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CAUT Bulletin Archives

September 2002

National Security Bills Go Too Far

Since Sept.11, 2001 the Canadian government has introduced several pieces of legislation dealing with national security. The content of this legislation runs so counter to traditional Canadian notions of democracy that a broad coalition of religious, academic, labour, legal and community groups has risen up in opposition. This dissent has met with mixed success. The centrepiece of the government's initiative, Bill C-36, the Anti-terrorism Act, underwent minor amendment and was passed into law. Bill C-42, the Public Safety Act (a companion piece to Bill C-36), was withdrawn.

Bill C-42

Bill C-42, while broadly addressing issues of transportation safety, also contained provisions directed at suppressing political dissent, particularly protest activity.

This was most apparent in the section dealing with military security zones. This section would have allowed the Minister of Defence to designate "an area of land or water, a portion of airspace, or a structure or part of one" as a military security zone. Within this zone the army would have complete authority and the power to forcibly remove any "unauthorized" persons. The legislation, in effect, was aimed at creating portable regions of martial law, which the government could impose at will without any parliamentary debate.

In the face of public condemnation, Bill C-42 was withdrawn, rewritten and reintroduced as Bill C-55.

Bill C-55

Instead of expansive military security zones, Bill C-55 empowers the minister in a more limited way to create "controlled access military zones." These zones exist for the narrower purposes of protecting "defence establishments, defence property outside defence establishments and the property of visiting armed forces." Areas surrounding the defence property can be included within these zones to a "reasonably necessary" extent.

This change has been cautiously acknowledged as an improvement. Amnesty International, for one, has welcomed the narrower scope of powers, but remains concerned that the language in Bill C-55 is still vague enough to allow abuse. Amnesty has suggested the legislation be amended "to explicitly affirm that such zones will be designated and enforced in a manner consistent with human rights, particularly the rights to free expression and assembly."

And, despite the move away from martial law in Bill C-55, other aspects of the legislation are seen by many to be worse than its predecessor.

In response to the government's rush to enact national security legislation in the wake of Sept. 11, CAUT and many other groups and individuals cautioned that the history of such initiatives is often an unhappy one. Whatever narrow legal purposes are initially offered, the implementation of these new laws has been broad and dangerous. Carefully crafted decrees against "terrorism" or other threats have invariably expanded to clamp down on ordinary criminality, political dissent and minority groups. The internment of Japanese-Canadians during the Second World War serves as a reminder that while the "national security" gain from such actions may be nonexistent, the damage to people's lives can be very real.

In Bill C-55 this danger is most apparent in section 4.82. This section gives the RCMP and the Canadian Security Intelligence Service unrestricted access to the personal information of all Canadian air travellers on flights within Canada and on international routes. This effectively overturns the longstanding rights of Canadians to be protected from warrantless searches for personal information and from compulsory self-identification to police. One of the fundamental privacy rights of Canadians has been the right not to have to identify oneself to state security forces unless under arrest or carrying out a licensed activity such as driving.

Further, section 4.82 also allows the RCMP to obtain and scan passenger lists in search of anyone subject to an outstanding warrant for any offense punishable by imprisonment of five years or more. This enactment has no connection with the purported anti-terrorism purposes of C-55. It is simply a dramatic expansion of police powers without explanation or justification.

Concern over 4.82 has been raised from within government ranks. Liberal MP John McKay characterized it as a classic example of "function creep." According to McKay, with Bill C-55, "you go from terrorism to organized crime to ordinary criminality to invasion of privacy of Canadians who are otherwise law-abiding."

Privacy Commissioner George Radwanski identified similar problems. In a statement to Transport Minister David Collenette, he condemned the section and noted: "The precedent set by section 4.82 could open the door in principle to practices similar to those that exist in totalitarian societies where police routinely board trains or establish roadblocks to check identification papers in search of anyone of interest to the state."

With respect to the broadening of search powers beyond terrorist suspects, Radwanski asked: "What threats to public safety, and particularly aviation safety, do you believe are likely to be posed by individuals who are wanted or warranted for such offences as fraudulently altering brands on cattle, taking possession of drift timber or unauthorized use of a computer - all Criminal Code offences punishable by prison terms of five or more years?"

The outcry against the first round of the government's national security legislation, while only partially successful in stopping the erosion of civil liberties, has had some positive impact, says CAUT executive director James Turk.

"By forcing the government to back away from one of the worst aspects of Bill C-42 (portable martial law) the vigilance of Canadians has been rewarded," Turk said.

To many people and organizations, the passage of Bill C-36 and the problems with Bill C-55 signal the continuing need for robust opposition to the government's "national security" agenda and the need for a genuine debate on what will bring real security to Canadians.

Critics note that the government's preoccupation with a narrow definition of the dangers the country faces is illustrated by the water contamination crisis in Walkerton, Ontario. Bill C-55 contains measures aimed at protecting our water supplies from the hypothetical dangers of "terrorism," while the same government ignores the much more immediate threat to our water supply of government underfunding and privatization.

"Security of Canadians rests on the strength of the civil liberties and human rights that residents enjoy, by the power of our culture to sustain tolerance and convey a critical understanding of the world, and by the quality of our public infrastructure - schools, universities, hospitals, roads, sewer systems and the like," Turk said. "We cannot allow these to be compromised."