Martin Ahmad Couture-Rouleau, a 25-year-old from rural Quebec,
drove his car into two Canadian Forces personnel, killing Warrant Officer Patrice
Vincent. Contacts of Couture-Rouleau confirm that he was radicalized online and
sought to go abroad to fight for the Islamic State. Friends say Zehaf-Bibeaus turn for
the worst came after a business venture went south.
That fateful October week crystallized the opinion of Canadas ruling Conservative
Party: The Islamist terrorist threat is real.
That notion eventually spawned Bill C-51, a wide-ranging raft of intelligence reforms
that some critics have described as Canadas Patriot Act. The bill has put Harper on
the ropes. A coalition of NGOs, academics, and civil liberty and pro-privacy lobby
groups has pummeled the bill, picking apart its every flaw and shortcoming. Harpers
compatriots on the right have become some of the most vocal critics. The New
Democratic Party (NDP), the main opposition party in Parliament, has vowed to repeal
the legislation if it wins next Octobers election. Street protests have cropped up and
public opinion is rapidly shifting against the bill.
But the prime minister is not backing down.
***
Canada has had limited experience with terrorism. In the 1960s, Qubec separatists
ran a bombing and kidnapping campaign aimed at forcing Quebecs independence that
culminated in the murder of the provinces labor minister, Pierre Laporte, in 1970. In
1985, Sikh extremists bombed an Air India flight from Montreal to London, killing 329
people, including 268 Canadians. Aside from those incidents, Canadians have really
only known failed plots: In 1966, one would-be assassin accidentally blew himself up
in a bathroom down the hall from Parliament, killing only himself. The Toronto 18
scheme, a 2006 plot to explode truck bombs through downtown Toronto while
simultaneously storming the Parliament buildings in Ottawa and beheading the prime
minister, was infiltrated early on and was never likely to succeed.
But the October 2014 attacks roused Canadians from their slumber. Both attacks
required minimal preparation and planning: In one, the weapon was a car; in the
other, it was a lever-action hunting rifle. Zehaf-Bibeau was a drug addict with mental
health issues, and was unknown to police. Couture-Rouleau was a blue-collar worker
who had recently converted to Islam following business troubles and was under police
surveillance.
Law enforcement, intelligence services, and lawmakers all faced a difficult set of

questions: How do you prevent an attack that required no planning and wasnt
discussed with anyone beforehand? Can you stop attacks that lack warning signs? Is it
acceptable in a liberal democracy to arrest someone who has not actually done
anything illegal, simply because he subscribes to a radical ideology?
The heads of the federal police service, the Royal Canadian Mounted Police (RCMP),
and the national spy agency, the Canadian Security Intelligence Service (CSIS), both
bemoaned their inadequate powers and resources in the lead-up to the attack and
afterwards.
We are looking, as you would expect in the aftermath of last week and ongoing
concerns around security, at ways in which we can improve upon security measures,
particularly as they pertain to prevention, but were doing so in a reasonable, not
reactionary way, Justice Minister Peter MacKay told reporters outside the House of
Commons on Oct. 29, 2014, in an attempt to stem concerns about the civil liberties
costs of anti-terrorism legislation. MacKay underscored the fine line the government
was trying to walk and stressed that the legislation would be crafted in a very
informed, methodical, targeted way.
But the sales pitch seems to have fallen flat. Only about half of respondents to a recent
poll felt that Canada needed any new anti-terror legislation at all. That number has
been slowly decreasing since it reached a high-water mark last October.
***
In early February, the Harper government unveiled C-51. Violent jihadism is not just
a danger somewhere else, the prime minister told a crowd at a campaign-style event
where he introduced the bill. It seeks to harm us here in Canada in our cities and in
our neighborhoods, through horrific acts like deliberately driving a car at a defenseless
man or shooting a soldier in the back as he stands on guard at a war memorial. The
bill proved immediately popular. But then came the scrutiny as to what kind of state
snooping it allows.
The bill allows the Canadian government to add individuals to a no-fly list based on
evidence even if it is inadmissible in a court of law. It also lessens the threshold for
police to obtain a warrant to arrest and detain terror suspects without charge for up to
seven days. And it criminalizes promoting terrorist attacks, which means police will
have the power to arrest those who encourage attacks on Canada, even in the most
general sense. The legislation would knock down many of the information silos within
the federal government, making it possible for every federal department and agency to
route information to a host of Canadian agencies, including the RCMP, CSIS, and the
signals intelligence body (CSE), which works closely with the U.S. National Security
Agency.

