By John Feldsted Political Consultant & Strategist Winnipeg, Manitoba

I have some serious concerns over C-51. It looks to me like this was thrown together hurriedly and some sections are very poorly worded. I have listed some of my concerns below:

1. The following definitions apply in this Act. “activity that undermines the security of Canada” means any activity, including any of the following activities, if it undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada:

a) interference with the capability of the Government of Canada in relation to intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada;

b) changing or unduly influencing a government in Canada by force or unlawful means;

c) espionage, sabotage or covert foreign-influenced activities;

d) terrorism;

e) proliferation of nuclear, chemical, radiological or biological weapons;

f) interference with critical infrastructure;

g) interference with the global information infrastructure, as defined in section 273.61 of the National Defence Act;

h) an activity that causes serious harm to a person or their property because of that person’s association with Canada; and

i) an activity that takes place in Canada and undermines the security of another state.

j) For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.

I am concerned with the last section of definition 1 a) – or the economic or financial stability of Canada.

This would appear to make numerous activities such as public sector strikes and other strikes involving essential services illegal under this act. That would include strikes and work stoppages at railways, airlines, ports, pipelines, telecommunications networks, air traffic controllers to name a few. Government has so far handled these issues with back-to-work legislation, but the issues are taken up in parliament. It would certainly appear to have a substantial effect on labour legislation and collective agreements.

There may be legitimate reason to deal with threats to our economic and financial security, but that is not terrorism in the usual meaning of the term and should be dealt with separately.

Definition 1 b) changing or unduly influencing a government in Canada by force or unlawful means

This is an odd choice of words. Unduly influencing government by unlawful means appears aimed at those who engage in murder or kidnapping and hostage taking in an attempt to coerce our governments, but why not say so rather than be so vague?

The Criminal Code of Canada, Section 46 (2) states:

Every one commits treason who, in Canada,

(a) uses force or violence for the purpose of overthrowing the government of Canada or a province;

(b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;

(c) conspires with any person to commit high treason or to do anything mentioned in paragraph (a);

The Criminal Code of Canada, Section 51 states:

Every one who does an act of violence in order to intimidate Parliament or the legislature of a province is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Definition 1 c) espionage, sabotage or covert foreign-influenced activities. Espionage is covered under the Criminal Code S 46 (2) (b).

Criminal Code Section 52 reads:

(1) Every one who does a prohibited act for a purpose prejudicial to

(a) the safety, security or defence of Canada, or

(b) the safety or security of the naval, army or air forces of any state other than Canada that are lawfully present in Canada,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(2) In this section, “prohibited act” means an act or omission that

(a) impairs the efficiency or impedes the working of any vessel, vehicle, aircraft, machinery, apparatus or other thing; or

(b) causes property, by whomever it may be owned, to be lost, damaged or destroyed.

(3) No person does a prohibited act within the meaning of this section by reason only that

(a) he stops work as a result of the failure of his employer and himself to agree on any matter relating to his employment;

(b) he stops work as a result of the failure of his employer and a bargaining agent acting on his behalf to agree on any matter relating to his employment; or

(c) he stops work as a result of his taking part in a combination of workmen or employees for their own reasonable protection as workmen or employees.

(4) No person does a prohibited act within the meaning of this section by reason only that he attends at or near or approaches a dwelling-house or place for the purpose only of obtaining or communicating information.

The Anti-terrorism Act appears to remove the protections for employees found in CC S 52 (3)

Definition 1 d) terrorism;

It is incredible that anti-terrorism legislation would not define terrorism. It would seem natural to define terrorism:

Terrorism: meaning the unauthorized use of violence and threats of violence to intimidate or coerce Canada, her governments and Canadians, in Canada and elsewhere in the world and including:

a) Planning or plotting acts of terrorism;

b) Counselling or inciting any one to engage in acts of terrorism; and

c) Aiding and abetting others engaged in terrorism.

Definition 1 e) proliferation of nuclear, chemical, radiological or biological weapons

This would seem better suited as an addition to the definition of terrorism:

d) Unauthorized creation, use, planning for or possession of nuclear, chemical, radiological or biological agents or weapons;

Definition 1 f) interference with critical infrastructure

This appears aimed at those who would plot to damage or destroy bridges, rail lines or pipelines but would also make most if not all ‘occupy’ protests illegal. There is a substantive difference between those who plot the destruction of a bridge or rail line and those who occupy a roadway and the latter does not quality as terrorism. This would appear to be covered under CC S 52 (2). This also appears to be a duplication of ‘sabotage’ under definition 1 c).

Definition 1 g) interference with the global information infrastructure, as defined in section 273.61 of the National Defence Act;

The definition is: “global information infrastructure” includes electromagnetic emissions, communications systems, information technology systems and networks, and any data or technical information carried on, contained in or relating to those emissions, systems or networks.

