In the wake of the Prime Minister’s rollout of Bill C-51, a massive antiterrorism bill, at a rally in Richmond Hill in January, some have speculated that the upcoming election will be fought on security issues. The initial signs, however, indicate that opposition parties may be reluctant to engage the government directly on security. The result may be that fundamental changes to our security laws and institutions will be adopted without an adult debate about their profound implications.
Security is an extremely complex topic. Sound bites like ”œtough on terrorism” or ”œcivil liberties are threatened” or ”œmore oversight” or ”œrights versus security” cannot do it justice. There is a need for a sustained, evidence-based debate that is not marred by claims of bad faith or attempts to take partisan advantage of such a serious issue.
Unfortunately debate about security issues in Canada remains less sophisticated and robust than that in many other democracies, most notably the United Kingdom. There are many reasons for this. Alone among lawmakers in democracies, not one Canadian parliamentarian can even see the secret information that one must have access to in order to make informed judgments about security operations.
Demands for parliamentary oversight are in the news, but often without apparent recognition that oversight is a real-time process and is quite different from and more unusual than retrospective reviews of security activities. Parliamentarians can and should play a role. They must, however, be supported by full-time professional reviewers with adequate resources and mandates to review all of the government’s national security activities. In Canada this does not exist.
Perhaps because the Ottawa attack in October 2014 hit so very close to home, politicians have not focused on the inherent security failures. For example, the opposition parties have not tried to capitalize on the staggering intelligence and protective security failings that forced Sergeant-at-Arms Kevin Vickers to end the Ottawa attack by killing the attacker.
There has been surprisingly little questioning about the revelations in mid-January that prosecutors denied an attempt to obtain a peace bond to restrain the movements of Martin Couture-Rouleau before he committed the Quebec terrorist attack in October. The response in Bill C-51, the Anti-terrorism Act, 2015, is lower standards for peace bonds and preventive arrests. It would also strengthen the ability of government to share information and place people like Couture-Rouleau on watch lists. But a person can commit a terrorist act while on a watch list or even when subject to a peace bond. The question of why there was no prosecution of Couture-Rouleau and how we would prosecute other similar individuals remains unasked and unanswered.
In the absence of legislative expertise, the executive, most notably the security agencies, will dominate the debate. The Canadian Security Intelligence Service (CSIS) has been the biggest winner in the government’s response to the October attacks. The proposed legislation will give CSIS more powers and privileges, but without ensuring that the intelligence agency delivers or that it is sensitive to the effects of its actions on other national security actors, such as police, prosecutors, the military and Foreign Affairs officials.
The changes for the police will make it only slightly easier to obtain peace bonds and preventive arrests. There is no public evidence yet to demonstrate that the changes are needed. Even assuming that they are, preventive detention is at most a temporary solution. It may also spawn the type of massive litigation over the scope and breach of peace bonds that could duplicate the United Kingdom’s unhappy experience with control orders.
The police have doggedly made multiple arrests in -Ottawa under existing laws, including offences added in 2013 to target foreign fighters. Prosecutors have launched what promise to be long terrorism trials in both Toronto and Victoria. This is important work that establishes that Canada believes in fair trials. It also has the potential to send a message denouncing the violence in terrorism. It suggests that our present law may be quite effective even without the new legislation.
The role of specially designated Federal Court judges will be increased under new legislation that contemplates a range of new warrants CSIS can use to address activities that infringe foreign laws and the Charter. The government has stressed that warrants demonstrate that there is oversight, but there are no provisions to allow for special advocates to play a challenge function. The new warrants may generate much jurisprudence that will be kept secret or will be heavily redacted for operational reasons.
Most fundamentally, the new CSIS disruption warrants in C-51 are based on the radical concept that judges can authorize Charter violations, as opposed to trying to prevent them, as is the case when they traditionally grant search warrants. Judges will be able to authorize the violation of any Charter right, including the right of Canadian citizens to return to Canada. In other words, the Bill is asking that judges be given a blank cheque to authorize all Charter violations. This is rather ironic for a government opposed to judicial activism.
Royal commissions have long played an important role with respect to Canadian security. This reflects Canada’s traditional but fading passion for public inquiries. Inquiries have allowed judges and their helpers to have a peek behind the ring of secrecy in a manner that has been denied to parliamentarians and was granted only with extreme reluctance, caution and delay in the Afghan detainee affairs.
