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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Thursday
Jun162016

Knee Jerk First Reaction: Bill on National Security Committee of Parliamentarians

The much anticipated bill has now been introduced, here.  For background and my earlier position on this matter, see here.

My first take, in the interests of constructive criticism. Warning: I am a hard marker. Forgive typos. On a bouncing Via train.

This is a good bill, although with inevitable flaws likely reflecting compromises designed to reconcile elements within the government.  On an immediate read, I would give it a high pass, although not a pass with distinction.  First, I assume that this bill is not the end game for reformed review, and that we will see further enhancement of the expert review bodies ( noted in the bill) in a future bill.  With that caveat, this bill is an improvement over the status quo and the Martin era bill C-81.  It is important that the bill includes a working relationship with the expert review bodies, that it has reasonably robust staffing provisions and includes members from both chambers.  

The committee mandate is reasonable.  In practice, though, this is likely a committee that will be able to do serious work on only high level efficacy-related issues noted in clause 8(a).  There are two reasons for that.  First, the power to review "activities" in clause 8(b) is subject to national security veto by the minister.  This broad veto places the committee on a much more constrained footing in terms of reviewing activities than the expert review bodies like SIRC.  Second, while the initial access to secret government information anticipated in the bill seems broad, clause 16 is a potential Mack truck exception.  Specifically, the classes of information that can be denied under that provision, cross referenced to the Security of Information Act, appear on first blush to be tempered, but it includes any info from which the prohibited info may be inferred. Based on past practice in government secrecy world, the universe of info that the Government tends to believe may give rise to inferences is vast.  It is also concerning that there is no dispute resolution mechanism on this issue.  We will not see a repeat of the Arar Commission, where the Commission took the government to court over some of its redactions form the Commission's final report.  Going to court is almost certainly foreclosed.  Bottom line: this committee cannot see as much information as SIRC can, within the latter's review mandate.  On the other hand the fact that when disclosure requests are refused must be reported to a review body -- assuming there is one that is relevant to the department in question -- is a good thing.

The ability of the PM to redact final committee reports is broader than ideal -- at the very least there should be a capacity for the committee to signal that redactions have  been made.  And again, the absence of a dispute settlement system here is less than ideal.

Other points of potential controversy: whether parliamentary privilege can be constitutionally legislated out of existence per clause 12 is something I leave to parliamentary proceduralists to debate.  

The idea that the parliamentarians should be subjected to security clearance is essentially alien to other such committees in other democracies.  There, it is considered a violation of separation of powers for the executive branch to investigate members of the legislative branch.   A 2004 Martin government discussion paper raised concerns about the political implications of the government of the day using its security service to investigate the backgrounds of opposition parliamentarians.

Appointment of the chair by the PM was a controversial practice in the UK, abandoned in reforms several years ago -- now the chair is elected by the members.  Here, however, the chair is appointed by PM

The selection of members could be stronger. Selection by the PM with consultation with opposition leaders is a comparatively weak system -- there is no ratification by Parliament itself.  Consultation by certain PMs in the past for bodies like SIRC has amounted to notification.  Depending on the affiliations of the senators, it is also possible that one political party could control a majority on the committee, despite the restriction on only 4 MPs from the same party.

These are not fatal flaws, by any measure.  It would be very nice to address some of the issues noted above, but on paper at least, this will be a stronger body than the UK and Australian equivalents.  And a dramatic change for Canadian national security accountability.

Wednesday
May182016

Police "rogues", journalists & the hapless victims of classified innuendo

There is considerable discussion today (again) concerning the RCMP investigations into leaks of seemingly classified information said to implicate two individuals in a phone call in which they allegedly plotted a terrorist activity.

The narrative, at present, seems to have lost its mooring and to be a discussion of "police spying on journalists", with most people (reasonably) being quite concerned about that prospect.

But context is everything. I have watched this matter from a distance, and so do not claim intimate command of the facts.  But here are those facts, as I understand them (with corrections from those closer to the matter appreciated).

In the beginning...

