Mr. Speaker, I am proud to have shared my time with the member for Churchill. I was so pleased to be in the House of Commons when she brought forth the voices of aboriginal leaders speaking out against this bill. As she pointed out, we are the only recognized party in the House that is opposing this bill, and we should oppose it with everything we have, because it is a terrible bill.
I will pick up on the discussion around “unlawful”. That will be the crux of my remarks today, and very much through the lens of how this applies to aboriginal and environmental groups.
A lot hinges on that word “unlawful” in looking at activity that may undermine the security of Canada if there is an exclusion for unlawful activity. “Unlawful” does not just mean the Criminal Code of Canada; it could mean municipal permits or a wildcat strike. Therefore, this is dangerous legislation, because if there is a wildcat strike or an occupy movement—an occupation of town property, such as the camps that we saw set up—that activity, under the eyes of CSIS or the current government, could potentially undermine the security of Canada without the right municipal permit, and it could all of a sudden be scooped up into this anti-terrorism legislation. That is really the crux of my argument here today.
This is a big bill. It does require thoughtful analysis, and I have been reading through some of the analysis that has been done. These are not just words on the back of a napkin, or so we hope. Every single word here matters, so we really do need to look at the word “unlawful” and the implications it has for environmental and aboriginal groups.
There is one particular piece of writing by Craig Forcese, an associate professor of law at the University of Ottawa. He has written a book on national security law and maintains a blog where he posts updates because, as members know, our security laws are ever-changing, especially with the current government. Therefore, he posts responses as the law is evolving and has posted a very thorough analysis of Bill C-51 and the “unlawful” issue.
The particular post I was reading is called “Bill C-51: Does it Reach Protest and Civil Disobedience?” In it he looks specifically at whether the bill would allow the government to target protest and advocacy groups, and he points out that there is nothing in the bill that brands democratic protest movements as terrorists. He says we cannot reasonably make that assertion.
However, there is a lot in this bill that could wrap up democratic protest movements into the orbit of security concerns. He writes:
...under C-51, the government will be able to share internally (and potentially externally) a lot more information about things that “undermine the security of Canada”. That concept is defined extremely broadly -- more broadly than any other national security concept in Canadian law. Yes, it can reach the subject matter of many democratic protest movements.
That is the end of the quote by Professor Forcese.
He talks about this exclusion stipulating that the concept of undermining the security of Canada does not apply to “lawful” advocacy, protest, or artistic expression. As I said, this exclusion for lawful activity is really important. We can understand this exclusion a bit better when we look at our legislative history on anti-terrorism legislation and look at previous anti-terrorism pieces of legislation, because “lawful” means to be fully compliant with the law. We are not talking simply about compliance with criminal law; we are talking about full compliance with municipal and regulatory rules and labour laws, including those relating to strikes and protests.
Professor Forcese continues:
I am not making this up. This is exactly the same debate we had in 2001, with the original Antiterrorism Act. That Act introduced a definition of “terrorist activity”. For one aspect of that definition (serious interference with an essential service), there was an exclusion for “lawful” protest. Concern was expressed (widely) that this reference to “lawful” meant that wildcat strikes or protests without permits that implicated “essential services” might be branded “terrorist activity”.
And so the government dropped “lawful” as the precondition to protests.
That is the end of the quote.
That is important. The government actually took out the word “lawful” because of this concern. It might sound strange on its face, because one would think things should be lawful, but we go back to labour laws and municipal laws. It does not have to be criminal law.
In the old Anti-Terrorism Act in 2001, the word “lawful” was dropped because there is no real prospect that democratic protest movements would be terrorist activity and we could argue that the lawfulness distinction is not useful when looking at terrorist activity. However, what about when looking at actions that potentially undermine the security of Canada?
I am going to continue with something that Professor Forcese wrote:
Violating regulatory or municipal rules is bad. People should be fined, and possibly prosecuted. That's why we have police, and open, transparent courts, with due process and appeal rights.
But the question before Parliament now is whether peaceful democratic protest movements should be a security issue, handled covertly, when, e.g., they don't have the right municipal permits for their protests. And specifically, should such a movement fall within the ambit of the new “undermine” definition, or the expanded CSIS powers under the existing “threat” definition.
Given the experience in 2001 and the legal views expressed by the government of the day, we have to conclude that if the government continues to include the qualifier “lawful” in its exceptions, it does so with its eyes wide open. It really does mean to include, e.g., “illegal strike[s] that take as part of its form a demonstration on the streets—and this is an example that has been used by some in the trade union movement” within its “undermine the security of Canada” concept in the information sharing rules.
And it is comfortable with the idea that, if other elements of the “threat” definition are met...democratic protest movements with tactics that do not square in every way with even municipal law may properly be the subject of CSIS investigation and possibly even disruption.
I take no view on whether CSIS would ever have the resources or the complete lack of internal governance checks and balances to actually proceed in this manner. That is not my point. My point is this: when we craft national security law, we craft it to deter bad judgment. We do not craft it to be so sweeping and ambiguous that it must depend for its proper exercise in a democracy on perfect government judgment. Very few governments are perfect. And even if you think this one is, what about the next one?
What about the next government? More importantly, what about this one?
I read an article by journalist Shawn McCarthy in The Globe and Mail, who talked about the potential for this law to be used against legitimate peaceful dissenters, such as aboriginal groups and environmental groups. He quoted a public safety spokeswoman who said that Bill C-51 doesn't change the definition of what constitutes a threat to Canadian security and added that CSIS does not investigate lawful dissent.
Why is it, then, that we know through access to information requests obtained by Greenpeace that the RCMP has characterized environmental groups as the “anti-petroleum movement” and that the RCMP has labelled this movement as “a growing and violent threat to Canada's security”? It identifies a “highly organized and well-financed anti-Canada petroleum movement that consists of peaceful activists, militants and violent extremists who are opposed to society's reliance on fossil fuels”.
We go back to the overarching purpose of the bill, which is to turn our security intelligence agency essentially into a law enforcement body. We are taking the powers of the RCMP and giving them to our intelligence security agency. That is not why it was created, and if we think that the government of this day has the good judgment not to exercise or abuse this power, then we are very sorely mistaken.