The Book

 

 

 

 

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Sunday
Apr232017

The Citizenship Revocation Zombie: The Endless Saga of Bill C-6

Bill C-6 constitutes the Liberal government’s efforts to reverse the Tory changes to the Citizenship Act.  Among other things, it restores fraud in acquisition as the sole basis of revoking Canadian nationality.  It repeals the Tory provisions permitting revocation for those dual nationals who commit terrorism offences.

Why this is a good thing

For reasons discussed here and here and here and here, I do not agree with revocation for dual national terrorists.  I understand why it superficially seems like a good idea.  I also understand the impulse that demands denunciation and exclusion.

But revocation does little to make us more secure, while at the same time throwing other values under the bus.

As I discuss here, the Tory regime suffers from obvious constitutional infirmities. And as I discuss here, it is a measure motivated by a sense of grievance, not a cold-eyed assessment of its usefulness as a counter-terrorism tool.  Indeed, in all the parliamentary proceedings, there has been no cogent evidence of which I am aware setting out how revocation makes us safer.  The security presumption amounts to a naïve “Not in My Backyard” supposition.  Pick at the logic of that assumption, and all you are left with is that it just feels good to denounce terrorists.

Which of course is important – and it is exactly what we do with the criminal law, a much more robust and meaningful tool. If we have a problem with anti-terrorism in Canada, it is that we resort too often to administrative measures – which would include revocation – and not enough to prosecutions. But that is another discussion.

Bill C-6’s tardy trajectory

Reverting to C-6, that bill has taken a dog’s age in an apparently very dilatory parliamentary process. Now it is at third reading in the Senate, where under Senate rules it can be further amended.  And proposed amendments there are, including on additional due process standards for the classic revocation for fraud.  That is a good thing, assessed by my lawyerly eye.

But there is also an amendment proposed by Conservative Senator Lang that would restore a species of revocation for a terrorism offence.  The cross-referencing in all these changes is difficult to follow, but as I understand the language: the amendment would permit a criminal court judge trying a terrorism offence to make a declaration as part of any sentencing.  This declaration would have the effect of stripping nationality, but only (in practical effect) for dual nationals.  (The amendment replicates the existing standard guarding against revocation that would violate Canada’s international obligations and produce statelessness).

Meanwhile, the defendant would (still) have the onus of proving that they are not a dual national to avoid this prospect.

Why this is a bad thing

I will give Senator Lang credit for a system more honest that the existing scheme.  The existing scheme introduced by the Harper government was all dressed up as an administrative proceeding, but was clearly punitive.  At least Senator Lang’s proposal embeds revocation in an unequivocal penal setting.  (Although, not having researched it, I cannot think of another instance where a sentencing element for a crime is external to the Criminal Code).

At the very least, the close link to a Canadian criminal proceeding obviates concern about revocation being used in response to some doubtful foreign prosecution, or used by a political minister (the current system) rather than a judge.

But, it will surprise no one to learn that I still think it is a bad idea, on stilts.  First, it does precisely nothing to address my concerns about the security downside of revocation, discussed here, or the practical incongruity of where it would be available (in practice, for terrorist plotters but not actual terroristic killers never charged with terrorism offences, for the sort of reasons discussed here).

But second, the Charter section 11 protections in penal matters clearly now attach.  And there will be no doubt about the applicability of section 7 (fundamental justice) or section 12 (cruel and unusual treatment).  As discussed here, in the United States, the US Supreme Court held long ago that punitive revocation was cruel and unusual – it does not take much imagination to contemplate Canada’s Supreme Court following this reasoning.

As for onus of proof, the jurisprudence on onus of proof under section 11(d) and section 7 could be clearer, but placing the onus on a person to prove that they are not in the category of persons who may be punished by revocation (a form of aggravated punishment) strikes me as, well, supremely problematic.

Take this passage from the Supreme Court's decision in Pearson, directly related to onus of proof in sentencing: "it is clear law that where the Crown advances aggravating facts in sentencing which are contested, the Crown must establish those facts beyond reasonable doubt ...While the presumption of innocence as specifically articulated in s. 11(d) may not cover the question of the standard of proof of contested aggravating facts at sentencing, the broader substantive principle in s. 7 almost certainly would." (The Court cited with approval the earlier case of Gardiner and the following passage from an article by JA Olah: "... because the sentencing process poses the ultimate jeopardy to an individual . . . in the criminal process, it is just and reasonable that he be granted the protection of the reasonable doubt rule at this vital juncture of the process.")

