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Bill C-51 could be a blank cheque to the government to stifle Indigenous dissent

by Michael McClurg and Senwung Luk

Never ones to let a crisis go to waste, the federal government has tabled a bill in Parliament to give itself new powers that it says is intended to deal with threats of terrorist violence. The government’s defenders have tried to assuage critics by arguing that Canadians can trust the government not to abuse its broad new powers.  Yet as Canada’s indigenous citizens know full well, this government has had few qualms about labelling its critics from indigenous communities as enemies of the government and of the country generally.

The government says that proposed law, to be called the Anti-terrorism Act, 2015, is about protecting Canadians from terrorist attacks.  There are many different but reasonable views about these proposals, especially on the intelligence side. For example, our colleague Bob Rae has pointed out that the espionage powers in this bill may not be such a big problem if adequate accountability and oversight mechanisms were part of the package of amendments – but unfortunately they are not. For our part, we want to focus on the risks arising from the bill’s expansion of police powers – through the use of vague language.

The proposed law takes the existing power of the government to arrest someone without a warrant if law enforcement think a terrorist act “will be carried out”, and gives the police to arrest someone if they think a terrorist act “may be carried out”.  We’ll talk about that a bit more below.

What this means for the powers of the government and police can be seen through a more detailed analysis of the law. The Criminal Code already defines “terrorist activity” very broadly.  “Terrorist activity” can include:

“an act […] that is committed [...] in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security”

(Criminal Code, ss.83.01(1)).

This broad definition could easily encompass a protest against a pipeline or against a clearcut of a forest.

However, the same provision also requires that the act be intended to cause death or serious harm, or cause serious risk to the public. It also exempts “advocacy, protest, dissent or stoppage of work that is not intended to”, among other things, cause violence, or endanger the health or safety of the public. (Interested readers may want to see the Supreme Court’s discussion of these provisions in R v Khawaja, esp paras 72-74).

By changing the “will” to a “may”, in the provisions about the ability to arrest in situations of possible terrorist activity, the new law gives police more discretion to decide if something constitutes a terrorist activity. We see this discretion operating in at least a couple of ways. First off, under the current “will” standard, a police officer is going to need some proof that the “terrorist activity” is really going to take place before arresting somebody.  On the new “may” standard, a police officer might be able to justify an arrest even if she has some suspicion or worry about a particular person, but nothing more.

Second, the change from “will” to “may” could affect the way the current exemption for legitimate protest gets interpreted by the police.  We trust the police to interpret the intention of protesters – but the current law seems to require a certain level of certainty about the violent intentions of the protesters before an officer could deem it to be terrorist activity. The police could take the change from “will” to “may” as a licence for them to act on fears and suspicions of the protesters’ intentions.  Take a road blockade as an example.  Currently, we require that, in order to arrest protesters, the police must reasonably believe that protesters at the blockade “will” carry out an act that endangers public safety.  Under the new “may” standard, the officer might say to himself: “Might these people be intending to harm public safety? Maybe they intend to even block fire trucks from going through this route. If there is a fire in this area, the public will surely be in danger. I better start arresting people.”

If a police officer arrests someone on this basis, and a judge is satisfied that the police officer had reasonable grounds for the suspicion, the judge may require the person to sign a recognizance promising to abide by certain conditions, such as to stay away from certain areas. If a person refuses to sign a recognizance, they can be sent to prison for up to one year.

On top of the lower threshold for arrest, the Bill introduces a new law, the Secure Air Travel Act, that allows the Minister of Public Safety to put on a list those she/he “has reasonable grounds to suspect” will travel by air for the purposes of facilitating or participating in a “terrorist activity”. If a person is placed on the list, the Minister may direct any air carrier to deny that person transportation or to direct that the person be screened in a particular manner. It also gives the Minister the ability to provide the list to foreign governments.

Bill C-51 also creates a new criminal offence for someone who “knowingly advocates or promotes the commission of terrorism offences in general … while knowing that those offences will be committed or being reckless as to whether any of those offences may be committed…” The maximum sentence for this offence is 5 years imprisonment.