That would include the internet as well as all public and private intranet and communications systems, radar, telephone, cellular, satellite, radio and many others.

The unanswered question is what constitutes ‘interference’. That would appear to include any actions a government might take to counter use of the internet for the purpose of promoting terrorism.

Definition 1 h) an activity that causes serious harm to a person or their property because of that person’s association with Canada

Who decides what constitutes ‘serious’ harm? Either we are protected from harm or we are not.

Definition 1 i) an activity that takes place in Canada and undermines the security of another state.

This would not ordinarily be classed as terrorism. It would appear that this would include our action to combat ISIS in Iraq where our objective is to eliminate terrorism taking place outside Canada. The terms ‘allied or friendly’ appear to be missing.

Definition 1 j) For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.

This definition leaves much to be desired. It is unclear as to what types of advocacy, protest, dissent and expression are ‘lawful’. The devil is in the details and the Anti-Terrorism Act (AA) provides for the government to make unfettered regulations that will not be under the scrutiny of parliament.

The extremely poor wording of this key section of the AA suggest that the remainder of the AA is no better framed.

Security of Canada Information Sharing Act (CISA)

The definitions in this Act are the same as those discussed in Part A of this analysis

“Government of Canada institution” means

(a) a government institution ­ as defined in section 3 of the Privacy Act ­ other than one that is listed in Schedule 1; or

(b) an institution that is listed in Schedule 2.

Let’s see who we are talking about here. Under the Privacy Act, we find:

“government institution” means (a) any department or ministry of state of the Government of Canada, or any body or office, listed in the schedule, and

(b) any parent Crown corporation, and any wholly-owned subsidiary of such a corporation, within the meaning of section 83 of the Financial Administration Act;

Under the schedule we find listed:

GOVERNMENT INSTITUTIONS DEPARTMENTS AND MINISTRIES OF STATE 1. Department of Agriculture and Agri-Food

2. Department of Canadian Heritage

3. Department of Citizenship and Immigration

4. Department of Employment and Social Development

5. Department of the Environment

6. Department of Finance

7. Department of Fisheries and Oceans

8. Department of Foreign Affairs, Trade and Development

9. Department of Health

10. Department of Indian Affairs and Northern Development

11. Department of Industry

12. Department of Justice

13. Department of National Defence (including the Canadian Forces)

14. Department of Natural Resources

15. Department of Public Safety and Emergency Preparedness

16. Department of Public Works and Government Services

17. Department of Transport

18. Department of Veterans Affairs

19. Department of Western Economic Diversification OTHER GOVERNMENT INSTITUTIONS 20. Administrative Tribunals Support Service of Canada

