Bill C-51: Be Afraid. Be Very Afraid.

Stephen Harper is on a bit of a roll. Capitalizing on recent events, his proposed anti-terror legislation, Bill C-51 seems to enjoy widespread popular support, at least according to one opinion poll. The Liberal Party have announced they won't oppose the Bill, and it seems almost destined to become law.

Nonetheless, a number of prominent Canadians, including former Prime Ministers, Judges and Justice Ministers, academics, and even some conservative commentators, among others, have expressed concerns about the Bill, including that it allows widespread sharing of citizens' private information within government, lacks sufficient oversight and accountability for security agencies, and potentially infringes certain fundamental freedoms, including freedom of speech and protest rights.

I share many of these concerns, and want to focus in on two aspects of the Bill that I find particularly troubling:

First, the Act is is no way limited to stopping or disrupting terrorism. It allows government agencies to gather and share information in respect of "activities that undermine the security of Canada". It gives a broad, open ended list of such activities, which includes terrorism, but also includes "interference with critical infrastructure". The only thing it excludes is "lawful advocacy, protest, dissent and artistic expression".

This allows our security agencies to spy and exchange information (with very little oversight) about Canadians who are taking part in all kinds of activities which are an accepted and important part of life in a democracy, including strikes, labour disruptions, and other types of pickets or protests, which are protected by our rights to freedom of speech and freedom of assembly


The carve out for "lawful" activities is simply not broad enough to protect those rights. There are all kinds of ways in which an otherwise peaceful protest can be deemed "unlawful" including a protest march that fails to get the proper municipal permits, or which inadvertently trespasses on private property. And there is often uncertainty about the lawfulness of protest activity. One group I work with spent two years prevented by a court order from protesting against a particular power project: the Court of Appeal ultimately threw out the order because it had no legal or factual basis. Still, during that time, their activities potentially fell under this new legislation, and could have subjected them to spying and other heavy handed measures. This kind of broad power will have a chilling effect on even the most peaceful protests, because of the possibility that any protest you take part in could be deemed unlawful, and result in Canadian security agencies spying or sharing private information about you.

The carve out for protest and advocacy is very different than the existing carve out in the Criminal Code, which exempts any advocacy or protest that isn't intended to cause serious harm or risk to persons or property. If the goal is to target terrorism, then security agencies should continue to be restricted to spying on those individuals and groups that are actually threatening real harm to Canadians and their property, not merely any group that happens to cause some inconvenience or disruption as part of a peaceful protest activity.To do otherwise is to subject law-abiding Canadians to the powers and scrutiny of a police state merely for exercising their constitutional rights.


Second, it creates a new offence for "advocating" or "encouraging" terrorist offences, whether they take place in Canada or abroad. The problem with this is that the definition of terrorist offences in the Criminal Code is already quite broad, and can include any kind of armed struggle, including one against an unjust government. As has been pointed out elsewhere, if this law had existed at the time, Canadians who expressed support for Nelson Mandela and the ANC during their armed struggle against the apartheid government in South Africa could have been considered guilty of "advocating terrorism". Similarly, anyone who expressed support for the Hungarian people in their uprising against communist rule in 1956 would have been guilty under this law as well. No matter what side of the political spectrum you are on, the fact that you can no longer openly voice support for people who are fighting an unjust or despotic government without fear of being convicted is a gross infringement of freedom of speech.

There are a number of other problems with the bill, including the broader policing powers it gives to our security agencies, and the lack of accountability or oversight, which are discussed at length in some of the links provided above. At the end of the day, the overriding problem with the Bill is it actually undermines the very freedoms it claims to protect. Among the many things that make Canada such a great place to live is our freedoms: the ability to speak, to ask questions, to criticize our government, and to voice our support for others around the world who are struggling for those same rights. Those rights were hard won, and are the lifeblood of our democratic system. We shouldn't let the terrorists take those rights from us, and we shouldn't let our government take them from us either.

Halifax's Barbershop Booze Bust

Social media in Halifax was abuzz yesterday with the news that some popular local barbershops and salons had been told they could no longer provide their customers with a beer or other drink while they waited for a haircut. The practice  is one that a few local salons and shops have adopted, and an option that seems to be very popular with customers. One barbershop offered their customers the option of a beer or a coffee with their cut, while another would offer sample beers to waiting customers.

Apparently, based on an anonymous complaint, the Halifax Regional Police made the rounds to a number of shops and salons yesterday to inform them that serving drinks was considered a no-no. However, some of the shops claim that they had previously contacted the Province's Alcohol and Gaming Division, and been told that they didn't require a license, or what they were doing was perfectly legal.

