For the average Netflix-watching, Tumblr-scrolling Internet user, Bill C-51 doesn’t pose much of a problem. Though the new anti-terror legislation would effectively limit privacy rights for all Canadians, most people need not be concerned about being secretly surveilled.
For academics, researchers, and journalists, however, the legislation threatens to change the way sensitive information is dealt with and for that reason has been deemed by many to be a dangerous step forward.
The new legislation would give government agencies the power to collect and share information about academic researchers without first obtaining a traditional warrant. These measures are particularly worrisome given that academic freedom is so crucial to a well-functioning democracy.
Imagine you’re an environmental scientist, or perhaps an assistant to one. As part of your research, you look into the RCMP’s recent report on “environmental extremism,” which states that petroleum resources count as “critical infrastructure.”
Interference with critical infrastructure is listed under the bill as a terrorist offence. You’re well-versed in climate science and renewable energy, and you don’t believe pipelines and oil refineries are critical to Canada’s well-being. So, like any responsible academic, you write a paper about it.
Under C-51, you can now be tracked indefinitely as a subject of CSIS surveillance and information sharing and could also become a target for “disruption,” a term that encompasses a range of current tactics CSIS employs to halt or sabotage the target’s activity. What that means exactly is generally kept quiet, but according to CSIS’s official website, it can include telecommunications interception.
Perhaps, in that same paper criticizing the government’s definition of critical infrastructure, you encourage donations to an environmental group with a spotted history of using unlawful protest tactics. Under C-51 — depending on how “lawful” protest is interpreted by the courts — you can now, potentially, be charged and sentenced to up to five years in jail for inciting terrorist activity.
This prospect might be enough to deter researchers from publicly announcing any politically sensitive opinions they might hold, even if they possess data that supports those opinions — like climate forecasts that make pipeline resistance a necessary strategy to avoiding dangerous climate-related consequences. That means C-51 limits the freedom of speech that a healthy academic environment depends on. When even a distant relation to potential “terrorist” activity is reason enough to censor political expressions, it’s a sign of undue paranoia and overbearing state control.
U of T law professor Dr. Kent Roach has been following the legislation since its introduction in January. He and a University of Ottawa professor, Dr. Craig Forcese, started a real-time legal review blog that serves as an open-source information bank. Roach hopes the project will influence Members of Parliament to vote against the bill, or at least amend its more invasive components.
The two analysts met with party members in Ottawa in early February to discuss the bill. Roach says he had wanted to get involved in hearings and debates to alter the bill before it was passed — this is what happened in response to the anti-terror legislation implemented after September 11 — but the Harper government didn’t initially allot time for public consultation. As of press time, only six hours have been set aside for non-government experts to present their views on C-51. This by itself is troublesome, as it ignores the inclusive and participatory governance that ensures that our laws work for the interests of the general public, not against them.
“There may not [have been] a willingness or time for the government to make amendments,” Roach says in concession to the decision. But although the closed and hastened debate process is understandable given the “sense of crisis” after the recent West Edmonton Mall threat, he says, it still imperils the rights of Canadians whose work depends on free expression.
Roach is most concerned about the amendment the bill will make to the Information Sharing Act. Currently, only law enforcement agencies have the ability to covertly obtain and share information about their targets, and this can only occur after a judge has issued a search warrant. Prior to the warrant’s release, the judge must determine if the search is “reasonable,” in accordance with s.8 of the Charter of Rights and Freedoms.
Under the new anti-terror legislation, CSIS agents could request that a judge simply authorize a violation of Charter rights, rather than having to wait for an enforcement agency to act in accordance with constitutional law as it’s written. All of this may happen without the target being aware of their surveillance, a prospect that has led media reports to criticize the bill for turning CSIS into Canada’s “secret police.”
“Often when information is being shared [about you], you don’t even know it’s being shared,” says Roach.
The lack of transparency is one of the most troubling and anti-democratic aspects of the proposed legislation. Democratic governmental agencies need to be held accountable for their activities, and that can only be guaranteed when activities take place in the open, under the watch of citizens. The Harper government has been criticized, and rightly so, for failing to provide adequate monitoring groups to make sure that CSIS acts constitutionally.
But it remains that dealing with terrorism effectively sometimes requires secrecy and snooping. The challenge facing C-51 is how that secrecy will be mediated, so that freedom of academic opinion isn’t sacrificed in the process.
In a 2002 Supreme Court ruling on rights infringement by terrorism laws, the judges noted this same tension between civil freedoms and national security. “In the end,” they wrote, “it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values.”
Security is important, and so is the need to catch people who want to cause harm to others. But the limitation of rights is something that should not be done in haste. C-51 should not be passed if it lacks amendments that would pardon researchers from being tracked, surveilled, and potentially disrupted without a warrant. And rationally debating the nature and possible outcomes of these amendments will take much more time in Parliament than the Conservatives have presently allowed.
In order to make the best choices as voters and citizens, we need independent academic authorities to have the power to analyze and relay unfettered opinions on political issues. Politicians, too, depend on expert academic advice when constructing and implementing policy. Even though some of these opinions may be unpopular, having access to them is necessary to a balanced intellectual discussion of political events.
Having to conduct research while wondering if CSIS is watching over your shoulder is enough of a potential deterrent that researchers may begin avoiding those topics — and for a democratic nation, that’s a terrifying thought.
Malone Mullin is a third-year philosophy specialist.