21. Asia-Pacific Foundation of Canada

22. Atlantic Canada Opportunities Agency

23. Belledune Port Authority

24. British Columbia Treaty Commission

25. Canada Border Services Agency

26. Canada Emission Reduction Incentives Agency

27. Canada Employment Insurance Commission

28. Canada Foundation for Innovation

29. Canada Foundation for Sustainable Development Technology

30. Canada–Newfoundland and Labrador Offshore Petroleum Board

31. Canada-Nova Scotia Offshore Petroleum Board

32. Canada Revenue Agency

33. Canada School of Public Service

34. Canadian Advisory Council on the Status of Women

35. Canadian Centre for Occupational Health and Safety

36. Canadian Environmental Assessment Agency

37. Canadian Food Inspection Agency

38. Canadian Government Specifications Board

39. Canadian Grain Commission

40. Canadian Human Rights Commission

41. Canadian Institutes of Health Research

42. Canadian Museum for Human Rights

43. Canadian Museum of Immigration at Pier 21

44. Canadian Northern Economic Development Agency

45. Canadian Nuclear Safety Commission

46. Canadian Polar Commission

47. Canadian Radio-television and Telecommunications Commission

48. Canadian Security Intelligence Service

49. Canadian Space Agency

50. Canadian Transportation Accident Investigation and Safety Board

51. Canadian Transportation Agency

52. Canadian Wheat Board

53. Civilian Review and Complaints Commission for the Royal Canadian Mounted Police

54. Communications Security Establishment

55. Copyright Board

56. Correctional Service of Canada

57. Director of Soldier Settlement

58. The Director, The Veterans’ Land Act

59. Economic Development Agency of Canada for the Regions of Quebec

60. Energy Supplies Allocation Board

61. Federal Economic Development Agency for Southern Ontario

62. Federal-Provincial Relations Office

63. Federal Public Service Health Care Plan Administration Authority

64. Financial Consumer Agency of Canada

65. Financial Transactions and Reports Analysis Centre of Canada

66. First Nations Financial Management Board

67. First Nations Tax Commission

68. Fraser River Port Authority

69. Grain Transportation Agency Administrator

70. Gwich’in Land and Water Board

71. Gwich’in Land Use Planning Board

72. Halifax Port Authority

73. Hamilton Port Authority

74. Historic Sites and Monuments Board of Canada

75. Immigration and Refugee Board

76. Indian Residential Schools Truth and Reconciliation Commission

77. Law Commission of Canada

78. Library and Archives of Canada

79. Mackenzie Valley Environmental Impact Review Board

80. Mackenzie Valley Land and Water Board

81. Military Grievances External Review Committee

82. Military Police Complaints Commission

83. Montreal Port Authority

84. Nanaimo Port Authority

85. The National Battlefields Commission

86. National Energy Board

87. National Farm Products Council

88. National Film Board

89. National Research Council of Canada

90. Natural Sciences and Engineering Research Council

91. Northern Pipeline Agency

92. North Fraser Port Authority

93. Nunavut Surface Rights Tribunal

94. Nunavut Water Board

95. Office of Infrastructure of Canada

96. Office of Privatization and Regulatory Affairs

97. Office of the Administrator of the Ship-source Oil Pollution Fund

98. Office of the Auditor General of Canada

99. Office of the Chief Electoral Officer

100. Office of the Commissioner of Lobbying

101. Office of the Commissioner of Official Languages

102. Office of the Comptroller General

103. Office of the Co-ordinator, Status of Women

104. Office of the Correctional Investigator of Canada

105. Office of the Director of Public Prosecutions

106. Office of the Information Commissioner

107. Office of the Privacy Commissioner

108. Office of the Public Sector Integrity Commissioner

109. Office of the Superintendent of Financial Institutions

110. Oshawa Port Authority

111. Parks Canada Agency

112. Parole Board of Canada

113. Patented Medicine Prices Review Board

114. Petroleum Compensation Board

115. The Pierre Elliott Trudeau Foundation

116. Port Alberni Port Authority

117. Prairie Farm Rehabilitation Administration

118. Prince Rupert Port Authority

119. Privy Council Office

120. Public Health Agency of Canada

121. Public Service Commission

122. Quebec Port Authority

123. Regional Development Incentives Board

124. Royal Canadian Mounted Police

125. Royal Canadian Mounted Police External Review Committee

126. Saguenay Port Authority

127. Sahtu Land and Water Board

128. Sahtu Land Use Planning Board

129. Saint John Port Authority

130. Security Intelligence Review Committee

131. Sept-Îles Port Authority

132. Shared Services Canada

133. Social Sciences and Humanities Research Council

134. Statistics Canada

135. Statute Revision Commission

136. St. John’s Port Authority

137. Thunder Bay Port Authority

138. Toronto Port Authority

139. Treasury Board Secretariat

140. Trois-Rivières Port Authority

141. Vancouver Fraser Port Authority

142. Vancouver Port Authority

143. Veterans Review and Appeal Board

144. Windsor Port Authority

145. Yukon Environmental and Socio-economic Assessment Board

146. Yukon Surface Rights Board

Schedule 1 of the CISA is currently empty.

Schedule 2 of the CISA adds:

147. Office of the Communications Security Establishment Commissioner

“people of Canada” means (a) the people in Canada; or

(b) any citizen, as defined in subsection 2(1) of the Citizenship Act ­ or any permanent resident, as defined in subsection 2(1) of the Immigration and Refugee Protection Act ­ who is outside Canada.

PURPOSE AND PRINCIPLES Purpose 3. The purpose of this Act is to encourage and facilitate the sharing of information among Government of Canada institutions in order to protect Canada against activities that undermine the security of Canada. Guiding principles 4. Information sharing under this Act is to be guided by the following principles:

(a) effective and responsible information sharing protects Canada and Canadians;

(b) respect for caveats on and originator control over shared information is consistent with effective and responsible information sharing;

(c) entry into information-sharing arrangements is appropriate when Government of Canada institutions share information regularly;

(d) the provision of feedback as to how shared information is used and as to whether it is useful in protecting against activities that undermine

the security of Canada facilitates effective and responsible information sharing; and

(e) only those within an institution who exercise its jurisdiction or carry out its responsibilities in respect of activities that undermine the security of Canada ought to receive information that is disclosed under this Act.

We know who ‘ought’ to receive information but that is no guarantee that information sharing will be confined to institutions that ‘ought’ to receive that information.

More importantly we will have bureaucrats in 147 different departments and agencies deciding whether a given act fits within the definitions of “activity that undermines the security of Canada” means any activity, including any of the following activities, if it undermines the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada”

There is no central clearing house to determine if alleged actions do or do not fit into the definition. There can be several hundred people exercising their judgement on actions they observe or become aware of. That is a nightmare open to substantial abuse.

