Back in 2006, the newly elected Prime Minister of Canada, right-wing Conservative Stephen Harper warned that “You won’t recognize Canada when I’m through with it.” After nine grueling years, that’s already true in many ways. But now, Harper is going even further in his re-make of the country. Under new and pending legislation, Canada is moving rapidly towards the creation of a police state, with major curtailments of civil liberties. In recent weeks, the Harper Conservatives have introduced and/or passed several pieces of legislation that run roughshod over Canadians’ Charter of Rights and Freedoms and Constitutional rights, giving draconian powers to the Canadian Security Intelligence Service (CSIS).

There’s Bill C-13, the highly unpopular online spying legislation, which received Royal Assent on Dec. 9, 2014. The Bill allows warrantless internet surveillance through the collection by CSIS of Canadians’ everyday internet use. The Bill contains broad new police powers, including several new warrants for surveillance, tracking and gathering of bank information. Bill C-13 has been vehemently opposed by more than 60 Canadian organizations. OpenMedia’s David Christopher says that “important parts of this legislation have already been ruled unconstitutional by the Supreme Court.” [1]

There’s Bill C-44, which expands the surveillance powers of CSIS globally, while granting anonymity protection to CSIS informants and allowing for new conditions under which Canadian citizenship can be revoked. This bill passed third reading on February 2 and is now with the Senate. The Canadian Civil Liberties Association (CCLA) has called this bill “highly problematic.” [2]

There’s Bill C-639, introduced on Dec. 3, which impinges on the Constitutional right of assembly and would criminalize people exercising their democratic right to public protest. And there’s Bill C-51, the Anti-Terrorism Act 2015, introduced on Jan. 30, containing draconian measures that verge on the creation of a police state. These two bills are the focus in this article because they both refer to protection of “critical infrastructure.”

They are therefore crucial with regard to ongoing Canadian protests against tarsands export pipeline proposals: Enbridge’s proposed Northern Gateway pipeline (from Alberta to northern B.C.); Enbridge’s Line 9 reversal (from southern Ontario to Montreal); TransCanada’s proposed Energy East pipeline (from Alberta to New Brunswick); and Kinder Morgan’s proposed Trans Mountain pipeline expansion (from Alberta to southern B.C.).

Being In the Way

On December 3, Conservative Member of Parliament (MP) Wai Young (Co-chair of the Canada-China Legislative Association) introduced Bill C-639, a private member’s bill to amend the Criminal Code.

The Bill creates a new criminal office for anyone who “destroys or damages any part of a critical infrastructure; renders any part of a critical infrastructure dangerous, useless, inoperative or ineffective; or obstructs, interrupts or interferes with the lawful use, enjoyment or operations of any part of a critical infrastructure.”[3] This amendment would criminalize peaceful and (currently) lawful protests if they interfere even temporarily with broadly defined “critical infrastructure.” The Bill imposes a mandatory minimum sentence of two to 10 years and fines of $500 to $3,000.

Bill C-639 defines “critical infrastructure” as “services relating to energy, telecommunications, finance, health care, food, water transportation, public safety, government and manufacturing, the disruption of which could produce serious adverse economic effects or endanger the health or safety of Canadians.” The bill received backing from Minister of Justice/Attorney General Peter MacKay, who said it would “help secure all facets of critical infrastructure.” [4]

Toronto lawyer Ed Prutschi told the National Post in December the fact that energy infrastructure was including in this definition has one obvious purpose: “It would have application for pipeline protests.” [5] He noted that the legislation doesn’t necessarily require any damage to have been done, just that a person be in the way – as many people were during a protest in Burnaby, B.C. late last year against Kinder Morgan’s TransMountain pipeline expansion. As the National Post noted, Wai Young is the MP for the Vancouver South political riding, which is adjacent to Burnaby Mountain, where protests occurred.

From November 19 to 27, at least 100 protesters were arrested for crossing a police line in a municipal conservation area on Burnaby Mountain where Kinder Morgan crews have been doing preliminary work – even before approval of the pipeline project – in preparation for tunneling.

During Question Period on Dec. 8, New Democratic Party (NDP) justice critic Francois Boivin, MP for Gatineau, Quebec, called Bill C-639 “scary” and said it “bans protests” and “has obvious constitutional problems. It defines critical infrastructure as being just about anything. In this country, people have a right to lawful protest and assembly. Legal experts are already raising concerns about the constitutionality of Bill C-639.” [6]

Borrowing Tactics from Dictators

The B.C. Civil Liberties Association (BCCLA) considers Bill C-639 a direct attack on the Canadian Constitution and Charter rights, and says the Harper government is “borrowing tactics from dictatorial governments.” [7]

The BCCLA slammed Bill C-639 while its Executive Director Josh Paterson was in Bangkok, having been invited to a UN meeting. “We are at the United Nations to cry foul on Canada’s latest attempt to criminalize peaceful protest,” Paterson said in a news release of Dec. 15. “Now striking flight attendants and kids protesting pipelines on Burnaby Mountain could be considered criminals? Either of these lawful protests could count as a crime under this law if they interfere with something of economic value. That is simply ridiculous and it violates the fundamental freedoms of Canadians.”

