About this Project

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.

 

For a continuing conversation on Canadian national security law and policy, please join Stephanie Carvin and me at A Podcast Called INTREPID.

 

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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Latest Book: Available from Irwin Law in April 2018.

Tuesday
Aug072018

"9/11esque" Tweets and the Saudi Spat

With INTREPID Podcast on vacation, I'm going old-school and engaging in thought expermients via blog. Except for everyone who (quite properly) threw their phones into the lake, most people are likely aware of the sudden contretemps between Canada and Saudi Arabia. I am in no position to evaluate the foreign relations dimension of this. The people you need to follow on this are @thomasjuneau and @b_momani. However, there was one development in this spat that caught my (academic) lawyer's eye:

1. Terrorist Promotion and Advocacy

A twitter account reportedly with some sort of affiliation with the Saudi government tweeted (then deleted, modified and apologized for) an image of a large Air Canada plane flying low toward the Toronto skyline, with the CN Tower straight ahead. It was captioned: "Sticking one's nose where it doesn't belong! As the Arabic saying goes: 'He who interferes with what doesn't concern him finds what doesn't please him.'". Not surprisingly, given that 15 of the 19 9/11 hijackers were Saudi nationals, the (predictable and perhaps intended) reaction in Canada was that this image alluded 9/11, in a threatening manner. (For more on this tweet, see here). Saudi tweeters asserted (in response) they simply meant to signify the return home to Toronto (500 or so km from the capital) of Canada's expelled ambassador to the Kingdom.

I do not need here to discuss the (de)merits of twitter diplomacy, and the downside of inflaming public sentiment. I instead find this an opportune time to conduct a legal thought experiment: would a tweet like this be prosecutable under the Criminal Code?

At first blush, this is a silly question. Indeed, it is a silly question at second blush. It is, however, a question that must be posed, given the speech crime introduced by Bill C-51 to the Criminal Code in 2015:

 (1) Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general — other than an offence under this section — while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.

2. A Doubtful Law

Elsewhere, Kent Roach and I condemn this excessive offence as unnecessarily uncertain and (in our view) constitutionally doubtful. The Harper government chose to draft this crime without the features of the hate speech provisions in s.319 of the Criminal Code that allowed the latter to survive (barely) constitutional challenge in cases like Keegstra. Specifically, the "wilful promotion of hate" offence depends on the promotion being "wilful" (not just knowing) and then there are defences (for things like public interest). The Supreme Court accepted an interpretation of "wilful" requiring that the accused subjectively "desires promotion of hatred or foresees such a consequence as certain or substantially certain to result from an act done in order to achieve some other purpose". Put another way, they need to want the pernicious outcome, or be essentially certain it will come about.

The s.83.221 speech crime requires mere "knowing", not "wilful". I can know that I am promoting a bad thing, without desiring that this bad thing come about. For example, as a classroom reading, I may knowingly promote Frantz Fanon's writings about the necessity of violence in anti-colonial struggles. I may not wish that this violence ensue -- I am not willfully promoting it, in other words. But I intend to promote (encourage) consideration of the content, even if only for pedagogical purposes. I am knowingly promoting it. And maybe I think that he's right, and that anti-colonial type struggles (say in apartheid South Africa) do require violence to be successful and I say it. Arguably, that gets me promoting the "commission". And I don't know who is sitting in my classrooms, with malevolent designs, or reading whatever book I have written reproducing Fanon's passage. (Which we actually did, in False Security, in describing this same problem of uncertainty and overbreadth.) So I am surely reckless. Added to which: no one really understands what "terrorism offences in general" mean. But I am pretty sure that some of Frantz Fanon's writings would fall within the uncertain limits of this concept and are about the commission of terrorism offences in general. And I have no defences, as I would if I were (merely) promoting hatred. So a pedagogical motive isn't going to help me.

This hypothetical may be a reach, but it's easy to come up with others that would be more directly implicated by this offence and still be a long way away from actual violence or threats of violence -- the sort of thing that is not protected speech.

