Bill C 51 seems to be a relatively well thought through approach to the problem of combating terrorism in a free and democratic society. It will, likely, pass muster at the SCC and will allow CSIS to get up the noses of people who support terror. All good things.
But, and it is always a concern, government has a nasty tendency to take the powers it’s given and apply them in ways never within the contemplation of the legislation.
For example, the intention to disrupt a meeting of the G-20 whether in Canada or abroad, if there is even a hint of the physical could trigger the provisions of the bill. I might think G-20 protestors are dweebs but I think there is room for robust protest in the political sphere.
What happens if the Jewish Defense League decides to protest a speaker at Palestine House in Toronto. Or to counter march against the Musoloons the next time Hamas or Hezbollah attacks Israel? And what happens if I or BlazingCatFur put up a link to the protest or counter march?
Mark Steyn is worried.
And so he should be. At this point we are dealing with a Conservative government which has been pretty clear eyed about where the terrorist trouble is coming from.
“It doesn’t matter what the age of the person is, or whether they’re in a basement, or whether they’re in a mosque or somewhere else,” Harper said Friday in Richmond Hill, Ont. cbc
But what if the very dim Liberals are elected and have access to this same set of tools. It is not difficult to imagine that they would loose the dogs of CSIS on people engaged in Islamophobia (or what we call around here, clear thinking) or any other activity which does not contribute to Kumbaya Nation.
So C 51 needs one, large, effective block to its misuse: but what should that block be? The problem with security courts and the like is that they operate, of necessity, in secret. Is there a better way?
There might be. It seems to me that what we are really looking for is accountability and that can be created by using a degree of required, public, disclosure albeit after the fact. Basically, the security services could be required, in order to use the provisions of the new legislation, to file operational plans, including budgets, with specified goals and named targets. These plans would be filed by named agents and managers. (Names could be withheld from the public but would be available to Parliament in the second phase of the oversight.)
At the conclusion of the operation or at the expiration of three years, (extensions available if the government of the day applies to the Chief Justice), these operational plans (with redactions only to conceal the names of active agents), would be made publicly available and subject to a hearing of an all party Commons Committee for a value of service/common sense audit. The outcome of the operation would be disclosed as well. The committee would be charged with grading the operation and would have three grades available to it: commendation, pass, and fail. A finding of fail would mean that every agent and manager associated with the plan would summarily be fired and would not be eligible for further government service for their lifetimes.
Should concentrate the minds of our security people wonderfully.
Update: Welcome Free Speech Warriors from Blazing Catfur, Five Feet of Fury and Mark Steyn…
I’ve reread the Baglow v Smith et al decision. Dawg and friends seem to want to think Polowin, J. simply applied existing defamation law. I think she went further than that and I commented at Dawg’s blog as follows, (minor edits for intelligibility):
Unfortunately, this is implicit in the decision. For various reasons judges who extend the law often do it by implication rather than coming right out and saying it. However, the next case will push the implication further.
Context matters. And context is both the speech itself and the forum in which it is uttered. A political commentary board is all about opinion. Polowin has, implicitly, created a legal presumption that speech inside such a board is to be regarded as comment rather than fact. Even when the bare meaning of the words looks like an assertion of fact.
I think this is significant as it creates a new means of analyzing speech for purposes of defamation law. As a result of Baglow a new question arises in the fair comment defence, where were the words spoken and would a reasonable person take that forum as an editorial/comment based environment or would they assume that the words spoken there should be regarded as fact?
It is a hook upon which a good deal of pretty hard hitting commentary can be hung. When context matters the mere words are not enough to survive the fair comment tests. And, interestingly, the intention of the author may not matter much. If you post to a site which is devoted to political commentary, even if you assert as fact something which is found to be defamatory on its face, your choice of forum may well protect your words.
Cautiously, Polowin, J. may have made a key distinction. She may, by implication, have brought the “brass rail rule” to Internet political commentary in Canada. She may have said that if you are standing in a metaphorical bar, you foot firmly on the brass rail, if you call someone a Damned liar, defamatory as those words may be, you are shielded by the environment in which you’ve said the words.
Baglow seems to stand for the proposition that what you say matters and where you say it matters too.