The UN Special Rapporteur on the freedom on assembly and association is conducting a global investigation examining how the freedoms of peaceful assembly are being violated around the world to smooth the path for corporate resource development.

Paterson further stated, “We are meeting in Bangkok with representatives from non-democratic countries where protest is a serious crime. It is humiliated for Canada to be borrowing tactics from dictatorial governments.” He added, “Canada has not only broken with our own constitution in criminalizing protest, spying on First Nations, and denouncing community groups, it’s also breaking its international commitments to protect the freedom of expression and freedom of assembly of Canadians.”

RCMP Team

Justice Minister MacKay said in the Dec. 3 press release that Bill C-639 “is the product of extensive, cross-Canada consultation, consistent with our Government’s priority to create safer communities.” [8] But the bill is obviously based on a March 2011 report written by the Royal Canadian Mounted Police (RCMP) Critical Infrastructure Intelligence Team, which consulted primarily with private energy companies.

The document, recently obtained by Carleton University criminologist Jeff Monaghan, warned, “Environmental ideologically motivated individuals including some who are aligned with radical, criminal extremist ideology pose a clear and present criminal threat to Canada’s energy sector…The Canadian law enforcement and security intelligence community have noted a growing radicalized faction of environmentalists who advocate the use of criminal activity to promote the protection of the natural environment.” [9] This is the same RCMP Critical Infrastructure Intelligence team that spied on Quebec residents opposed to shale gas/fracking development, among others.

The RCMP report, and Wai Young’s proposed legislation – which she said she crafted at the urging of industry [10] – dovetail with the Canada-U.S. Beyond the Border Action Plan. That Plan is the result of perimeter security and economic integration talks launched by Canada and the U.S. in 2010. The protection of shared critical infrastructure is listed as a priority in security documents on the government’s Beyond the Border website.

The documents state: “Canada and the United States share a significant quantity of critical infrastructure assets and systems, including pipelines, the electric grid, and transportation systems. It is imperative that our countries work together to protect these assets. To effectively do this, our governments will require a close collaboration with the private sector, as they own much critical infrastructure in question. It makes sense to start with a pilot project, in this case New Brunswick-Maine, to learn how best to work together on each of the elements.” [11]

That cross-border pilot project policing effort has been delayed since July 2013 because the U.S. requested that its cross-border police officers be exempt from Canadian law. Coverage by Canadian Press of internal RCMP briefing notes regarding this “sovereignty issue” temporarily stymied the project. [12]

But on October 28, 2014, U.S. Secretary of State John Kerry was in Ottawa to express condolences for the loss of two Canadian soldiers killed in separate “lone wolf” attacks (deemed “terrorist”) in Canada. Kerry said the U.S. and Canada would “work quietly and carefully” to strengthen security between the two countries, “making certain that every possible stone is turned over, every possible policy is reviewed because our obligation is obviously to protect our citizens.” [13]

After Kerry’s October visit, the Harper government had apparently been waiting for the right time to introduce a “critical infrastructure protection bill.” That came during the Burnaby Mountain protests, leading to the tabling of Bill C-639.

Then came the Charlie Hebdo shootings in Paris on Jan. 7. Just weeks later, on Jan. 30, the Harper government introduced Bill C-51, the Anti-Terrorism Act 2015.

Bill C-51

The Canadian Civil Liberties Association says this bill “broadens CSIS’s powers significantly” and “may criminalize legitimate speech.” [14] The bill authorizes CSIS to block Canadian websites, and it defines “terrorist propaganda” as “any writing, sign, visible representation or audio recording that advocates or promotes the commission of terrorism offences in general.” Because of the vagueness of the phrasing, the CCLA notes it could have a “potential chilling effect on academics and journalists and bloggers,” who could face up to five years in prison if their writing is judged to have somehow encouraged “terrorism.”

Bill C-51 vaguely defines “terrorism” as any “activity that undermines the security of Canada,” including “interference with critical infrastructure,” but also “interference with the capability of the Government of Canada in relation to…the economic or financial stability of Canada.”