A majority of the Court again cited these authorities more recently in R v. DB to conclude: "the Crown is obliged to prove, beyond a reasonable doubt, any aggravating factors in sentencing on which it relies" (at para 78).

It is also notable that in the US, revocations (where available at all -- basically, fraud) attract robust due process protections to a criminal standard of proof standard.

A Dual National Canadian is Not-Quite Canadian Enough

All that should be enough to deter any reasonable parliamentarian from venturing down this impossible path. But that’s all nothing as compared to the nuclear issue: The Lang amendment creates a separate penalty regime for dual national and for single-nationality Canadians. For exactly the same conduct and for exactly the same offence, the dual national is exposed to the considerable consequences of revocation, on top of criminal sentence. The single-national is not. 

(Perhaps you could argue that this additional peril might be mitigated by a sentencing judge, for instance, tempering the prison sentence in favour of revocation.  But there is no obligation that they do so.  And the Supreme Court in Pham suggested that there are limits in terms of whether immigration consequences can figure into criminal sentencing.  Nor, as I have suggested, do I think preferring revocation over incarceration is a great idea from a security perspective. Nor do I think you can quantify the relative implications of revocation – leading ultimately to permanent banishment – as compared to a sentence of years. Citizenship, after all, has been properly called the “right to have rights” and the consequences stemming from its revocation may be both more serious and enduring than a criminal sentence. In this last respect, this story of what happened to two former Britons is sobering).

So bottom line: as with the Harper government scheme, we still have a massive section 15 equality problem. Dual nationals would not be equal before and under the law, based entirely on the fact that they have (and perhaps are often stuck with) a dual nationality – or because they can’t prove that they are not dual nationals.  I discuss the niceties of section 15 issues at length here.

The takeaway

Generally, lawyers and law professors are reluctant to speak definitively about how courts might decide questions of constitutional law.  That is because prediction in this area is more idiosyncratic art than true science, and it is embarrassing not to be omniscient. 

But I am going to go out on a limb here (and yes, if ever proved wrong, I will leave this post up): zombies shall walk the earth and winged pigs flock to the sky before a system as proposed in this amendment satisfies the Charter.

Friday
Apr072017

Use of Force against Syria: The law is an ass so what to do about Pandora's Box?

In this entry, I follow the thread on some points made in my oped in the Globe this morning.  Readers may wish to consult that first.

The Hard Facts of this Case

The United States has bombed Syria. In it itself, there is nothing remarkable about this statement. After all, the United States and its allies have been using force in Syria against Daesh for years. The difference last night was, however, one of target and also, therefore, one of law. The sum consequence is: one more explosion for a smart bomb, and potentially one giant leap into the unknown for international law and relations.

The missile strikes last night targeted the Syrian military, not non-state insurgencies or terror groups in Syria. The use of armed force against Daesh is (controversially) justified as an exercise of collective self-defence, undertaken on the territory of a state (Syria) unwilling or unable to suppress armed attacks done by Daesh.

Whatever the disputed status of this “unwilling and unable” concept, self-defence is a legitimate exception to the legally-robust prohibition on one state’s use of force against the “territorial integrity or political independence” of another state (codified as Art. 2(4) of the UN Charter).  The other exception is authorization on use of force from the UN Security Council.

Largely because of Russian obstruction, there is no Security Council resolution authorizing force against the Syrian state or military.  Nor is there any plausible self-defence argument for use of force against the Syrian state itself (as opposed to against non-state actors mounting threats from its territories).  Syria has not attacked the US, or its allies. 

But Syria is massacring its own people, horrifically, in violation of most international law of any relevance.  Most recently, it is alleged to have (again) used chemical weapons.  (An obvious fear is that the US missile attack was provoked by bad intelligence – and the attribution of chemical weapon use to Assad’s government will prove incorrect.  Then we have an Iraq War redux. But Assad has used chemical weapons in the past.)

