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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Wednesday
Feb182015

Bill C-51: CSIS Powers and when warrants will be required

Please treat this entry as "rolling" addendum to the detailed backgrounder document that Roach and I have posted on the proposed bill C-51 CSIS powers.

There seems to be considerable uncertainty in public discussions as to when CSIS will need a warrant to exercise its proposed s.12.1 "measures" (what we call 'kinetic' powers).  There is an assumption that it will need a warrant whenever it deploys a s.12.1 measure. 

Roach and I do not believe this to be the case based on a simple reading of the Act, and based on past practice in relation to CSIS's existing powers.  As we write in our backgrounder:

We return to the warrant issue below.  Here, however, we note that the question of “reasonable and proportional” will be decided unilaterally within government (and CSIS) whenever a measure falls short of violating the law or the Charter.  The government need only seek a warrant under new s.21.1 where it has “reasonable grounds” to believe it is required.  Section 12.1(3) only requires such a warrant where “measures” “will” (not “may”) contravene a Charter right or Canadian law.  Other measures that do not go this far presumptively do not require a judicial warrant, and the only oversight in this instance will be internal, executive branch controls.

If the government wishes a warrant to be required for every measure under s.12.1 it will need to modify its language to ensure make this intent very clear.  Otherwise, the pattern will simply reflect practice with existing CSIS security intelligence investigations under existing s.12. 

Under section 12 of its existing statute, CSIS is to “collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada...”  It simply is not the case that every investigation must be authorized by warrant.  Under section 21, CSIS seeks a warrant from the Federal Court where it “believes, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate a threat to the security of Canada”.  The language, in other words, mimics that in the C-51, as applied now to the new kinetic powers in s.12.1 and the new warrant provisions in s.21.1.

In the existing s.12/s.21 context, the "reasonable grounds to believe" is triggered when the investigative methods trench on a reasonable expectation of privacy, and thus would be an unreasonable search under s.8 of the Charter absent a warrant.  That is the usual trigger under s.21 for getting a warrant.

This conventional understanding of "trigger" (aka reasonable grounds to believe) needs amplification in the new bill, because this is a new sort of warrant regime going well beyond search warrants/authorizations (and not governed by the specific arrest warrant rules under, e.g., Criminal Code).  We just can't fall back on everyone's understanding of how past warrant systems have always worked in deciding when someone should have a "reasonable grounds to believe".

So new s.12.1(3) specifies exactly when a warrant would be required for kinetic measures: "The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1".  This translates, in my view, into "reasonable grounds to believe" a warrant is required under s.21.1 = where the Service will violate Canadian law or any of the rights in the Charter.

Again, I don't see any other way to interpret the awkward construction in the CSIS Act, especially given the existing practice in relation to regular s.21 search/surveillance warrants.

And so again, if the government really means that "no measures of any sort will be taken unless there is a judicial warrant" they need to put that right into the Act and recraft s.12.1(3) to read something like: "The Service shall not take measures to reduce a threat to the security of Canada ..., unless the Service is authorized to take them by a warrant issued under section 21.1".

(This would also have the effect of eliminating even the hint that the statute is inviting a Court to authorize a Charter breach, something to which Kent and I object at great length in our backgrounder as totally contrary to foundational understandings of public law.  So talk about curing two problems with the deletion of simply a subclause.)

By the way, Roach and I have posted an unofficial consolidated version of the CSIS Act, as it would look at Bill C-51 (and Bill C-44).

 

 

Tuesday
Feb172015

Bill C-51 Backgrounder #3: Sharing Information and Lost Lessons from the Maher Arar Experience

We have now posted the third of a series of independent “backgrounder” documents that we shall author on Bill C-51, the Anti-terrorism Act 2015. All of these documents are archived at http://www.antiterrorlaw.ca.

The proposed Security of Canada Information Sharing Act in Bill C-51 declares a legitimate government interests in sharing information about security threats. Yet after close textual review, we conclude that the proposed law is both excessive and unbalanced. Why do we reach such strong conclusions?

The Act will relax constraints on the flow of information about “activities that undermine the security of Canada”. This is a new and astonishingly broad concept that is much more sweeping than any definition of security in Canadian national security law. In comes very close to a carte blanche, authorizing a “total information awareness” approach and a unitary view of governmental information holding and sharing. In that respect, we consider it a radical departure from conventional understandings of privacy.

The proposed legislation is unbalanced because it authorizes information sharing without meaningful enhanced review. While the bill pays lip-service to accountability, it does not incorporate an accountability regime matching its scope. Even as it erodes privacy, it fails to learn from the lessons of the Arar and Iaccobucci commissions of inquiry about the injustice that may stem from poorly governed information sharing.

The claim in the government’s backgrounder that the existing accountability institutions, including the Privacy Commissioner, are equipped for this task is not convincing to anyone familiar with the Arar report.

