To the considerable relief of many Canadians, Stephen Harper’s term as Prime Minister ended this month after a sweeping Liberal victory in the federal election on October 19. Changes in government are an opportune moment for reflection, and in this piece I look back at Harper’s social legacy. For a review of his economic policy, you can read my other article in this month’s Québécois Libre.

When the Conservatives came to office, they were accused of harbouring a “hidden agenda” against women, immigrants, aboriginals, homosexuals and other traditionally marginalized groups. While many of these fears proved to be unfounded (most notably about abortion rights), much of the government’s social policy over the past decade has been misguided and, in some cases, profoundly disturbing.

Citizenship

By far the most appalling measure introduced by the Harper government is Bill C-24, an odious piece of legislation that empowered the government—without judicial review—to strip certain persons convicted under the Criminal Code’s terrorism provisions of their Canadian citizenship. While treaty obligations prevent Ottawa from rendering people stateless, the list of those at risk is long indeed. It potentially imperils anyone with access to a foreign citizenship, which would cover virtually everyone born abroad, anyone with foreign-born parents or possibly grandparents and even all Jews (given their entitlement to citizenship under Israeli law).

Before this fall’s election, the Tories revoked the citizenship of the leader of the “Toronto 18,” who had moved to Canada when he was only 13 and is, by any reasonable definition, a product of Canadian society and therefore Canada’s problem. But the Conservatives did not stop there: Incredibly, they sought to cancel the citizenship of a man born in Canada on the grounds that he was also a Pakistani national by birth. And so a man who has never been to his parents’ country and does not speak its language could, after serving his sentence, be exiled to a completely foreign land where he has no future and nothing to live for (except, perhaps, to avenge himself against the country that inflicted such a thing on him). Banishment is a form of punishment that the civilized world abolished centuries ago, and yet it is back again in 2015.

While the Conservatives argued that only bloodthirsty terrorists need worry about these provisions, the definition of “terrorist activity” in the Criminal Code is sufficiently broad that an overzealous Crown attorney could try to use it to prosecute, say, demonstrators at a political rally who illegally block a public road and thereby impede the passage of emergency vehicles. And in any event, once the concept of exile has been introduced to our law, it is only a matter of time before it is applied to other offences.

National Security

In the wake of two homicides in October 2014—one against a Canadian soldier, the other on Parliament Hill—the Conservatives made the most of the ensuing climate of fear by passing multiple bills, including the Anti-Terrorism Act, 2015 (known as Bill C-51) and the Protection of Canada from Terrorists Act (Bill C-44). These far-reaching measures were a massive overreaction to two murders among the hundreds that are perpetrated across Canada every year, and their contents should be of concern to all Canadians who care about their individual liberties.
 

“However spotty Stephen Harper’s economic record was, there are good things to say about bits and pieces of it. But on social issues, it is hard to think of anything positive.”

Bill C-51 addresses “activities that undermine the security of Canada,” but defines the concept so broadly that it could cover any activity that harms the Canadian economy, such as environmentalists chaining themselves to trees to prevent logging. It also criminalizes “advocating or promoting” terrorism; in effect, prohibiting speech that may be highly upsetting but does not harm anyone. It prevents airlines from advising travellers if they are on a no-fly list, further opening the door to infringements of mobility rights. And it expands the use and duration of preventative detention (holding people without charging them with a crime).

The bill’s most worrisome provisions may be the new powers it bestows upon the Canadian Security Intelligence Service (CSIS). Hitherto a purely intelligence-gathering organization, CSIS is now a quasi-police force with the power to take undefined “measures” to reduce a perceived threat to Canada’s security. Exacerbating the situation, Bill C-44 specifically grants CSIS the power to pursue activities outside of Canada “without regard to any other law, including that of a foreign state.” This language enshrines CSIS’s authority to condemn a Canadian to Maher Arar’s fate by shipping him to a foreign dungeon to be tortured in the name of extracting information. And the only oversight of these chillingly broad powers is a five-person watchdog agency whose annual budget is 0.3% that of CSIS. We will all but have to take CSIS at its word that its new authority is not being abused.

Mandatory Minimums

The Conservatives prided themselves not only on their anti-terrorism laws, but also on their crackdown on criminality in general. The centerpiece of this agenda was the Safe Streets and Communities Act (Bill C-10) enacted in 2012 less than a year after they won a majority. An amalgam of nine separate bills that Harper was unable to pass while leading a minority government, it included a range of measures designed to appear tough on crime.

These included mandatory minimum sentences for a range of non-violent drug crimes, robbing judges of their ability to evaluate each individual defendant’s circumstances and sentence him accordingly. Pardons (renamed “records suspensions”) became less accessible, making it harder—and in some cases, impossible—for former criminals to start over. Maximum sentences for certain drug crimes were increased, more youths would be tried in adult court, and conditional sentences, under which a person could be found guilty but avoid jail time subject to good behaviour, were restricted. Such measures ensure that people who are little or no threat to others and who could easily be productive members of society will instead be thrown in prison for long periods of time, destroying their lives and their chances of setting themselves straight.

Given the dearth of evidence that longer sentences actually deter criminals, the massive financial cost of jailing each inmate (estimated in one report at between $65,000 and $130,000 annually), and the long-standing secular decline in crime rates, it should be no surprise that criticism of the bill was widespread. But the fact that Texas Republicans noticed and spoke out against Bill C‑10 should have given even Stephen Harper pause. And yet the fact that conservatives across the United States are rolling back inhumane and expensive tough-on-crime laws did nothing to slow the adoption of the crown jewel of his criminal justice agenda. If our public policy is fated to lag behind America’s, one can only hope that the turn away from such madness is on its way.

The Good

However spotty Stephen Harper’s economic record was, there are good things to say about bits and pieces of it. But on social issues, it is hard to think of anything positive. This article barely scratched the surface: From restricting immigration, to enabling harsh policing, to picking an unprecedented public fight with Canada’s chief justice, to claiming the title of “the last neocon” thanks to his confrontational foreign policy, this aspect of the former prime minister’s time in office has little to recommend it. Justin Trudeau’s government can scarcely avoid being better than its predecessor on this front, and with any luck, might even begin to undo some of the damage.

Adam Allouba is a business lawyer based in Montreal and a graduate of the McGill University Faculty of Law. He also holds a B.A. and an M.A. in political science from McGill.

From the same author

▪ The Canadian Election: Looking on the Bright Side (or, Putting Lipstick on a Pig)
(no 335 – October 15, 2015)

▪ I Don't Agree with His Bart-Killing Policy, but I Do Approve of His Selma-Killing Policy
(no 334 – September 15, 2015)

▪ Thank You, Edward Snowden
(no 333 – June 15, 2015)

▪ Omar Khadr: How Scary?
(no 332 – May 15, 2015)

▪ Discriminatory Discrimination Laws
(no 331 – April 15, 2015)

▪ More...

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