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Canada’s new legal tools to fight terrorism: Necessary? Reasonable? Too costly?

What to make of the government’s new anti-terrorism legislation, which has been approved by the House of Commons (183 to 96) and is now being considered by the Senate? The rationale the government has offered for Bill C-51 seems sensible enough: to provide Canada’s security services with what amount to five new legal tools to fight terrorism. Yet the bill has met with a storm of protest, including street demonstrations across the Canada, and the controversy is not likely to dissipate any time soon. At issue is whether the new legislation is necessary and reasonable, or too costly to civil liberties in Canada.

The following takes a stab at explaining the intent behind the measures and the nature of the opposition the measures have generated.

AN ACT TO ENACT …

If you’re not up on an important issue of public policy, you’re confused by the partisan fog that surrounds it, and you want to get at the truth, the first thing to do is to take a look at what’s actually on offer. In the age of the internet, primary sources of information are more readily available than ever before – the speech the politician actually gave not the six-second sound bite on the evening news or the three short paragraphs in the paper, the court’s actual written decision not what some “prominent law professor” or “activist” says is in it, the actual text of a think tank report not the five-line analysis of an editorial writer or opposition member.

So let’s look at what Bill C-51 actually says. It’s not an easy bill to digest because it covers a lot of ground and references changes in other legislation. But it’s what there is.

The title of the bill is long in order to explain what it’s about: “An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act, and the Immigration and Refugee Protection Act, and to make related and consequential amendments to other Acts.” So there will be two new security laws and amendments to three other laws which also deal with security, along with some tidying up of other legislation so that everything fits.

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The new Security of Canada Information Sharing Act

The declared purpose of the Security of Canada Information Sharing Act is to provide a legal basis for federal security institutions to better share information with each other. Most Canadians assume this already happens, after numerous stories over the years of security agencies failing to share information which might have prevented terrorist attacks. Canada’s own best example was the breakdown in communications between CSIS and the RCMP prior to the 1985 Air India bombing which killed 329 people. Insufficient cooperation between the CIA , FBI and local law enforcement was a contributing factor in the success of the 9/11 attacks. In the aftermath, both Canada and the United States consolidated their civilian security agencies under single departments of government in large part to reduce the silos which restricted information sharing.

In Canada, legal obstacles remain to CSIS and the RCMP working fully cooperatively together. The reason is that CSIS has a lower threshold for collecting information than the RCMP does. Under the CSIS Act, the Service can investigate “activities that may on reasonable grounds be suspected of constituting threats to the security of Canada”; for the RCMP, the threshold is reasonable grounds to believe.  So CSIS can act on its suspicions, but the police need something more solid to go on.  What this means is that CSIS may end up in possession of information which the RCMP would not have been authorized to collect and therefore could not use in a prosecution. Likewise, there are privacy constraints on what information can be passed between these two organizations and others with a security-related mandate such as the Passport Office, the Canada Border Services Agency, and Public Safety Canada.

The new Secure Air Travel Act

The Secure Air Travel Act appears to have some of the same better-late-than-never purpose about it. Until now, the only legal basis for the no-fly list has been the 30 year-old Aeronautics Act which provides some limited authority to deal with terrorist threats directed at an aircraft. Under the new act, the no-fly list is to have its own foundation in law, with all the precision and protections a law is expected to have including a recourse process for persons who have been denied transportation.  The law not only targets people who may pose a threat to transportation security but also those who may travel by air for the purpose of committing a terrorist offence somewhere else. It also directs air carriers to take specific action against such people. In cases where there might not (or not yet) be grounds to arrest or take legal action against a suspected terrorist, the law would permit security authorities to search the suspect at an airport and if necessary to deny boarding.