 

The Law is an Ass

Still, even with these Syrian atrocities: there just is no persuasive legal argument that these Syrian breaches justify use of force in response.  There is no other exception to the prohibition on use of force adding to those discussed above.  This is true whether one wants to call any additional exceptions “humanitarian intervention” or the “responsibility to protect”.  See also other discussions: here and here

People do, of course, urge the existence of these other carve-outs.  See most notably Harold Koh, here.  But unpack those discussions, and they turn on normative justifications – the should of international law, not the is. The is comes from basically two things: treaties and customary international law.  There is no treaty basis for either humanitarian intervention or R2P.  All that is left, then, is customary international law. And one would need to give supreme primacy to the state conduct (with opinio juris) of a handful of the world’s states to conclude an R2P or humanitarian exception exists.  And along the way, you’d need to ignore a lot of state expressions of dissent, not least dissent generated by the justifications offered by the United States in the 2003 Iraq War (where at least one line of justification focused on humanitarian impulses).

Nor is there any international law norm that permits use of force by one state against another to punish use of weapons of mass destruction.

And so we are left with a “wicked problem”: surely, we could prosecute the Syrian leadership for war crimes and crimes against humanity, if we had them.  But we don’t.  And so Syria acts with impunity, shielded by the well-meaning, international strictures on use of force.  And these well-meaning limitations on the use of force were intended by the framers of the UN Charter to operate in a world in which the Security Council worked – and where it would exercise collective defence.

Those framers were not pacifists.  But having lived through the Second World War, they wished to shackle as much as possible aggressive war – war undertaken for reasons other than self-defence.  The Security Council was supposed to deal with the circumstances (other than a state’s own immediate right to collective or individual self-defence) where threats to international peace and security obliged a forcible response.  And it was supposed balance great power rivalry.  But balance has meant, for most of its history, Security Council gridlock.

And so we are still left with the impasse: the law appears to be an ass, confronted with Assad’s atrocities.  And so perhaps the law should not speak in times of humanitarian crisis.

 

Pandora’s Box

The risk of that, of course, is both immediate and long-term.  The immediate risk is that a recycling of the “illegal but legitimate” claim from the Kosovo conflict in the Syrian context brings us a lot closer to a large inter-state war between the US and Russia than it ever did in Kosovo.

And the bigger problem: what is good for today’s hegemonic great power will be equally good for tomorrow’s, or indeed for today’s aspirants to great power status.  Whatever else can be said about the Article 2(4) framework: it has stabilized international relations between states.  Not perfectly, but nevertheless, to the point where use of force between states without lawful justification is anathema.  That is the explanation for the international community’s response to Iraq’s conduct in the Gulf War 1990.  And it is the reason why much of the world has sanctioned Russia for its Ukraine adventure.  (Both of those two instances involved a use of force culminating in de facto conquest.  But the illegality of the conquest is a by-product of the underlying prohibition on use of force.)

All of this is to say: Unravelling limitations on use of force in today’s uncertain political environment opens Pandora’s Box.

 

Making the Best of an Impossible Impasse

And so the question is: can we net whatever comes out of that box?

Or more concretely, if we are now committed to a path where force can be used for a noble cause outside traditional rules, can we confine it to those noble causes? Harold Koh proposes a list of sensible indicators designed to do just that.  And although I quibble with the any claim that they are currently part of international law, they certainly could be.  Better they than the alternative: expedient uses of force ungoverned by classic rules, used as much by the goose as the gander and for the wrong reasons.

So what policy prescription does this present. Many.  But one that comes immediately to mind this morning: No state should blankly endorse the US action. That is too much indefinite state practice that opens the door to competing and overboard narratives about “emerging customary international law”. 

Rather, any support should confine claims of legitimacy to the narrowest of facts: here, the need to act in the face of war crimes involving, not just the targeting of civilians, but the (so far, unfortunately, only alleged) use of an inherently illegal weapon of mass destruction by a state.  And we should borrow from self-defence rules and graft in some very strict proportionality rules. But stricter. (Many uses of force seem now to gravitate to regime change, which is the kind of thing that precipitates bigger wars and violations of the "Pottery Barn" credo: you break a country, you pay for it. Usually, we just walk away.)

