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Canadian Legal Scholar Craig Forcese breaks down the provisions in the C-51 bill that will likely face court challenges after its expected passage later this week.

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JAISAL NOOR, PRODUCER, TRNN: Welcome to The Real News Network. I’m Jaisal Noor in Baltimore. Over the weekend thousands protested across Canada against the controversial anti-terrorism bill C-51, or the Canadian Patriot Act, which has steadily advanced in the Canadian legislature. And a final vote may be held on this as early as Tuesday, one of the final steps before it becomes law. Conservatives have championed the measure after two deadly terror attacks last fall, and say it will help prevent such future attacks in the future. But a broad coalition of opponents including the Canadian Bar Association and several privacy watchdogs warn it threatens civil liberties and could be used to clamp down on dissent. The measure would expand the power of the Canadian Security Intelligence Service, and allow the Canadian federal police to arrest people without charging them, among several other important provisions. Now joining us to discuss all of this and more is Craig Forcese. Craig is an associate professor at the Faculty of Law at the University of Ottawa. Thanks so much for joining us. CRAIG FORCESE, ASSOCIATE PROF., FACULTY OF LAW, UNIV. OF OTTAWA: Thanks for having me. NOOR: So this comes at an interesting time in Canada, because in the U.S., many Americans are working to undermine provisions of our Patriot Act. And at the same time, Canadians are expanding their powers, and it’s important to note that this is being supported by both the Conservative and Liberal parties, and it’s being advanced by wide margins. Supporters say it’s not as scary as it sounds, and it’s needed to prevent future attacks. What’s your response? FORCESE: Well, I think that obviously we’re in a dynamic security situation, and our law in Canada probably does require some renovation and some updating. But it’s the details that matter. Our law is a little bit different than yours, the law that’s being debated in the U.S., in the sense that it really actually doesn’t touch much on surveillance, but rather it’s more important in terms of the sort of kinetic or physical powers that our security services will now be able to take not just in response to terrorism but also in response to a whole host of national security related issues. And so while the bill is called the Anti-Terrorism Act, it’s much more a national security act, and that’s part of the reason why it’s generated such controversy. Now, you mentioned the politics. One area in which this bill is very similar to the sort of politics that we witnessed in the United States around the Patriot Act is the bill has aspects that have offended persons across the political spectrum. So while it has been the position of the governing Conservative party to champion this bill in a very acrimonious parliamentary setting, nevertheless there are persons of all political persuasions across the country that have raised concerns because there are aspects of this bill that everyone hates. NOOR: And critics also argue it may contradict the Canadian Charter of Rights and Freedoms in that they did not consult the First Nations people. And they’re also–some of the First Nations people are also opposed to this measure. Can you discuss that? FORCESE: Well, I think that–the issue that’s galvanized a lot of civil liberties groups is one particular portion of this bill, which has the effect of increasing the capacity of the government of Canada to exchange information within government departments on very broadly construed national security grounds. In fact, the broadest construction of national security we’ve ever seen in Canadian law. Now, information sharing is obviously an important tool in relation to anti-terrorism, and in fact information sharing and improving it was one of the recommendations of the 9/11 commission in the United States. The issue, though, is what sort of information is being shared, in what circumstances, and with what safeguards? One of the reasons that civil liberties groups and others including environmental and Aboriginal groups have been concerned is that the carve-out, the exception for information sharing on national security grounds has in the original text of the bill been confined to so-called lawful protest, advocacy, and dissent, meaning that if someone is protesting without even the sort of required municipal permit for a street protest, that puts it outside the scope of lawful and opens the door to security sharing if the other ingredients of the act have been met. Now, the government did back down on that issue. They backed down, however, in a manner that actually adds complexity and incoherence in the act. But that’s another story. More controversially though, if you’re mentioning our Charter of Rights, our Charter of Rights is much like your Bill of Rights in the United States. This bill creates a speech crime. It is now a speech crime in Canada, or will be when this bill is enacted, to so-called advocate terrorism offenses in general. No one really knows what that means. This is a concept that’s been pulled out of the aether by the government. But the government has essentially gone forward and told our Parliament that this offense is meant to reach circumstances where someone says that something bad should happen to Canada or its allies, in part perhaps because of some foreign policy position that the government has taken. In other words it’s very, very broad, and it does [truncheon] speech that could potentially be very far removed from actual violence. That then raises important free expression rights. There are other aspects of this bill that also offend the Charter, including the capacity of our security intelligence, so-called, CSIS, to violate all rights under the Charter of Rights and Freedoms if authorized by a federal court warrant. But that’s quite a complex analysis. It is, however, something that will be in the courts very soon. NOOR: And can you talk about a possible legal challenge? Because you’ve raised several issues over its legality. Can you talk about whether there will be a challenge once it’s passed? And also, the fact that it may, a final and third reading may be voted on as early as Tuesday, as tomorrow? FORCESE: Well, the first issue is okay, so once it becomes law, it then becomes ripe for a Constitutional challenge. Let me deal with your second question first, the manner in which it’s become law. We have in Canada a system of parliamentary democracy in which the party with the single largest number of seats essentially controls the legislative agenda. We do not have a robust separation of powers between the executive and the legislature. So that means in practice that law projects that are proposed by the executive government are given fairly welcome and ready welcome or reception by the majority party in Parliament. And we’ve seen that in this process. Our Parliament has not in this case demonstrated a robust level of independence. It has not in the context of past exercises in national security law shown the same willingness to reconsider ill-conceived ideas in this bill. In other words, this is probably the most acute example we’ve seen in Canadian history of a national security law becoming a highly partisan and political acerbic issue. It is, however, going to be law because of that party dominance in the House of Commons and also in our Senate, and as early as this week it will likely formally become a statute. At that point it’s certain that there will be constitutional challenges. This is not speculative, there are people working on these right now. The issue isn’t so much whether there will be challenges. The more complex issue is how to manage all the likely challenges. And from a litigation perspective you can imagine lawsuits springing up in different courts across the country. It risks being quite chaotic. NOOR: Well, we want to thank you so much for joining us, and we’ll certainly have you back on as this measure advances. FORCESE: Thanks very much. NOOR: And thank you for joining us at The Real News Network.


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Craig Forcese is an associate professor at the Faculty of Law (Common Law Section), University of Ottawa. He teaches public international law, national security law, administrative law and public law/legislation. Much of his present research and writing relates to national security, human rights and democratic accountability. Recently, he has focused on law and national security surveillance, especially intelligence-sharing between security services and cybersurveillance.