News of the bust created a social media firestorm, with Haligonians asking what law the police were enforcing, and why they were hassling hardworking business owners over such a trivial matter. It was pointed out that certain other local businesses (including retailers, massage therapists, spas) have been offering a free drink to their customers for years.


The key thing to remember is that Nova Scotia's Liquor Control Act is an outdated piece of legislation informed by a prohibition mindset. Liquor is a controlled substance, and according to section 78 of the Act, it is unlawful to sell, transport or keep liquor, or even to give or consume it unless the Act or regulations specifically say you can. I personally don't agree with this approach, but that is the reality underpinning the Act.

You can buy liquor at the liquor store because the Act says you can. You can keep, give and consume liquor in your residence (which you have lawfully purchased from the Liquor Corporation) because section 62 of the Act says you can. You can transport the liquor from the store to your home (unopened) because section 54 of the Act says you can. You can purchase liquor at certain licensed establishments or events because the Act says you can. You can give liquor as a gift because section 55 of the Act says you can. Most other things are off limits. You can't even give alcohol away for free at an event without a special occasion permit.

The categories of licensed establishments under the Act are archaic, and there isn't a permit or license that really fits this situation. That leaves these shops in a bit of a no man's land.

You could argue that the drink is a gift to the customer from the shop, and covered by section 55 of the Act. But the Act also has a very vague and broad definition of what constitutes selling liquor, and a pretty broad prohibition against giving someone liquor. It would seem that the police are taking the perspective that it does apply here. Either way, there is some uncertainty in the law.

Even if they could get a license, the cost and rules around licensed establishments would make it difficult if not unworkable for these businesses.

But that begs a bigger question: why would this even be against the law? What is the harm in allowing a business to serve a single drink to a customer as part of the service they offer? I'd argue this is a pretty low risk activity, and that, in a city that has problems with more serious crimes, a waste of valuable police time and resources.

We could simply ask the police to back off, but that would be a stopgap solution.

The common sense solution, in my view, would be to clarify the law by passing a simple amendment to the Liquor Control Act allowing a business that is not a licensed establishment to give a single drink to their paying customers. They would still be subject to all of the restrictions regarding not serving underage or intoxicated customers. This should allow a largely harmless and popular practice to continue, while ensuring that appropriate rules are still in place to protect the public.

Our Liquor Control Act desperately needs an overhaul in any event. This seems like an obvious place to start.

In Defence of Online Privacy

For advocates of online privacy, these are alarming times. In the wake of the revelation that the Canada's spy agency has been using airport wifi to track Canadians, came the news that Canadian  internet providers have been providing confidential information about their customers to Canadian government agencies at a rate that has been described as "staggering" and "jaw-dropping".  In 2011 alone, Canadian government agencies submitted over 1.2 million requests for confidential customer data, often without a warrant or even a clear reason or justification. In some cases, it is as simple as a government agent picking up the phone and requesting the data, with no written request required.

In spite of the apparent ease with which they can access private information, the Canadian government is proposing to make it even easier for a wide range of "public officers" to access information about your online activity. Bill C-13 contains a number of provisions that would make necessary updates to the law to deal with cyberbullying and cybercrime. However, the government has also tacked on a number of controversial provisions which don't directly relate to cybercrime, but which would expand the ability of government officials to access your online information, in some cases without a warrant, and without your consent or knowledge. That part of the Bill is basically the same cyber-spying legislation that Vic Toews tried unsuccessfully to get passed when he was Justice Minister. That legislation was killed, and with good reason. The law didn't sit well with privacy advocates, nor with some conservatives who have fought to protect citizens from unwarranted government intrusion in Canadians private lives.

There is no question our laws need to be updated to deal with the reality of online crime. The question is why it needs to be done without the usual safeguards that protect the rights of law-abiding Canadians to carry on their day to day lives without the constant threat of government surveillance. As the mother of cyber-bullying victim Amanda Todd has pointed out, violating people's privacy without valid justification creates more victims, not less. The answer to cybercrime is not to allow the government to violate its citizens rights with impunity. In fact, it's fairly clear some of these provisions have little to nothing to do with addressing cyberbullying.

Proponents of the Bill have advanced a number of arguments in favour of the cyber-spying provisions. I find some of them unconvincing, and some of them downright frightening.

First, it has been suggested that people should not be standing up for the privacy rights of cybercriminals. This is just basically a re-hash of Vic Toews' infamous statement that if you don't stand with the government, you stand with child pornographers. This is not about the privacy rights of criminals. This is about the privacy rights of all Canadians.