This is not, in other words, an offence that follows the sort of pattern for speech crimes that have been found constitutional. It seems likely a court would give it the narrowest possible read if it were ever used. But even so, it sits on the books blinking red, occasionally justifying wiretap warrants. Not a great look.

I have never been entirely sure what sort of truly bad speech the new crime is intended to capture that isn't captured by the many other terror and non-terror crimes that can penalize speech of various sorts. But whatever that bad speech might be, the provision surely captures a lot of speech that is constitutionally protected because very remote from actual violence or threats of violence. (I shouldn't have to worry about assigning Frantz Fanon to my students. Not that I do. I teach law.)

But maybe they wanted to go after this kind of tweet?

3. Would the Law Reach the Tweet?

I and others have urged that the unworkable provision needs to be rolled back. And that is what bill C-59 does, converting the crime from a promotion offence into a (perhaps redundant) version of a counselling offence.  But that is another story. For our purposes here, would a tweet like the Saudi tweet violate the law, as it stands at present?

Sure, in theory. The offence does reach imagery. If (like many Canadians) a court were to see the image, with its caption, as "promoting" (encouraging) the commission of "terrorism offences in general", then it also seems likely that tweeting it to the world in a highly politicized dispute with Canada is "reckless as to whether any of those offences may be committed". All that is left is whether the promotion was "knowing"? It doesn't matter if the tweeters didn't want a terror attack. All that matters: Would the twitters know (subjectively) that what they were doing was promoting terrorism offences in general. Well, I guess not if they really believed that all they were doing was portraying the premature landing of the ambassador's airplane in downtown Toronto. Perhaps they did not know that Billy Bishop airport can't handle big jets?

You can see why this would get silly. But still, in principle, I see no reason why, on the letter of the law, the crime could not reach the tweet.

4. Would the Law Reach These Tweeters?

Now, it is true that on the facts of this case -- involving foreign authors -- things get even more complicated. Terrorism offences are extraterritorial, but they are not so sweepingly extraterritorial as to reach conduct by a non-national with no connection to Canada. Still, it is not necessarily clear to me how to define the territoriality of a tweet. Part of the actus reus surely reaches Canada, which may be enough to create the real and substantial link which the Supreme Court discusses in Libman. Not that I'd want to be the prosecutor to have to argue all these complexities.

But that is neither here nor there. Because of course, this is an academic question. No Canadian police officer will ever lay hands on the authors of the tweet -- its not like they'll be an extradition granted even if it were possible to seek one. And if those authors were government officials, and this tweet was construed as an official act of state, it would enjoy state immunity under international law (though not under the State Immunity Act, which does not apply to criminal law).

I guess another interesting subset of this question: could the Charter free speech protections extend to limit the application to those who speak abroad, of what (as I believe) is a constitutionally-excessive law?  Foreigners overseas are not likely to have Charter free speech protections. Still, it would be the height of absurdity to apply a law that is unconstitutional to the prosecution in Canada of persons who are not themselves protected by the Charter because of where they uttered the communication for which they are being prosecuted. We have long settled that even corporations can challenge laws under Charter rights reserved to human beings, where the law is equally capable of capturing both human beings and corporations. The same logic would apply here.

As I say, this is all academic. Still, it is pretty stupid that we have a law that could put a person into jail for 5 years for nothing more than an offensive tweet. You may not like the tweet. I don't. It made my mild-mannered blood boil. And you'd be right to condemn it. But to have an offence that would jail someone for it? That would be...a little bit like Saudi Arabia putting a blogger and his relatives into prison.

 

 

 

Thursday
Jul192018

Oh, What Tangled Webs the CSIS Act Weaves: The Federal Court's Latest Decision on CSIS's Foreign Intelligence Mandate

The Federal Court this week released a lengthy decision that, unusually, dealt with CSIS’s s.16 “foreign intelligence” mandate. In so doing, it proved, once again, that an Act mostly left fallow for a generation spits up weeds.

The decision is deeply redacted, and we know precisely nothing about the target, subject-matter issue or investigative technique at issue. And that means there is no way for me judge whether I think the Court “got it right”. But the underlying storyline is easy enough to imagine, even if the precise specifics are secret. And the policy issues can be surfaced with a hypothetical.

