Four former Canadian prime ministers (including a Conservative) and five former Supreme Court justices have warned Conservative Prime Minister Stephen Harper that protecting the security of Canadians and their most important freedoms is not a zero sum game.

In their own words criticizing his anti-terrorism legislation, Bill C-51, they warn: “Protecting human rights and protecting public safety are complementary objectives, but experience has shown that serious human rights abuses can occur in the name of maintaining national security.”

Harper has already said he will ignore this historically unprecedented collective advice, even though it warns that key security agency review bodies will not have enough power to provide critical oversight of new government security activities. (Contrast that with the views of our closest allies in the U.S., U.K., Australia and New Zealand who have established that democratic oversight is a key aspect of national security.)

The reason for the prime minister’s refusal to listen can be found in the fact that he announced his sweeping anti-terrorism legislation, not in Parliament but in an election campaign style presentation in an Ontario riding. Ignoring the most effective way to protect both our security and liberties to win the fear vote on terror is a Faustian bargain of selling the soul of your democratic principles for power. Could it be that his refusal is also based on the need for maximum opposition to the legislation so those who disagree with the bill can be slammed as “soft on terror”?

This Faustian bargain also involves grave errors of fact. Harper alleges that the under-resourced review body SIRC, which oversees CSIS, can provide sufficient oversight. SIRC will continue to have limited powers of review but will not be able to oversee the vastly enhanced powers CSIS will have under C-51.

Indeed, three former members of SIRC joined the former prime ministers and Supreme Court justices in stressing that fact. Harper and his cabinet ministers have since asserted that there is no need for additional oversight because there will be rigorous judicial oversight.

Wrong again. The judges will only be involved if CSIS chooses to seek warrants in secret hearings at the Federal Court to disrupt threats to a very, very loosely defined threat to national security. They will only do so if CSIS feels that the measures may “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms” — though the warrants may also be for measures that are “contrary to other Canadian law.” The far-reaching nature of the possible disruptions of rights is revealed by the rather perplexing limitations that such measures cannot include bodily harm, obstruction of justice or violation of sexual integrity.

Under the proposed legislation, there will be no notice of the judicial warrants for the disruption activity to intended targets. Such disruption can encompass many forms including those dealing with online communications, financial transactions and travel plans. Should measures that violate rights of Canadians — stopping short of bodily harm, yet still violating key Charter rights — be approved in secret? There will also be no judicial supervision of the warrants once they are granted. Judges who have to decide on these warrants will be going far beyond what they are used to, such as granting search or wiretap warrants.

Here is my prediction of the results of Harper’s Faustian bargain: The judiciary itself may well hold the judicial warrants scheme unconstitutional based on existing decisions of the Supreme Court of Canada relating to the need for preserving the foundations of key sections of the Charter. If the judicial oversight is ruled unconstitutional there will be uncertainty on how far security agencies can go to disrupt activities. It also will create the danger of security agencies taking excessive actions that undermine the rights of Canadians.

This is a prediction from someone who actually supports the need for CSIS, working with the RCMP and the whole of government, to have both adequate powers and more importantly more resources. They are needed to counter the sick groups who radicalizing lost and troubled Canadians, luring them to their deaths in Syria or encouraging them to conduct horrible violent acts here in Canada.

It will take the wisdom of Canadians, if not now, perhaps at the ballot box to remedy the terrible results of the Faustian bargain that the present prime minister has embraced.

Benjamin Franklin warns us that “Those who sacrifice Liberty for Security deserve Neither.” Stephen Harper has gone one worse by sacrificing both Liberty and Security in the desire to cling to a transient seat of power.

Errol Mendes is a professor of constitutional and international law at the University of Ottawa.

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