Roch Tassé and Nicole Fillion: Defending the right to defend rights

Interview with Roch Tassé of the International Civil Liberties Monitoring Group (ICLMG) and Nicole Filion of the Ligue des droits et libertés (LDL)

March 11, 2015

Inter Pares: Roch, could you share your concerns about the current context?

Roch Tassé: As we see it, this is the culmination of a process in Canada. Over the last ten years, but especially over the last two or three years, political discourse in the government here has changed. It is beginning to sound very much like what we have heard in Latin America over the last decade – an attempt to delegitimize all dissent towards the state. We have seen this in the natural resource sector in Latin America, where Canadian companies are operating projects.  Laws are criminalizing legitimate opposition to these projects. Latin American governments have characterized dissidents as extremists. In some cases, they have even labeled them terrorists and used old anti-terrorist laws, as in Chile, to criminalize individuals.

Over the last two or three years in Canada, we have heard the same argument used in RCMP reports, in annual reports from the Canadian Security Intelligence Service (CSIS), and in the policy statement from Public Safety Canada released three years ago under Vic Toews, all using the same type of language found in Latin America. That is to say, dissenters are referred to as extremists. In the environmental movement, for example, extremists could potentially resort to civil disobedience strategies, or even terrorism. So the discourse in government documents tries to associate dissent with terrorism in a fairly categorical manner. After two years of this shift in discourse, we are now facing legislation that enshrines it in law. The process is nearly complete.

In this bill, there are several aspects that raise concerns regarding dissent. Consider preventative detention. Legal standards have been lowered to allow for preventative detention. Take data sharing among various federal departments. These departments could share information with seventeen government agencies such as CSIS and the RCMP, with the whole public service turning into a monitoring agency of the public. Every office worker at every level will now have the responsibility to report activities they believe are suspicious, or if they suspect someone who is behaving somewhat strangely. Government employees with no expertise in national security will now be asked to conduct surveillance work and alert intelligence services. Today, the no-fly lists are getting longer. CSIS has been empowered to disrupt plots through campaigns, even violate the Constitution to reduce potential terrorist activity. All of this under a very broad definition of threats to national security that includes interfering with the economic or financial security of the country.

So we could expect that in some cases – an act of civil disobedience to oppose a mining project by blocking a railroad, for example, or conducting a sit-in at a mining site – if clearly illegal, could fall under this legislation. These types of activities could very well fall under a definition of interfering with the economic security or the economic infrastructure of the country. Take a demonstration against the G8 or G20, for example. Since violence occurred at previous summits, the police could presume that it will happen again. In this example, the seven-day preventative detention clause could be invoked. Demonstrators could be detained before the demonstration even started, then released five days later when the event was over [without charges being laid], thus avoiding having to go before the courts. As for the authority to share information -– all government departments might be involved in collecting information on potential demonstrators. How about the no-fly lists? Could they go as far as to put individuals who go to demonstrations on no-fly lists? Do the powers of disruption given to CSIS under this legislation allow it to legally infiltrate any movements that are opposed to the country’s economic policies? To disrupt, manipulate, and infiltrate them with agents provocateurs , as we saw in Quebec in the 1970s?

There are many aspects of this bill that have an impact on dissent.

Inter Pares: How are you addressing this situation?

Roch Tassé: We are working on several levels. Firstly, we are engaging in advocacy in collaboration with other civil liberty organizations, such as the Ligue des droits et libertés, the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association (BCCLA), and Amnesty International. We have been working for two months on joint action. We are preparing joint analyses of the bill and testimonies. We coordinated testimonies before the Parliamentary Committee this week. Tomorrow morning, for example, the ICLMG will testify. The BCCLA will also testify. Tomorrow evening, Amnesty International will go before the committee with the National Council for Canadian Muslims. We are coordinating our political advocacy efforts with all these organizations. That is just one level.

We are also working on a grassroots level to promote petitions and a day of action that will take place this weekend.  We are talking with people who are organizing these efforts.  There are also individual meetings with certain Members of Parliament and certain members of political parties. That is three levels of our engagement. In addition, there will obviously be public education, using information bulletins and our weekly news digest. The news digest has received a lot of attention over the last three weeks. We are putting it together with a selection of articles criticizing the bill and explaining the concerns people have with it. We have also worked with lawyers specializing in national security who have provided extremely good analyses – Craig Forcese and Kent Roach. We are in touch with them regularly, every week, for additional analysis.

I’d like to add that this is the first time in ten years that I have heard so many objections coming from all sectors of Canada with concerns about proposed legislation. That is with the exception of one political party – the one currently in power. All opposition parties have expressed concern. Universities are concerned. A statement [of concern] from one hundred law professors was issued just last week. Two or three weeks ago, four former premiers, former Supreme Court Justices, experts in national security, members of the Security Intelligence Review Committee (SIRC), and former SIRC chairs signed a joint declaration emphasizing their concerns. I have never seen so much mobilization. Grassroots groups are mobilizing this weekend. I think there are demonstrations planned in sixteen cities around the country. That is a lot of mobilization against one bill. I have never seen that against any other law. The media, op-eds and editorials in major Canadian newspapers are all expressing opposition to this bill. There is a consensus against this bill.

Inter Pares: Nicole, could you share your concerns about the current context, especially in Québec?