Who Was the Target?

The target was a foreigner physically in Canada. They could not be Canadian (or a Canadian permanent resident) – CSIS cannot investigate a Canadian or Canadian permanent resident under its s.16 mandate. And they had to be in Canada. This was a warrant application. A warrant would only be required, constitutionally, if the foreigner was in Canada. And besides, if the foreigner was overseas, CSE could have targeted him or her under its foreign intelligence mandate, Mandate A.  But CSE cannot direct its foreign intelligence activities at any person in Canada. So bottom line: the person was in Canada.

What was the Foreigner in Canada in Doing?

We do not know what our foreigner in Canada – who we shall call Bob – was doing. We do know what Bob was not doing. He was not involved in terrorism, espionage, sabotage or foreign-influenced activities (at least not foreign-influenced activities within Canada or related to Canada, while detrimental to the interests of Canada). And I suppose for the sake of completeness, I should add Bob was not involved in subversion of the Canadian government. Because if Bob was involved in any of these things, he would pose a “threat to the security of Canada” and this would have been a s.12 CSIS “security intelligence” investigation.

But it was a s.16 investigation.  Which means that Bob was being investigated to collect information or intelligence relating to the capabilities, intentions or activities of any foreign state or group of foreign states or some foreign person. This is what is called “foreign intelligence”. Basically, that means anything other than security intelligence.

Bob from Mordor

So, because all the good parts in the decision are redacted, let’s make up our hypothetical: Bob was a diplomat from the Embassy of Mordor, who was in fact from the Mordor Acquisition and Liaison Intelligence Collation Entity (MALICE).  And while in Canada, Bob was part of an intelligence operation designed to influence the Government of Isengard, in a manner advantageous to Mordor.

Global Affairs Canada, which has an obvious interest in developments in Isengard, wants to get a handle on this foreign influence campaign. And so, it turns to CSIS. There is no clear way an investigation into this influence op falls within a “threat to the security of Canada”.  (I suppose in some cases, it would be so egregious as to be “detrimental to the interests of Canada”, even though directed at a third state, but you can only bend that language so far.)

So, under s.16, the Minister of Foreign Affairs requests, and the Minister of Public Safety agrees, that CSIS will conduct a foreign intelligence investigation.  But s.16 also says that CSIS may only engage in foreign intelligence collection “within Canada”.

Alice of Isengard

That works fine, to a point. Bob is in Canada. But his chief asset in Isengard is Alice, someone who has influential contacts in the National Repressive Ring Association (NRRA). And Alice is not in Canada.  And moreover, Bob and Alice have 1990s style operational security.  When they communicate, they do so by logging into Gondor Mail (G-Mail), an email service in Gondor.  And they modify draft emails in an email account to which they both have access, housed on G-Mail’s Gondor-based servers.

The Warrant on Bob

CSIS wants to monitor Bob’s communications in Canada. Now Bob is a foreigner, but as noted, he has Charter s.8 rights. And so CSIS needs a warrant.  And CSIS wants, with that warrant, to wiretap not just Bob’s phone but also access his email communications. But, nuts, the G-Mail servers are overseas. And CSIS is no position to somehow insert keystroke logging on Bob’s embassy computer. And so, the only way (I shall assume, because I am not a tech-guy) to access the G-Mail draft folder is by hacking into the Gondor-based servers.

Now, pursuant to Mandate C, CSE can provide the technical wherewithal to do this. But CSIS needs to have lawful authority to seek this CSE assistance, meaning if CSIS needs a warrant, CSIS has to have one.

Whether CSIS needs a warrant may be a close call. If the communication is outside Canada, then perhaps the Charter does not apply because it generally does not apply extraterritorially. After all, if Bob were physically outside Canada, he would enjoy no Charter rights.  (The Hape exception would apply only if Canada were in violation of its international human rights obligations -- not clear cut here – and, says earlier Federal Court jurisprudence, where the victim was a Canadian – not true here.).

