Stephen Harper’s Vision for Canadians: Ignorant and Terrified

Dear Virtual Editor,

With apologies to American readers, the next few posts will deal with a crisis in Canada. I hope some Americans readers may find them interesting as well. Americans generally are not fountains of knowledge about their northern neighbour. In these posts, however, they will recognize, from painful experience, much of what is happening here.

In my adopted country, we have an important election coming up. I can’t tell you exactly when because I don’t know whether our current ruler will again abandon a promise and manipulate the process to achieve a date that he perceives more favourable than the one established by law. Anyway, probably no later than October.

1297676679556_ORIGINALPoliticians of every stripe always see the next election as the defining one. In this instance, I think they are right. PM Harper and Co. have already done a lot of damage and if our democracy theme park (See post of 27 Sept 2013) results in another Tory “majority”, the Canada I embraced so proudly 15 years ago will be virtually unrecognizable before another election. So, I begin today a series of posts particularizing the damage and urging my fellow Canadians to vote and to vote for any candidate other than a Conservative. I really do not care which of the other parties becomes strongest and I have urged their leaders to identify areas of cooperation before the voting and to be prepared to form a coalition government.

I have said before that this is not a personal matter. I am sure Harper, McKay, Fantino, et. al., have redeeming qualities, love their families, do not kick their dogs. Like approximately 2/3 of my fellow Canadians, I just want to give these folks an opportunity to spend more time with those families and dogs. The best that is Canada depends on it.

I have already seen this movie. The US was on its way to becoming an arrogant police state long before 9/11. Harper & Co. are doing the best they can to imitate, though recognizing that not even they can sell “We’re No. 1! We’re No. 1!” to Canadians. Later, when we look into Harper’s right wing US roots, this miming will not be hard to understand. Still, it is pretty sad to consider that even our police state will probably be second rate.

For several years, I have kept an old-fashioned newspaper clip file, titled “Harper Outrages”. In this series, I will draw on the file for facts, as opposed to my take on what they mean. Opinions being like that celebrated universal orifice, your take may differ. But be sure you are basing it on what actually happened on the ground. I will also draw, for facts only, on Michael Harris, Party of One, Stephen Harper and Canada’s Radical Makeover. Frankly, the book can at times be a tedious read precisely because Harris takes such pains to lay out factual details. But the book is worth reading because dismissing factual truth with slogans and generalizations is stock in trade for the Tories. They are relying on you not to read the book and not even to read this series of simplified posts.

One reason I have heretofore probably spent a bit too much ink on the US, is because its public figures are such laughably easy targets. In contrast, the Tories are essentially a humourless bunch. There is simply no Canadian equivalent of Sarah Palin, Michele Bachmann, Ted Cruz, Donald Trump and the like, not to mention the members of almost any southern state legislature, who regularly showcase the intelligence quotient of a rutabaga. In contrast, Harper & Co. are a pompously pious lot, deadly serious about what they are doing. In all of the coming posts, Harper’s effort to shape Canadians into an ignorant and terrified mass will be a thread that is easy to follow. There is no better place to begin than the most recent outrage.

Bill C-51: A Message for Dave Naïve

1_HarperAfraidIn the wake of two tragic but foreseeable acts of violence (See post of 7 Dec 2014), Harper has once again introduced an omnibus bill, once again prevented meaningful consideration of it in the House of Commons or the Senate, and once again impugned the patriotism of anyone who opposes it. Bill C-51 is purportedly an “anti-terrorism” law. It is no such thing. With an election at hand, the Tories are banking on tried and true maxims:  Fear is a winner. People are too busy to look beyond slogans.

Trusting that Canadians really do not wish to brand themselves a nation of cowards, we are going to look beyond slogans and examine C-51. I have read all 74 pages. I recommend that you do likewise.

