The Fight Over Canada’s Patriot Act

OTTAWA, Canada — When Michael Zehaf-Bibeau barreled through the halls of Canada’s Parliament on Oct. 22, 2014, he could have tried the door on his left. If he had — notwithstanding the blood he was losing, the security detail closing in on him, and the pile of chairs and tables stacked behind the door — he would have been face-to-face with Canada’s government. The room was full of members of Parliament. The ministers of public safety and national defense were there. Prime Minister Stephen Harper was just yards away, locked in a side room, guarded by his caucus members.

They all survived, but one army reservist was killed and a security guard was wounded that day. The attack was the second Islamic State-inspired strike in Canada in a week. Just days before, Martin “Ahmad” Couture-Rouleau, a 25-year-old from rural Quebec, drove his car into two Canadian Forces personnel, killing Warrant Officer Patrice Vincent. Contacts of Couture-Rouleau confirm that he was radicalized online and sought to go abroad to fight for the Islamic State. Friends say Zehaf-Bibeau’s turn for the worst came after a business venture went south.

That fateful October week crystallized the opinion of Canada’s ruling Conservative Party: The Islamist terrorist threat is real.

That notion eventually spawned Bill C-51, a wide-ranging raft of intelligence reforms that some critics have described as “Canada’s Patriot Act.” The bill has put Harper on the ropes. A coalition of NGOs, academics, and civil liberty and pro-privacy lobby groups has pummeled the bill, picking apart its every flaw and shortcoming. Harper’s compatriots on the right have become some of the most vocal critics. The New Democratic Party (NDP), the main opposition party in Parliament, has vowed to repeal the legislation if it wins next October’s election. Street protests have cropped up and public opinion is rapidly shifting against the bill.

But the prime minister is not backing down.

Canada has had limited experience with terrorism. In the 1960s, Québec separatists ran a bombing and kidnapping campaign aimed at forcing Quebec’s independence that culminated in the murder of the province’s labor minister, Pierre Laporte, in 1970. In 1985, Sikh extremists bombed an Air India flight from Montreal to London, killing 329 people, including 268 Canadians. Aside from those incidents, Canadians have really only known failed plots: In 1966, one would-be assassin accidentally blew himself up in a bathroom down the hall from Parliament, killing only himself. The “Toronto 18” scheme, a 2006 plot to explode truck bombs through downtown Toronto while simultaneously storming the Parliament buildings in Ottawa and beheading the prime minister, was infiltrated early on and was never likely to succeed.

But the October 2014 attacks roused Canadians from their slumber. Both attacks required minimal preparation and planning: In one, the weapon was a car; in the other, it was a lever-action hunting rifle. Zehaf-Bibeau was a drug addict with mental health issues, and was unknown to police. Couture-Rouleau was a blue-collar worker who had recently converted to Islam following business troubles and was under police surveillance.

Law enforcement, intelligence services, and lawmakers all faced a difficult set of questions: How do you prevent an attack that required no planning and wasn’t discussed with anyone beforehand? Can you stop attacks that lack warning signs? Is it acceptable in a liberal democracy to arrest someone who has not actually done anything illegal, simply because he subscribes to a radical ideology?

The heads of the federal police service, the Royal Canadian Mounted Police (RCMP), and the national spy agency, the Canadian Security Intelligence Service (CSIS), both bemoaned their inadequate powers and resources in the lead-up to the attack and afterwards.

“We are looking, as you would expect in the aftermath of last week and ongoing concerns around security, at ways in which we can improve upon security measures, particularly as they pertain to prevention, but we’re doing so in a reasonable, not reactionary way,” Justice Minister Peter MacKay told reporters outside the House of Commons on Oct. 29, 2014, in an attempt to stem concerns about the civil liberties costs of anti-terrorism legislation. MacKay underscored the fine line the government was trying to walk — and stressed that the legislation would be crafted in “a very informed, methodical, targeted way.”

But the sales pitch seems to have fallen flat. Only about half of respondents to a recent poll felt that Canada needed any new anti-terror legislation at all. That number has been slowly decreasing since it reached a high-water mark last October.

In early February, the Harper government unveiled C-51. “Violent jihadism is not just a danger somewhere else,” the prime minister told a crowd at a campaign-style event where he introduced the bill. “It seeks to harm us here in Canada — in our cities and in our neighborhoods, through horrific acts like deliberately driving a car at a defenseless man or shooting a soldier in the back as he stands on guard at a war memorial.” The bill proved immediately popular. But then came the scrutiny as to what kind of state snooping it allows.

