Done right, C-51 can balance freedom and security

Christian Leuprecht is associate dean and associate professor at the Royal Military College of Canada, affiliated with Queens University.

In debating the federal governments anti-terrorism legislation, Bill C-51, we would do well to remember that there is a reason even Pierre Trudeau insisted on protecting freedom of expression rather than freedom of speech in the Canadian Charter of Rights and Freedoms: unlike the United States, there was a broad consensus that we did not want to afford neo-Nazis constitutional protection to march through Jewish neighbourhoods (National Socialist Party of America vs. Village of Skokie, 1977). Similarly, we do not want salafist Jihadists abusing their adulterated interpretation of Islam to lure the unsuspecting back to the moral ice age.

Democracies, by definition, cherish the Lockean principle of limited state. Its intervention needs to be justified in an effort to advance freedom (and, subsequently, equality and justice). Life is the ultimate human right: It is difficult to enjoy your freedom when you are dead. No one knew that better than John Locke himself: He fled Oxford fearing for his life, only to return from his Dutch refuge on the same ship as William of Orange.

Far from creating a police state, C-51 is merely getting Canada caught up to the rest of the civilized world. Living thousands of miles from the worlds hotspots, Canadians have until lately enjoyed the privilege of being able to bury their heads in the sand. But globalization has made Canada as vulnerable to violent extremism as our allies. The difference is that most of them have long had in place the provisions in C-51 that have caused such heated debate in Canada: measures of detention that are clearly distinct from arrest, risk-diminishment mandates for security intelligence, more robust provisions to stop people from boarding planes, and very robust provisions for sharing data.

While controversy on C-51 abounds, all critics agree on one fundamental question: How can the government assure me that my rights and freedoms have not been violated? The question is hardly new. Roman satirist Juvenal famously probed: Quis custodiet ipsos custodes? Who is watching the watchers? The government points to the Security Intelligence Review Committee. The problem with SIRC is it has (almost no) jurisdiction beyond the Canadian Security Intelligence Service.

First, C-51 should extend SIRCs remit to be able to follow intelligence that originated with CSIS throughout the Canadian security food chain. For example, within the RCMP, SIRC should be able to follow the entire intelligence to evidence thread. To be clear: SIRC should not have purview over entire RCMP investigations that were based on or involve CSIS evidence. SIRCs sole responsibility should be the ability to follow CSIS intelligence throughout federal agencies to ensure that intelligence is handled in accordance with the law and the Constitution.

Second, the SIRC reporting process needs to be sped up. Many of SIRCs reports become public domain, but it takes a couple of years. Due to the steps involved, that glacial pace is unlikely to change. In the interim, why not follow the example of the United Kingdom: clear select members of the opposition to read SIRCs report (and the CSE Inspector Generals, for that matter).

The precedent for clearing select members of the opposition was set during the Afghan detainee debate. Since parliamentary procedure would prohibit this being done in committee, the opposition instead forwards to the Prime Minister a list of names from which the Prime Minister picks at his or her discretion. Rather than having to trust the Prime Minister, Canadians would sleep better if, for example, former Solicitor General Wayne Easter and well-versed defence critic and lawyer Jack Harris had a chance to read these reports in a timely fashion and corroborate that they are satisfied that Canadians rights and freedoms had, indeed, not been violated.

And by virtue of being sworn in as Privy Councillors, the opposition members privy to the reports would never be able to talk about them in public, or Question Period, anyway. So, the risk to the government of sharing this information is negligible compared to the benefits of added oversight.

Compared to standing up a whole new review bureaucracy or vastly expanding the scope of existing ones, the legislative fix for both these remedies would be relatively easy and cost little or no treasure.

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Done right, C-51 can balance freedom and security