There has been a fair amount of press raising concerns about the legislation, but the most prominent item seems to be that its terms are so broad and vague that the act can be used to criminalize legitimate dissent, especially in environmental matters. That is manifestly true, but such an argument simply does not reach Dave Naïve, a hypothetical character who for decades has been unwittingly undermining basic rights and freedoms. Dave is essentially a good guy. Dave wrote twice last week to my local paper. He doesn’t see himself as dissenting about anything. Dave sees himself as a completely law abiding citizen. So, his position is if you haven’t done anything wrong, you have nothing to worry about.  I have been dealing with Dave since back when there was a right to privacy. This examination of C-51 is dedicated to Dave.

Dave, even if you were correct, you would still be ceding to government, for a mess of amorphous pottage, rights that others struggled to secure for you. That is not a very conservative thing to do. But you are not correct. I will try to highlight those portions of C-51 that have a pretty clear message that even if you have done nothing wrong, you in fact have quite a bit to worry about.

Unfortunately, if you are willing to see if I am right, you will have to take note of some basic principles of statutory construction. I will try not to be too legalistic here but this examination proceeds on the assumption that the English language (and French) is not meaningless. In particular, as I have urged generations of law students, the words and and or are very significant. Also, when examples are included, but expressly without limitation, they are not the only examples. So, in a definition of what conduct is covered in the act, if I tell you that an act that undermines the security of Canada means nothing more specific than an act that undermines the security of Canada that is true. All I have done is apply the two particulars I have described. So, whether you are in fact living a fully lawful life is up to the government to determine. Whatever act that undermines the security of Canada means, you could learn after you have commited it. I sure hope your Conservative Party membership is paid up.

Closer to Home? (Where you could be under the SATA)

I know you are probably not yet convinced, so let me move to a situation in which it might be easier for you to imagine yourself. In the interest of obfuscation and discouraging examination of the act, C-51 includes two new acts and amendments to three other major statutes, all themselves containing amendments to numerous other statutes. I do not profess to have sorted them all out. But I have seen more than enough to persuade me to oppose the act. If you have not been through the maze either, you will just have to trust Mr. Harper.

Dave, my hope is that one of the new acts that may give you pause is the Secure Air Travel Act. It incorporates some pretty onerous provisions already in place and adds some new ones.

UnknownLet’s assume for the moment that you are to fly from Vancouver to Ottawa to visit your very sick sister. You are prevented from doing so because your name appears on a “no fly” list. Why are you, who have done nothing wrong and should have nothing to fear, on the list? Is it because you were at a dinner party last week and chatted with someone in whom the Canadian Security Intelligence Service (CSIS), or one of 16 other government agencies, has an interest? (A real example.) Maybe it is because the person in whom the government is interested is named Dave Nave, and the wrong spelling got on the list. (A real example.) The first thing you need to be aware of is that the law forbids everyone who knows why you are on the list to tell you. In fact, telling you is a crime.

You—and your neighbours—will soon know one thing. C-51 authorizes putting people on the list who generally pose a threat to transportation security and now specifically those who are suspected of travelling to commit a terrorism offence. It also authorizes the government to direct airlines to do anything the government decides it wants done about these folks. Welcome to the world of stigma, Dave.

What are your options now? Well, the act allows you 60 days to appeal—to the Minister of Public Safety. If you don’t hear anything in 90 days, the appeal has been automatically denied. No reason required. If you happen to have several thousand dollars in disposable income, you can then appeal to the courts. (Note: you have to do the minister thing first. We lawyers call it “exhausting administrative remedies”) C-51, however, also amends the Evidence Act. The judge in your appeal is allowed to hear secret evidence that you cannot rebut. You get a summary of the evidence, (welcome to Guantanamo) but the Rules of Evidence do not apply and the judge’s decision can be based on evidence not disclosed in the summary. Finally, you may know that when Canadian judges make decisions, they are usually required to provide reasons. C-51 specifically bars the judge from doing that in your case. And by the way, the act imposes this procedure on all courts, including the Supreme Court of Canada.

Do I have your attention yet, Dave? Is your sister still alive?

Even closer to home? Are you straight with the tax man?

