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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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Thursday
Feb192015

Bill C-51: Does it Reach Protest and Civil Disobedience?

In the Bill C-51 debate, some focus has now turned to whether the powers in the bill will target protest and advocacy of various sorts, including by environmental or Aboriginal groups (or indeed protest by any cause, from gun owners to those unhappy about student tuition).  For ease of reference, I shall call these "democratic protest movements".

Could the New Law Reach Democratic Protest Movements?

First point: what we are talking about here is the new information sharing powers on security grounds found in C-51.  And we are talking about CSIS's mandate under its existing Act, to which the new "kinetic" powers (or as the government brands it, "disruption") would be glued.

We are not talking about terrorist activity, for reasons I shall outline.  Nothing in the bill brands democratic protest movements "terrorists".  So no one can reasonably make that assertion.

But there is much in the bill that could wrap democratic protest movements into the orbit of "security" concerns.

For the details on the info sharing and CSIS powers, see backgrounder #3 and #2 posted here.  The short version: under C-51, the government will be able to share internally (and potentially externally) a lot more information about things that "undermine the security of Canada".  That concept is defined extremely broadly -- more broadly than any other national security concept in Canadian law.  Yes, it can reach the subject matter of many democratic protest movements.  I shall call it the "undermine" definition.

There is, however, an exclusion: the "undermine" definition does not reach "lawful" advocacy, protest or artistic expression. Everything then hinges on what is meant by "lawful".  I will return to this in a moment.

With the CSIS powers, the issue is whether the Service can investigate (and with the new Bill C-51) powers possibly disrupt, democratic protest movements.  Here, the Service's remit is much (much, much) narrower than the "undermine" definition.  Please, do not confuse (as many have), the Service's mandate with the "undermine" definition.

The Service's key mandate is instead defined in s.2 of its own Act -- the CSIS Act.  It is labelled "threats to the security of Canada".  I shall call this the "threats" definition. Almost all of the "threats" definition involve acts of violence.  The one exception (and the one that creates the most concern) is this one: "foreign-influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive ...". (It need not involve an actual threat to a person, although that possibility is added as an "or" after the list I have cited).

As we discuss in backgrounder #2, CSIS's review body (SIRC) was very unhappy with this concept in 1989, when it reviewed the CSIS Act and made recommendations for its amendment.  It contains too much "eye of the beholder" ambiguity.  SIRC critiqued this ambiguity, especially the use of "clandestine" (merely secret) and "detrimental to the interests of Canada" (whatever the government says it is). 

If you apply this ambiguity to "democratic protest movements", it is possible that the "threats" definition covers this sort of scenario: "a foreign environmental foundation funding a Canadian environmental group’s secret efforts to plan a protest (done without proper permits) in opposition to the Keystone Pipeline Project, a project that the government of Canada sees as a priority and strongly in 'the interests of Canada'."

Notice the reference to "without permits".  This is added because, like the "undermine" definition, the CSIS "threats" definition includes an exception for "lawful" activities.  (Although there is also a further provisio that these lawful activities can't be carried out in conjunction with any of the listed threats. So you could make the argument that since my environmental group scenario meets the definition of a foreign funded secret activity detrimental to the interests of Canada, it does not benefit from the "lawful" carve out anyway).

How Useful is the "Lawful" Protest Exemption?

But setting aside the painfully circular nature of many of these definitions, it should be clear that "lawful" is an important term.  And so what does it mean?  Reasonably, it means "fully compliant with the law".  And more than simply compliance with the criminal law.  It means full compliance with regulatory and municipal rules, and labour law, including in relation to strikes (no wildcat strikes) or protests (no protests without city permits -- think the Occupy Movement).

I am not making this up.  This is exactly the same debate we had in 2001, with the original Antiterrorism Act.  That Act introduced a definition of "terrorist activity".  For one aspect of that definition (serious interference with an essential service), there was an exclusion for "lawful" protest.  Concern was expressed (widely) that this reference to "lawful" meant that wildcat strikes or protests without permits that implicated "essential services" might be branded "terrorist activity".

And so the government dropped "lawful" as the precondition to protests. 