The McDonald Commission in the 1980s revealed RCMP illegalities and the need for special review of the intelligence function. It was the most successful inquiry, as measured by its legacy in creating CSIS as a civilian intelligence agency subject to special review. At the same time, much has changed since then, and we need to update our security structures to avoid repeating past failures. Between 2004 and 2010 the Arar and Air India commissions of inquiry proposed major reforms. The failure to have an adequate debate about these reforms haunts the current debate. It raises concerns that the present quasi-emergency legislation may threaten both rights and security.
The security debate in Canada is less robust than it is in other democracies.
Although the Arar Commission is best known as a success for putting a face to post-9/11 security excesses, its recommendations for better integrated review to match whole-of-government information sharing were dead on arrival. The Ottawa security establishment complained this would be too much bureaucracy, presumably with a straight face. The proposed (and Orwellian-sounding) Security of Canada Information Sharing Act, part 1 of Bill C-51, demonstrates Arar amnesia, especially in section 6, which contemplates that once information is shared it could be shared again ”œto any person, for any purpose.”
Security review is conducted in silos, even while others in government have come into the 21st century and started sharing information and working together. The review silos have struggled. Two chairs have resigned from the Security Intelligence Review Committee (SIRC), which reviews CSIS, and the position of inspector general has been abolished. Commissioners who review Communications Security Establishment Canada (CSEC), Canada’s version of the National Security Agency, have been defensive of the agency, whereas prior commissioners, including the late chief justice Lamer and justice Gonthier, raised some alarm bells about how the agency interpreted its mandate. The RCMP complaints body is off the national security radar except for its 2012 report, which seems to have concluded, contrary to many other reports, that little went wrong when Toronto hosted the G20 in 2010.
A security-cleared parliamentary committee may play a role, but there is now a need for integrated full-time professionals " an intelligence auditor general or super-SIRC " to review all of Canada’s integrated national security activities.
The government may equate review with red tape, but review does provide a vehicle to learn lessons and adjust strategies. It also can build social capital and licence, especially with communities who may have reason to fear security excess. Part-time and amateur parliamentary review needs to be supplemented by full-time professional review with adequate resources and a whole-of-government mandate.
We should have had the review debate and reforms after the Arar Commission’s 2006 report. Now the government is responding to a perceived emergency again, without having the necessary debate. It is not yet committing itself to a future debate through sunsets or a review of the impact of its new legislation. Even if this is done, it is unfortunate that we discuss review only some time after giving the agencies new powers.
In 2006, the current government appointed retired Supreme Court Justice Jack Major to examine the 1985 Air India bombing in light of present-day security arrangements. The commission’s five-volume report has been ignored in recent debates about security reforms, even after Major publicly speculated in the wake of the October attacks about whether his report had been read or understood. The sound bite was reported, but there was no sustained questioning of why Major would complain in such a public manner.
Even though the government has an action plan to respond to his report, Major had plenty to complain about, because many of his key recommendations to make it easier to convert intelligence into evidence " prosecutorial reform, court reform, no ”œclass privilege” for CSIS sources and an enhanced role for a national security adviser to resolve disputes between CSIS and the RCMP " were rejected.
The government’s unwillingness to address the intelligence–evidence relationship has worsened with new legislation. Bill C-44, the government’s initial response to the October attacks, has sailed through the Commons with little attention to its decision to reject the Air India Commission’s recommendation that CSIS’s human sources should not be protected by a class privilege.
The new class privilege means that whenever CSIS promises its sources confidentiality, which has routinely been the case, sources will have an absolute veto on whether they can be called to testify in a prosecution or whether any identifying information can be disclosed " for example, to sustain a judicial warrant against Charter challenge. This new privilege will have the unintended effect of making terrorism prosecutions, including those against people who attempt to leave Canada to join foreign terrorist fighters, more difficult.
The Air India Commission recognized that CSIS’s emphasis on collecting intelligence will often clash with the RCMP’s emphasis on evidence and prosecutions. Sometimes intelligence must take priority over prosecutions. CSIS, however, should not make such decisions unilaterally. The commission recommended that disputes should be resolved in the public interest by someone who can see the big picture. It recommended that the prime minister’s national security adviser be in charge, but others might think it should be the minister of public safety, who is responsible for both CSIS and the RCMP.
There are concerns that resort to a security czar would be too slow and too cumbersome, but the alternative that seems to have been accepted is to allow CSIS, which should be first at the scene, to make decisions that will make terrorism prosecutions more difficult. The new legislation will not change the fact that CSIS and the RCMP have been forced to run parallel and in some senses competing investigations, as was the case in the aftermath of the Air India bombing.