The reason all those government agencies were able to provide information that put you on the no fly list is found in Part 1 of the Act. It is called the Security of Canada Information Sharing Act. One of the agencies in the information-sharing network is the good ole Canada Revenue Agency. C-51 amends the Income Tax Act to permit the taxman to share your information with the rest of the government. Here, to be fair, I have to report that there is a limitation. But once again, I have to remind you about the basics of the English language and some basic legal stuff. I apologize again for the latter.

Your taxpayer information is supposed to be shared only if there are reasonable grounds to suspect that the information would be relevant to commission of an act that undermines the security of Canada, as so precisely defined earlier. In case that limitation comforts you, I have to tell you that reasonable grounds does not mean more likely than not, or a balance of probabilities. All it means is that the requesting agency, e.g. CSIS, RCMP, can articulate a reason that is not completely whacko. Please keep this in mind about reasonable grounds because it appears all through the act. As we will see, a decision that the request for your tax data has met even that minimal standard is essentially unreviewable. I advise being really careful in preparing your next return, especially with respect to your charitable contributions and investments.

“Terrorism Activity”: Common Ground?

Dave, I know you are unlikely to be personally involved with this next one, and I am not today beating you up about your lack of concern for what happens to other people. But these two words, terrorism activity as they already appear in recent revisions to the Criminal Code and are amended by C-51, may provide us with some common ground for concern.

It is true that your fellow citizens in British Columbia who do not wish to see our forests and waters destroyed are particularly concerned by the provisions I will outline for you next. There is apparently good reason for the concern since the RCMP appears to be working hand in hand with the government to suppress dissent on this issue. One of their secret memos included a remarkable denial of human effect on climate change. (Who knew the most brilliant scientific minds on the planet are part of the federal police force?) The memo also concluded that continued expansion of oil and gas production is inevitable.  On that basis, the cops understandably expressed concern about the “anti-Canada petroleum movement”, and its “foreign funding”.rcmp-antipetro01

In all the circumstances, it is more likely that the unfettered and essentially unreviewable power of the Tory government to use terrorism legislation will be directed against these folks than against you or yours. But maybe there is another scenario that you should consider. After all, governments change.

Lets assume you have a son in university, or even God forbid, in law school. The kid is an adult, newly away from home, and necessarily interacting with all sorts and conditions of people. Assume that the young person, on religious grounds, is passionately pro-life and outraged by Canada’s permissive policies on abortion. Influenced by groups from the US, who have effectively managed to make abortion unavailable in that country to anyone save the rich, your child engages in a campaign to hinder access to a facility providing abortion services. At first he simply harangues incoming patients in the manner of an aggressive panhandler, and passes out pamphlets condemning abortion and providing information on alternatives. When those efforts seem to be failing, he joins with others who sit down and block entrance to the facility for three hours, as a symbolic gesture. Of course, he also gives money when he can to pro-life groups.

Congratulations. Your son is probably a terrorist, and the existing law plus C-51 provide two ways to deal with him. The statutes making this true are not easy to decipher, even for a lawyer, and that is by design. You are just supposed to listen to slogans, be fearful, and remain ignorant. I will try to simplify.

First, your son could be charged with a terrorist offence. Engaging in an act or omission that is a terrorist activity is a terrorist offence. So what is a terrorist activity?

It is an act or omission, inside or outside Canada (joining a US protest while on Spring Break could count) committed in whole or in part for political, religious, or ideological objective or cause, AND in whole or part with the intention of intimidating the public, or a segment of the public, with regard to its security, including economic security, OR compelling a person, government or domestic or international organization to do or refrain from doing any act that intentionally causes serious interference with OR disruption of an essential service, facility or system, whether public or private.

BullMooseDave, I have tried not to inundate you with numbers, but this is S. 83.01(1)(B) of the Criminal Code and you might want to look it up on line.

I will not even mention the provisions that make a terrorist out of your son through his contributions to organizations, except to say make sure he knows what every one of them, including all their affiliates does, everywhere in the world. Instead, let’s move on to another choice open to the government.

If the government officials decided on criminal prosecution, they would still have to deal with proving beyond a reasonable doubt that something your son had already done constituted a terrorist offence. Fortunately for them, there is an easier way to interfere in you son’s life, stop his protests, and perhaps even get him to jail, without having to bother with those two annoying obstacles. The great thing about this one, which was employed recently, is that he doesn’t even have to make it to the abortion facility.