There were two men that the government of Canada considered dangerous.  One -- Charkaoui -- was subjected to an immigration security certificate.  That process collapsed when the government withdrew the case, in the face of a court order that it provide more information on the case against him to Mr. Charkaoui.  (Mr. Charkaoui is famous for two eponymous decisions on the constitutionality of security certificates issued by the Supreme Court of Canada).  He remains in Canada

The second man -- Abdelrazik -- is a Canadian of Sudanese origin whose travails with the government were detailed in a Federal Court decision that concluded, along the way, that "CSIS was complicit in the initial detention of Mr. Abdelrazik by the Sudanese."

Sour grapes or frustrated anxiety...

Caught up in legal proceedings that the government could not win, someone in government apparently took it upon themself(ves) to leak information that alleged the two men were dangerous.  There was an initial leak in 2007 discussed here. There were additional leaks in 2011, covering some of the same ground.  In both instances, defenders of the two men accused the government (or persons in the government) of an orchestrated smear campaign.  Indeed, that question is still (as best I know) before the Federal Court.

These leaks followed other leaks made in the case of Maher Arar, casting aspersions on Mr Arar's character.  The O'Connor judicial commission of inquiry commented as follows on those 2003 leaks:

Unlike many other actions of Canadian officials that I describe in this report, leaking information is a deliberate act. Moreover, some of the leaks relating to Mr. Arar were purposefully misleading in a way that was intended to do him harm. It is disturbing that there are officials in the Canadian public service who see fit to breach the public trust for their own purposes in this way. It is disappointing that, to date, no one has been held accountable.

 

In both cases, the leaks were reported by journalists, raising questions as to whether those journalists were being fed information favoured by the faction or individual in government inclined to denounce individuals in cases that the government had (or would) lose in court.  Certainly, this was information to which there was no adversarial challenge before an adjudicator -- and this is of real concern given the difficulty the government had making out its case where there was such adversarial challenge.

This raises a collateral issue.  I am loath to comment adversely on a profession for which I have considerable respect, but surely there is some code or expectation among journalists designed to guard against being used in this manner?  If there is such a code or practice, I leave it to journalism experts to comment on its applicability to these scenarios.

Enter the police...

Canada does have a secrecy law, the Security of Information Act.  Among other things, it makes it a crime for persons within the security services (permanently bound by secrecy) to leak classified information (I am simplifying the rule greatly).  In the Arar matter, the Mounties investigated the crime.  And so too in the Charkaoui/Abdelrazik matter.  In neither matter did the investigation lead anywhere (as best I know).

The police are, in fact, supposed to investigate these crimes, and those inclined to think that government officials should not be able to take it upon themselves to leak selectively classified information (whether for an ulterior purpose or not) would welcome the idea of such investigations.  There are things that should be secret.  And certainly, secrecy should not be waived unilaterally by officials deciding to fight a cause lost in court in the much more carefree court of public opinion.

But these investigations are a mine field for the police.  That is because the lynchpin of the investigation may be the journalists. (This is less so now -- as US experience suggests, big data compilation of government information systems can now sometimes out a leaker with greater ease than poking around with a journalist).

In both the Arar leak case and the Abdelrazik/Charkaoui cases, the Mounties' investigations did involve journalists.  The Arar matter was the most notorious -- then-Ottawa Citizen journalist Juliet O'Neill was subject to a very invasive search, pursuant to a warrant issued in support of the Security of Information Act investigation.  The Citizen challenged the constitutionality of the crime being investigated -- successfully.  And so part of the Security of Information Act should be considered a dead-letter (and the prior government chose to live with this gaping hole, although sometimes consequences under this unconstitutional provision were threatened, as in the Bernier/Couillard matter).

Investigations involving sensitive sectors...

But other provisions -- including those governing persons permanently bound by secrecy -- persist.  And so the issue is: can the police conduct suveillance on journalists in an effort to find their source?  To which the legal answer is: yes, so long as done in compliance with the law.  And the law requires warrants (but only for searches and seizures and not for surveillance in public spaces).  Journalists are not immune, constitutionally or otherwise.  On the other hand, journalists (like academics, labour unions, religious institutions) are part of "sensitive sectors".  Pursuant to ministerial directions issued by the then-solicitor general Wayne Easter in 2003 (at the height of the Arar matter), there are special procedures that must be followed in investigations that touch on these sectors.