In sum: if the use of force rules are to be sliced and diced, then the slices should be most minute and thinnest possible. Because a thick slice of baloney today is the kind of thing that can be used to justify the crassest form of aggression tomorrow.

Friday
Mar312017

C-22 National Security Committee of Parliamentarians Redux: The Good, the Bad, and Avoiding the Ugly

By all accounts, bill C-22 will complete third reading in the Commons next week and will be off to the Senate. But things have not been going all that well.

The Good

C-22 would create a security-cleared national security committee of parliamentarians (CoP). For the first time in Canadian history, parliamentarians who don’t also happen to be ministers would be entitled to access at least some classified information in reviewing Canada’s national security framework and activities.

This is a big deal.

For one thing, Canada is essentially alone among peer states in shutting parliamentarians entirely out of the secrecy tent. 

For another, this idea has been bandied about in one form or another in Canada since the early 1980s. All the official political parties have supported the idea at one point or another. Under the Martin government, an ad hoc parliamentary committee studied the matter and issued a comprehensive report.  The government itself released a detailed discussion paper.  And there was an actual bill introduced in Parliament – that then died with the Martin government.

So in reading what follows, it is important to keep a clear-eyed view of an essential truth: almost any (proverbial) loaf is better than the non-existent loaf we’ve had to date.  

Elsewhere, I have advanced arguments as to why a CoP is important.  But no one can reasonably claim it is a panacea.  No one can reasonably claim that even the most legally formidable CoP could burrow into the deep recesses of the security services and unearth facts that the security services were determined not to share. 

And so everything has always depended on a whole bucketful of good faith: Good faith that the security services are acutely aware that they depend on social licence and they operate in a system built on the rule of law. 

And good faith that a CoP will be something other than another venue in which partisan politicians will play piñata. That is, the CoP must be a place willing to embrace complexity, recognize wicked problems and grapple with nuance.

If you scoff at either of these good faith pre-requisites, then there is no point reading further. And in truth, the idea that parliamentarians could and would meet the good faith standard has been greeted very skeptically in a lot of different places over a good number of years.

In some large measure, C-22 constitutes a suspension of this worry.  And in large measure, that worry is superseded by realization that all of us (the security services included) would benefit from a more sophisticated parliamentary and public discussion of national security.

The Bad

But aspects of the worry lurk, and they explains the structure of C-22.

So where did we start on that structure?  Let’s be clear: even when first introduced in Parliament, C-22 was stronger than its Martin government predecessor.  And while there is some variation of opinion on this, I believed (and continue to believe) that on paper it was (and is) stronger than its Australian and UK analogues.[1] (Whether it will in practice depends on that intangible: the bucketful of good faith).

In other words, C-22 was (and is) at least a half loaf.  But, of course, any half loaf is…missing a half loaf.  And so the parliamentary process is where parliamentarians have a chance to consider a law project.  And I am grateful and appreciative when those parliamentarians call on those of us who are struggling to research and analyze these kind of things.

And so my views (expressed with colleagues) have been: good law project; important development in Canadian national security accountability; has shortcomings that can be fixed.  Put another way: C-22 was a Volkswagen, with some doubtful emissions control results.  With amendments, it could be a BMW.

Without rehearsing all of those shortcomings, the key issue has been: will the CoP have a sufficient entitlement to see the information it needs to do its job? For more on that question, see here.  My view has been that in its first reading version, there were excessive limits on the CoPs access to information that opened the door to too many roadblocks, even when everyone was operating in good faith.  That is because even people operating in good faith can disagree.  And good faith disagreements over sharing of classified information may be the biggest challenge in national security law and policy.  So it would be nice to obviate that inevitable problem by giving the CoP indisputable access.

When C-22 was vetted and amended at committee stage of enactment, we actually got there: full access, except Cabinet confidences. This put the CoP on the same footing as our existing expert review bodies for CSIS and CSE.  I think this is wise and justifiable (see here).

But the manner by which the legislative committee got to these amendments was, well, confusing and did not necessarily reflect the intent of all members of the committee. That is, there were politics in play. And so what had to that point seemed to me to be a very high-calibre legislative deliberation (reportedly) frayed into something less high-calibre.