C-51s most controversial section grants new powers to CSIS. The spy agency, which
deals primarily in counterespionage, open-source information gathering, and human
intelligence, will have its mandate vastly expanded by the legislation to include the
ability to disrupt any activity that undermines the security of Canada. The
government has offered examples of what this disruption mandate is supposed to look
like, saying that it will allow CSIS to do things like cancel a suspected terrorists plane
tickets, or put sugar in his gas tank.
But law professors Craig Forcese, of the University of Ottawa, and Kent Roach, who
teaches at the University of Toronto,write that this new mandate could also allow more
serious disruptions like infecting computers with malware, draining the bank
account of an anonymously foreign-funded environmental group, taking down
websites, breaking into private homes, or starting a cyber-whisper smear campaign
against a radical activist.
While the bill reads that the power to obtain Canadians data or disrupt threats is not
to be applied to advocacy, protest, dissent and artistic expression, lawyers have
pointed out that such a clause isnt legally enforceable and that CSIS is already
surveilling dissident groups. Some of those lawyers and academics have put forward
worrying hypotheticals: CSIS could be dispatched to break up an anti-pipeline protest,
such as those that dot Canadas West Coast, or CSIS may target Quebecs sovereigntist
movement.
Members of the government have called those hypotheticalsfearmongering. Minister
of Public Safety Steven Blaney, who introduced C-51, said much of the criticism of the
legislation has come from misunderstandings of the law, and that the judicial
oversight required for CSIS to disrupt threats will be enough to keep the spy agency in
line. But even without the new powers afforded by C-51, there have already been
numerous reports of the agency surveilling, tracking, and infiltrating protest
movements. CSIS has paid particular attention to indigenous
groups,environmentalists, and communists.
Security and privacy lawyers like Forcese and Roachhave said that the informationsharing provisions of the bill are the dawn of total information awareness.Daniel
Therrien, the federal governments official privacy watchdog, warned that C-51 would
make available to law enforcement and CSIS potentially all personal information that
any department may hold on Canadians. David Fraser, one of Canadas foremost
digital privacy experts, says it could create a situation where information is shared by
default, instead of by request, resulting in a big pot of private data that is accessible
by a litany of agencies.

CSE, meanwhile, would see its access to domestic information something its
forbidden from independently collecting under its mandate grow exponentially.
CSE will be front and centre around the big data analysis opened up by C-51, Ron
Deibert, the director at the tech-oriented think tank the Citizen Lab, wroteabout the
bills impact on the signals intelligence agency.
Under the Charter of Rights and Freedoms, Canadas constitution, citizens have the
right to liberty, the right to be free from arbitrary detention, and the right to be
protected from unreasonable search and seizure. Canadian courts tend to construe
these rights broadly, and the ability of law enforcement to obtain search or arrest
warrants is narrow. C-51, however, contains a provision reading that CSIS is allowed to
employ measures [that] will contravene a right or freedom guaranteed by the
Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law if
it has authorization from a judge. CSIS doesnt need a warrant in cases where it does
not think it will be breaking the law or infringing on a citizens liberties. The only limits
on how that could be applied are laid out in the bill: CSIS cannot pervert the course of
justice, and the agency cannot maim, rape, or kill. Everything else is fair game.
But government officials are working hard to quell concerns. Bill 51 is a great bill
because it has a balance between the promotion and protection of the right and
freedom enabling the Canadian government basically to share information among its
different agencies and also lowering some threshold for the RCMP and doing
something, Blaney told me in a recent interview. We are doing it in a Canadian way
while providing some more additional powers to our intelligence officers. We will
make sure there is judicial oversight as well as a review body so we are doing it in a
Canadian way that fully respects the Canadian Charter of Rights and the privacy of
Canadians.
But Canada has nothing like the U.S. Senates Select Committee on Intelligence or the
House of Representatives Permanent Select Committee on Intelligence, which provide
oversight of U.S. domestic surveillance. Both CSIS and CSE have external review
bodies that operate on a fraction of the budget and the staff of those of the agencies
theyre charged with keeping an eye on, and yet neither have formal investigative
powers. Both havecomplained in recent years that their requests for information from
their respective agencies have been stymied and ignored.
Complementing these new powers is CA$300 million of new funding, over five years,
for RCMP, CSIS, and Canadas border service. Another CA$2 million has been
promised for CSISs review body the first budget increase the agency has seen in a
decade.