Those special procedures involve senior sign-off within the RCMP.  In the latest scandal, reported today, that senior sign-off was not (initially at least) obtained.  And hence, the RCMP officers were described by the CBC today as "rogue".

But we should be clear: if they were rogue, it was because they did not follow the ministerial directions.  There is no allegation of which I am aware that they did anything else off-colour, including any allegation that they broke a law.  (I stand to be corrected if someone can point me to a source that I have not seen.)

In sum: be careful what you wish for.  This was an investigation into a troubling practice of character assassination through the use of information leaked in possible violation of secrecy law.  Civil liberties groups called for an investigation (although certainly not for the RCMP to be ham-fisted in conducting it).  I for one have been disappointed that those investigations came to naught.


Friday
Apr012016

Antiterror Peace Bonds in a Nutshell

Ed note: I will keep with post "evergreen", adding information about new peace bonds as I become aware of it.

Peace bonds in terrorism matters have been in the news repeatedly this week, and I have been receiving a number of calls about what these are and how they work.  I hope this synopsis helps.

Peace bonds (more technically, “recognizances on conditions”) are essentially restraining orders.  They are relatively commonplace in a non-terrorism context.  Thus, a person labouring under a fear (based on reasonable grounds) that an individual may commit certain personal injury offences, sexual offences, certain offences relating to intimidation of the justice system or a journalist, or a criminal organization offence may bring the matter to a provincial court judge (although in some instances only with permission of the attorney general).

Terrorism Peace Bonds after 9/11

After 9/11, this list was expanded to include a terrorism offence.  And to be clear: here I am speaking of regular peace bonds, and not the peace bond process that can flow from what is colloquially known as “preventive detention” under s.83.3 of the Criminal Code (not as of yet ever used, as best I can tell).

In relation to the regular peace bond process: A person (in practice, a police officer) “who fears on reasonable grounds that another person will commit . . . a terrorism offence may, with the consent of the Attorney General, lay an information before a provincial court judge.” If the provincial court judge was persuaded that these reasonable grounds for the fear exist, she could order the defendant to “enter into a recognizance to keep the peace and be of good behaviour” for up to twelve months (and up to twenty-four for a convicted terrorist), and could impose other reasonable conditions. In its original form, refusal by the accused to enter into the court-ordered peace bond was punishable by imprisonment for up to twelve months, and a breach of the bond was a criminal offence, punishable by up to two years imprisonment.

 

Impact of Bill C-51

The Tory government used Bill C-51 to lower thresholds for acquiring terrorism peace bonds. They inserted a “may” where the 2001 law used a “will,” and also increased the penalties for breaching any peace bond to a maximum of four years imprisonment, while suggesting to judges a new range of conditions. As a result, “[a] person who fears on reasonable grounds that another person may commit . . . a terrorism offence may, with the consent of the Attorney General, lay an information before a provincial court judge.”[1] If the provincial court judge is persuaded that these reasonable grounds for the fear exist, he may order the defendant to “enter into a recognizance . . . to keep the peace and be of good behaviour” for up to twelve months (and up to five years for a someone with a terrorist conviction), and may impose other conditions to secure good conduct. A refusal by the accused to enter into the recognizance is punishable by imprisonment for up to twelve months. A breach of a recognizance is a criminal offence, punishable by up to four years’ imprisonment.

 

How often have they been used?

[Updated after originally drated to reflect fact that Driver has, in fact, entered into a peace bond, which I totally missed in February.]

At of the time of this writing, I estimate the number of terrorism peace bonds at 16 since the original 9/11 law.  This not-quite-back-of-the-envelope number is based on December 2015 reporting by Stewart Bell.  Mr. Bell was in turn basing his reporting on a figure from Public Prosecution Services of Canada: in 2015, “police have sought terrorism-related peace bonds against nine defendants in four provinces, according to figures provided by the Public Prosecution Service of Canada.”  In addition, we know that there were at least 6 peace bonds before this date (although it is possible that there were 8, as noted below).  There have been 4 peace bond processes underway in 2016, that I am aware of.  Driver has now in fact agreed to the peace bond -- a perfect record it seems of the Crown not having to take any peace bond matter to full adjudication in court. Another, against Kevin Omar Mohamed, has now been abandoned in favour of outright criminal charges.  Another -- Habib -- has morphed into outright criminal charges, but reportedly there is still a peace bond in the mix (a prospect I can't explain and find puzzling and wonder if is true).  And one more just concluded with a peace bond (Elabi) that, despite an apparent typo in the reference to the Criminal Code section, was about terrorism.  So I have sort of circled all this uncertainty, and suggested that there are many as 16 peace bonds that have now come to pass.

