By: Michael Nesbitt
Legislation Commented On: Bill C-59, An Act Respecting National Security Matters, 2017; Anti-terrorism Act, 2015, SC 2015, c 20
In the Fall of 2016, students in the University of Calgary, Faculty of Law’s National Security Law Lab responded to the government’s calls for feedback on the ever-so controversial Anti-terrorism Act, 2015, SC 2015, c 20 (commonly known as Bill C-51). As with any large Bill analyzed by thoughtful law students, there was much that they liked and, in this case, much more that they did not like. The students decided that their efforts were best spent analyzing law reform proposals that both drew back aspects of Bill C-51 and added heft (and legal protections) to it, knowing that the then-new Liberal government was sure to table a responsive Bill, as was their campaign promise.
Students were divided into three groups and, within each group, chose the reform proposal that was most important to them. The work resulted in three ABlawg posts for the world (and the government) to see, and these posts did not disappoint. In fact, some of the government’s changes mirrored the recommendations of our students. For example, our students expressed concern with the language of section 83.221 of the Criminal Code, RSC 1985, c C-46, which was seen as overbroad and unclear. The government’s Bill C-59, An Act Respecting National Security Matters, did indeed make changes along the lines of those recommended.
This year, the National Security Law Lab again tackled a massive piece of legislation in the area of national security. Indeed, Bill C-59 is so big that it is surely to result in the largest change to Canada’s national security landscape ever seen, or at least seen since the creation of the Canada Security Intelligence Service (CSIS) in 1984. For this reason, and because so many of these changes are so wholesale and so long overdue, the import of Bill C-59 matches its scope – or even exceeds it.
Once again our National Security Law Lab students are working to do more than just study the law; they are putting that study into practice and providing three (novel) law reform proposals that we all hope the government and/or bureaucrats will consider. This process required the students first to study and understand the legal and policy landscapes, and then to put their research, writing, and critical thinking skills into practice by persuasively presenting law reform agendas. In each case the results are excellent: the students have provided three law reform proposals that extend beyond what other experts have already said publicly or beyond what has been said before the Standing Committee on Public Safety and National Security (SECU), which is currently reviewing Bill C-59 after it passed first reading in the House of Commons.
The first of these student law reform proposals comes from Marika Cherkawsky, Jocelyn Gerke and Dana Hägg, and will be released later today. This post will consider the broad new powers proposed for Canada’s Communications Security Establishment (CSE). In particular, this first post analyzes the CSE’s private network cybersecurity regime with a view to ensuring better cooperation between CSE and private industry. Soon thereafter we will be releasing the reform proposal(s) from Chad Haggerty, Meagan Potier, and Bassam Saifeddine, which uses a comparative law approach to analyze how terrorist groups might be listed under the Criminal Code. Finally, Ben Allison, Linsday Kvellestad and Wajeeha Sattar will offer a detailed analysis of Bill C-59’s proposed changes – or lack thereof – to one crucial aspect of the government information sharing regime, the Security of Canada Information Sharing Act, SC 2015, c 20, s 2. Their proposal(s) aim to do no less than ensure more effective, more efficacious, and more Charter-compliant information sharing between government departments.
These student submissions should be taken very seriously; for this reason, it is our hope that they come to the attention of the government and those working on a review of Bill C-59 as we speak. The student submissions are crucial first because Bill C-59 is crucial and our students have worked extremely hard to provide thoughtful, informed amendment proposals. These are precisely the sort of informed opinions that should matter to governments as they do the hard work of trying to get the legislation right. Second, right now the review of Bill C-59 – which again has passed first reading and is with the SECU Committee – will be led mostly if not entirely by a generation older than our students. But it is our students – and all youth and young persons – who will be left to implement and live with changes to our national security framework for far longer than the rest of us. Their voices deserve to be heard period, but doubly so because the impact of this legislation will fall disproportionality on (at least) our young – particular if past practice is any indication and we do not see any more meaningful updates for decades to come.
Now, if you have read this then please take the time to review our student submissions, share them, comment on them, and, if you are in government or advise it, take special note!
This post may be cited as: Michael Nesbitt “National Security Law Lab Students Offer Reform Recommendations on Bill C-59, An Act Respecting National Security Matters” (19 April, 2018), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/04/Blog_MN_Introduction_BillC59.pdf
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