The bill allows the Canadian government to add individuals to a no-fly list based on evidence even if it is inadmissible in a court of law. It also lessens the threshold for police to obtain a warrant to arrest and detain terror suspects without charge for up to seven days. And it criminalizes “promoting terrorist attacks,” which means police will have the power to arrest those who encourage attacks on Canada, even in the most general sense. The legislation would knock down many of the information silos within the federal government, making it possible for every federal department and agency to route information to a host of Canadian agencies, including the RCMP, CSIS, and the signals intelligence body (CSE), which works closely with the U.S. National Security Agency.

C-51’s most controversial section grants new powers to CSIS. The spy agency, which deals primarily in counterespionage, open-source information gathering, and human intelligence, will have its mandate vastly expanded by the legislation to include the ability to “disrupt” any “activity that undermines the security of Canada.” The government has offered examples of what this disruption mandate is supposed to look like, saying that it will allow CSIS to do things like cancel a suspected terrorist’s plane tickets, or put sugar in his gas tank.

But law professors Craig Forcese, of the University of Ottawa, and Kent Roach, who teaches at the University of Toronto, write that this new mandate could also allow more serious “disruptions” — like infecting computers with malware, “draining the bank account of an anonymously foreign-funded environmental group,” taking down websites, breaking into private homes, or “starting a cyber-whisper ‘smear’ campaign” against a radical activist.

While the bill reads that the power to obtain Canadians’ data or disrupt threats is not to be applied to “advocacy, protest, dissent and artistic expression,” lawyers have pointed out that such a clause isn’t legally enforceable — and that CSIS is already surveilling dissident groups. Some of those lawyers and academics have put forward worrying hypotheticals: CSIS could be dispatched to break up an anti-pipeline protest, such as those that dot Canada’s West Coast, or CSIS may target Quebec’s sovereigntist movement.

Members of the government have called those hypotheticals “fearmongering.” Minister of Public Safety Steven Blaney, who introduced C-51, said much of the criticism of the legislation has come from “misunderstandings of the law,” and that the judicial oversight required for CSIS to disrupt threats will be enough to keep the spy agency in line. But even without the new powers afforded by C-51, there have already been numerous reports of the agency surveilling, tracking, and infiltrating protest movements. CSIS has paid particular attention to indigenous groups, environmentalists, and communists.

Security and privacy lawyers like Forcese and Roach have said that the information-sharing provisions of the bill are the dawn of “total information awareness.” Daniel Therrien, the federal government’s official privacy watchdog, warned that C-51 would make available to law enforcement and CSIS “potentially all personal information that any department may hold on Canadians.” David Fraser, one of Canada’s foremost digital privacy experts, says it could create a situation where information is shared by default, instead of by request, resulting in a “big pot” of private data that is accessible by a litany of agencies.

CSE, meanwhile, would see its access to domestic information — something it’s forbidden from independently collecting under its mandate — grow exponentially. “CSE will be front and centre around the ‘big data’ analysis opened up by C-51,” Ron Deibert, the director at the tech-oriented think tank the Citizen Lab, wrote about the bill’s impact on the signals intelligence agency.

Under the Charter of Rights and Freedoms, Canada’s constitution, citizens have the right to liberty, the right to be free from arbitrary detention, and the right to be protected from unreasonable search and seizure. Canadian courts tend to construe these rights broadly, and the ability of law enforcement to obtain search or arrest warrants is narrow. C-51, however, contains a provision reading that CSIS is allowed to employ “measures [that] will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law” if it has authorization from a judge. CSIS doesn’t need a warrant in cases where it does not think it will be breaking the law or infringing on a citizen’s liberties. The only limits on how that could be applied are laid out in the bill: CSIS cannot pervert the course of justice, and the agency cannot maim, rape, or kill. Everything else is fair game.

But government officials are working hard to quell concerns. “Bill 51 is a great bill because it has a balance between the promotion and protection of the right and freedom enabling the Canadian government basically to share information among its different agencies and also lowering some threshold for the RCMP and doing something,” Blaney told me in a recent interview. “We are doing it in a Canadian way while providing some more additional powers to our intelligence officers. We will make sure there is judicial oversight as well as a review body so we are doing it in a Canadian way that fully respects the Canadian Charter of Rights and the privacy of Canadians.”

But Canada has nothing like the U.S. Senate’s Select Committee on Intelligence or the House of Representatives’ Permanent Select Committee on Intelligence, which provide oversight of U.S. domestic surveillance. Both CSIS and CSE have external review bodies that operate on a fraction of the budget and the staff of those of the agencies they’re charged with keeping an eye on, and yet neither have formal investigative powers. Both have complained in recent years that their requests for information from their respective agencies have been stymied and ignored.