Amendments to the Criminal Code

In a democratic country like Canada, the criminal code is always a work in progress adjusting to changing social conditions and societal values. The amendments in Bill C-51 make it an offence not only to conspire or to commit an act of terrorism (already covered in the Code), but also to advocate or promote terrorism “in general” in the knowledge that, or in reckless disregard of the possibility that, terrorism offences will be committed as a result.  The amendments also provide for the seizure of terrorist propaganda whether in written or electronic form. Further amendments stipulate the terms and conditions under which the police could secure a court order to hold a suspect, impose sureties, and shut down terrorism-promoting websites.

Amendments to the Canadian Security Intelligence Service Act

In the 1984 CSIS Act, Parliament created a civilian agency to collect intelligence about security threats to Canada. In fulfillment of its mandate, the act authorized CSIS to take action which would intrude on the “privacy” of individuals, subject to meeting rigid criteria not dissimilar to the rules police have to follow to conduct surveillance, tap phones, and the like. CSIS operations require the political approval of the Minister of Public Safety, a favourable legal opinion from the Attorney General of Canada, a warrant issued by a judge of the Federal Court of Canada, and a full report after the fact including to the Security Intelligence Review Committee (SIRC).

But the CSIS Act did not authorize the Service to do anything about the security threats it uncovered. All it can do is pass on such information as the law permits to the RCMP who may, or may not, then launch an investigation of their own.  The amendments permit CSIS to take “measures”, both inside Canada and abroad, to counter threats and thwart plans. The amendments stipulate that these must be “reasonable and proportional in the circumstances”, and may not cause death or bodily harm, obstruct the course of justice, or “violate the sexual integrity of an individual”.  These are the same three stipulations in the Criminal Code which govern disruption activities by the police.  The amendments also create new reporting requirements for CSIS, and require SIRC annually to examine at least one aspect of CSIS’s conduct in “taking measures” to reduce threats.

Amendments to the Immigration and Refugee Protection Act

The effect of the amendments to this Act is to better protect the confidentiality of security information provided in support of legal proceedings against foreign nationals whom the Government wishes to detain and deport because they pose a security threat. In many cases, the Government, the courts and advocates have been at loggerheads over the Government’s desire to withhold certain information (the judge is allowed to see it) whose disclosure to the defendant or advocate would be “injurious to national security or endanger the safety of any person”.  The amendments define the obligations of the parties, reinforce the Government’s legal right to withhold certain information, and allow the Government broader scope to appeal adverse decisions.

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Summarizing: Bill C-51 puts additional legal tools into the hands of agencies dealing with security matters in order to address five problem areas:

1. An agency of government being legally impeded from sharing with another agency certain kinds of information about a possible threat to the safety and security of Canadians.

2. Agents who are tracking suspected terrorists lacking the authority to take preemptive action to stymie an attack.

3. Police and security services being inhibited from intervening when information is being propagated which knowingly or recklessly encourages terrorism.

4. CSIS having no authority of its own to disrupt an impending security threat which it has uncovered.

5. The conundrum of how to use confidential information in a public court to secure the removal from Canada of an individual who poses a security threat to Canada, and the resulting lengthy delays in resolving deportation cases.

THE CRITICISM

If the legislative action proposed strikes some as reasonable responses to problems, others do not. The criticism has been mostly of four kinds: the measures are unnecessary since the terrorism situation is not as bad as the government makes it out to be, the government severely limited public input into the drafting of the bill, the bill affronts civil liberties particularly the right to privacy, and the bill accords CSIS new powers when it should be constraining those powers and imposing more controls.

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On the magnitude of the problem:

The government and its critics operate from different premises in addressing the issue of terrorism. The government argues the terrorism problem is growing and becoming an increasing threat to Canadians. Critics claim the government has exaggerated the scope of the problem for political purposes and that terrorism has actually affected few Canadians. Other causes of death take a much heavier toll among Canadians. Moreover, conducting a “war” on terrorism accords it a stature it does not deserve; better simply to apply the full force of the criminal code against it. In brief, terrorism is a criminal justice issue which requires no special measures to deal with.