[NB: We have posted this paper for immediate download on SSRN. While SSRN catalogues the paper for inclusion in its holding, this page will be watermarked “Under review by SSRN”. Readers will still be able to access the paper.  We plan to upload revised editions as we add details and refine points. We have also posted to a “mirror” site, but will not update the paper here.]

Sunday
Feb152015

Antiterrorism Law and "Cultural" Baggage: How Terrorist Activity is Defined in Law

This weekend witnessed a small contretemps over Justice Minister MacKay's comments about the foiled mass atrocity attack in Halifax (currently an alleged attack because matters remain to be decided in criminal court).  Minister MacKay was quoted as saying "What we know of these alleged plans for a mass attack against our friends and our neighbours in the province, is that the attack does not appear to have been culturally motivated, therefore not linked to terrorism." 

This statement -- seemingly asserting that terrorism in Canadian criminal law is predicated on a "cultural" motivation -- struck many observers (myself included) as odd. My initial assumption was that the Minister was seeking to signal, however inelegantly, that this recent event was not Al-Qaeda or ISIS inspired violence.  This assumption seems belied by the Minister's spokesperson's statement, as reported in Global news: "MacKay spokesperson Clarissa Lamb, responding to a query from Global News as to why the minister had referred to cultural motivations, said MacKay 'was simply relating his understanding of what law authorities have concluded at this point.'"

The Minister, in other words, may actually believe that somewhere in Canadian law or jurisprudence, terrorism  is predicated on a "cultural" motivation.  For reasons I outline below, this misunderstanding would be of considerable concern.  But first, the law: Terrorism offences in Canadian law are almost universally predicated on a defined concept of "terrorist activity".  You may review a video "explainer" in which I lay out the elements of this definition here.

There is a "motive" aspect to the definition.  The listed motives are "political, religious or ideological purpose, objective or cause".  Culture is not mentioned. 

I am left puzzled, therefore, by the assertion made by the Minister's spokesperson.  I shall assume, therefore, that Minister MacKay was using "culture" as a shorthand for "religious".  But even then, by being underinclusive in his understanding of the true reach of terrorist activity, he would be implying that Canadian law is directed at one (and only one) motive for politicized violence: religion. 

If the press reporting is any indication, some Muslim Canadians are taking the Minister's statement as coded language for "religious violence is terrorism and nothing else".  The obvious inference, given the heated government rhetoric supporting its C-51, Antiterrorism Act, project is that religious violence means the Al Qaeda and ISIS inspired brand.

There is no doubt that AQ/ISIS inspired violence is a challenge for our democracies, as events in Europe even this past weekend clearly demonstrate.  But it is not the only form of politicized violence we should be concerned about, as Europe's largest recent mass casuality terrorist experience unequivocally demonstrate (Andres Breivik's murderous attacks in Norway).

The drafters of the 2001 Antiterrorsim Act who created the concept of "terrorist activity" were wise, because they were familiar with the many guises in which terrorism can arise.  They did not single out one type of cause and focus the law on it alone. 

The fact is, however, that since then, prosecutorial attention has been focused almost exclusively on AQ/ISIS inspired forms of terrorism.  In course of preparing our forthcoming book on Canadian antiterror law, and what the government's bill C-51 will do to it, Professor Kent Roach and I are reviewing all the reported cases in terrorism trials to date. If one excludes a single Tamil Tiger terrorism financing trial and the remnants of the Air India case, all of the terrorism trials since 9/11 we have reviewed have related to AQ (or ISIS) inspired terrorist activity.

At the same time, there have been events — such as the Bourque shooting and bombings incidents or attempts in Ottawa (Royal Bank) and Alberta (a plot against a Veterans Affairs office) that might, plausibly, meet the "motive" element of terrorist activity.  These were “political” and “ideological”, not religious act.  Yet, as best as I have been able to gather, they were not prosecuted as terrorism offences.  

In the present Halifax case, what differentiates the described events from "terrorist activity" of the sort at issue in cases like the Toronto 18 may not be the motive -- even a Columbine like motive might meet the definition or political or ideological.  Rather, it may another aspect of the definition of "terrorist activity": the so-called purpose element.  To be terrorist activity, the underlying wrongful act must be done "in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada".  Simply killing people because your ideology demands death and mayhem may not meet this purpose requirement.  Maybe the evidence showed that Bourque simply wanted to kill because of his beliefs, not because he wished anything to come of his actions?  Maybe the Halifax plotters were of the same frame of mind?

This fine parsing of the law matters, and deserves serious treatment. We must be clear in our messaging about what terrorism is or is not under our law, and when it is not judged terrorism, why that is. We are at risk that our antiterror criminal law will be perceived, not as criminalizing politicized violence regardless of the cause, but aimed in practice at one particularly concerning and notorious form of politicized violence — the religious AQ/ISIS inspired brand.  We are not well served in this country by a practice or impression in which Muslim politicized violence (and only Muslim politicized violence) is terrorism, and everyone else's is something else.

It would be useful, therefore, for the political executive not to facilitate this impression. It would be better to underscore the reach of terrorism offences to the full range of motivations actually named in the Criminal Code.