The long and short of C-51, the anti-terror act

Justin Trudeau, Tom Mulcair and the political and legal ramifications of C-51, the government’s controversial anti-terror act
Demonstrators attend a protest on a national day of action against Bill C-51, the government’s proposed anti-terrorism legislation, outside the Vancouver Art Gallery in downtown Vancouver, Saturday, March 14, 2015. THE CANADIAN PRESS/Jonathan Hayward
Protesters outside the Vancouver Art Gallery. (Jonathan Hayward, CP)
Protesters outside the Vancouver Art Gallery. (Jonathan Hayward, CP)

C-51, the government’s anti-terrorism act, was given royal assent one week ago. Many provisions of the bill are now in force. But even with the Governor General’s signature, C-51 is still something of an open question—an unsettled matter of policy and politics.

On Wednesday, for instance, the Canadian Press reported on recently disclosed documents that raise questions about what changes had to be made to allow for government departments to share information—a controversial element of C-51 that was flagged by the privacy commissioner as a point of concern. Last week, a day before the bill received royal assent, Anonymous hackers overwhelmed government websites to protest the anti-terror act. And, in a recent run of interviews, Liberal Leader Justin Trudeau to has had, once again, to defend his party’s position on the bill.

Even without the politics of an election year, there would surely still be questions about the implementation of the bill’s various measures, and lingering concerns about the oversight of national security operations. But, with an election this fall, the fate of the new laws is actively unclear: In theory, a new government could amend or repeal C-51 before the end of the year, and not just because of those stakes does the spectre of C-51 seem, at least for now, to loom prominently.

Liberal angst

“I quite frankly—and this is maybe where I made a strategic or a calculation error—I didn’t think that people would be so divisive and so aggressive as to somehow make it seem like the Liberal party doesn’t care about the Charter,” Trudeau recently told Maclean’s.

While the Conservatives stood behind their own bill and the New Democrats were loudly opposed, the Liberals chose to vote in favour of C-51 while calling for amendments. That might have insulated them against accusations of being soft on terror, but has opened them up to charges of being soft on civil liberties—and it has become fodder for the election within the election that is the battle to be the alternative to Prime Minister Stephen Harper.

Liberal Justice Critic Irwin Cotler told an interviewer that, if he had it to do over again, he might have counselled the party to handle the bill differently. David MacLeod, the Liberal candidate in Central-Nova until earlier this month, explained that he’d stepped down because of the Liberal position on C-51, while a former candidate in Winnipeg publicly quit the party over the bill.

Earlier this month, Trudeau faced protesters at an event in Edmonton and attempted to explain himself and defend his position (he was challenged by university students in Vancouver earlier this spring).

To what degree the Liberal position on C-51 has specifically hurt the party’s public standing is debatable. Liberal support in public opinion polls has been sliding, but the slide seems to have begun last fall, months before C-51 was tabled.

An NDP rallying cry

When NDP Leader Thomas Mulcair addressed a party rally in Ottawa last week, he made no mention of C-51. But he was preceded to the stage by Diane Freeman, a former Liberal who is now the NDP’s candidate in Waterloo, Ont. And she dwelled upon the anti-terror act as a telling example.

“More and more, people who have never voted NDP in the past are impressed with our leader, Tom Mulcair,” she said. “He is a leader with experience and principles. He knows where he stands and has the courage to back up his convictions with action. There is no better example of this than the leadership he showed on Bill C-51, a bill that fundamentally undermines the civil liberties of each and every Canadian. Tom has led the charge in Parliament and across Canada to highlight the fundamental problems with this bill, and Canadians from all walks of life and all political stripes applaud his leadership.”

Turning to “the leader of the third party,” she set up her party’s preferred contrast. “It is a failure of leadership to say that you oppose Bill C-51 and then support it, and to support it only because you are afraid Stephen Harper will criticize you for it.”

Two weeks ago, Ekos reported that the NDP had pulled ahead of the Conservatives and Liberals in its most recent survey, and pollster Frank Graves wondered if C-51 was a significant factor in the NDP’s surge. What was once thought to be a popular bill was now opposed by 53 per cent of respondents—and “strongly opposed” by 34 per cent.

Anecdotal accounts suggest the bill is resonating with the public, or, at least, some segments of the public, but precisely quantifying the impact of C-51 is difficult. The NDP’s rise in national polls also follows the arrival of an NDP government in Alberta—a surprising result that might have swayed persuadable voters in other provinces. “C-51 may have done some of its damage to the Liberals before, but I think the [Alberta] election really accelerated the NDP’s rise in support and the expanded number of people who say they would consider voting NDP,” says David Coletto of Abacus Data.

If C-51 is to have an impact, it could conceivably manifest itself in places such as downtown Toronto, where the battles for seats are mostly between NDP and Liberal candidates.

Repeal, amend or overturn?

Within the questions about politics and process are, of course, serious questions about the actual legislation.

The New Democrats have committed to repealing C-51 if they form government after this fall’s election. Would they replace it with new legislation? “What we did say at the time is we’d have a good look at if there are any gaps and consider what needed to be done, but the government never really presented any evidence of gaps in existing legislation,” says NDP Public Safety Critic Randall Garrison. “So yeah, if we do find problems, we would address those, but, right now, we don’t see them.” The NDP has proposed increasing oversight of national security activities.

The Liberals have said they would amend the new laws. Liberal Public Safety Critic Wayne Easter tabled amendments to C-51 in March, and Trudeau has said that a set of proposals will be made public soon.

Toronto lawyer Rocco Galati, who successfully challenged the Harper government’s appointment of Marc Nadon to the Supreme Court, has said he will challenge C-51. Regardless of that particular effort, it might be fair to assume that various provisions of the legislation will be tested in court.

Law professors Craig Forcese and Kent Roach have published extensive analysis of the bill, and both testified before the House and Senate committees that studied C-51. As a summation, here are their opening statements to the Senate in April. (In their own most recent assessment, Forcese and Roach suggest the bill is an indictment of Parliament: “C-51’s flawed content is a reflection of a closed drafting process and a disappointing parliamentary mechanism.” Privacy expert Michael Geist has also criticized the House committee’s review of the legislation.)

What would they do about the bill?

“There is a need for a comprehensive re-think,” says Kent Roach.

Explains Craig Forcese, “This shouldn’t really be a discussion of ‘repeal and return to the status quo ante’ vs. ‘do nothing and live with C-51’. Some aspects of C-51 are a solution in search of a problem (the new speech crime, for instance). Our criminal-law coverage was more than adequate for real terrorist propaganda. Other aspects (such as information-sharing) aim for the right targets, but fall short, aim wide, or just blow up the target. The CSIS changes are ill-thought-out and, in the way [they’re] drafted, spark an unnecessary constitutional adventure. They amount to new tactical tools that should only have been developed after a serious think about our anti-terror strategy. So, in sum, it requires a much more serious, open and mature conversation than we had this winter—not just another fait accompli (in the form of persisting with the status quo, tinkering or repealing) launched by a government prepared then to treat every objection to content as politically motivated. But, in the end, whether you call it ‘repeal’ or ‘amendment,’ it will require a serious repair job, and not just tinkering on the margins. Not least, we desperately need effort to address the many pressing concerns C-51 omits—not least, the serious and important recommendations made by the [Maher] Arar and Air India commissions, utterly ignored by the government.”