C-51 exempts “lawful advocacy, protest, dissent and artistic expression” from being considered as threat to the security of Canada, but as a Globe & Mail editorial (Feb. 1) stated, “…how well do governments define those things in times of ‘great evil’?” [15]

The bill also lowers the threshold for “preventive arrests;” makes it easier to place people on no-fly lists; gives authorities the power to hold suspected “terrorists” without charge for seven days (instead of three); allows a judge to impose up to a year of house arrest on someone who has not been charged or convicted of any crime; and it allows CSIS agents to “disrupt” threats to Canadian security – a blatant extension of CSIS powers beyond intelligence-gathering and into policing.

Bill C-51 also allows people to be detained if they “may” have terrorist plans. As the BCCLA’s policy director Michael Vonn warned in a news release, “Criminalizing people’s words and thoughts is misguided and won’t make Canadians any safer.” [16] Vonn and others have said the bill is likely unconstitutional.

In Parliament on Feb. 2, Green Party leader Elizabeth May asked Public Safety Minister Steven Blaney if the new anti-terrorism Bill C-51 “will apply to nonviolent civil disobedience, such as that against pipelines?” Blaney did not directly answer the question, saying only that terrorism “is a criminal act and those who goes [sic] against the Criminal Code will meet the full force of the law.” May told MPs they “must not allow the Conservatives to turn CSIS into a secret police force.” She has written that Bill C-51 is not about terrorism, it’s “about creating a secret police. It’s the death of freedom.” 17]

Current Hearings

On March 10, the federal Public Safety Committee began hearings on Bill C-51, with dozens of witnesses scheduled to give expert testimony on the bill during nine meetings in March. The Harper government is hoping to pass the legislation before summer.

The B.C. Civil Liberties Association has just released (March 11) its “Six Things Protesters Need to Know about Bill C-51” – a useful warning for people across Canada. [18] Their analysis notes: “When you think of being secure, you likely think of being safe from physical danger. But Bill C-51 defines security as not only safeguarding public safety, but also preventing interference with various aspects of public life or ‘the economic or financial stability of Canada.’ With this definition, a separatist demonstration in Quebec that fails to get a proper permit, a peaceful logging blockade by First Nations, or environmentalists obstructing a pipeline route could all be seen as threats to national security.” Whether or not a group is deemed a national security threat “may hinge on whether their cause is politically popular or in line with the views of the government.”

Regarding freedom of expression, the BCCLA states: “It’s unclear even to experts exactly what kinds of speech and protest activity may be considered threats to national security if the bill passes; the average Canada has little hope of feeling confident that their legitimate political activity hasn’t inadvertently crossed the line. Bill C-51’s expansive language means many Canadians will likely choose not express themselves – even in completely legal ways – rather than risk prosecution. Legitimate speech will be chilled, and our democracy will be worse off for it.”

Regarding “preventative arrests and detention,” the BCCLA notes, “Innocent people could be arrested and detained on mere suspicion of future dangerousness.”

Now we know why the Harper government has been building all those new prisons.

Footnotes/Links:

[1] https://openmedia.ca/print/ 91359

[2] //www.ccla.org/rightswatch/2015/01/30/new-bill-threatens-privacy-liberty-and-citizenship/

[3] //www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6815454&File=24

[4] //waiyoung.ca/2014/12/mp-wai-young-introduces-legislation-to-protect-critical-infrastructure-2/

[5] //news.nationalpost.com/2014/12/05/conservative-mps-private-members-bill-could-be-used-against-pipeline-protesters-critics-say/

[6] https://openparliament.ca/ bills/41-2/C-639/?tab=mentions

[7] //www.wireservice.ca/ index.php?module=News&func= display&sid=13962

[8] //waiyoung.ca/2014/12/mp-wai-young-introduces-legislation-to-protect-critical-infrastructure-2/

[9] Shawn McCarthy, “Environmental extremism a rising threat, RCMP warn,” The Globe & Mail, September 15, 2014.

[10] //calgaryherald.com/opinion/columnists/marsden-national-chiefs-threats-reveal-high-handed-manner

[11] Joyce Nelson, “Government’s anti-terror laws target anti-pipeline foes,” CCPA Monitor, March 2015.

[12] //www.thestar.com/news/canada/2013/07/30/us_wants_exemption_from_canadian_law_for_crossborder…

[13] //www.cbc.ca/news/politics/john-kerry-pledges-to-work-with-canada-to-prevent-terror-attacks-1.2815569

[14] //www.huffingtonpost.ca/ sukanya-pillay/bill-c-51- terror-bill-_b_6792728.html

[15] //license.icopyright.net/ user/viewFreeUse.act?fuid= MTkwODYwNzM%3D

[16] //www.theguardian.com/world/2015/jan/30/canadas-anti-terror-legislation-civil-liberties-fears

[17] //thetyee.ca/Opinion/ 2015/02/09/Harper-Police- State-Law/

[18] //thetyee.ca/Opinion/ 2015/03/11/C-51-Six-Things-To- Know/