But, there is a margin of error in this number, which seems to range from 15 to 19.  The basis of this ranged estimate is as follows:

 

Name

Entered into under the original, pre-C-51 law up to 2015

1. Aboud

Toronto 18 case, entered into as a plea agreement

2. Ghany

Toronto 18 case, entered into as a plea agreement

3. Jamal

Toronto 18 case, entered into as a plea agreement

4. Youth #2

Toronto 18 case, entered into as a plea agreement

5. Youth #3

Toronto 18 case, entered into as a plea agreement

6. Dirie

Toronto 18 case, entered into after release from custody (and later violated when Dirie became a foreign fighter)

7. Unknown #1

Case referenced by PPSC in testimony before a parliamentary committee, and reportedly imposed as result of criminal investigation.  Possibly the youth ultimately charged in Thunder Bay on threatening and passport offences.  See Stewart Bell’s story.

8. Unknown #2

Case referenced by PPSC in testimony before parliamentary committee, and reportedly imposed as result of criminal investigation by late 2014.

 

Entered into under the original, pre-C-51 law in 2015

9. Ghalmi

Montreal case

10. Darko

Montreal case

11. Raisoladat

PEI case.  Lifted in May 2016 (always a bizarre case)

12. Aldabous

Toronto case

 

Entered into under C-51 law

13. Habib

Montreal case.  Reportedly the prosecutor was still seeking peace bond even while proceeding with outright criminal charges.

14. Elabi (Omar)

Montreal case (court docs say s.810.01, but must be typo given description of feared conduct and must instead be s.810.011).

 15. Driver

Winnipeg case -- peace bond looked like it would be contested, but in fact Driver agreed to the peace bond in Feb.

 

Others

Four mystery others

Potentially four others.  In late 2015, PPSC said there were 9 instances where peace bonds had been sought in that year.  Assuming this number included those identified in #9-12 above and Driver, that would leave 4 peace bond applications I do not know about.  It is possible that three of these are the peace bonds that were originally sought against individuals in Quebec, but set aside in favour of a prosecution for an offence (Jamil, Dejermane and reportedly an unnamed youth).  But I do not know who PPSC was including in their late 2015 count.  Hence the uncertainty.

 

Peace bonds sought after this blog was originally posted

 16. Abdul

Toronto case, involving feared terrorism travel, presumably to Syria (sought after an aborted effort to travel to the region). Apr 2016

17. Aviles

Toronto case, involving feared terrorism travel, presumably to Syria (sought after an aborted effort to travel to the region). Apr 2016, associated with Abdul

18. El Shaer Windsor case, involving feared terrorism travel, in an ISIS context. June 2016.  Actual peace bond document here.

 

Are anti-terror peace bonds a good thing?

Yes, in principle, but with caveats.  As Kent Roach and I argue in our very-reasonably-priced-and-exhaustive-book-that-you-really-should-buy, False Security:

Peace bonds are an obvious draw for the police: they do not require the levels of evidence required for an outright prosecution. Instead, authorities must simply prove that they have reasonable grounds for a fear that the target may commit any of a broad range of terrorism offences, one of the lowest standards of proof in Canadian law. And indeed, the past pattern suggests that they may need to prove nothing — the defendant will consent to the peace bond conditions to avoid a court proceeding.

