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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Tuesday
Feb212017

Much Ado about Probably Very Little: Canadian intelligence and 2012 French election

Last week, some Canadian newspapers posted a story [here and here] about CIA documents leaked by Wikileaks. The second article described the implications of this document as follows:

On Thursday, WikiLeaks released three CIA tasking orders detailing their plan to closely monitor 2012 French presidential candidates, including current President Francois Hollande and current first-round frontrunner Marine Le Pen.

Canada is listed along with New Zealand, Great Britain, the United States and Australia in a section indicating which countries are assisting with the “HUMINT” or human intelligence aspects of the operation. Those countries make up the Five Eyes intelligence sharing alliance.

Within hours, the NDP was calling on the government to explain the document: “Canadians don’t expect their government to spy on our closest allies, especially when it involves their own domestic elections. There’s nothing more sensitive than that, as we’re observing right now with the allegations in the U.S. election.”

This was a remarkable escalation of events.

The actual documents are here.  Like most leaked documents, they lack context, even if they are genuine.  More than that, they are also sprinkled with agency nomenclature that requires parsing.

The single reference to Canada reads:

Apparently on this basis of this single reference, the news reports concluded Canada was asked to "assist" the CIA. (As the story eventually notes: "The documents contain only a single reference to Canada, making it unclear what parts of the CIA efforts Canada may have been involved in.")

But this whole allegation of Canadian participation seems (very) doubtful.  First, none of Canada's actual intelligence agencies has the legal competency to conduct covert, overseas HUMINT foreign intelligence gathering.  CSIS is confined to security intelligence in its overseas activities (and this France activity would not be security intelligence, as defined in s.2 of the CSIS Act). CSIS's broader foreign intelligence collection must be conducted "within Canada" under s.16 of the CSIS Act.

CSE is a signals intelligence agency and would clearly be acting outside of its statutory mandate in doing HUMINT.

Military intelligence operates pursuant to the royal prerogative of defence -- and it is hard to see how that fits.

Global Affairs Canada has a broader remit -- including under the general language of the DFAIT Act and also a conceivable remit under the royal prerogative relating to foreign affairs. It has no express statutory intelligence function, but its legal authorities are broad enough to allow it to collect information in its diplomatic/foreign relations function. Whether it runs covert HUMINT is another matter -- it has confidential contacts, but I'd be surprised to learn it runs more complex HUMINT sources. (Sadly, because Global Affairs is subject to no external independent review, there is little on the public record on its activities, but see this statement made to Parliament.  There, then-DFAIT specified "Canadian diplomats do not work under cover or collect intelligence covertly from human sources").

All of this is to say that there is only a narrow range of options if Canada were to participate in a (let us assume covert) CIA HUMINT foreign intelligence (as opposed to security intelligence) activity: either it is a Global Affairs program of greater breadth than what has been reported in the past, or it is a Canadian intelligence service acting illegally.

But we don't need to go down this rabbit hole for one reason above all else: the document does not seem to say what the news stories inferred. "S//REL TO USA, AUS, CAN, GBR, NZL" is a classification tag (governing intelligence sharing). It translates into Secret//Release to USA, Australia, Canada, Great Britain, New Zealand" (or, in other words, the Five Eyes). See this guide to US classification nomenclature.

It does not, in other words, mean (in any respect that I can discern) that Canada is "assisting with the 'HUMINT' or human intelligence aspects of the operation" (whatever those might be -- and the document is actually very unclear on what, if anything, was being done in terms of HUMINT).

Put another way, unless you want to believe that Canada must be complicit just because you don't trust intelligence agencies, there appears to be no evidence supporting the conclusion on a Canadian role reported in the news stories.

Thursday
Feb162017

Revoking Citizenship for Terrorism Offences: Testimony to the Senate studying Bill C-6

The following are my speaking notes from my testimony before the Senate on bill C-6 and terrorism citizenship stripping:

Speaking Notes

Bill C-6

Standing Senate Committee on Social Affairs, Science and Technology

Feb 16, 2017

Good morning.  I’d like to express my thanks to the committee for inviting me to appear on bill C-6.  In my statement, I shall focus exclusively on the issue of citizenship revocation for terrorism.  These were powers enacted in 2014, and would be repealed by C-6. I support that repeal.

I will focus on two key points.  First, terrorist citizenship stripping provisions are different from other rules, such as revocation for fraud.  Second, they are problematic from a security perspective.

On the first point:  those defending the 2014 revocation law sometimes claim that war criminals have citizenship stripped, and that the 2014 law is, therefore, no different.

This analogy is misleading.  Nazi collaborators have lost citizenship -- because they lied about their conduct at the time they became Canadians.  The revocation is for fraud, not war crimes.  No Canadian has lost their citizenship for a war crime committed while a Canadian.

The 2014 law did something different: it used citizenship stripping as a supplemental punishment to penalize dual nationality Canadians for things done while a Canadian. In so doing, it effectively converted the many Canadians with dual citizenship into probationary Canadians.

Let me turn to why terrorism citizenship revocation is poor security policy.

First, there simply is no empirical basis to conclude that dual nationals pose a more serious security risk than single national Canadians.

Singling out dual nationals for the special risk of revocation is not, therefore, rationally connected to a security objective, a lethal shortcoming both from a security and constitutional perspective.

Second, Canada has worked arduously and deployed tools like no-fly lists, passport revocation, peace bonds and outright criminal prosecution to stop Canadians from traveling for the purpose of participating in terrorist activity. But the objective of citizenship stripping is, ultimately, to deport these people. If truly dangerous people are deported, the net effect may be to speed foreign fighters on their way.

Again, this raises questions of rationality.

