Disregard of Charter in anti-terror bill 'untenable': CBA

The Canadian Bar Association is recommending nearly two-dozen changes to the federal government’s proposed anti-terrorism legislation, to strike more of a balance between security and individual liberties.

‘There is a tilting of the balance of evidentiary proof, very much in favour of the government,’ says CBA president Michele Hollins.The suggestions are outlined in a report issued today in advance of an appearance by representatives of the CBA before the House of Commons committee on Public Safety and National Security.

Many of the concerns raised in the report involve the greater state powers outlined in bill C- 51, without a similar increase in oversight, as well as the broad and often vague language used in the proposed legislation.

“Not only are we creating offences to broaden the scope, there is a tilting of the balance of evidentiary proof, very much in favour of the government,” says Michele Hollins, president of the CBA.

The recommendations in the report are “presented in a helpful and non-partisan way,” says Hollins, who is hopeful the federal government will recognize the expertise of the CBA in this area.

“The safety of Canadians is paramount,” says Hollins. “I don’t think anyone takes issue with the objective. This is really about the mechanics,” of Bill C-51 and whether its contents will help achieve that goal in a way that also conforms with the Charter of Rights.

Three of the areas of concern highlighted in the report are the increased powers proposed for the Canadian Security Intelligence Service, increased information sharing powers for government agencies, and several of the amendments to the Criminal Code.

The changes to the CSIS Act would allow its agents to seek a warrant to do anything that is “reasonably necessary” to “reduce” a “threat to the security of Canada.” These warrants would not be subject to the Charter.

The proposed changes are “unprecedented” says the CBA in its report.

“It is untenable that the infringement of Charter rights is open to debate, in secret proceedings where only the government is represented. Parliament should not empower CSIS or judges to disregard the constitutional foundations of our legal system.”

Bill C-51 would establish new legislation that permits government institutions to share personal information about “activities that undermine the security of Canada,” which would include “interference” with “critical infrastructure” or “the global information infrastructure.”

These provisions “cast the net very broadly” says Hollins and could be used against Aboriginal or environmental activists.

Many of the proposed changes to the Criminal Code are “already captured” by existing sections, says Hollins. As well, the concern over the amendments is the “very broad or vague language,” that is used.

The CBA report notes the proposed change to the existing “advocating or promoting terrorism” offence, refers to advocating “terrorism offences in general.” It would apply to all “statements,” which may include private e-mails and text messages.

“If widely construed, it will be subject to significant challenges, at great cost to taxpayers and may include activity more political in nature than dangerous,” says the CBA.

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