Critiques of Bill C-3 from inside the policy process

So, the Conservative government says that security certificates are a critical tool in the anti-terrorist arsenal of Canadian security services and that the safety of our children, values, way of life, etc, etc, is at stake. This was certainly the tone adopted by Conservative MPS and Senators in order to push through Bill C-3 despite calls for further debate and discussion from all three other parties. If a new law was not in place by the time the Supreme Court’s decision came into effect, the Government argued, the sky would fall, bombs would explode and the terrorists would win. In fact, the threat of sleeper cells that could strike at any time was referenced by a number of MPs in the House of Commons, especially when explaining why they appeared to be supporting the bill despite serious reservations about it. Ultimately, the Bill passed not based on any real degree of consensus about the strength of its provisions, but based on successful fear-mongering.


Some key criticisms of the Act raised within the House of Commons and Senate

Within the debates prior to the Act coming into effect, and subsequently, critiques of the Bill included the following:
1. That, even with the changes proposed, the security certificate provisions in the Act would not survive another Supreme Court challenge. The continued denial of full disclosure of information to individuals detained under the security certificates remained fundamentally unaddressed by the amendments.

2. That the use of “special advocates” had already been tried in other jurisdictions (the UK experience was the most commonly referenced) and had been deemed unsuccessful. More successful, home-grown models were identified by the Supreme Court and experts in security issues as possible replacements for the security certificate process. The Security Intelligence Review Committee, for example, an independent, external review body that monitors CSIS activities, was seen as a possible model that possessed safeguards for protecting individual rights not found under the proposed legislation.

3. That security certificate applications often rely on evidence gathered in other jurisdictions, and, not only can special advocates not access witnesses outside of Canada for cross-examination, but it is impossible for Canadian authorities to guarantee that this ‘evidence’ was not obtained through the use of torture, which violates the UN Convention against Torture, to which Canada is a signatory.

4. That criminal law and not immigration law should be used to handle these cases (raised primarily by NDP MPs within the House of Commons). Their arguments focused on two key concerns:
a. if these individuals posed credible threats to Canada, merely deporting them was not a response that guaranteed our safety and, in fact, may allow for continued anti-Canadian activities from abroad; and

b. if credible threats were discovered involving these individuals, there were already provisions within Canada’s Criminal Code for handling these security concerns. Relying on criminal charges also ensured that the right to due process would be respected.

Despite these criticisms, and alternative proposals presented, the Bill was enacted and implementation of its provisions is underway. Many of the concerns raised through this process appear to be borne out by the experience of the past months. The possibility of another successful Charter challenge appears increasingly likely. This will be explored in future posts.


How did this contested Bill become law?

In my opinion, it's all pretty simple - and awful. Somehow a minority government was able to push through this legislation with little serious resistance from its main opposition or from Canadians because of the current climate of fear, intolerance and ignorance. The all-consuming fear of the ‘other’, particularly an Arab or Muslim ‘other’, so effectively marketed since September 2001, is a clear thread running through the debate about security certificates. It justifies the need to sacrifice the fundamental rights of these ‘others’, these people who are portrayed as having ‘betrayed the kindness and generosity of Canadians’ by coming into ‘our’ country with ‘evil intent’ (remember, no criminal acts need to have been committed, just a perceived risk of future actions).

The Charter violations are justified by the ‘otherness’ of those subject to them, the flip side of which is the repeated reassurance that “don’t worry, we’d never do this to Canadian citizens”, as if somehow it should matter less if it just happens to “them”, and as if the line between “us” and “them” is clearly and impermeably drawn (this despite an unsuccessful private member’s bill introduced into the House of Commons in 2002 which would permit citizenship to be revoked for those individuals found to be linked to terrorism).

The xenophobia and racism inherent in the security certificate debates reflect the larger discourse around national security, immigration and the ‘war on terror’ and continue to shape policy in this country.