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People protest against Bill C-51, the government's anti-terror legislation, in Ottawa. (Justin Tang/The Canadian Press)
People protest against Bill C-51, the government's anti-terror legislation, in Ottawa. (Justin Tang/The Canadian Press)

How Bill C-51 may change under Trudeau’s government Add to ...

The terrorist attacks in Paris on Friday are focusing renewed attention on Bill C-51, the anti-terrorism law passed by the former Conservative government in the spring following homegrown attacks in Quebec and Ottawa, including one inside the Parliament Buildings. Liberal Prime Minister Justin Trudeau promised during the federal election campaign to repeal some parts, keep others and introduce new elements. In the “mandate letters” he gave the Justice and Public Safety ministers on Friday, he spells out that requirement. A constitutional challenge to the law is already under way. Here is a primer on the law and what changes may be in the offing:

Expanding CSIS powers: Canada’s civilian spy agency is being asked to do more than simply gather intelligence. The new law also gives its agents the power to disrupt threats. If those disruptive efforts would violate a law or Charter rights, agents with the Canadian Security Intelligence Service need to apply to a judge for a warrant; this would be in a secret proceeding, with only the government side represented. A legal challenge from the Canadian Civil Liberties Association and Canadian Journalists for Free Expression says this measure would turn judges from guarantors of Charter rights into facilitators of Charter violations. Mr. Trudeau promised a legislative “guarantee” that all warrants would respect the Charter.

Creation of “assistance orders”: A judge could order an individual or organization to assist CSIS, either in intelligence collection or in the disruption of a threat. For example, if CSIS wishes to disrupt suspected terrorism financing, it could obtain an order to a bank to block a transaction, University of Ottawa law professor Craig Forcese says. Mr. Trudeau’s election website says nothing about changing the assistance orders.

Banning the promotion of terrorism: It is a crime punishable by up to five years in prison to promote “terrorism offences in general.” The law applies to private conversations as well as public lectures and articles. Until this law, it had been a crime to promote a specific terrorist act but not terrorism in general. Toronto lawyers Clayton Ruby and Nader Hasan say the meaning of “terrorism offences in general” is opaque and unknowable. Judges could also order the seizure of “terrorist propaganda.” Mr. Trudeau promised to ensure that Canadians are not punished for lawful protests and advocacy, and to define terrorist propaganda more clearly.

Sharing security information among government departments: The law allows for timely sharing of information related to Canadian security (including economic security) among more than a dozen departments. The Canadian Bar Association, representing the country’s lawyers, said this provision could be used to stifle labour, aboriginal or environmental activism, despite a clause protecting legitimate dissent. Mr. Trudeau’s election platform says nothing about this part of the law.

Widening the scope of no-fly lists: This provision is aimed at stopping those travelling from Canada to participate in conflicts in Syria, Somalia, Iraq and Afghanistan. The previous law did not cover those heading abroad intending to engage in terrorist activities. The new law also adopts the lowest threshold for inclusion on the no-fly list: “reasonable grounds to suspect” the person is linked to terrorism. Critics said such lists often get names wrong, and they called the law’s new appeal provisions unworkable. Mr. Trudeau promised during the election to require that the government review all appeals by Canadians on the no-fly list.

Strengthening preventive arrest: Police can arrest someone if they believe terrorism “may” occur; under the previous law, police had to show reasonable grounds for believing a terrorist act “will” occur. The CBA supported this part of the new law. Police can use preventive detention for up to seven days, compared with three days in the previous law. Mr. Trudeau’s election platform makes no explicit comment on this part of the law.

Rights protections: Mr. Trudeau says he will add a national security oversight committee with representatives from all parties; hold a review of the law after three years, similar to the “sunset clause” in the 2001 Anti-Terrorism Act; and add a requirement that the Communications Security Establishment obtain a warrant to conduct surveillance of Canadians.

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