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The Conservative government has introduced multiple pieces of legislation in recent months that affect security, privacy and the power of policy agencies. The latest, Bill C-51, would beef up the powers of Canada's spy agency (the Canadian Security Intelligence Service), criminalize the promotion of terrorism and provide the RCMP with new powers of preventive arrest.The Conservatives say the bill is necessary to combat the threat of terrorism, while critics say it constrains too many freedoms in the process. Read these two opposing views from security experts, and use the box on the right to vote.
Christian Leuprecht : Globalization has made Canada as vulnerable to violent extremism as our allies. The difference is that most of them – Britain the U.K., France, Spain, Germany – have had to live with terrorism for decades. Many have long had in place the provisions similar to the ones in C-51 that are the cause of such consternation here at home. Canada needs to grow up and benefit from their experience in understanding that freedom and security can be reconciled.
Should CSIS inform parents that their child may be looking to travel abroad to join the Islamic State? The Alberta parents whose daughter recently left the country sure thought so. But under a strict reading of the current act, CSIS has no authority to do so; nor can CSIS cancel the suspect traveller's plane ticket; nor a clear mandate to inform Passport Canada. Under its current mandate, all CSIS can do is collect, analyze and retain information, advise government, provide security screening (for new citizens and passport applicants, for instance), and engage in limited foreign intelligence. C-51 will make it possible for CSIS to disrupt suspect financial flows, operations and personnel. If any rights are being violated in the process, CSIS will need to seek judicial authorization. And before it can do so, that authorization has to be signed off by the Minister of Public Safety. And before that it is vetted by an interdepartmental committee. And before that it has to pass all the accountability measures within CSIS. Moreover, CSIS will have to report on its use of disruption powers to the Security Intelligence Review Committee. Those are the exact same checks currently in place for CSIS seeking a warrant. Want to be a spook? You need a master's degree. Professionalism aside, CSIS will use these new powers sparingly if at all, precisely because the agency knows that they are controversial and their misuse would call its legitimacy into question.
It is not all that uncommon for a Canadian traveller to lose his/her passport, nor to show up at an embassy injured. But when someone shows up at Canada's embassy in Beirut having"lost" his passport and with a bullet hole through his shoulder, that raises red flags. However, privacy regulations currently prevent the consular officer from warning CSIS (or any other government entity for that matter) of the individual's circumstances and impending arrival. Similarly, if Foreign Affairs becomes aware of dual-use technology destined for Iran or North Korea, the department does not have the authority to notify CSIS. And even if it did, CSIS has no authority to disrupt that shipment. C-51 is enabling departments to share data. And enable is the operative verb here. C-51 is not the Patriot Act. Data are shared only on the intentional premise of enabling security, not in a broad catchall fashion.
Measures of detention that are clearly distinct from arrest
Other than running surveillance on terror suspects or arresting them, the options in Canada are pretty sparse. Arresting someone is difficult because that means having enough evidence for the Crown to have a reasonable chance at obtaining a conviction. The problem in Canada is that the evidentiary threshold for anti-terrorism detentions is just about equivalent to arrest. In fact, Peace bonds have only been used eight times in Canada, in two separate cases. C-51 proposes to lower the threshold to impose recognizance or a peace bond on a suspect, extends the period of judicial remand for recognizance, and the duration of peace bonds. Consent from the Attorney-General must be retained before an application can move forward. In effect, these measures will allow limitations to be imposed on individuals, such as on their mobility or Internet use, without having to charge them, and keeping them out of jail, so long as they abide by their conditions. Had the RCMP succeeded in getting a peace bond in place against Martin Couture-Rouleau, Warrant Officer Patrice Vincent would likely still be alive today. Environmentalists, animal-rights activists, First Nations and just about anyone else concerned about the impact of these provisions on peaceful protest should remember that the aforementioned measures need to meet both, the terrorism threshold and the national security threshold, and that the Crown needs to demonstrate intent.
Craig Forcese and Kent Roach : Bill C-51 has been in the public eye for more than a month. While the bill's objectives are laudable, its execution is concerning, even alarming. It is within our means as a society to create a law that balances security with liberty, and actually achieves its stated security objectives. Bill C-51 is not that law.
Bill C-51 authorizes CSIS to"take measures, within or outside Canada, to reduce" very broadly defined"threats to the security of Canada." Where authorized by warrant, these"measures" could"contravene" the Charter or be"contrary to other Canadian law." The government says it needs these powers so that, for example, CSIS can warn families that a child is radicalizing. But these powers reach much further: The only outer limit is no bodily harm, no obstruction of justice and no violation of sexual integrity.Maybe CSIS needs so-called"disruption" powers. But what will happen when CSIS['s operations end up (as has often been the case) overlapping with an RCMP investigation? A criminal trial may be mired in accusations that CSIS"disruption" was associated with the crime at issue. Will our most successful anti-terror tool – criminal law – be degraded as CSIS muddies waters? And even if"confliction" between cops and spies is worth the risk, we can meet the government's security objective without the excess of the current proposal. Amend the bill to remove any hint of CSIS being able to violate the Constitution. In C-51, judges are being asked to bless in advance a violation of our Charter rights, in a secret hearing, not subject to appeal, and with only the government side represented. This is not like search warrants – those are designed to ensure compliance with the Charter. What the government proposes is a"constitutional breach warrant." This is staggering.
The proposed Security of Canada Information Sharing Act in Bill C-51 declares a legitimate government interest in sharing information about security threats. The government is right – information in the possession of government should not be"siloed" in a manner that inhibits proportional security response. But as is endemic in this bill, the government meets legitimate need with overreach. The act will relax constraints on the flow of information about"activities that undermine the security of Canada." This is a new and astonishingly broad concept that is much more sweeping than any definition of security in Canadian national security law. The Privacy Commissioner has now warned:"All Canadians – not only terrorism suspects – will be caught in this web." It does all this without meaningful enhanced review. The bill does not incorporate an accountability regime matching its scope. Even as it erodes privacy, it fails to learn from the lessons of the Arar and Iacobucci commissions of inquiry about the injustice that may stem from poorly governed information sharing. Canadians were tortured overseas because the government shared information, without adequate safeguards. It is possible to minimize this possibility – but Bill C-51 makes no effort to do so.
New Speech Offence
In Bill C-51, the government wants to jail people who, by speaking, written, recording, gesturing or through other visible representations, knowingly advocate or promote the commission of terrorism offences in general, while aware of the possibility that the offences may be committed. This offence raises many serious issues, and should (at best) be considered extremely concerning. The government states it needs this crime to penalize those who instruct others to"carry out attacks on Canada". This is puzzling, given the breadth of existing offence. People have already gone to jail for terrorist propaganda. And we continue to view s.83.22 of the Criminal Code (instructing someone to carry out a terrorist activity) as reaching calls for attacks on Canada. But even if we are wrong, the new offence is a sledgehammer where a scalpel is needed. We doubt it is consistent with the Charter – it reaches well beyond speech that threatens actual violence. And given its remarkable ambiguity, it may chill constitutionally-protected speech. For those not concerned with the free speech, consider what speech chill will mean for security agencies that depend on open speech on social media to track conduct, or open speech as part of counter-violent extremism programs designed to navigate people away from violence. The new offence injures liberty and may undermine security. And that problem can be easily cured with some careful redrafting.
Authors' note: A detailed analysis of our views can be found at antiterrorlaw.ca.