The National Security Kafkaland of Harper’s C-51

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Micheal Vonn, Policy Director at the BC Civil Liberties Association, says there is nothing salvageable in the bill to protect the civil liberties of Canadian citizens.

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SHARMINI PERIES, EXEC. PRODUCER, TRNN: This is the Real News Network. I’m Sharmini Peries coming to you from Baltimore

One of the issues of great concern to Canadians in this election cycle is how our rights have been eroded by the Harper government over the last nine years. Conservative party’s anti-terror legislation, Bill C-51, proposes radical changes to Canadian law and for the reinforcement of security capabilities, many of which will seriously be impinged on, on the rights of freedoms of Canadians while providing very little in terms of real safety and security.

In last week’s election debate only two of the candidates squarely addressed Bill C-51. Let’s have a look.

THOMAS MULCAIR, NDP LEADER: Now, when a series of former Prime Ministers, Supreme Court Justices, the top legal experts in the country all concur that Bill C-51 represents a real threat to our rights and freedoms with nothing in return, because there’s nothing in there that wasn’t already captured by existing legislation, then we have one clear answer to the Canadian voting public. The NDP will repeal Bill C-51.

ELIZABETH MAY, GREEN PARTY LEADER: And if you listen to security experts, and I urge anyone watching to go online and find the evidence of Joe Fogarty, who is an MI5 agent from the UK doing liaison intelligence work with Canada. This C-51 anti-terrorism act makes us less safe. It is not confronting terrorism. It is very likely to make us less able to disrupt plots while at the same time eroding our freedoms. And under, Joe Fogarty’s evidence under oath was that this legislation is dangerous, and that when asked by contacts and colleagues in the UK is there anything that Canada is doing that the UK should emulate he said absolutely not, they’re sitting on a tragedy waiting to happen.

PERIES: The extended clips you saw on Bill C-51 was Thomas Mulcair for the NDP and Elizabeth May for the Green party.

To discuss the Bill C-51 and the erosions it has on our rights and freedoms, I’m joined by Micheal Vonn. She is a lawyer and has been the policy director of the British Columbia Civil Liberties Association since 2004. Micheal, thank you so much for joining us today.

MICHEAL VONN, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION: Nice to be here, thank you.

PERIES: So Micheal, let me begin with you. This is a concern that Canadians are feeling from activists to immigrants. New immigrants who feel that these, this bill would be used in order to curtail their rights. Give me some sense of what your greatest concerns are about this bill.

VONN: It’s very difficult to pinpoint the greatest concern, because it’s a massive, omnibus bill. And it’s really not anti-terrorism legislation, which many people call it. It is national security legislation, as sweeping as we’ve seen since 9/11, and really encompasses so many different aspects of national security and redefines what national security is. But in some ways it really is not only unprecedented but introduces entirely new standards in law.

So we have grave concerns about the unprecedented amount of information sharing that will be allowed throughout government for purposes of, again, a newly-defined notion of what constitutes national security. The no-fly list, really modeled on the American model. Deeply flawed, and from a due process perspective absolutely dire. The new CSIS warrants, which again are allowing our intelligence-gathering entity to now conduct what used to be called dirty tricks, now called interceptions of various kinds. So a new warrant process that will essentially kinesthesize CSIS, allowing it to do more than collect information, now get into some kind of kinetic action. Grave concerns over that. The new speech offenses that we fear will criminalize ordinary discussions around political debates because we now have prohibition against the advocacy of terrorism in general, and nobody knows what that means.

And that’s really the big pieces. Smaller pieces also of considerable concern. But I think in terms of this omnibus bill, those are the huge components of it that we’ve been really focused on in our discussion about the dangers of this bill to Canadians.

PERIES: How did you think the candidates fared on addressing this particular bill?

VONN: Well, the situation is this bill was introduced by the government, and we have a range of responses by the opposition parties ranging from, well, we think we’re not going to vote against it but we’re going to tweak it a little bit, at some point we’re going to introduce some amendments, we would change it if we got into power, to the question of wholesale repeal. We have taken the position that this bill is not salvageable. If there were something that we could sever that we thought would make us safer that is proportionate, that is in line with human rights and civil liberties principles and the constitution, we would say these parts are valid. But there is simply nothing in this bill that we can support as the civil liberties organization. So we have called for a repeal as well.

PERIES: Micheal, at the end of July the Canadian Civil Liberties Association and CJFE, which is Canadian Journalists for Free Expression said they were initiating a charter challenge against sections of Bill C-51. Can you tell us more about that, and how it is seriously impinging on our freedom of speech?

VONN: Sure. Just to focus a little bit on the freedom of speech element, which is one component of the lawsuit that has already been launched, one of what we are convinced will be many, many, many lawsuits on C-51.

