Kent Roach and Craig Forcese are professors of law at the University of Toronto and the University of Ottawa, respectively, and authors of False Security: The Radicalization of Canadian Anti-terrorism.
The police are presently intercepting private communications in search of speech that they think may promote "terrorism offences in general." That is the conclusion to be drawn from last week's government report on wiretaps authorized under Canada's criminal law.
To be sure, the report cites only two wiretaps seeking evidence of this new speech crime, introduced by Bill C-51. This may be because C-51 only came into force half way through 2015.
But since the new speech crime is breathtaking in its scope, normalizing investigations of it would draw police into surveillance of an even broader range of speech. Such practices raise clear free speech and privacy concerns.
There is also still the unanswered question about how the new speech crime will dovetail (or not) with the government's promised new program to counter violent extremism. An essential ingredient of any such program is speaking to those with extremist views, if only to dissuade. But if voicing views in the wrong place is a crime, those practising counter-extremism must worry that their efforts will become a stalking horse for a police investigation.
And so the dilemmas raised by C-51 remain: new powers with definite civil liberties costs incurred for doubtful security gains.
This is a recurring issue.
CSIS has employed its new so-called threat-reduction powers about 24 times, but we have no detail about what it has actually done. CSIS sought no warrants from the Federal Court of Canada, presumably because CSIS has so far limited itself to what it interprets as lawful and Charter-compliant conduct. But this renews the question of why it needs the (constitutionally doubtful) outer extremes codified by Bill C-51: the power to violate any law or any Charter right.
What we do know is that officials have been writing protocols ensuring that when CSIS uses its new powers, it doesn't disrupt the police investigations that lead to actual prosecutions putting dangerous people in jail.
The risk that CSIS's new powers will taint future prosecutions is a real one. Even the RCMP – much more attuned to these issues than CSIS – has sometimes struggled with overzealous investigative techniques. Just this past summer, a B.C. court threw out a terrorism case because the police entrapped the defendants – a first in Canadian anti-terrorism.
Meanwhile, the Privacy Commissioner has already raised concern about inconsistency in the use of Bill C-51's enhanced information-sharing powers, available to more than 100 federal agencies. This is entirely predictable: the broad and poorly drafted act permits information sharing for every imaginable security threat, whenever an agency deems it relevant (as opposed to actually necessary).
And ironically, the new law completely ignored the 2010 Air India bombing commission's recommendation for mandatory sharing with respect to information about terrorism offences – something that would correct the notoriously awkward-sharing arrangement between CSIS and the police.
These and other consequences of Bill C-51's hasty drafting and enactment are capable of resolution. The government has opened the door to a new recalibration, and is in the midst of a public consultation based on its National Security Green Paper released in September.
Perfect solutions are fleeting and uncommon in anti-terrorism. But we believe it is possible to meet legitimate security objectives while blunting civil liberties concerns. Doing so will require a close consideration of knock-on effects from well-intentioned but poorly conceived and drafted new powers.
In this regard, the Green Paper is not immune to criticism: it silos the issues it discusses.
The Green Paper places expanded digital investigative powers on the agenda, but without examining how C-51's enhanced information-sharing powers can aggravate damage new investigative powers could cause to privacy, all the while unchecked by inadequate review and accountability structures.
And while the Green Paper helpfully raises the issues of accountability neglected during the C-51 debates, its consideration of accountability gaps – the need to fix the lack of expert, specialized review for most of Canada's security and intelligence sector – is perfunctory. It can also be criticized for a glaring omission: discussing revamped oversight for Canada's signals intelligence service, the Communications Security Establishment.
The Green Paper raises the structural problems of converting intelligence to evidence in fair, open-court prosecutions, but does not relate this to the possibility that the new focus on peace bonds, secretive no-fly listings, and CSIS threat disruption (but not prosecution) may simply be a Band-Aid for these longstanding problems.
Still, we should applaud the Green Paper. It constitutes a first step to returning to more measured and evidence-based policy making in the contentious and dynamic anti-terrorism field. Whether it lives up to the promise will depend on what happens next.