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


National Security Law Blog Search
Subscribe to National Security Law Blog

Best Law School/
Law Professor Blog Award


Most Recent Blog Postings

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.


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:



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.



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.


Comparative Thinking on National Security Lawyering

I am part way through Charlie Savage's so-far very interesting new book, Power Wars: Inside Obama's Power 9/11 Presidency.  I was struck by a particular passage in chapter 1, woven into the blow-by-blow narrative.  It concerns the role of lawyers in national security decision-making in the United States.  My personal sense is that these observations cross the border, and are true in Canada as well (although perhaps not to the same degree, because Canada has not tested the bounds of conventional understandings of international and constitutional law quite as aggressively as has occurred in the United States):

As the government has grappled with one terrorist crisis after another since 9/11, tremendous power and pressure have descended on the executive-branch lawyers charged with handling national security issues.  Remarkably few of these attorneys ... came up professionally as trained specialists in national security law.  Law schools barely taught the subject before 9/11, and its substance has evolved rapidly since then. ... Interpreting and applying law to such turbulent and rapidly changing conditions [stemming from changes in the threat environment and new technologies] has created an unending series of novel dilemmas.  Often, even identifying what the legal rule is is subject to a range of viewpoints, and there is little prospect that a court will ever definitively resolve the question because it is very difficult for anyone to establish the legal standing to file a lawsuit about it.

This passage affirms three positions I have adopted, more through happenstance than truly prescient design. 

First, the situation this passage describes is one reason why I believe vigorously in the need for national security lawyers to reach into the law schools, preferably in a manner that allows dialogue between government insiders and outsiders. Co-teaching my uOttawa national security law course with Public Safety lawyer Michael Duffy has been particularly rewarding for me, and our students.

Second, I believe the law schools must ensure the development of non-governmental expertise in this area of the law -- I teach and write in large measure with this objective in mind.  And I am very keen to cultivate interest in the area among other colleagues -- I will happily share information on my course, and provide whatever assistance I can to colleagues at other Canadian law schools contemplating a national security law course.  So far, they are very rare.  Kent Roach teaches his anti-terrorism courses at Toronto.  Ron Atkey has taught a national security law course at Osgoode and Western.  Michael Duffy and I teach at uOttawa.  And then I run out of courses of which I am aware.  (Please let me know if there are more).

Third, the points made in the Savage passage also go a long way to explaining why I believe strongly that Canada should adopt a UK/Australian-style Independent Monitor on National Security Law, as part of a larger overhaul of national security accountability described in this paper and our book.  Government lawyers should not have a monopoly on defining the legal questions, offering advice on those questions, and then having their opinions protected behind a secrecy wall, all but guaranteeing that they will never be known or challenged.  Groupthink can afflict the best of us, and (as painful as it can be) I have come to relish the chance to throw my conclusions and opinions into the maw of debate. That process works -- opinions come out better. 

Government lawyers should take comfort in the idea of an Independent Monitor probing Canada's national security laws, for exactly the same reason.

And as an addendum, I'd add the need for this "mixing it up" function is more acute in Canada than in the United States, where there is a tradition of revolving door between government and non-government service.  In Canada, that is close to unknown, and we live in silos.