The critics don’t have the numbers on their side. The latest edition of the reputable Global Terrorism Index reports there have been over 48,000 terrorist incidents worldwide since 2000 claiming over 107,000 lives.  More ominously, the annual death toll rose from 3,361 in 2000 to 17,958 in 2013, a five-fold increase. Just five countries account for 60% of the lives lost, but the rest of the world suffered a 54% increase in terrorist incidents in 2013. The number of countries experiencing more than 50 deaths has risen to 24, an all-time high. Between 2000 and 2013, OECD countries accounted for seven per cent of all terrorist attacks (3,151) and five per cent of all deaths (4,861). Excluding 9/11, they averaged 229 attacks and 130 lost lives per year with several of the attacks among the most deadly. Total fatalities numbered 1,865. This is a war of some kind, largely driven by an Islamist ideology, not a crime spree. It’s also a war coming to Canada.

Global Terrorism Index Incidents Growth

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Canada has never been a terrorism-free zone. Its history includes terrorism at the hands of the Fenians, the Sons of Freedom, the FLQ, Direct Action, the Animal Liberation Front, Cuban exiles, Sikh extremists, and Armenians and Turks. It also includes the anthrax death threat hoax against four Cabinet ministers in March 2015 in protest over Bill C-51. To date, radical Islam accounts for few casualties in Canada, but some famously dangerous terrorism plots have been uncovered. Canadian police and security authorities report that terrorists continue to plot attacks against Canada, to conduct activities in Canada in support of terrorism globally, and to radicalize individuals in Canada. Canada, lest we forget, has been at war with the Taliban, Al-Qaeda and ISIL, three of the four groups (the other is Boko Haram) which the Global Terrorism Index reports accounted for 66% of terrorist deaths in 2013.

(It should be noted that the Index distinguishes between terrorist activity and wartime activity. It counts as terrorism only acts by sub-national groups deliberately targeting civilians, typically invoking a distinct ideological or political message to be conveyed to a larger audience than the immediate victims. Hence, the actions of a government such as that of Syria or Iraq or of a paramilitary organization such as ISIL attacking a Syrian or Iraqi army regiment would not be classified as terrorism but warfare.)

On public input to the bill:

A widespread complaint about Bill C-51 was that the government severely limited public input into its drafting. It was much argued that the House of Commons Standing Committee on Public Safety and National Security held few hearings, called few external witnesses, notably excluded the current and all past Privacy Commissioners, and did not “listen”.

Complaints of insufficient consultation are not atypical of controversial government initiatives, and the current government has aroused opposition in recent years over its public handling of issues. Nonetheless, the government’s record on Bill C-51 has not been especially egregious.  It made its intentions known years ago, introduced the bill itself at the end of January 2015, and only secured approval of it in the House on May 6.  The Standing Committee held seven days of hearings over four weeks in March, spending 16 hours hearing from 49 external witnesses.  The Committee also considered numerous written submissions, including a six-page commentary offered by the Privacy Commissioner.

Opposition parties routinely charge the government of the day with not “listening”, though what they usually mean is that the government hasn’t agreed with them. In the case of Bill C-51, the opposition parties reportedly suggested more than a hundred changes with the government moving on only a handful of amendments. Whether this constitutes evidence of not listening or of not agreeing likely depends on which side of the political aisle one occupies. Many, however, would consider it demeaning of the government to have rejected the Privacy Commissioner’s request to appear before the Committee. It was certainly something of a public relations disaster for the government to refuse to “listen” to someone of his standing and expertise on some of the matters under consideration.

On civil liberties and the right to privacy:

Critics have argued that Bill C-51 represents an assault on civil liberties and the right to privacy. The government lawyers who crafted the legislation obviously thought differently, so some caution is warranted in accepting at face value the opinion of other lawyers who disagree with them — especially those who warn the public that “The details are difficult for non-experts to navigate”.

The most passionately made arguments against Bill C-51 fall into two categories. One is that the bill would authorize various government agencies to directly breach the rights of Canadians. The other is that the language of the bill is often sufficiently imprecise as to allow for such a possibility.