DISCLOSURE OF INFORMATION Disclosure of information 5. (1) Subject to any provision of any other Act of Parliament, or of any regulation made under such an Act, that prohibits or restricts the disclosure of information, a Government of Canada institution may, on its own initiative or on request, disclose information to the head of a recipient Government of Canada institution whose title is listed in Schedule 3, or their delegate, if the information is relevant to the recipient institution’s jurisdiction or responsibilities under an Act of Parliament or another lawful authority in respect of activities that undermine the security of Canada, including in respect of their detection, identification, analysis, prevention, investigation or disruption. Further disclosure under subsection (1) (2) Information received under subsection (1) may be further disclosed under that subsection. Further disclosure ­ other than under this Act 6. For greater certainty, nothing in this Act prevents a head, or their delegate, who receives information under subsection 5(1) from, in accordance with the law, using that information, or further disclosing it to any person, for any purpose. No presumption 7. The act of disclosing information under this Act does not create a presumption

(a) that the disclosing institution is conducting a joint investigation or decision-making process with the recipient institution and therefore has the same obligations, if any, as the recipient institution to disclose or produce information for the purposes of a proceeding; or

(b) that there has been a waiver of any privilege, or of any requirement to obtain consent, for the purposes of any other disclosure of that information either in a proceeding or to an institution that is not a Government of Canada institution. Non-derogation 8. Nothing in this Act limits or affects any authority to disclose information under another Act of Parliament or a provincial Act, at common law or under the royal prerogative. PROTECTION FROM CIVIL PROCEEDINGS No civil proceedings 9. No civil proceedings lie against any person for their disclosure in good faith of information under this Act. POWERS OF GOVERNOR IN COUNCIL Regulations 10. (1) The Governor in Council may, on the recommendation of the Minister of Public Safety and Emergency Preparedness, make regulations for carrying out the purposes and provisions of this Act, including regulations

(a) respecting the manner of disclosure under section 5;

(b) requiring records to be kept and retained in respect of that disclosure; and

(c) respecting the manner in which those records are kept and retained. Amendments to Schedules 1 and 2 (2) The Governor in Council may make an order adding the name of an institution to Schedule 1 or 2 or deleting one from either of those Schedules. Amendments to Schedule 3 (3) The Governor in Council may make an order adding the name of a Government of Canada institution and the title of its head to Schedule 3, deleting the name of an institution and the title of its head from that Schedule or amending the name of an institution or the title of a head that is listed in that Schedule. An addition is authorized only if the institution has jurisdiction or responsibilities under an Act of Parliament or another lawful authority in respect of activities that undermine the security of Canada, including in respect of their detection, identification, analysis, prevention, investigation or disruption.

Let’s look at the listings on Schedule 3 – they should be the agencies who deal with threats to Canada:

1. Canada Border Services Agency

2. Canada Revenue Agency

3. Canadian Armed Forces

4. Canadian Food Inspection Agency

5. Canadian Nuclear Safety Commission

6. Canadian Security Intelligence Service

7. Communications Security Establishment

8. Department of Citizenship and Immigration

9. Department of Finance

10. Department of Foreign Affairs, Trade and Development

11. Department of Health

12. Department of National Defence

13. Department of Public Safety and Emergency Preparedness

14. Department of Transport

15. Financial Transactions and Reports Analysis Centre of Canada

16. Public Health Agency of Canada

17. Royal Canadian Mounted Police

This list is far more manageable, but again, there is no priority for who should be informed first and no central authority for assessing the degree of risk presented. One would think that the Department of Public Safety and Emergency Preparedness (DPSES) would be the first priority for reporting and that DPEPS would in turn notify appropriate agencies that deal with a given risk. Although there is provision for information sharing there is no organization to ensure that suspected threats are properly analysed and that the agencies best suited to the risk presented are informed.

More importantly, there is no provision to ensure that following analysis, if there is no threat presented that the information will be expunged. There is a very real possibility that threat databases will be filled with information on innocent people who present no risk to our security. Canadians have no assurance that incorrect or false information respecting their actions will not be shared amongst various agencies without any attempt at analysis or investigation.

It is frightening to think that investigations may occur without any prior analysis of actual risk presented. We do not need our police forces and security agents busily chasing shadows.

There is no provision for a Canadian who suspects he has been reported to authorities for inappropriate actions to determine what information is held by agencies or who that information has been shared with.

The complete lack of recourse is not acceptable. The sections on Collection and Disclosure of Information, Administrative Recourse and Appeals set out in Part Two, The Secure Air Travel Act need to be duplicated, with appropriate amendments, in the Security of Canada Information Sharing Act.

Proper disclosure and recourse will do far more than any oversight agency can. There has to be a disclosure and appeal process to avoid having honest citizens caught up in a fervour of false or unwarranted accusations and listing in a terrorism database which can affect everything from employment eligibility to travel restrictions.