Predictably, the government put back the legal restraints on access to information when the bill came back to the House on report stage.  Now to be clear: they didn’t put everything back.  They definitely headed in the right direction.  For one thing, they did not restore fully the list of automatic information exclusions.  For instance, military intelligence is no longer automatically excluded from CoP consideration.  But yes, CoP access to information can be carefully controlled by the executive.

And so the question is: what to do now?

Avoiding the Ugly

I’ll offer a few oblique thoughts, for what they’re worth.  Above all else, let’s cool the jets. C-22 is not like other laws.  With most other laws, politicians can irritate each other in Parliament, a bill can pass and the resulting law can still function. 

It can still function because it doesn’t depend on the same politicians now sitting on the institution created by the law, and making it work. 

The C-22 CoP is radically different.  A committee of parliamentarians born in partisan acrimony will die in partisan acrimony.  If the opposition parties see the CoP as a unilateral “Liberal project” bereft of any input attributable to their interventions, they will have no political incentive to seeing the CoP succeed. We may be able to overcome this kind of politics – the actual members of the CoP will not be brick-throwers from their parties. 

But the absence of cross-party buy-in and an accrual of partisan acrimony reduces the prospect that the CoP will work, at all.  The members of the C-22 CoP will need to consolidate around a shared mission, shared professional culture and shared mores of behaviour. 

And if they don’t then the skeptics will be proved right: parliamentarians should never be let anywhere near classified information.

So let me step even further outside of my lane: to get there, there needs to be water in everyone’s wine. The amendments that have been made since first reading close some gaps.  We aren't that far off from a compromise.

What precise changes would bridge the current political crevasse is a matter best left to those who can speak for their parties.  But surely, this is no longer a debate between Volkswagen and BMW.  Instead, we may be within reach of a nice Subaru Outback PZEV with the technology package. (Full disclosure: I have an Outback. It plows through snowy roads nicely).

And so the task shall fall to the Senate. It needs to find us an off-ramp from the impasse.  And along the way, it needs to be thinking about the day after C-22 becomes law. My key point in this essay of mixed metaphors: A parliamentary process that exhausts the stock of good faith needed to power a CoP cuts off the nose to spite the face.

 


[1]                 There is some element of apple and oranges in making this statement. And much depends on how you weight and offset differences in various areas. (For me, breadth of mandate and access to information are the two most important considerations. I also worry a lot about staff resourcing and coordination with the expert review bodies.) For a table that compares the systems in C-22 (as it was at first reading), UK, Australia and NZ, see here.

But to amplify on my view: I think the subject matter and the institutional remit of the C-22 committee is broader than the UK and Australian analogues. (Although Richard Bolto’s fascinating recent study suggests that Australian committee is increasingly able to review operation matters.)

Access to information appears likely to be better for the C-22 committee than the Australian committee – or at least there appear to be more checks and balances on denials.

It is probably a toss-up as to whether the general language in the UK Act on denying access to information is narrower or broader than the more detailed language in the C-22, but what I like about C-22 is that exclusions don’t reach such things as solicitor client privilege.

(In the UK, my sense is that the access to info is a negotiated outcome in some instances, and so it is hard to compare laws and determine what happens in practice. But what is really important is that UK exclusions from information are discretionary -- that is, the government consciously chooses to deny information.  In C-22, there is now a (shorter) list of mandatory exclusions. But that is still a problem: "We can't give you this information, the law stops us. Blame the law". Hard to evolve if that is the standard. Recrafting at least some of these automatic exclusions -- especially the one dealing with law enforcement -- into discretionary exclusions would be a good compromise and something to learn from the UK. Meanwhile, the MoU between the UK ISC and the UK Prime Minister suggests that agency power to deny UK ISC access to information will be exercised “very rarely”.  Hint, hint on where another line of compromise over C-22 might be drawn).

The C-22 regime has more built in efforts to try to web the expert bodies and the C-22 committee together.  On paper, there is more robust staffing powers in C-22. 

The post-2013 UK ISC has some attractive features not reflected in C-22, including the manner in which committee membership is determined.  My own view is that these are not all that consequential. 

For other comparisons that take a less positive view than I do in comparing the C-22 CoP and the UK ISC, see here and here.