Under a recent perversion of the traditional “peace bond”, designed to protect persons who reasonably fear for their safety, as amended by C-51, any person (read government agent), who believes on reasonable grounds that a terrorist activity may (formerly will) be carried out and suspects on reasonable grounds that imposing conditions on the person is likely (formerly is necessary) to prevent the terrorist activity may lay an information (charge) and bring the person before a provincial judge. For the protection of the majority of Canadians who disagree with your son’s activities Dave, a police officer may arrest and detain him without a warrant before the information has been laid. Even if the information has been laid and your son is notified of his court date, he can be arrested without a warrant and detained if the cops suspect, (again on reasonable, not whacko grounds) that his detention is likely to prevent terrorist activity.

Do things get better when your son is brought up from cells and has his day in court? Maybe not. If the judge agrees with government, not beyond a reasonable doubt but on a balance of probabilities, here are a just a few of the conditions she can impose:  participation in a treatment program, curfew, travel restrictions, and of course barring him from participating directly or indirectly in the “terrorist activity” or having contact with those who may engage in it. Being found eligible to endure these conditions is not in itself a crime, but breaching any of them is, and may result in severe criminal penalties. I assume you would wish to attend the hearing, so I should alert you that it is open to the judge to exclude the public. It is also open to the judge to order that government witnesses can testify from behind a screen. (Which of course raises no suggestion that your son is guilty of anything.)

Dave, I am adamantly pro-choice and I would find your son’s activities reprehensible. But I would vigorously support his right to speak out and to associate with others of like mind. If he crossed the line into relatively minor offences for conduct already prohibited by the pre-Harper Criminal Code, I would not weep if he were prosecuted for them. But even in those circumstances, he is certainly not a terrorist. Neither are those who, seeing that the game is rigged, are moved to direct action in support of the environment.

Two Final Cautions

There are many other aspects of this legislation that are offensive to the regard for fundamental fairness that most Canadians hold. I will not go into them because I appreciate that you have taken time to read this far. I will leave you with two final cautions about C-51, one of them based on the legislation, the other on personal experience.

The first caution has to do with permanency and accountability. When PM Harper rolled out C-51, he pronounced that the international jihadist movement had declared war on B821894438Z.1_20150315223752_000_GV31ELJJO.4_ContentCanada. When people declare war on you, the customary response is to declare war on them. What if Harper had declared war on ISIS? An interesting essay by Vincent Gogolek, director of the BC Freedom of Information and Privacy Association provides an answer, comparing C-51 with the War Measures Act, now the Emergencies Act. If you are of a certain age, you may recall the hundreds of lives ruined when Pierre Trudeau invoked the War Measures Act in 1970, including his answer when asked how far he would go:  “Just watch me.” Stephen Harper has neither the chutzpah nor the honesty to admit that he is on the same path. Ironically, Trudeau later gave us the Charter of Rights and Freedoms, now loathed by Harper as the tool that allows the Supreme Court of Canada to occasionally thwart his wishes.

Permanency. If Harper had declared war, the Emergencies Act would require him to certify, again “on reasonable grounds” that an emergency exists that requires special temporary measures. Further, the government would have to get confirmation from Parliament by putting forth a motion before both Commons and Senate explaining the reasons and reporting on any consultation with the provinces. The declaration would last only 120 days, and could be renewed. A negative vote by either house would kill the declaration. In contrast, Bill C-51’s provisions are permanent enactments of Canadian law, no matter the extent or even the existence of a “terrorist” emergency.

Accountability. Dave, you have already had just a glimpse of the trust you will have to put in government officials, today and tomorrow not to abuse these laws. So you should be aware that there is no oversight in C-51, the bill introduced in the absence of a war. C-51 oversight is the responsibility of a review body, hand picked by the PM. And, though I have not set out for you the troubling parts of C-51 that authorize CSIS not only to monitor Canadians but to disrupt their activities, I want to give you an “oversight” example from that part of the bill. The hand picked review committee must at least once a year review at least one aspect of CSIS performance in taking measures, including disruption, to reduce threats to the security of Canada. The act does not specify which one is to be chosen.

