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The appointed Senate of Canada did its duty on Tuesday evening and passed the Conservative government’s omnibus anti-terror legislation Bill C-51.

There are those who argue that an unelected body should not have veto power over the elected House of Commons.

It might be strange for them to then turn around and say the Senate should have blocked C-51.

But you can look at it another way.

Consideration of this seriously flawed bill offered the upper house a perfect opportunity to play the role its supporters so often vaunt, that of chamber of “sober second thought.”

The Senate of the pre-Harper era — to which prime ministers appointed some independent-minded individuals and even, occasionally, opposition party members — might have, in the end, passed C-51

But it would quite likely have done so only with some significant amendments.

If that happened, the House of Commons would be forced take up C-51 once again, and deal with the amendments.

The result would be delay, more intense and serious consideration of the bill and, probably, a very different piece of legislation, in the end.

In the past, the Senate did that “sober second thought” work for eight to 10 per cent of the bills it considered.

But that was then.

Today, we have a Red Chamber dominated by Prime Minister Stephen Harper’s band of über-partisan appointees.

They know their role is to act as the government’s obedient rubber stamp, and nothing more.

The power to ‘disrupt’ with secret approval and criminalization of speech

The anti-terror bill, soon to be law, will increase the intrusive powers of Canada’s police and para-police security services, especially the Canadian Security and Intelligence Service (CSIS).

It specifically allows CSIS agents to carry out “disruption” activities that break the law and defy the Charter of Rights. All C-51 requires of CSIS is that it get secret approval of a judge before undertaking these “dirty tricks,” to use the old RCMP term.

The bill also criminalizes certain forms of speech, those that “promote terrorism in general.”

That is a vague and broad concept.

It could include speech that does not come close to encouraging any specific violent acts.

When they unveiled the bill in January, government officials explained to journalists that this “speech” provision would work the way the current hate speech law does.

As with the hate speech law, there would only be prosecution of “promoting terrorism” offences if the attorney general of the relevant jurisdiction (usually a province) concurred.

Such a limit does not apply to prosecution of other crimes.

The Levant hate speech case is instructive

Those who followed the Ezra Levant hate speech case might remember how this approval process can work, in practice.

In September of 2012, Levant unleashed a hateful screed against the entire Roma people that he entitled, tastelessly, to say the least, “The Jew against the Gypsies.”

“Gypsies constitute a culture synonymous with swindlers,” Levant said, in a commentary on the now-defunct SUN TV network, “The phrase Gypsy and cheater have become so interchangeable the word entered the English language as a verb: to gyp.”

There was much more, and it provoked strong reactions.

Those who concurred with Levant cheerfully took to SUN’s comments section with frightful suggestions that included putting Roma who come to Canada “on a boat and drowning them.”

Others, including members of Canada’s Roma community, were outraged. Some of them filed a hate speech complaint with the Toronto police.

Both the police and the Ontario Crown prosecutor’s office agreed that there was ample evidence Levant had committed a hate crime.

The attorney general, John Gerretsen, and his deputy minister, Patrick Monahan, were, however, skittish about taking on the notorious SUN TV commentator. They exercised their right to veto the prosecution.

According to sources, Gerretsen and Monahan did not dispute the evidence. Their reluctance came from their concern that taking on Levant would be politically difficult. A hate speech case against Levant,  Monahan is reported to have said, would become “a circus.”

Now, one could cite that example to show how the approval process might act as a check on prosecutions based on C-51’s new crime of “promoting terrorism.”

Viewed differently, the Levant case also shows how pure and unvarnished politics could very likely play a central role in decisions to prosecute or not.

Levant got away with uttering what appeared to be hate speech because of his notoriety, and, likely, his political connections.

But what might happen to a person charged with “promoting terrorism” who lacked Levant’s powerful friends and supporters, and who had no media platform from which to rally those supporters?

Again, the ultimate power to prosecute C-51’s newly created crime will rest with politicians, not law enforcement officials. Given that, would it be exaggerating to fear that such power could be used to conduct witch-hunts rather than pursue justice?

We may not have to wait too long to find out.

No parliamentary oversight

Bill C-51’s many other flaws include the lack of ongoing supervision and oversight, notably by parliament.

The Harper government claims the existing oversight body, the Security and Intelligence Review Committee (SIRC), is adequate.

It is a made-in-Canada solution, they say. And they add that we do not need to follow the example of many of our allies, who mandate elected members of Parliament to oversee the activities of the security services.

SIRC is a small, politically appointed body.

The government has given it some additional funding, but its powers are limited. It reviews, in a sporadic way, what the security service has done.

It does not oversee and supervise what CSIS plans to do.

When C-51 becomes law we can expect that Canadians will not get any inkling of how CSIS and the police are exercising their new powers until long after the fact — if at all. 

Major privacy concerns

Canada’s privacy commissioner, Daniel Therrien, also has serious reservations about C-51.

He is worried about information-sharing provisions that will allow almost unfettered sharing throughout government of just about any kind of information the authorities might gather on Canadians.

Amazingly, the House of Commons Committee that reviewed C-51 did not see fit to allow Therrien to testify.

The Committee invited American so-called “terrorism specialists” who had scant familiarity with the contents of the bill — one gave the impression that he believed C-51 included parliamentary oversight, on the American model — but not an officer of Parliament with detailed knowledge and expertise.

Not one to be silenced, Therrien sent an open letter to the Committee chair, in which he said:

“The scale of information sharing being proposed is unprecedented, the scope of the new powers conferred by the Act is excessive, particularly as these powers affect ordinary Canadians, and the safeguards protecting against unreasonable loss of privacy are seriously deficient… While the potential to know virtually everything about everyone may well identify some new threats, the loss of privacy is clearly excessive.”

Oddly, in justifying his party’s decision to vote in favour of C-51, Liberal leader Justin Trudeau cited the information-sharing provisions as one of the bill’s few positive features.

There is much more that is dubious, and frankly, scary about C-51. We’ve written about some of it here.

Many much better informed people have provided reams of detailed and trenchant factual and critical analysis of C-51, before the House and Senate Committees, and elsewhere.

Virtually none of it moved the Harper government.

For this lot, “facts” and “evidence” seem to be dirty words. 


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Karl Nerenberg

Karl Nerenberg joined rabble in 2011 to cover news for the rest of us from Parliament Hill. Karl has been a journalist and filmmaker for over 25 years, including eight years as the producer of the CBC...