***
C-51 has turned out to be one of the Harper governments most controversial moves
yet. In his nearly 10 years in power, the prime minister has generally leveraged his
majority, and his incredibly tight grip on his caucus, to get bills passed without
amendment. Parliamentary tricks like forcing limits on debate, reducing
opportunities for opposition parties to introduce amendments, bundling legislation
together have all proved effective strategies to get bills passed quickly and without
too much public outcry. For example, after the introduction of a 457-page budget that
removed federal protection for thousands of rivers and streams, debate was limited to
just weeks and every proposed amendment was flatly rejected. Since they were elected
with a majority government, the Conservatives have cut short debateon government
legislation a total of 93 times.
C-51 may prove, like the other pieces of controversial legislation quickly adopted into
law, to be no exception. After two weeks of contentious committee hearings
throughout March, the government ultimately rejectedall 100 of the amendments
introduced by the opposition. The opposition changes would have fundamentally
overhauled the bill, tightening information-sharing powers and requiring privacy
assessments, removing CSISs ability to infringe Canadians constitutional rights, and
improving appeal processes for Canadas no-fly list.
Instead, the Conservatives adopted just three of their own amendments. One change
made to the bill was designed to tighten language requiring what airline staff are
required to do to enforce the no-fly list. Another change was added to further iterate
that CSIS has no power to detain individuals. And the final amendment removed a
clause that could have allowed agencies collecting information about Canadians to
further [disclose] it to any person, for any purpose. The last change was pushed for
by opposition groups, which clarified that the bill was not intended to go after
protesters removing the preface legal from language that said lawful protest
should not be grounds for enacting surveillance.
These amendments did nothing to quiet the opposition. Public protests against C-51
sprung up in March, with thousandstaking to the streets in dozens of cities to voice
concern with the bill. Four former prime ministers, backed up by a number of Supreme
Court justices and other prominent Canadians, penned an op-ed chastising the
government for introducing the bill. Committee hearings on the bill, which wrapped up
on March 26, heard from a range of critics, including traditional Conservative
supporters. One Conservative caucus member and a slate of traditional Harper allies
have come out andopposed it publicly.
Polls have indicated that support for the legislation is rapidly falling, with opposition

growing as Canadians become more informed about what the bill entails.
The NDP, the official opposition in the House of Commons, has championed the fight.
NDP Parliament members have run filibusters to oppose efforts from the government
to limit the number of committee hearings on the bill, and theyve vowed to put up a
fight to ensure that the legislation is either amended or scrapped.
At the beginning the government was coasting on the fact that since it said it was antiterrorist, a vast majority of Canadians were on board, NDP leader Thomas
Mulcair told me in an interview earlier this month. Whats happened in the few weeks
since the bill was brought in is that a lot of experts 100 or so law professors from
across Canada, four former prime ministers have all started saying: Hold on, lets
look at what this actually does and thats one of the key concerns is that it will directly
affect peoples right to privacy.
The Conservatives were unmoved. They insisted the experts were wrong, the civil
liberties and legal groups were just naysayers, and that the opposition parties were
simply weak on terrorism.
The Liberal Party, the third-largest in Parliament but currently running neck-and-neck
with the Conservatives in opinion polls, decided to support the legislation: partly
because the Liberal Party was the architect of the original anti-terrorism act and partly,
as party leader Justin Trudeau later admitted, because he was afraid of being painted
as soft on terrorism by the Conservatives. Nevertheless, Trudeau has still criticized the
legislation,saying there are a number of worrying elements in it, and that he would
revoke some of them were he to win in the following election.
But this isnt the first time that the Harper government has found itself at odds with
the legal community, civil liberties groups, and the opposition. The prime minister
isnt the type to back down and certainly not to liberals. The fight over C-51 looks to
be no different. Now that the Conservatives have rejected substantive amendments to
the legislation, there is little chance that the bill will be changed or defeated. It faces
one more vote in the House of Commons in the coming two weeks, which it will almost
certainly survive, before it goes to the Senate, where it is not expected to be changed.
The bill will likely become law by early June.
A federal election is expected to be called within a matter of months. And C-51 will play
a major role in the next campaign season. Both opposition parties have committed to
rescinding some of these powers if they are elected. But in the meantime, Canadas
security and intelligence community is gearing up for expanded powers while it has the
chance.

Clarification, April 24, 2015: An earlier version of this article neglected to mention the
1985 bombing of Air India Flight 182.
Posted by Thavam