In contrast, if we were in an actual war there would be a parliamentary review committee with members from all parties in House and Senate. The committee would be charged with examining how the powers granted in the emergency declaration were being used. The committee would report to Parliament every 60 days as long as the declaration was in effect. The committee would also have the power to revoke or amend government regulations.

Finally, the Emergencies Act requires an inquiry into the circumstances that led to the declaration within 60 days of the end of the emergency. And importantly Dave, you might also be eligible for compensation for damages suffered as a result of the emergency, like being denied travel to be with your sick sister. Under C-51, you and all of us remain uninformed and uncompensated.

Security or Politics?

Many of us who criticize C-51 say it is a cynical ploy to play on fears and gain support in the coming election. The Tories have recently provided evidence that we are probably correct. There is recent news that they plan to back off from some of the more extreme provisions of the act. Why would they do that, Dave? If they thought this carefully crafted massive piece of legislation was needed to protect us from a terrorist emergency, why would they modify it now? Could it be that it is because as Canadians take the time to get beyond the rhetoric and look at the law itself, they are much less likely to vote for Harper & Co.?

Dave, I was once where you are

In addition to my hope that you will be persuaded to help oust the Tories, I have directed this review of some of C-51 to you because I was once where you are. I left the US army after 8 years service. I had tired of burying friends killed in Vietnam and became the unofficial legal adviser to a group of young people who operated an anti-war coffee house near a huge military base. I chided them more than once for their fears that they were being followed, their phones being tapped, their mail intercepted. I lectured them. Didn’t they know that this was the US of A? After all, we were not breaking any laws, just exercising the right to oppose policy. Besides, we were not important enough to draw government attention. No reason to get paranoid. We were doing nothing wrong. We had nothing to fear.

A few years later, I obtained the file the FBI had compiled on me. The bureau had planted an informant who attributed statements to me that I had never made, as well as providing a general mischaracterization of group meetings. The file also demonstrated the FBI’s admirable attention to detail. It contained a photocopy of the vending machine license I had helped the war protesters acquire, allowing the coffee house to sell crackers and chewing gum.

That was the end of “If you have done nothing wrong, you have nothing to fear” for me.

A final word. I suspect that neither of us finds comparisons of apples and oranges persuasive. I know that you are aware, for example, that you are by several orders of magnitude far more likely be killed or injured operating a motor vehicle than by a terrorist. But C-51 may make comparison of the two risks more appropriate than it appears, especially the personally intrusive provisions. It is well established that alcohol, drugs, and distracted driving like texting and cell phone usage, as well as speeding are responsible for a significant number of highway deaths and injuries. Why would you not favour a law that required you to install speed monitors, interior cameras and voice recorders in your car? How about police authority to bring you into court and ask for restrictions on your driving if they fear, on reasonable grounds of course, that you may text and drive, or drink and drive? There is plainly more justification for such laws than exists for C-51. You don’t do any of those things. You have nothing to fear. The $ cost of implementing C-51 exceeds the cost to you of installing the equipment.

So my plea is this. Pick any candidate or party in the federal election who is not the Conservative Party candidate. If you are not yet persuaded, stand by. There is more to come about Harper’s Canada. If you are persuaded, please pass this along to a fellow Canadian. Thanks again for taking your time to get beyond a slogan. Just going that far is one of Harper’s worst fears.

Left to right: Chief Government Whip John Duncan, NDP MP Paul Dewar, former Liberal MP Don Boudria and Green Party Leader Elizabeth May, Prime Minister Stephen Harper, left, NDP Leader Thomas Mulcair, centre, and Liberal Leader Justin Trudeau

Left to right: Chief Government Whip John Duncan, NDP MP Paul Dewar, former Liberal MP Don Boudria, Green Party Leader Elizabeth May, Prime Minister Stephen Harper, NDP Leader Thomas Mulcair, centre, and Liberal Leader Justin Trudeau.

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