The first of these doesn’t entirely fit with the rationale the government has offered for the legislative changes it has proposed, i.e. to provide a firmer foundation in law for the security agencies to deal with certain security issues. Hitherto, the government has been criticized for its excessive resort to extrajudicial powers.  It would also imply a level of legal incompetence not normally associated with the Department of Justice, though there is legal opinion in the land which has been highly critical of the department’s acquiescence in what’s been described as the government’s efforts to “politicize” it.

The worry over the paucity or ambiguity of language would seem to have more merit and deserve some attention. For example:

  • Information is to be more widely shared among designated government institutions in a manner declared to be consistent with the Charter and the protection of privacy, but the legislation says little about the obligations of the receiving institutions.
  • Provisions regarding the police’s expanded powers of “preventive detention” of suspected terrorists are sparsely outlined.
  • There is little clarity as to how police powers to constrain terrorism advocacy will be exercised consistent with freedom of expression.
  • The authority for CSIS to engage in disruption measures constitutes an important addition to its traditional mandate, but it is not obvious that the addition has been accorded the consideration it is due or that the envisaged review processes would be fully adequate. As David Harris told the House of Commons Standing Committee on Public Safety and National Security, “It would be very important that the system be capable of following the execution of disruption exercises and operations … It’s not entirely clear to me that we necessarily have all of that back-end emphasis in hand yet”.

If there is substance to these concerns, it is not likely any will be left unattended for long. Once the law comes into effect, one can count on those who believe the government has overstepped to seek remedies in court.

On oversight and review:

Parliamentarians were particularly vocal on the issue of accountability. As the leader of the Official Opposition said in the House, “The Conservatives want to give significant new powers to CSIS without addressing serious deficiencies in oversight … The last report of the under-resourced Security Intelligence Review Committee found that CSIS is ‘seriously’ misleading the committee in one investigation after another, and it faced ‘difficulties’ (and) ‘significant delays’ in getting information about the spy agency’s activities.” The leader of the Liberal Party echoed these concerns, pointed out that SIRC is only mandated to review CSIS’s actions after the fact, and proposed the creation of a broadly-mandated parliamentary oversight body similar to the Intelligence and Security Committee in the UK.

Concerns about the adequacy of oversight and review mechanisms predate the CSIS Act of 1984 and have been a constant ever since. Last October (2014), the Vimy Report published an analysis of the issue by BGen (ret) Jim Cox which reminded readers that Parliament is the ultimate guarantor of responsible security and intelligence operations in Canada and that the time had come to “put a little more energy into holding parliamentarians to account for their lax approach to accountability and a little less into trying to find fault with intelligence agencies whose operational responsibilities these days are as weighty as they ever have been”. Regrettably, the trend in recent years has been in the opposite direction. While serious proposals for enhancing oversight remain unattended, in 2012 Parliament acquiesced in the government’s termination of the Office of the Inspector General of CSIS — an office established under the CSIS Act expressly to monitor the Service’s compliance with its operational policies and review its operational activities.

In the final analysis, if Canadians are to support the changes proposed by Bill C-51 and have confidence their security is in good hands, both Parliament and the Government must be able to reassure them and provide them the tangible evidence they are entitled to.

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The feature image is the three-meter high bronze statue of Veritas, one of two (the other is Justicia) which adorn the front entrance of the Supreme Court of Canada in Ottawa. The statues are by Walter Seymour Allward, one of Canada’s most distinguished sculptors, who was also responsible for the Canadian War Memorial at Vimy Ridge.

The photo is by Victor Rakmil (www.rakmilphotography.com).

Paul H. Chapin

Paul Chapin is Executive Editor of The Vimy Report. He was formerly director-general for international security at Foreign Affairs and Canada’s lead negotiator in the Canada-US talks on Canadian participation in BMD and revision of the NORAD agreement. He can be reached at pchapin@rogers.com.

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