Second, it has been argued that if you have done nothing wrong, you have nothing to fear. But that is precisely the problem with warantless spying. To get a warrant, the police have to show some reasonable and probable grounds for believing you have committed a crime. If they don't need a warrant, they don't have to show any grounds to believe you have done something wrong. They can access your private online information for any reason they want.

Third, it has been argued that these are merely "tools" that will help the police solve more crimes. Of course they will. If the police knew what everyone was doing at every hour of the day, they would be able to solve every crime. But then we would be living in a police state. Likewise, this online surveillance is an unwarranted intrusion on the ability of Canadians to go about their daily lives with some degree of privacy.

Fourth, it has been argued that people already share a great deal of information online, often through social media sites such as Facebook, that in turn harvest and sell that information. However, that is different. While there are no doubt problems with the way sites like Facebook share information, when you share information on Facebook, you at least do so knowingly and voluntarily, and subject to the terms of your user agreement and the privacy laws that govern these sites.  In the case of online spying, it is being done without your consent or knowledge, and often with little or no obvious legal justification.

But the most pernicious argument is the suggestion that online privacy is a "myth" or an "oxymoron". That members of the public should have zero expectation of privacy when they go online. That somehow, everything we do online is and should be available to anyone else, including the police if they want it.

To me, this argument misunderstands both the nature of the internet and its importance to modern-day life, and sets us on a very dangerous path with respect to the relationship between police and private citizens. It is also a self-defeating argument for those who claim they are trying to protect our children from online bullying and crime.


For starters, I don't think many people would suggest that the government should be able to randomly open and read our mail, or have unrestricted access to listen in on our private phone calls. In fact, a those things are the very hallmarks of a police state. Yet this "no privacy" argument suggests that if you send an e-mail to a friend, you should expect the government to read it, and if you use skype to call the grandkids, then you should expect the government to be listening in. The internet is an important vehicle for private communication, and people using it should enjoy the same protection as those making a phone call or mailing a letter.

Similarly, unless you are doing something illegal, the government has no legitimate interest in knowing what you are reading, or what you buy at the supermarket. Yet the "no privacy" advocates are basically suggesting that if you do your reading or your shopping online, it is fair game for a warrantless police search.

The reality is that in this day and age, many of us spend a significant part of our day online. Some of that time is spent doing things that are shared with the public (like this blog post, or things said on twitter). Some of those things we reasonably expect to remain private and confidential (like online banking, online shopping or personal e-mails). Unless we are doing something illegal, the police quite frankly have no business knowing most of what we are up to online.

Citizens in democracies have fought hard for the rights to ensure that their lives are not the subject of unwarranted government oversight. Many around the world still do not enjoy these rights. These rights are now very much under assault by laws that seem well intentioned, but which ultimately undermine important democratic safeguards. It is time for Canadians to stand up for their rights to privacy, their rights to protect their personal information and personal lives and ultimately their right to live in a free and democratic society.

Further, given that most online crime involves a breach of the victim's online privacy, it is self-defeating to combat online crime by creating even less online privacy. The cyber-surveillance provisions can and should be removed from this bill, and the government, instead of once again tacking the same old bad laws onto another Bill, needs to go back to the drawing board on its whole approach to cyber-surveillance and online privacy and security. Whether they are living online or offline, law-abiding Canadians should be entitled to go about their day to day lives without having to look over their shoulder and wonder who is watching them.

Dear Mayor and Council: Don't Destroy the Regional Plan

I have written before on Regional Planning issues in HRM.  Draft 4 of the Regional Plan is going before regional council for first reading on Tuesday, and a number of councillors have indicate their intent to seek significant amendments to the Plan.  Below is a brief open letter to Mayor and Council explaining why I think this is a bad idea. Please consider contacting the Mayor and your councillor as well.

Dear Mayor and Councillors,

As you know first reading of Draft 4 of the revised regional plan is to come before council tomorrow. I understand that some councilors plan to advance a number of amendments to the draft Plan, which include amendments to:

- have part of the Purcell’s Cove backlands re-designated from Urban Reserve to Rural Commuter;
- re-designate the entire Urban Reserve in Cherry Brook to Urban Settlement; and
- make sewer and water boundaries overlap;

Draft 4 of the Regional Plan is the result of over two years of extensive public consultation and committee work through the RP+5 process. While it is not perfect, it is a step forward from the original regional plan, and balances a number of competing interests, while making sure the Municipality is on a path to financial and environmental sustainability. The public feedback through the RP+5 Process has generally been supportive of the changes contained in Draft 4.

The proposed amendments are not minor amendments. In fact, they represent a complete abandonment of the underlying principles of the plan, including directed growth. This change of direction is being brought to council at the absolute last minute, with no meaningful public input. The proposed changes were never consulted on, and in fact fly in the face of what residents asked for in the RP+5 process.