The Criminal Code provision now reads (s.81.01(1)(b)(2)(E)): "causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C)" [that is, real physical injury].

Why did the government drop "lawful" as a precodition?  Here's then Justice Minister McLellan in Parliament:

I move on now to the text of Bill C-36 itself. It is my intention to explain some of the amendments we are proposing this afternoon for consideration by this committee. These amendments are being proposed in order to improve and clarify the legislation. Again I would like to emphasize that much of what we are proposing reflects the comments and concerns that have been put forward by members of this committee, members of the Senate Special Committee on Anti-terrorism, and witnesses who have appeared before this committee.

Let me begin with the definition of terrorist activity. As this definition is a key element of the bill and the term is used in many of the bill's other provisions, no one should be surprised at the level of detailed scrutiny that has been paid to this element. One of the main concerns that has been expressed relates to the exclusion of “lawful advocacy, protest, dissent or stoppage of work” from the scope of the definition. It has always been the government's intent that lawful, democratic dissent and advocacy be protected and excluded from the definition. Some have questioned whether, because of the use of the word lawful, the definition might be construed and interpreted in such a manner that activities of this type would include unlawful activities, such as assault, trespass, and minor property damage, that might amount to terrorism. We have further examined this provision, and we agree that the provision could be misinterpreted.

Therefore, the government will propose removing the word lawful. I think this was a suggestion made by a number of people at this committee, including Professor Patrick Monahan, when he appeared here or before the Senate committee. I do, however, want to underscore that this would not have the effect of making otherwise unlawful protests lawful. What we're trying to do here is ensure that for example, with the illegal strike that takes as part of its form a demonstration in the streets—and this is an example that has been used by some in the trade union movement—even though that demonstration or the strike itself may be illegal, nobody for a minute assumes it is caught up within the definition of terrorist activity.

So we believe that by taking out the modifier “lawful”, we will clarify the intent of the government and reassure those who might otherwise be concerned that unlawful activity that falls well short of terrorist activity would ever be caught by this legislation. By taking out the term lawful, we believe we are clarifying that this specific exclusion from the definition of terrorist activity applies whether or not the advocacy, protest, dissent, or stoppage of work is lawful. What is important is whether the activities meet the high standard of the definition of terrorist activity, not whether the particular activity is lawful or not under some other law.

For similar reasons, we will be proposing other minor amendments to the definition to clarify that terrorist activity requires the commission of harmful conduct and intention alone does not suffice. We also propose to clarify that the illegal acts of a few cannot be construed to taint the legitimacy of other protesters.

And that is why there is no serious prospect that peaceful democratic protest movements are "terrorist activity" in our law. 

Implications

Violating regulatory or muncipal rules is bad.  People should be fined, and possibly prosecuted.  That is why we have police, and open, transparent courts, with due process and appeal rights.

But the question before Parliament now is whether peaceful democratic protest movements should be a security issue, handled covertly, when, e.g., they don't have the right muncipal permits for their protests.  And specifically, should such a movement fall within the ambit of the new "undermine" definition, or the expanded CSIS powers under the existing "threat" definition. 

Given the experience in 2001 and the legal views expressed by the government of the day, we have to conclude that if the government continues to include the qualifier "lawful" in its exceptions, it does so with eyes wide open.  It really does mean to include, e.g., "illegal strike[s] that takes as part of its form a demonstration in the streets—and this is an example that has been used by some in the trade union movement" within its "undermine the security of Canada" concept in the information sharing rules. 

And it is comfortable with the idea that, if other elements of the "threat" definition are met (e.g., as with the Keystone hypothetical above), democratic protest movements with tactics that do not square in every way with even municipal law may properly be the subject of CSIS investigation and possibly even disruption.

I take no view on whether CSIS would ever have the resources or the complete lack of internal governance checks and balances to actually proceed in this manner.  That is not my point.  My point is this: when we craft national security law, we craft it to deter bad judgment.  We do not craft it to be so sweeping and ambiguous that it must depend for its proper exercise in a democracy on perfect government judgment.  Very few governments are perfect.  And even if you think this one is, what about the next one?