… But no one should discount the impact of peace bonds on liberty interests. The Canadian system differs from the UK TPIM approach [the closest equivalent in the UK]: it suggests a number of conditions, but does not set an outer limit. The conditions it does list include: wearing an electronic monitoring device; curfew; abstaining from consuming intoxicants; and a bar on possessing weapons and explosives. The judge can also order participation in a “treatment program,” and one of the issues in the Manitoba case may be whether “religious counselling” is a “treatment program.” As discussed below, this condition may allow Canada to address a shortcoming in the UK control order/TPIM approach: the absence of an exit strategy. At the same time, it may also result in claims that forced “religious counselling” violates freedom of religion. …

…[I]n relation to terrorism offences, the feared conduct may be vast, amorphous, and never carefully articulated (at least in public), if the Montreal cases are indicative. The state has, in other words, a substantial discretion to craft conditions. As a result, peace bond conditions may come to look much like some of the conditions imposed on [immigration] security certificate named persons. It is certainly already clear that peace bonds are being used to restrict communication and Internet use, as were security certificate conditions. For this reason, the potentially formidable reach of the peace bond should not be underestimated. A peace bond is a government-crafted, judicially imposed set of behavioural standards tailored to individual persons. Onerous conditions imposed as a part of the bond may be easily breached, permitting the subsequent incarceration of a feared security risk for behaviour that is benign (even commonplace) in its own right. For instance, a person barred from accessing a room with a computer violates the peace bond by walking into such a room. The person could potentially face a maximum of four years imprisonment for breaching any condition in a peace bond.

…In this manner, peace bonds become a hair-trigger allowing the government to pursue easily proved and potentially banal peace bond violations as a means to incarcerate a person, without troubling itself with a prosecution for terrorism. As such, they are somewhat similar to the Al Capone strategy of charging a suspected terrorist with a different, more easily proven crime, although with the important difference that the breach here will involve behaviour that is not criminal for anyone else. … Pushed to the extreme, there may be no wrong answers to the speculative questions that the judge must answer. In other words, “guilt” for a peace bond is a matter of awkward prognostication. As the criminal law embraces prevention and risk management, its sharpness as an instrument to determine facts and denounce proven — rather than future — crimes diminishes.

…All this begs inevitable questions about constitutionality. The constitutionality of anti-terrorism peace bonds has never been tested — something that seems likely to change because of the Manitoba case. But the Ontario Court of Appeal upheld a different species of peace bond: that guarding against sex offences directed at minors.[2] There, the defendant urged that the peace bond amounted to a “status offence”; that is, “an offence based on a person’s status alone, . . . based on a person’s medical diagnosis or even on a person’s past criminal record but without any current offending conduct.”[3] For this reason, and because of its overbreadth, the defendant argued peace bonds violated the fundamental justice promised by section 7 of the Charter.

The court agreed that the peace bond amounted to a restraint on liberty, and thus triggered the application of section 7 of the Charter. It concluded, however, that fundamental justice was not offended where the provision was largely geared to bona fide prevention, and was not truly penal in nature. It mattered that the peace bond was narrowly tailored, restricting the defendant’s liberty in respect to a large, but reasonably discrete group of persons (minors).[4] This allowed “a defendant to lead a reasonably normal life.”[5] Some analysts point to this decision in discussing the propriety of anti-terrorism peace bonds. The scope of the peace bond at issue in the Ontario case was, however, much more limited than those likely to employed for anti-terror purposes. If present patterns are an indication, the anti-terror peace bond will be broader and more intrusive, potentially constraining liberty in every dimension of life, including issues of freedom of expression, freedom of association, and mobility rights, among others. It is difficult, in these circumstances, to draw a straight line between the Ontario Court of Appeal holding and a conclusion on the constitutionality of anti-terrorism peace bonds.

…We think peace bonds have an anti-terror role — a potentially important role. But we need to be clear-eyed on the risks. Whenever standards of evidence are this relaxed, the chance of false positives increases. Therefore, peace bonds are vulnerable to overreach. In that respect, they may prove too strong, wrapping the wrong people into their stifling embrace. It is not clear how such false positives will be detected. A defendant intimidated into consent may choose the least awful out of a series of bad options: agreeing to the peace bond conditions. Even if they challenge the measures, a court can remedy only so much when confronted with the modest evidentiary burden the peace bonds process places on the state. When a judge is asked to apply the vague standards of a peace bond, there may be no, or at best very few, wrong answers.

 


[1]           Ibid, s 810.011(1). (emphasis added)

[2]           R v Budreo (2000), 46 OR (3d) 481 (CA).

[3]           Ibid at para 24.

[4]           Ibid at para 32.

[5]           Ibid at para 39.