These amendments would essentially abandon the concept of directing growth to our urban and rural growth centres in favour of allowing growth in areas where it will be expensive for the HRM to provide services. It would allow for development of areas that the community has clearly identified as wanting to preserve, such as the Purcells Cove backlands. They would represent a giant step backwards, not just from Draft 4 of the Plan, but from the 2006 Plan. To make such a significant change in direction at the last minute and contrary to public input would do irreversible damage to the public confidence in municipal decision-making processes like RP+5.

I urge you to vote against these amendments. Let us move forward with the plan the people have asked for.

Regards,

Derek Simon

Abolishing the Senate: Should Canada follow Ireland?

Senate reform has been in the news on both sides of the Atlantic recently, with both Ireland and Canada actively debating whether to keep, reform or abolish their respective Upper Houses of Parliament.  The debate in Canada was sparked by the Harper government's proposals to reform the Senate, but has been back in the news mainly due to a series of scandals involving Senators.  In Ireland, the issue has been pushed to the forefront by the Kenny government's proposal to abolish Seanad Eireann (the Irish Senate), which goes to a national referendum on October 4th.  The abolition of the Seanad  is part of a larger government programme of constitutional reform, but seems to have garnered public support largely as a cost-saving measure.

As a Canadian with Irish citizenship, I have been following with interest the debate in both countries.  Apparently I am not the only one: politicians in Canada are reported to be watching with interest the possible countdown to extinction of the Seanad.

There are a number of obvious similarities between the Canadian Senate and Seanad Eireann.  Both are based in the British Parliamentary model of a bicameral Parliament, or one made up of two houses, where the Upper House was meant to act as a check and balance, or a chamber of "sober second thought".  However, in both countries, the Senate has too often been used as a convenient place to house political cronies, and both have had their share of political scandal over the years.

There are some obvious differences between the two Senates as well.  While Canadian Senators are appointed until age 75, and entirely on the advice of the Prime Minister, the Taoiseach (the Irish Prime Minister) appoints only 11 of the 60 members of the Seanad.  Another 6 are elected by graduates of certain Irish universities, and the remaining 43 are elected through a complex panel system by an electorate consisting of TD's (Irish MP's), Senators and local councillors.  Irish Senators are elected only until Parliament is dissolved prior to the next general election, so they serve a maximum term of 5 years before seeking re-election.

The two Senates also differ in terms of powers.  While the Seanad can only delay the passage of legislation approved by the Dail (the Irish House of Commons), the Canadian Senate has somewhat more power, having the ability to vote down legislation altogether.

Finally, while Seanad Eireann can be abolished through the support of a simple majority of voters in a national referendum (like other changes to Ireland's constitution), Canada's Senate can only be reformed or abolished with the support of a certain number of Provinces. 

Proponents of Senate abolition in Canada are quick to highlight the similarities between the two Houses, and have also been quick to point out that Ireland would join a growing number of countries that have abolished their upper chamber, including New Zealand and some Nordic countries.  They further point to the fact that many of the small democracies that emerged post-communism have chosen not to have a second chamber at all.  The implication is that Canada should follow this lead, and eliminate the Senate.

However, this analysis misses one vital, fundamental difference between Canada and most countries that have no second chamber. Canada is a geographically large federal state: it was made up of separate colonies who joined together to form one large country, with significant regional differences. It has both a federal and a provincial level of government.  Like other large federal countries such as the United States, Australia and Germany, Canada's Senate is meant to provide balanced representation of these different regional interests, and ensure that the voice of smaller regions is not drowned out by larger ones.  In fact, equal representation of regions is one of the main reasons the Canadian Senate exists, and one of the reasons smaller provinces were willing to sign on to Confederation in the first place. 

Ireland, on the other hand is a relatively small unitary state.  It has no state or provincial level of government. And while there are certainly regional differences, they are simply not on the same geographic scale as Canada's.  In fact, most, if not all of the countries that Senate abolitionists point to as examples of countries with no second chamber, tend to be small, unitary countries like Ireland.  Getting rid of the second chamber might make sense for countries like New Zealand, Estonia or Sweden, which are relatively small and have no state or provincial level of government.  However, most large, federal states like Canada have chosen to keep their second chamber.

So while Ireland's experience with the Seanad is interesting to politicos, it's not an example Canadians should blindly follow.  As the debate on the future of the Senate continues to unfold in Canada, we need to bear in mind the uniqueness of our own particular situation, and the fact that our reasons for wanting to keep or kill our Senate are likely very different than Ireland's.