The speech provisions in particular, as I was outlining, have this completely novel standard that we’ve never seen before. One of the things that people I think get confused about when they hear, well, it’s not ridiculous that we have some speech offenses in this regard. They may say what about recruiters, what about hate speech, what about these notions? Now, as a civil liberties organization we’re going to be very, very cautious about any restrictions, substantive restrictions, on speech. But what I think quite often happens is people don’t realize that under our current anti-terrorism legislation how much speech, including recruiting, et cetera, is already criminalized. What we’re now seeing with C-51 is a bar that has never been lower, or indeed, vaguer. No one knows what the new provision actually means. What it encompasses.

What we’ve been told by various parliamentarians and boosters of the bill is don’t worry, we won’t use this law to round up mouthy teens blasting off on their Facebook page. Again, the problem with this kind of [appalochia] for the law is it’s legally meaningless. And at the point that we have a provision that is this sweeping, what can be put into that basket is unknown and unprecedented.

And so the sense of the chill on expression is equally concerning to what might actually result in a prosecution. We know from the complaint that we’ve just issued, we’re in hearings right now with CSIS and their oversight body CIRC, that ordinary Aboriginal groups, community groups, environmental groups are having trouble getting people to sign petitions, come out to demonstrations and do those kinds of things, because people now understand that they can be scooped into the national security surveillance apparatus simply by expressing their political viewpoints. Their legitimate, peaceful, lawful speech.

And so this kind of chill, as I say, along with the potential for quite egregious prosecutions, is equally concerning to us and really stands to shape how we are allowed to have political discourse in this country if we cannot get this rolled back, repealed, or struck down, whichever it may be.

PERIES: And in terms of public participation in this discussion, I know that BC Civil Liberties Association is having hearings. Can you tell me a little bit about those hearings and what the public participation in these hearings are?

VONN: Well, there’s zero public participation at these hearings. What we have–and it really illustrates I think what happens when you get into national security Kafkaland. We have a complaint that we filed on behalf of many people involved in demonstrating and wanting to appear before the National Energy Board to give their views on the Northern Gateway pipeline. So these are people with environmental concerns, land use concerns, clean water concerns who wanted to present to the board or were making public statements and demonstrating and organizing around those issues.

We discovered through a series of means, including media reports, [ATIF] requests, Access to Information requests, and the testimony if you will of people who were actually involved and were convinced that they were being photographed and surveyed in their church basements having their meetings, painting their signs, that there was very significant surveillance by CSIS among others, including the RCMP, of these citizens. And so we lodged a complaint.

Now that complaint against CSIS, remembering that CSIS operates on the level of national security, goes to a board, like an administrative board, which is their oversight body called CIRC. And they have decided to hold, again, secret hearings because we’re talking about national security privilege. So into these hearings we have a bifurcated process whereby only the people giving testimony and their lawyers are allowed into a courtroom that the media isn’t even allowed to photograph the people going into that courtroom. And the second half of the hearing will be when CIRC hears from CSIS, and nobody is allowed in that courtroom. We’re not even allowed to know where it’s going to happen and when it’s going to happen.

So we’re giving our testimony without hearing the other side at all. And CIRC probably a year or two from now will come out with some report and will tell us what they make of all of this. But we have no way of testing the other side’s evidence, if you will. This is the nature of secret hearings and the nature of what national security privilege has done to really distress the notion of public accountability and transparency. So in a nutshell, there is zero public participation. In this hearing. But we are trying to get out to the public everything that we are allowed to disclose and discuss.

PERIES: And that’s very interesting. And how are the people who are presenting called upon, and by whom?

VONN: Well, we’ve put forward a series of witnesses to testify at this hearing, very special and quite rare hearing, by CIRC. And their feelings about this process, knowing that the very first witness was given a direction not to discuss or disclose anything that had happened within the hearing itself, thus very much chilling them from discussing their own testimony among other things. They said, you know, it’s like falling down a black hole. You fall into this hole and you come out and you’re effectively gagged by this direction.

So I think there’s been a considerable frustration. That said, it was a public complaint. We gave various media interviews and published quite a bit of information about these complaints prior to the witnesses testifying before the direction that would very much constrain their speech. What we have to say about this and what we say the evidence is, and the nature of our complaint and everything else is on our website. So to the extent that we have that piece of the story, what we say happened, what we’re concerned about, what our ATIF request showed, that is available. But what CSIS has to say about it may ultimately never be known.

PERIES: Micheal Vonn, she is a lawyer with the British Columbia Civil Liberties Association. I thank you so much for joining us today.

VONN: Nice to be here. Thank you.

PERIES: And thank you for joining us on the Real News Network.

End

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