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OSCE finds Bill C-51 violates the Universal Declaration of Human Rights

The Organization for Security and Co-operation in Europe released a report detailing Bill C-51's infringement of freedom of expression and privacy rights of citizens.

Ottawa (26 May 2015) — Bill C-51, the federal government's anti-terrorism bill, is coming under fire from yet another organization. This time, the Organization for Security and Co-operation in Europe (OSCE) has provided a legal analysis of the new legislation and determined that it violates the Universal Declaration of Human Rights, as well as the International Covenant on Civil and Political Rights, due to its infringement on freedom of expression and privacy rights. 

Canada was one of the founding countries of the OSCE

Canada was one of the founding countries in 1973 when the Conference on Security and Co-operation in Europe (now the OSCE) was established. According to the Foreign Affairs, Trade and Development Canada's website, it says "During the Cold War, the Canadian delegation played a leading role in bringing democratic and human rights values into the CSCE negotiations."  This statement stands in direct contrast to what the OSCE discovered during its examination of the new anti-terror bill that is before Parliament.

The report, Legal Analysis of the Proposed Bill C-51, the Canadian Anti-terrorism Act, 2015: Potential Impact on Freedom of Expression, says that while it is the State's responsibility to address security threats, "international law establishes clear standards for how to balance security needs and the imperative of respecting freedom of expression, in particular by placing limits on the extent to which States may restrict freedom of expression."

OSCE warns that the media may be restricted in its ability to report on terrorism issues under Bill C-51

The OSCE is concerned about Bill C-51 for its amendment to the Criminal Code that has a dramatic impact on freedom of expression. The amendment seeks to prohibit "knowingly advocating or promoting the commission of terrorism offences while knowing that these offences will be committed or being reckless as to whether or not they may be committed." Under international standards there is concern for potential "overbreadth" and therefore the report calls for any restrictions on freedom of expression to be "limited to direct and intentional incitement to terrorism" rather than the broad description included in the legislation. The report says that "this is potentially of particular concern to the media, which has a professional responsibility to report on terrorism and to ensure that the public are informed about terrorist threats and activities."

Criticisms include the new power allowing the government seize or suppress material it considers to be terrorist propaganda 

But the concerns do not stop there. The OSCE also raises concerns about the amendment to allow the responsible minister to seize or suppress on "reasonable grounds" whatever it considers to be "terrorist propaganda." Giving such broad powers, based on a loose description, there are concerns about its overbroad application. Again, it is the media that may be targeted as it reports on terrorism and security issues. 

When it comes to privacy concerns, the establishment of the Security of Canada Information Sharing Act and the Secure Travel Act caught the OSCE's attention as well. The language in the Security of Canada Information Sharing Act dramatically increases the power to share information among 17 different government institutions in Canada. Some of these institutions maintain a great deal of personal information about Canadians. 

The report says, "The link between threats to privacy and to freedom of expression has been well established and the enabling of significantly greater internal sharing of information among government institutions may exert a chilling effect on freedom of expression." 

Secure Travel Act raises concerns that people with no connection to terrorism may be caught up in the no-fly list based on controversial comments

The OSCE concerns about the Secure Travel Act  "are that it gives the responsible minister the power to place anyone on a no-fly list where there are ‘reasonable grounds to suspect’ that they may threaten transportation security or travel for purposes of committing certain terrorist activities. Although intentional abuse of this provision is unlikely in the Canadian context, there is a real risk that individuals who are in no way associated with terrorism may be caught up in the scheme based on controversial comments they may have made about terrorism. Furthermore, individuals placed on the no-fly list may be prevented from going before a court to contest this action for up to 90 days."

Key recommendations to resolve concerns

The report includes four recommendations as to how Bill C-51 could be improved to reduce the privacy and freedom of expression concerns:

  • The amendments to the Criminal Code contained in Section 16 of Bill C-51 should be limited to direct and intentional incitement to commit terrorism offences.
  • The definition of "terrorist propaganda" should similarly be limited to material which incites others to commit terrorism offences.
  • The standard for engaging the seizure or suppression measures should be more stringent than mere "reasonable grounds," for example, by requiring there to be substantial grounds, and some risk of harm, such as a likelihood of incitement to terrorism, should be added.
  • The proposed Security of Canada Information Sharing Act and Secure Travel Act should be reviewed to ensure that it strikes an appropriate balance between privacy (and freedom of expression) and the need to combat terrorism, including by limiting its scope to information that really is required to be shared to combat terrorism and by putting in place more robust oversight mechanisms.

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