Kent Roach and Craig Forcese have put forward a critique of the vagueness of this new offence and the chill it may put on free speech and we won’t repeat that here. The new offence is worth thinking about in a hypothetical though: would an activist promoting a blockade of a railway on Facebook as part of an Idle No More event be caught under this provision? Not necessarily, but what if the promoter has some reason to suspect that one or two participants at the protest might turn violent? By continuing to promote the event and encourage people to attend, is the promoter of the blockade itself now promoting or advocating the commission of terrorism offences? The answer is not clear.

What all these new provisions do is to introduce a great deal of vagueness into the law.  Vague language gives the government discretion – it is a way to say to the police: we trust you to do the right thing in the circumstances. In this post we have looked at what the broadest interpretation of the new law could be. It’s not necessarily the most reasonable interpretation of the law, or the one that the courts will end up endorsing, especially when constitutional challenges are taken into account.  We haven’t found any instances of where s.83.3 of the Criminal Code has been applied by the courts. In one case, though, the Crown argued that the fact that an accused was merely holding a paper copy of the Criminal Code provisions during the G20 protests in Toronto should be considered evidence that an accused intended to commit a crime.  Creative government officials interested in an expansive view of government power will hardly hesitate to employ a broad reading of the law.  Vagueness is the fuel for this kind of creativity.

Indigenous Canadians and their allies may be forgiven for not being willing to merely trust the government for many historical reasons.  But recent events will have given them further cause for worry.  The Harper government has labelled opponents of the Northern Gateway Pipeline as “extremists” and tried to use “anti-terrorist” laws to go after them before.  Finance Minister Joe Oliver has suggested that pipeline opponents have a “radical ideological agenda” and are out to “hijack” Canada’s economy.  The government has used CSIS to spy on people involved in the indigenous rights movement, including vast spying on the Idle No More movement, on Pam Palmater, Clifton Nicholas, and Cindy Blackstock. Government spies have tried to infiltrate meetings of indigenous activists. The government has spied on people trying to voice their concerns about fossil fuel developments before the ostensibly neutral National Energy Board.  The government has deemed anti-fracking protesters in Elsipogtog to be security threats and sent RCMP snipers to control the opposition there. To head the watchdog agency overseeing CSIS spying, the government formerly appointed Arthur Porter, currently in prison in Panama and facing bribery allegations (unrelated to SIRC) in Canada, then appointed Chuck Strahl who resigned after it was revealed that he was acting as a lobbyist for the Northern Gateway pipeline.

Think it’s hard to “intimidate the public”, as the Criminal Code defines terrorist activity? A  pipeline company lawyer said he felt intimidated when members of the public frowned and grimaced at the arguments that he was making in court.

The broad powers the government is giving to itself to put citizens on the no-fly list could also be used to stifle protest.  Many First Nations communities are isolated and can only be accessed by air.  Some, like Attawapiskat, have been among the most vocal critics of the government.  If the concern that someone “may” engage in a “terrorist activity” is the threshold, it is not difficult to imagine critics of the government being put on no-fly lists which would prevent them from travelling to and from their community to make their voices heard.

Amid this debate, it is important to recall that CSIS, Canada’s spy agency, was only created 30 years ago. It was created so that the RCMP would no longer be responsible for spying, because the RCMP were involved in illegal activities against people it had identified as its enemies. This included at least sending agents provocateurs to disrupt protest by First Nations people, surreptitious entry on private residences, and unlawfully confining a law student, and possibly also arson.

The vagueness of the Bill and accompanying heightened discretion granted to authorities have not been accompanied by an increase in oversight. This lack of accountability and transparency, or as the government has called it, “needless red tape”, is yet another example of lessons not learned. It flies in the face of the 8-year-old report of the Ipperwash Inquiry, an inquiry precipitated by the killing of unarmed Aboriginal activist Dudley George in a police standoff. That report, partially concerned with issues of improper government involvement in law enforcement, concluded that transparent structures and processes promote democratic accountability and better decision-making, whereas secrecy and lack of transparency may conceal inappropriate government interference in law enforcement. These concerns are gravely deepened by Bill C-51, and you can forgive Indigenous people for not accepting the “trust-us” approach the government is pushing.