But third, an irony of the structure of terrorism law in Canada is that citizenship revocation will not be imposed on the most dangerous of people. The manner in which terrorism offences are designed in the Criminal Code means they are most likely to be applied to plotters, not killers. Once someone becomes a killer, police and prosecutors are much more likely to charge the person with murder, not terrorism offences.  That is the reason why Justin Bourque, Richard Bains and most recently Alexandre Bissonette (at least so far) were not charged with terrorism offences.

Not a single person currently in prison in Canada for a terrorism offence enacted after 9/11 has actually committed an act of violence.  They were pre-empted.  And so as pre-empted plotters, they now face the risk of revocation, assuming they are dual nationals.  Killers would not.

Four, revocation would consume huge resources, best deployed for different objectives.  Setting aside the inevitable constitutional challenges to revocation itself, subsequent efforts to remove these former Canadians would be an arduous undertaking.  The risk of maltreatment in foreign countries may be high, placing Canada in the invidious position of trying to remove people to torture. 

We have been down this path before, with immigration security certificates.  At the end of the last decade, the government was spending multiple millions of dollars per year per security certificate, often in a vain attempt to defend the measures.  This was not money well spent.

Indeed, more money by a large margin was spent trying to remove people, than Canada has spent in total so far on counter-violent extremism and terrorist disengagement strategies.  While these programs are themselves unproven and untested, they are an area in which Canada clearly needs to improve its practices.  At the end of the day, even for terrorist convicts, rehabilitation, not displacement to other countries, is the most plausible security strategy.

That is because, fifth, displaced dangerous people remain dangerous – and indeed potentially more dangerous than if they remained in Canada. They will likely be impossible for Canadian security services to monitor, they may be free of strictures such as peace bonds, and history suggests that dangerous people outside of Canada can continue to do harm to Canadians and Canadian interests. 

Nor, sixth, would other countries readily welcome the arrival of a person radicalized to violence in Canada – and almost all of those serving terrorism sentences are made-in-Canada terrorists.

Canada’s international anti-terrorism objectives are poorly served if we become an exporter of instability, rather than invest in the hard work of terrorist disengagement.

In sum, it is my view that little recommends terrorism citizenship stripping, and there much that condemns it.

Thank you for your attention.  I welcome your questions.

Monday
Jan302017

Prosecutor's Dilemma: Terrorism or Not?

We are all struggling to digest the news from Ste-Foy last night.  We will learn more, as in this case (unlike in several past incidents) the perpetrator appears to be alive, and in police custody.

I am reluctant to write on this tragic matter, but I shall dip my paddle in briefly on one thorny and highly emotive question doing the rounds on social media: "terrorism or not".

Police and prosecutors will need to decide how best to proceed.  If they bring terrorism charges, they will need to prove all the elements of "terrorist activity" as defined in the Criminal Code.  This shall require proof of motive and purpose -- the violent act is not enough. 

Police and prosecutors shall certainly have the basis for murder charges, assuming they have the perpetrator in custody.  If the Justin Bourque experience is any guide, the Crown may wish to proceed on the murder counts, without adding specific terrorism offences to the charge sheet. In 2014, twenty-four-year-old Justin Bourque shot five RCMP members in Moncton, killing three. He later outlined an ideological motive for his conduct, not tremendously different from that of so-called right wing extremists:

[H]e hated the government and the authorities because of the different rules that were made — gun regulation. He talked about foreign workers coming to work in Canada while some Canadians have no jobs. He was convinced that the police were intimidating and screwing everyone in Moncton by working for the politicians. He repeated a few times how he hated the authorities, the government and the police for working for the politicians. . . . [H]e felt oppressed by the law. . . He was rational and aware of what he was about to do. He consciously decided not to shoot civilians. His battle is with the authority.[1]

In sum, he targeted RCMP officers because he viewed them as “‘soldiers’ in the employ and propping-up of a corrupt government.”[2]

Bourque was convicted of murder and attempted murder and will likely spend the rest of his life in jail. But his conduct was not addressed using terrorism provisions, even though his conduct likely satisfied the threshold of terrorist activity and police considered terrorism charges.[3] Bourque is not a one-off. Richard Bain killed one person and injured another in 2012 in an attempt to assassinate Pauline Marois — then Quebec’s newly elected premier and leader of the Parti Québécois — on election night. His statement, “the English are waking up” reveals a political motive.

As Kent Roach and I note in False Security, there may be good reason for the evident prosecutorial parsimony, faced with these incidents.

For one thing, most terrorism offences are directed at conduct preparatory to violence and thus, are of marginal utility at this juncture. 

Moreover, a prosecutor able to secure a conviction for more conventional offences may see no purpose in also pursuing a separate terrorism offence, or seeking an augmented sentence for conventional offences done in association with a terrorist activity. A prosecutor pursuing the terrorism angle would then need to prove the complicated elements of terrorist activity beyond a reasonable doubt, and Justin Bourque could not have been sentenced to a longer term had his prosecutors made that effort. Bourque (and Bain) faced charges with mandatory minimum life sentences — meaning that there is no possibility of an increased penalty for terrorist activity.  And the same seems likely to be true in this case.

But there is a political downside: what may be good prosecution strategy may contribute to the impression that terrorism offences are confined to only certain sorts of perpetrators, motivated by AQ/ISIS-related ideology. This makes for a horrific narrative.

Nevertheless, going forward, it will be helpful that we all keep an eye on these sort of legal preoccupations in understanding what may unfold in this case.



[1]               R v Bourque, 2014 NBQB 237 at para 8.

[2]               Ibid at para 10.

[3]               Douglas Quan, “Justin Bourque: Terrorism charges were once pondered against man who shot dead three Mounties” O-Canada.com (31 October 2014), online: o.canada.com/news/justin-bourque-terrorism-charges-were-once-pondered-against-man-who-shot-dead-three-mounties.