Nicole Filion: La Ligue (Ligue des doits et libertés) fully shares the analysis that Roch just shared of C-51. As well, you must know that C-51 has just been added to the regulations in effect in Québec that are already used to criminalize dissent: these are principally regulations used to end demonstrations. Regarding the Criminal Code and foreseen provisions in C-51, there is nothing specific concerning Québec, since it's the federal government that can impose anti-terrorist measures in Québec as it can anywhere throughout Canada.

With respect to C-51, I would like however to add something to the analysis Roch presented. I feel it is important to remind everyone that C-36, the anti-terrorist bill passed in 2001, already included certain measures that C-51will reinforce. And it is primarily Arab and Muslim communities that have borne the brunt so far, who have been the focus of government attention, but now C-51 has such broad definitions, even wider than in C-36, that other groups will now be targeted as well.

With respect to Québec, I would say that we can speak from the perspective of criminalizing dissent, but we could also speak of political profiling, which primarily relates to policing tactics used for certain demonstrations. Some demonstrations, because of their subject matter, have been targeted more than others. That is the case for anti-capitalist demonstrations and environmental demonstrations. Individuals are targeted not for what they do, but instead for their political beliefs.

That is primarily thanks to the application of bylaw P6 in Montréal, but there are other examples around the province. La Ligue is currently cataloguing these regulatory provisions and finding that such regulations exist in Québec City, Gatineau, Sherbrooke, Montréal, and many other cities. And concerning the definitions in these provisions, it is always the same thing: greater ambiguity allows for greater exercise of arbitrary and discretionary power. That is where we see political profiling practices, which mostly manifest in policing interventions that are used to stop a demonstration before it has even started.

For bylaw P6, it's interesting to note that the City of Montréal finally dropped all legal action related to the tickets issued under the bylaw. This means that arrests made since around 2012 under the bylaw have all been dropped. That is thanks to the judge’s interpretation, in which he basically declared that nowhere does the bylaw actually state that it is illegal for a person at a protest to not give an officer the outline of the protest route, and that only protest organizers are required to do so. This was a small but nonetheless important victory, even if it does not go as far as what we are demanding. We are calling for the bylaw’s revocation, as it permits political profiling.

There is also article 500.1 of the Highway Safety Code, which basically allows the same practices. I would say that in Québec, since many protesters have been brought into court under these regulatory provisions, that there is a real legal resistance that has built around contesting these charges.  

Inter Pares: How are you addressing this situation?

Nicole Filion: You should also understand that Québec civil society is deeply engaged in fighting austerity measures put forward by the provincial government, because they are a direct assault on public services and harm economic and social rights. Union and community organizations that oppose government policies risk being targeted by the control and surveillance measures in C-51 and by other measures that allow police forces to criminalize dissent.

Union and community organizations are thus highly mobilized against provincial government measures, but there has been no union and community mobilization to date to denounce C-51. To mobilize organizations that are in C-51’s line of fire, La Ligue has drawn up a statement that has already gathered a number of endorsements, and which will be unveiled during a press conference in order to build broadest amount of public support possible.

As for the other regulatory provisions, we are producing a review of the right to demonstrate in Québec, which is based on our analysis of political profiling. We are interested as much in the legal strategies that have been used, in the legal resistance, as we are in political resistance, to deal with what are called anti-protest laws. We will be holding a meeting on March 28th, which will bring together not just individuals who have been arrested and lawyers, but also groups engaged in various types of struggle, in order to determine the best strategies for reaffirming the right to protest in Québec. That is because this right has been particularly weakened since the student spring demonstrations. Political leaders have made it a point to make declarations against demonstrators, associating demonstrations with violence. So, for the time being, that is the work La Ligue has accomplished.

Roch Tassé: That reminds me that, as part of our legal efforts, we are initiating discussions with certain people about a possible constitutional challenge. We are presuming that the bill will pass. That appears to be the case as we speak, although we hope that we are wrong. If it passes, we will need to move into a second phase of struggle that will involve a constitutional challenge, perhaps at the Supreme Court. There are certainly provisions in the bill that infringe the Charter of Human Rights and Freedoms, and legal experts are already expecting that it will end up at the Supreme Court.

Inter Pares: Will the ICLMG seek to mitigate C-51’s impact by influencing its implementation?

Roch Tassé: We will have to see how security services and police forces are going to interpret the bill and implement it. For example, there is a provision stipulating that CSIS will be entitled to infringe Charter rights during campaigns to interrupt or counteract a plot. They will be required to come before a judge to request a warrant giving them permission to violate the Constitution. This process changes the nature of the mandate given to judges. The legal apparatus has been put in place to safeguard the Constitution, but instead judges will now be asked for permission to violate the Constitution. This is absolutely absurd. This turns the very nature of the role and responsibility of a judge on its head.

In such instances, front-line CSIS officers will determine if the planned action or interruption could violate the Charter. So we are expecting that ordinary CSIS employees, who are not constitutional experts, will decide, on their own, if the act they are going to carry out requires a warrant from a judge to violate the Constitution. What we have seen in the case of security certificates – I think in the Mahjoub case – is that high-level authorities at CSIS told a judge that it was not CSIS’s responsibility to be concerned with the Canadian Charter. They say their concern is for the security of Canadians, and not for enforcement of the Charter. There is cause for alarm.