Episode 10 – Canadian National Security Law, Bill C-51 and Trudeau’s Reforms, with Professor Kent Roach

Steven Meurrens

This episode contains an overview of the history of national security law in Canada, starting with the MacDonald Commission and the October Crisis of 1970, the formation of the Canadian Security and Intelligence Service, the Air India bombing, the Arar Inquiry, 9/11, and Bill C-51.

We also discuss the roles of CSIS, the Communication Security Establishment, the Royal Canadian Mounted Police, and the Canada Border Services Agency, in administering Canadian national security legislation.

Finally, Professor Roach provides an in depth analysis of several controversial elements of the previous Conservative Government of Canada’s Bill C-51, and the current Liberal Government of Canada’s response under Prime Minister Trudeau.

Kent Roach is a Professor of Law and the Prichard-Wilson Chair of Law and Public Policy at the University of Toronto. He is a Member of the Order of Canada and is considered to be one of the foremost experts on national security legislation in Canada.

Professor Roach begins by providing an overview of national security law in Canada, starting with the MacDonald Commission and the October Crisis of 1970, the formation of the Canadian Security and Intelligence Service, the Air India bombing, the Arar Inquiry, 9/11, and Bill C-51.

He then summarises the roles of CSIS, the Communication Security Establishment, the Royal Canadian Mounted Police, and the Canada Border Services Agency.

Finally, Professor Roach provides an in depth analysis of several controversial elements of Bill C-51, and the current Liberal Government of Canada’s response.

His book, False Security The Radicalization of Canadian Anti-terrorism, can be found here.

The paper that he authored which he references throughout the podcast, Righting Security: A Contextual and Critical Analysis and Response to Canada’s 2016 National Security Green Paper, can be found here.  Its abstract reads:

This article responds to the Canadian government’s 2016 consultation on national security law and policy. It outlines a series of concerns, both with laws enacted in 2015 (and especially bill C-51) and some interpretations of C-51 and other laws in the consultation documents. It urges the need for a systematic and contextual understanding of the many issues raised in the consultation. For example, information sharing and increased investigative powers should not be discussed without attention to inadequate review and accountability structures. Similarly CSIS’s new disruption powers need to be understood in the context of the intelligence and evidence relationship. The article proposes concrete and significant changes to the current legal and policy regime motivated both by civil liberties and security-based concerns.

Episode 9 – Garth Barriere & Eric Purtzki on retrospective laws, plus Donald Trump and Canadian immigration

Steven Meurrens

Garth Barriere and Eric Purtzki joins Peter Edelmann and Steven Meurrens to discuss the constitutionality of laws that are retroactive or retrospective.

Garth and Eric are both criminal defence attorneys in Vancouver.  Both have appeared before the Supreme Court of Canada on numerous occasions.

A retrospective law is a piece of legislation that operates going forward, but looks to change the consequence for a past action.

A retroactive law changes the legal consequences of what the act was in the past. It changes someone’s legal status as it was in the past.

There is a presumption against both retrospectively and retroactivity in Canada, however, there is no general Charter protection against it.

The Supreme Court of Canada in R. v. K.R.J.can be found here. Garth and Eric both appeared as counsel in this case, which formed the basis for our discussion.  In this case, the Supreme Court affirmed that while criminal laws should generally not operate retrospectively, an exception would be made in the case of sentencing for sexual offenders involving minors.

In reading this case, and listening to the summary of it, it is helpful to keep section 11(i) of the Charter in mind, which states:

11. Any person charged with an offence has the right …
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment

It is also helpful to understand how s. 1 of the Charter works.  Section 1 of the Charter states that:

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

As such, a breach of s.11(i) of the Charter will still be constitutional if the law is demonstrably justified.

The Supreme Court of Canada decision in Canada (Attorney General v. Whaling) .can be found here. Garth and Eric were both counsel in this case, in which the Supreme Court found that the retrospective changing of parole requirements to make them more onerous was a form of punishment, and unconstitutional.

Another leading Supreme Court of Canada case on retrospective legislation, which Garth briefly mentions, is R. v. Dineley, in which the Supreme Court of Canada stated that where new legislative provisions affect either vested or substantive rights, retrospectivity is undesirable, and accordingly Parliament must have a clear intent that legislation be retrospective.

The Supreme Court of Canada decision in Canada (Citizenship and Immigration) v. Khosa that Peter mentions can be found here. In this case, the Supreme Court ruled that courts should give a measure of deference to administrative tribunals, including the Immigration and Refugee Board.  Garth was lead counsel in this case.

Starting at around the 31 minute mark we discuss the retrospective nature of the 2013 amendments to the Immigration and Refugee Protection Act.  Previously, a permanent resident who had been convicted of an offence and got a sentence of 2 years or more could not appeal a deportation to the Immigration Appeal Division.  In 2013, the 2 year sentence rule was changed to 6 months, and applied retrospectively.

Finally, Peter’s factum in Tran v. Canada (Public Safety and Emergency Preparedness), which the Supreme Court of Canada will hear in January, can be found here.

Episode 8 – Lobat Sadrehashemi on whether Maryam Monsef’s Canadian citizenship could be revoked.

Steven Meurrens

Lobat Sadrehashemi joins Peter Edelmann, Deanna Okun-Nachoff and Steven Meurrens to discuss issues in Canada’s citizenship revocation and refugee determination processes. The recent controversy around Maryam Monsef guides our discussion.

Lobat Sadrehashemi is an Associate Counsel at Embarkation Law Corporation.  She is also the Vice President of the Canadian Association of Refugee Lawyers (“CARL“).

Sorry about the sound quality at some points in this episode. We’re still getting the hand of this equipment.

CARL’s reform proposals for Canada’s inland refugee determination system and other aspects of the immigration system, which we recently submitted to the Ministers, their staff, IRCC, and the Immigration and Refugee Board can be found here.

Lobat’s paper on Refugee Reform and Access to Counsel in British Columbia can be found here.

Episode 7 – David Eby and Tom Davidoff on Vancouver’s Housing Market

Steven Meurrens

A discussion of the role of immigration on the Vancouver housing market.

Tom Davidoff is an Associate Professor at the University of British Columbia’s Sauder School of Business.  He is frequently cited in the Vancouver media as being an expert on Vancouver’s housing market, and was part of a team of nine academics who created the B.C. Housing Affordability Fund proposal.

David Eby is the Member of the Legislative Assembly for Vancouver-Point Grey, and was previously the Executive Director of the British Columbia Civil Liberties Association.  He is a passionate advocate for making Vancouver a more affordable place to live.

  • What has been going on in the Vancouver housing market? How fast have prices been rising?
  • Is there evidence that foreign investment / foreign funds has been the cause of the increase in Vancouver housing prices?
  • What data is there regarding the amount of foreign home ownership in Vancouver?
  • What is the property transfer tax, and what are the new rules on how it applies to foreign buyers?
  • Is there evidence that high housing prices impacts the rental market? Does it matter if the landlord is a Canadian or a foreigner?
  • Why should high housing prices matter? Why should people think that they should be able to live in a market that they cannot afford?
  • Should we move beyond the paradigm of valuing single detached homes?
  • What role do international students play in the increase in housing prices?
  • Does the fear of being accused of racism prevent government from addressing the issue of high prices?
  • Is real estate such an integral part of the British Columbia economy such that high prices are now “too big to fail?”
  • Should we move beyond the paradigm of valuing home ownership?