So, is it too much to say that CSIS's intercept of Bob’s Gondor communications doesn’t require a warrant?  Hmmm. Maybe. But this might still be a “private communication” under the Criminal Code (and I could easily change the facts so that it would be). And if so, the fact that one side of this communication starts in Canada is enough to require a judicial authorization process.  So not much relief there.  And besides, CSIS remembers the infamous Re X case and decides it is better to go to court now, to avoid a train wreck later.

So CSIS does the appropriate thing and concludes it probably needs a warrant. And more than that, it might also reasonably argue that on our facts (communication commences in Canada, travelling overseas through Canada etc) the collection really was “within Canada, enough”, and thus squares with s.16 of the Act. (A view that would be consistent with: the assumption that the Charter applies to Bob’s transiting communications, and the concept of private communication in the Criminal Code, and arguably the concept of territoriality in cases like R. v. Libman.)

But there is also another view: the content of what CSIS is intercepting is not in Canada. It can only be accessed by reaching out electronically across Canadian borders to Gondor, all the way over in Middle Earth.

So, what’s the answer? How do we read “within Canada” in s.16? Well, obviously it means “within Canada”, but what does that mean for footloose-communications? The redactions are thick in this case, and we really don’t know what sort of extraterritorial activity was at issue. But after a lengthy and seemingly exhaustive statutory interpretation exercise, the Federal Court says: this [REDACTED FOR PAGES] extraterritorial CSIS intrusive investigative activity was not within Canada.

Let's assume that hacking into Bob's Gondor Mail would also exceed whatever threshold of impermissible extraterritoriality was at issue in the Federal Court case. That is, it too would not be "within Canada". So, CSIS, in our story, you are out of luck. Maybe you should just ask Gondor to collect and share the Gondor Mail communications itself?  But do you want to rely on Denethor II, son of Echtelion II, Steward of Gondor? In The Two Towers, he struck me as a bit unhinged, to be honest.  And perhaps he was a little too inclined to appeasement to Mordor.

The CSE Knock-On Effect

Ok, then. Open Door Number 2: if the communication is not “within Canada”, then that must mean that CSE can, in fact, collect under Mandate A (foreign intelligence). Surely, if the communication being targeted is not within Canada (and involves no one, but foreigners), then CSE collection activities are not being “directed at Canadians or any person in Canada” (the quoted phrase being a stipulation that limits what CSE can do under Mandate A).  But hold that “surely”.  It is a bit disingenuous to say: “so we are investigating Bob, who is a person in Canada, and we are specifically interested in Bob, and that is why we are doing this collection activity, but when we go after this particular communication, we are not directing collection at Bob, the person in Canada”.  That seems too clever by half.

And anyway, the Federal Court has a collateral discussion in this case with knock-on implications that will make life for CSE very difficult. Basically, intrusive activity overseas of the sort at issue in the case (whatever they may be) constitute an extraterritorial exercise of enforcement jurisdiction. Done without the consent of the territorial state, this violates international law. And Canadian statutes will be read to comply with international law, unless they explicitly derogate from it. And neither the CSIS Act (for s.16, but not for s.12) nor the current National Defence Act (for CSE) nor the proposed Bill C-59 CSE Act derogate from international law. (On the latter issue, see my discussion here.)

So CSE, you have no legislative jurisdiction to engage in extraterritorial activities of (at minimum) the same degree or more intrusive than the ones at issue in this Federal Court case.  Which means you can kiss Mandate A and B goodbye under the current National Defence Act, to the extent they exceed this threshold (which, reading between the redactions, is quite low). And unless you amend bill C-59, you can also kiss those defensive and active cyber powers away.  Unless, that is, you just want to plow ahead and see what the Intelligence Commissioner, the new National Security and Intelligence Review Agency, and the National Security and Intelligence Committee of Parliamentarians have to say about this issue. This, in my view, would be insane, since a quick flick of the legislative pen could cure this problem for you, CSE.

