Monday, 20 February 2012

C-30 & the Tragic Farce of Canadian Parliamentary Politics

The maelstrom arising from the tabling of the Conservative government's bill C-30 - misleadingly short-titled the "Protecting Children from Internet Predators Act" - has by this point become centred around the minister who proposed it, Vic Toews, and his public battle with an anonymous Twitter account. Sadly this sideshow has subsumed important questions about the dire consequences of certain provisions of the bill itself, much of which Toews - the very minister who sponsored the bill - now claims he was unaware of.

This single piece of legislation raises a host of serious questions extending far beyond the contents of the bill itself, many of which cut to the core of our system of parliamentary system. It is astounding that so-called stalwart defenders of our governmental heritage, such as Andrew Coyne, defend the lack of knowledge on the part of ministers. The problem is that this overlooks entirely a central feature of responsible government: ministerial responsibility. How is it possible for a minister to be responsible for the content and functioning of legislation so central to his own purview when the contents and scope are unknown to him? The simple answer is that he cannot.

The Harper Conservatives have already done much to undermine the central tenets of responsible government. They have taken steps to further enhance the power of the executive - in the form of the Prime Minister's Office (PMO) - and shield from the scrutiny of the democratically elected assembly in the form of the House of Commons. In fairness, this is a long existing pattern begun under Trudeau and perfected by Chretien, yet the fact that the pattern has been firmly established by the Liberals falls short of a valid reason for its continuation under Harper (Indeed, the 'Liberals did it' rational has been worn quite thing). It is worth remembering that the main plank in the Tory's 2006 electoral platform was one of accountability.

There is little in the way of depth or talent in the front ranks of the Conservative benches. Those with their hands on the public purse have an abysmal record of sound financial management. The finance minister could not see a recession coming straight for him, despite overwhelming evidence and continued to deny the clear reality. Tony Clement, now heading the Treasury Board, has become synonymous with pork barrel politics.

This is merely one form of governmental incompetence. The Toews scenario is far worse. A few points have been made in the minister's defence. First, bills are complex legal documents and difficult for laypersons to understand. Second, ministers face extreme time constraints which make it difficult to parse everything that passes through their department. These are asinine excuses. In the first instance, it is expected that ministers be qualified to hold their portfolios. Any MP unable to discharge their responsibilities should step aside. Correlated to this, ministers are privy to a host of qualified experts able to offer advice and aid. Second, the volume of materials that cross a minister's desk does not provide leeway to sign-off without understanding contents. This is particularly true of legislation. There is no reasonable argument why an MP - minister or otherwise - would be unfamiliar with a bill, particularly if he is sponsoring it. Again, no minister can be deemed responsible if they are unaware of the contents of so something so sweeping and widespread as Bill C-30. Excusing any minister who is derelict in his responsibility is to devalue the overarching constitutional principle binding Canada's government.

The bill itself is equally problematic. The discussion of the potential for gross violations of civil liberties and privacy has been discussed at length elsewhere. What has been missing, however, is any real discussion of whether or not the bill will accomplish its intended aim: protecting children. According to police chiefs the answer is yes. It should be noted, however, that rare is the police chief who rejects an increase in the powers of his force. Indeed, right-wing advocates for ending the gun registry likely had a point when they claimed that police chiefs had overstated the value of the registry to officers. Independent assessment - meaning non-police and non-governmental - is required.

As noted above, the bill's short title - "Protecting Children from Internet Predators Act" - is woefully inaccurate. It does nothing of the sort. This largely stems from the confused logic of cause and effect which so many - especially the media, the government and law enforcement - have come to accept, mainly that by increasing online surveillance by some miracle fewer children will be abused.