Complementing these new powers is CA$300 million of new funding, over five years, for RCMP, CSIS, and Canada’s border service. Another CA$2 million has been promised for CSIS’s review body — the first budget increase the agency has seen in a decade.

C-51 has turned out to be one of the Harper government’s most controversial moves yet. In his nearly 10 years in power, the prime minister has generally leveraged his majority, and his incredibly tight grip on his caucus, to get bills passed without amendment. Parliamentary tricks — like forcing limits on debate, reducing opportunities for opposition parties to introduce amendments, bundling legislation together — have all proved effective strategies to get bills passed quickly and without too much public outcry. For example, after the introduction of a 457-page budget that removed federal protection for thousands of rivers and streams, debate was limited to just weeks and every proposed amendment was flatly rejected. Since they were elected with a majority government, the Conservatives have cut short debate on government legislation a total of 93 times.

C-51 may prove, like the other pieces of controversial legislation quickly adopted into law, to be no exception. After two weeks of contentious committee hearings throughout March, the government ultimately rejected all 100 of the amendments introduced by the opposition. The opposition changes would have fundamentally overhauled the bill, tightening information-sharing powers and requiring privacy assessments, removing CSIS’s ability to infringe Canadians’ constitutional rights, and improving appeal processes for Canada’s no-fly list.

Instead, the Conservatives adopted just three of their own amendments. One change made to the bill was designed to tighten language requiring what airline staff are required to do to enforce the no-fly list. Another change was added to further iterate that CSIS has no power to detain individuals. And the final amendment removed a clause that could have allowed agencies collecting information about Canadians to “further [disclose] it to any person, for any purpose.” The last change was pushed for by opposition groups, which clarified that the bill was not intended to go after protesters — removing the preface “legal” from language that said “lawful protest” should not be grounds for enacting surveillance.

These amendments did nothing to quiet the opposition. Public protests against C-51 sprung up in March, with thousands taking to the streets in dozens of cities to voice concern with the bill. Four former prime ministers, backed up by a number of Supreme Court justices and other prominent Canadians, penned an op-ed chastising the government for introducing the bill. Committee hearings on the bill, which wrapped up on March 26, heard from a range of critics, including traditional Conservative supporters. One Conservative caucus member and a slate of traditional Harper allies have come out and opposed it publicly.

Polls have indicated that support for the legislation is rapidly falling, with opposition growing as Canadians become more informed about what the bill entails.

The NDP, the official opposition in the House of Commons, has championed the fight. NDP Parliament members have run filibusters to oppose efforts from the government to limit the number of committee hearings on the bill, and they’ve vowed to put up a fight to ensure that the legislation is either amended or scrapped.

“At the beginning the government was coasting on the fact that since it said it was anti-terrorist, a vast majority of Canadians were on board,” NDP leader Thomas Mulcair told me in an interview earlier this month. “What’s happened in the few weeks since the bill was brought in is that a lot of experts — 100 or so law professors from across Canada, four former prime ministers — have all started saying: Hold on, let’s look at what this actually does and that’s one of the key concerns is that it will directly affect people’s right to privacy.”

The Conservatives were unmoved. They insisted the experts were wrong, the civil liberties and legal groups were just naysayers, and that the opposition parties were simply weak on terrorism.

The Liberal Party, the third-largest in Parliament but currently running neck-and-neck with the Conservatives in opinion polls, decided to support the legislation: partly because the Liberal Party was the architect of the original anti-terrorism act and partly, as party leader Justin Trudeau later admitted, because he was afraid of being painted as soft on terrorism by the Conservatives. Nevertheless, Trudeau has still criticized the legislation, saying there are “a number of worrying elements in it,” and that he would revoke some of them were he to win in the following election.

But this isn’t the first time that the Harper government has found itself at odds with the legal community, civil liberties groups, and the opposition. The prime minister isn’t the type to back down — and certainly not to liberals. The fight over C-51 looks to be no different. Now that the Conservatives have rejected substantive amendments to the legislation, there is little chance that the bill will be changed or defeated. It faces one more vote in the House of Commons in the coming two weeks, which it will almost certainly survive, before it goes to the Senate, where it is not expected to be changed. The bill will likely become law by early June.

A federal election is expected to be called within a matter of months. And C-51 will play a major role in the next campaign season. Both opposition parties have committed to rescinding some of these powers if they are elected. But in the meantime, Canada’s security and intelligence community is gearing up for expanded powers while it has the chance.

Clarification, April 24, 2015: An earlier version of this article neglected to mention the 1985 bombing of Air India Flight 182.

Photo credit: Cole Burston/AFP/Getty Images