Fixing the CSIS Act

As for CSIS, well, you could roll the dice and appeal. Or you too could fix this by legislative amendment (which is what happened to the s.12 power when this same issue arose a decade ago, and was resolved by 2015’s C-44). 

But let’s be clear here: if you want CSIS to have its current extraterritorial security intelligence functions (plus its post-2015 threat reductions powers) and now extraterritorial foreign intelligence functions, you are creating, essentially, a blended MI5/MI6.  And until recently, it was considered a bad idea to put security intelligence and a full foreign intelligence function in the same agency: rule-of-law security intelligence should be kept segregated from somewhat-less-than-rule-of-law James Bond.

So, we might wish, finally, to do some serious thinking about design issues, accountability issues, resource issues, training issues, etc, before we knee-jerk amend the CSIS Act (yet again). So, enter a ponderous process of deliberation. On the other hand, this is not a situation you want to leave hanging. Because in my story, Bob from MALICE is still out there, swanning away on Gondor Mail. (In truth, I don’t know how important that prospect is – it took to 2018 before this issue got to court, and yet presumably the technological dilemma I describe here could have arisen decades ago. So maybe this case won’t have much practical effect.)

But bottom line: sometimes national security law is hard. And perhaps it is sometimes harder than it has to be. I think it’s often hard because we don’t update the statute law enough. But that’s just me.

Monday
Jul162018

Threading the Needle: Structural Reform & Canada's Intelligence-to-Evidence Dilemma

Becuase I am a patriot, and wasn't available to sell my country out today in Finland, I have written yet another paper on intelligence-to-evidence. This one tries to straddle the distance between "accessible for non-lawyers" and "technical enough for lawyers". I try hard in this paper to lay out what intelligence-to-evidence is, in my view. Most importantly, I propose what I call "moneyball" solutions to this problem, expanding and refining those I have suggested elsewhere and supplementing the solutions that have been raised by others (which as mostly complementary). I have spent a lot of time talking to people about this, and nothing I have heard has persuaded me things can't be done better. It is not quite a Gordian a knot as many seem to assume. On the other hand, there is no "home run" solution. A lot of players will need to come to the table with renewed determination. The paper is intended as a draft working paper. I welcome comments and feedback. It may be downloaded here.

The paper's abstract is as follows:

This article canvasses the “intelligence-to-evidence” dilemma in Canadian anti-terrorism. It reviews the concept of “evidence”, “intelligence” and “intelligence-to-evidence” (I2E). It points to the legal context in which I2E arises in Canada. Specifically, it examines Canadian rules around disclosure to the defence: the Stinchcombe and O’Connor standards and the related issues of Garofoli challenges. With a focus on CSIS/police relations, the article discusses the consequences of an unwieldy I2E system, using the device of a hypothetical terrorism investigation. It concludes disclosure risk for CSIS in an anti-terrorism investigation can be managed, in a manner that threads the needle between fair trials, legitimate confidentiality concerns and public safety. This management system rests on three legs:

  • Manage the relevance “tear-line” so that crimes less intrusive on CSIS information holdings are preferred over ones that are more intrusive. This strategy requires applying a prosecutorial insight to those investigations and planning their conduct to not prejudice trials. I bundle this concept within the category of “collecting to evidential standards” and “managing witnesses”.
  • Legislate standards to create certainty from the murk of evidence law. Here, two innovations stand out: legislate O’Connor style third-party status for CSIS where: CSIS’s investigation is a bona fide security intelligence investigation; CSIS and police do not have full, unmediated access to each other’s files; and, CSIS does not take an active role in the police investigation. But do not build this legislated third-party status around rigid barriers on information-sharing. Second, legislate ex parte, in camera procedures for Garofoli challenges of CSIS warrants in which special advocates are substituted for public defence counsel.
  • Manage the public safety risk by creating a fusion centre able to receive investigative information from all-of-government and fully apprised of the public safety risks associated with an ongoing investigation (or parallel investigations). Ensure it includes representatives from all the services with legal powers to respond to threats. The fusion centre would not itself be an investigative body, and would have O’Connor-style third-party status, something that would not require legislation but which might benefit from it.