Over the past two days, I’ve posted on the extremely disappointing review of Bill C-51 with Conservative MPs rarely asking substantive questions of critics and the difficulty the government had in finding expert supporters of the bill. The clause-by-clause review of the bill held earlier this week was not much better. Not only did the Conservative MPs reject all opposition amendments, but the discussion remained acrimonious with attacks against both critics of the bill and opposition MPs.

One of the most worst examples involved a proposed amendment from Green Party leader Elizabeth May which incorporated suggestions from the Canadian Bar Association. The CBA, like many witnesses, expressed serious concern about the inclusion of a provision in the bill that appears to grant judges the right to issue warrants that violate the Charter of Rights and Freedoms (Craig Forcese writes about the government’s anomalous effort to justify this provision). The CBA noted in its brief:

This aspect of the proposed Bill is at odds with the role of the courts and the judiciary. Canada’s judges are charged with upholding the Rule of Law and Canada’s Constitution against unlawful state action. They should not be conscripted by the state to limit Charter rights, when their fundamental role is to ensure that all legislation is in accordance with the Constitution and prevent unjustified Charter violations.

The proposed sections 12.3 and 21.1 could authorize any conduct that violates the Charter in the name of reducing a threat to the security of Canada, as long as it does not obstruct justice, cause bodily harm, or violate sexual integrity. This invitation to Charter violations is unlikely to be justified under section 1 or to be interpreted as being “prescribed by law”.

There are also procedural concerns with this proposal. Any deliberation on the fundamental question of when and how CSIS can be authorized to violate Charter rights will be conducted in an ex parte and in camera warrant proceeding. The hearing will be conducted in secret, and only the government’s views will be represented. No third parties will be able to make submissions. Further, the ultimate court decision will likely be unavailable to the public, due to confidential security information. No party will be able to appeal the decision.

How to address Charter busting warrants issued at secret hearings that cannot be appealed? The obvious answer is to not create this form of warrant, which will certainly be challenged on constitutional grounds. However, absent that, the CBA recommended that the warrant provisions “be amended to ensure that they align with the fundamental role of Canada’s judiciary in upholding the Rule of Law and Canada’s constitutional guarantees.”

Green Party leader Elizabeth May proposed an amendment consistent with the CBA recommendation that would add a requirement that the warrant be consistent with the rule of law and principles of fundamental justice. That elicited a remarkable response from Conservative MP Diane Ablonczy (PressProgress has the video), who proceeded to blast the CBA, the Green Party (who she accused of creating barriers to protect Canadians against terrorism), and the very idea that a judge should have to also consider the rule of law and fundamental justice. The full response:

Ms. May seems to have a touching faith in the Canadian Bar Association, but others of us have been members of various bar associations. I’ve been one and I have quite a different opinion. It’s disappointing to see the Green Party continue to attempt to put more barriers in the way of protecting Canadian society against terrorism and terrorist threats. Now, here’s another example.
   
Right now in order for CSIS to take the steps that they feel are necessary to protect against a threat, they have to go to a judge, say what they’re going to do, why they’re going to do it, and convince the judge that this is a reasonable and legal thing to do. The judge has to consider the CSIS Act to see whether CSIS is in fact acting within their mandate, and of course the Charter, because anything that CSIS wants to do has to be compliant with the Charter, as we’ve already talked about at length.
   
Now the Green Party wants to throw some other things into the mix. I’m sure the NDP would never want to do that. Now the judge has to also consider, in addition to the Charter and the CSIS Act, something like rule of law. They have to consider things like principles of fundamental justice, whatever that is. If the Green Party had their way, there would be such a morass of opinions and considerations that action would be pretty much at a stalemate. I strongly disagree with the Canadian Bar Association on this, and I’ve been a member of the bar, and I strongly disagree with this amendment.

There are reasonable arguments against the proposed amendment, namely that judges don’t need a statutory provision to know that rule of law and fundamental justice should be factored into decision-making. Yet Ablonzcy’s comments suggest that they should not be considering those factors as it would create a “stalemate”. It is not clear how abiding by the rule of law would create such a stalemate, but Ablonzcy’s concern that it be explicitly factored – along with the attacks on the CBA and the Green Party – speak volumes about how Conservative MPs approached the review of Bill C-51.