Although it is heresy to say it, the range of intelligence failures since 9/11 and the Snowden revelations of the infinite data that are being collected may suggest that intelligence can be overrated. For example, there was intelligence about an increased threat to Parliament Hill, just as there was intelligence about a threat to the single Air India plane that left Canada each week in June 1985. Intelligence is useful only when it can be used by those who can stop terrorism attacks. Neither reviewers nor parliamentary committees are in a good position to determine whether we get value for money from intelligence.
Intelligence errs on the side of false positives, whereas many rules of evidence are designed to prevent wrongful convictions. As we use intelligence to impose consequences on people, however, this has implications for social relations. Muslims who are wrongly targeted, perhaps only because they have the same name as a suspected terrorist, may obtain redress under the enhanced no-fly list, but in many other cases there will be no redress. Bill C-51’s -sharing-of-information act will increase the flow of intelligence, which, as the Arar case should remind us, can be wrong.
Federal and local security officials must work to build and maintain relationships within Canada’s diverse Muslim communities, who are in the best position both to counter extremism and to send early warnings. The Cross-Cultural Roundtable on Security may have been a good idea in 2004, but it has not lived up to its promise. The militant and polarized fallout from Paris under the competing banners of ”œJe suis Charlie” and ”œBlasphemy” seems to have reignited the dangerous clash-of-civilizations thesis.
The government has raised the post-Paris temperature even more with Bill C-51’s proposed offence of promotion and advocacy of terrorism. Some in the Muslim community took offence when the Prime Minister passionately insisted that the legislation must apply in mosques and stated that violent jihadism ”œis not a human right. It is an act of war. And our government’s new legislation fully understands that difference.”
Leaving aside serious questions of speech chill and compliance with the Charter, one must question the marginal utility of adding promotion and advocacy of terrorism as the 15th terrorism offence in the Criminal Code. This is especially true when recent arrests and convictions demonstrate that speech that recruits and provides operational support for terrorism can already be prosecuted under existing laws. It is one thing for the government to provoke its usual suspects of civil libertarians and defence lawyers; it is another to alienate the 1.1 million Canadians who are Muslims. In a recent poll, 91 percent of Canadians supported the offence.
CSIS is the biggest winner in the government’s response to the October attacks.
It will be interesting to compare the debate about Bill C-51 with that conducted immediately after 9/11 over the first Anti-terrorism Act. The Chrétien government was determined to enact a similarly broad antiterrorism measure, in large part to respond to American security fears and comply with international mandates. Nevertheless, it was sensitive to critics who expressed concerns that the new laws would encourage discriminatory religious and racial profiling. After Bill C-36 was introduced in October 2001, the government amended it to provide that the expression of religious or political views short of threats to commit terrorism would not be an act of terrorism. It also tied speech and Internet regulation to Charter-compliant definitions of hate propaganda contained in the Criminal Code, which contains defences relating to religious beliefs.
The proposed new offence of advocating or promoting terrorism has no similar moderating restraints. The Prime Minister’s rhetoric when he introduced the Bill suggests that this may be intentional. Time will tell whether the government will entertain some moderating amendments, but its past track record suggests that it will not. The new offence, punishable by five years’ imprisonment, will be challenged under the Charter if it is used. More importantly, it could jeopardize outreach to those Muslims who are at risk of being radicalized.
The lack of serious public debate on security issues is troubling. Our failure to respond to the inadequacy of review revealed by the Arar Commission in 2006 and continuing problems in the CSIS-RCMP relationship pointed out by the Air India Commission in 2010 are coming back to haunt us in the rush to enact legislation to respond to the perceived emergency of the October attacks and the rise of ISIL.
Our ability to conduct public debates is facilitated by the Internet, but it is also adversely affected by the shrinking of nonpolarized space in civil society, which includes the media, think tanks and universities.
The government’s two security bills will be passed. Security agencies, especially CSIS, will get more powers and perhaps more resources, but without really having to account for past failures.
The opposition may avoid the government’s dare to make security " inevitably translated as toughness versus softness on terrorism " an issue in the next election. A simplistic debate would be unlikely to improve Canadian security policy and it could harm our social fabric. There is some truth to the statement attributed to Prime Minister Kim Campbell that an election is no time to discuss serious issues.
Security is a very serious and complex issue. We must create the time and space to debate it, because both our rights and our security may suffer from our failure to have adult discussions.
Kent Roach holds the Prichard Wilson Chair in Law and Public Policy at the University of Toronto. He worked with both the Arar and Air India commissions, and he is a 2013 Trudeau Fellow. He and University of Ottawa Professor Craig Forcese are preparing an extensive analysis of Bill C-51, available at www.antiterrorlaw.ca, which will be published as a book by Irwin Law.