First, the act does nothing to prevent the initial abuse of children. This, of course, follows the typical pattern of Conservative crime bills which do nothing to prevent the creation of victims, yet use victims of crime as props to push the government's agenda. The unwritten law of Tory victim fetishization states that no act shall be passed which prevents the creation of a victim. Acts should limit their ambitions to punishing perpetrators with unduly harsh prison terms or expanding police powers to apply more broadly to the public. Rather than taking concrete steps to stem violent crime before it occurs or addressing rates of recidivism, the Harper regime has forced changes which make it more likely that prisoners - having spend more time in jail with fewer ameliorative programs - will re-offend once released.

The Act does nothing to prevent either the creation of child pornography - arguably the most abusive and most directly exploitative moment - or to stem the initial distribution of such material. Indeed, it is only after these stages have been complete that the act could be of any value, long after the child has been subjected to physical and emotional violence. To claim that the legislation protects children from predators is incredulous. The also provides little in the way of offering a disincentive to those making and distributing child pornography. Indeed, strict laws exist, but these do little to reduce demand. Those who desire the material are undeterred by the possible ramification, just as the death penalty is an ineffective deterrent against murder. As with much Tory legislation, blinded by a narrow ideological lens, they fail to understand the psychology involved.

Second, existing laws are sufficient to track down and punish criminals. As recent high profile busts have illustrated, there is really no problem of enforcement. Existing laws, with existing safeguards against violation of privacy rights, are able to adequately balance competing goals and obligations. The argument for expanding the scope of surveillance rests upon an idiotic assumption that more powers will lead to more arrests. Beyond the clear issue of the potential for widespread rights violations, such expansions are neither practical nor desirable. Casting a wide net and hoping to haul in a pedophile is a futile exercise. The internet is far too large. Police catch criminals by focusing narrowly where predators are likely to congregate and exchange material, not by randomly prowling the web. The solution would be to expand existing operations with more resources, not simply to expand their scope. Again, such operations do nothing to prevent harm or reduce demand. They don't protect children so much as pick up the pieces afterwards and punish those responsible.

Third, the act as written - and it remains to be seen if committee can salvage it - is a piece of futile legislation because it is unlikely to survive a Charter challenge, a point that has been entirely overlooked by those commenting on the issue. While somewhat premature to judge a piece of legislation's chances before the Supreme Court before it has even passed through the House, questions must surely be asked. One wonders if the lawyers in the department of justice have given up on providing advice to the Harper government on such matters. Suffice it to say, if C-30 receives Royal Assent, it is likely to fail a judicial test. Certainly the Court will accept that there is a pressing and substantial objective in protecting children from online predators. Beyond that, however, the means of achieving that objective become murky. First, I have questioned if, in fact, enhancement of online surveillance itself is rationally connected to the objective. I have suggested that simply expanding surveillance does little to enhance what provisions already exist. Second, it is unlikely that the minimal impairment test could be passed given how wide a net this act creates and how invasive it is. Third, proportionality is also in doubt, given the marginal benefit of expanding surveillance. An act which is destined to be struck down by the courts is one that is entirely ineffective in achieving its stated goal.

As with many contentious Tory bills which have already achieved Royal Assent or are still on the order paper, the short-title of the bill serves only to obfuscate and misdirect. Indeed, a good rule of thumb is to assume that the effects of a bill will be entirely the opposite of it's short title. In the case of C-30, little will be done to protect children. C-18 - 'Marketing Freedom for Grain Farmers" - provides no such freedom to small and vulnerable producers. The real intent of a bill is in the long-form title. C-30 is about enhanced police powers over the internet, full stop. It is entirely superfluous what the effect is for child victims of abuse. As is becoming all too common, what a bill claims to do and what it actually does are so grossly far apart it becomes a tragic farce. Moreover, the debate over this particular bill is emblematic of a number of other more serious problems, chief among them the slow agonizing death of responsible government in Canada and an indifference to ministerial responsibility which has become so endemic in the Harper government. If Parliament fails to hold this government to account, and the media continue to be distracted by sideshows like Vikileaks, Canadians should be thankful they have the judiciary to fall back on.

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