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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Tuesday
Dec152015

Recruiting Doctoral or LLM 2016 Research Fellow in National Security Law

Pursuant to a seven year SSHRC Partnership Grant awarded to the Canadian Network for Research on Terrorism, Security and Society and the Faculty of Law’s own internal bursary program, I will recruiting a Research Fellow in 2016 (and for several years thereafter) to complete graduate research on anti-terrorism law, rule of law and accountability.  For details on the Fellowship, please see here.

Tuesday
Nov242015

Bill C-44's First Public Treatment: Yellow Light

The Federal Court released today an interlocutory decision in a long running saga that addresses aspects of the Harper government's first 2015 security bill, C-44.  At risk of being accused of "insta-analysis", a few quick meditations. 

This decision is a collateral judgment in the endless litigation over the government conduct in what became the matters examined by the Iacobucci inquiry

That post-inquiry lawsuit is now infamous -- dragging on for years as the government has used every effort to stave off the disclosure plaintiffs have sought in order to prove their case.  This judgment is the latest in the series of lengthy disclosure disputes. 

Basically, the government can use s.38 of the Canada Evidence Act to protect national security information from disclosure, but to do so it has to persuade a Federal Court judge to order non-disclosure.  Here, at issue is the identity of some of the CSIS protagonists in the case, presumably both officers and sources.  Their identity has always been carefully protected, traditionally on a case-by-case basis by the Federal Court when such matters come before it. 

But the courts have resisted the idea that CSIS sources automatically receive protection in relation to anything that might identify them -- not least because CSIS has traditionally handed out source protection with considerable liberty and seemingly without much consideration of the downstream impact on justice issues. 

So part of C-44 responded to this judicial reticence by legislating an automatic source identity protection, prioritizing CSIS's interests over that of others in the justice system. 

The issue before the court in the recently decided matter, therefore, was whether this new automatic source identity protection applied to a case that has been underway for years. To cut to the chase, the court said "no".  Basically, and subject to exceptions, statutes don't apply retroactively [or, as my colleague John Mark Keyes correctly points out in relation to this case, retrospectively] unless parliament expressly makes them retroactive [or retrospective].  That didn't happen here, and none of the exceptions applied.  So the government is out of luck and the question of disclosure here will proceed under the pre-C-44 legal regime (with the classic, already very protective case-by-case assessment of whether identifying information should be disclosed, balancing security against other interests.)

What caught my eye? Para 93. It doesn't go there, quite, but the court raises the spectre of something that lurks in this area: what do you do when the (overbroad) C-44 source protection acts to impair the litigant's rights to a remedy for the breach of a constitutionally protected interest?

My thinking, such as it is, goes something like this: a statutory provision that has the effect of blocking a remedy for a constitutional breach should itself be unconstitutional.  After all, one of the first cliches one learns in law school is: "there is no right without a remedy". 

Now, as best I know (not having actually researched the matter for more than a few minutes), this question is a novel issue — because the clear right to sue for damages for constitutional breaches is itself new.  (The Supreme Court may well say something important on this matter in this case, when it is decided). 

But as it stands now, I am really hard pressed to imagine that you can have right to sue for Charter breaches and the right to s.24 remedy, but then the government can turn around and create a statutory provision that stands in the way of your actually being able to make out the case for a remedy.  Put another way, "where vindication of a constitutional right is at stake" should be another carve out from the C-44 source protection rules, especially if there is a means to square vindication of the right with the legitimate security interest.  (One example of a work-around would be the use of security-cleared special advocates to advance the plaintiff's case in civil litigation).

The court doesn't get there in para. 93, because it was not necessary to decide the case on this issue.  But what it says about overbroad source protection having an impact on the defence of a substantive Charter right should certainly make the government sit up and do a rethink on the question of source protection.  As Kent Roach and I have argued in False Security, the present C-44 arrangement is excessive and will have knock on effects on, eg, prosecutions.  This case raises yet another manifestation of negative knock-on effects.

And while I'm talking about this case: I personally find it embarrassing and more than a little disturbing that after all the findings in the Iacobucco inquiry pointing to the likely affect that information sharing by the Canadian government had on the maltreatment of the plaintiffs in foreign jails, the government chose to fight over the remedy in civil court, rather than settle (as they did in the Arar matter).  I truly hope “settling this case” is on the agenda for the current government.

Saturday
Oct172015

Capstone comments on security for 2015 election

In February, I departed from the usual mission of this blog to write personal reflections on the challenges presented by bill C-51 and my role as a law professor in addressing those questions.  A lot has happened since then, as followers of this blog and www.antiterrorlaw.ca know.

Now, as voting day looms, a number of things have happened prompting me to craft a further reflection, with apologies to those who read this blog for other purposes.  There may be those who regard what follows as a partisan statement.  But a partisan is someone who prefers (or dismisses) policies based on which party those ideas come from.  In comparison, my political preferences are determined by the merits of the policies advanced by a party. 

I have decided to write this blog for three reasons.

First, last week an upper year Muslim law student reported reluctance reading in public places my (and Kent Roach's) new book, False Security: The Radicalization of Anti-terrorism, because it included "terrorism" in the title, and that student was concerned about the reaction.  That student's comments reflect a now common pattern of reports and anxiety about animus directed at Muslim Canadians.  Concern about this pattern is now so acute that a very experienced lawyer whose judgment I trust immensely has urged the need for academics and others to speak out more vigorously in defence of tolerance.  Even in the old Ottawa neighbourhood I grew up in, I have heard reports of hateful conduct towards Muslim Canadians.  (Different but similar reports are described here.)

There comes a time when a muted response to unreasonable conduct becomes itself unreasonable.

I shall be blunt.  I believe, like others, that the Conservative Party of Canada's conduct since the introduction of bill C-51 (and in particular during this election campaign) has been detrimental to tolerance and to security.  I find instructive and cogent the views of former CSIS analyst Phil Gurski: "If the Conservatives are returned to power on October 19 they face a Sisyphean task of undoing the damage they have done with Muslim Canadians.  It is not impossible, but it will take time.  Trust is hard to achieve and easy to lose. For a party that bills itself as the best guardians of national security, it is ironic that under its mandate we have become less safe in a way."  (I await Mr Gurski's new book on counter violence extremism with much anticipation).

Second, with Kent Roach, I have spent hundreds and hundreds of hours researching, analyzing, assessing and examining the current government's record on anti-terrorism, especially in relation to law-making.  There is some possibility that Kent and I have now spent more time on anti-terrorism law -- and C-51 in particular -- than any other single person in the country. 

The only conclusion I can form from that labour is that this current governing party is disinterested in rights and either grossly ill-informed or simply inept in security.  False Security did not set out to be an indictment, and we did not write it to fit the title.  The indictment wrote itself, and the title followed naturally. The Harper government's overall record, its year's long staggering indifference to curing real security problems and its bullheaded charting of false solutions to still other problems in 2015, its apparent unwillingness to listen to basically anyone outside of a myopic inner circle, its stark unwillingness to appreciate the strategic implications of its constant recourse to short-term counterproductive tactics, all convey a lack of maturity dangerous in a complicated society like that of Canada.

I waited to see what would appear in the Tory platform, hoping (as rumour suggested) that there would be a nod to enhancing the national security review accountability system in the manner recommended almost a decade ago by the Arar Commission.  I naively hoped there would finally be recognition that we need to move on the recommendations of the Air India Commission. 

Instead, in that platform there is a promise for new criminal law in the form of a designated travel ban, an idea I actually support, if done properly (a big "if" as I suggest here). And the Tories promise a revamped treason law, as if the conduct it would cover isn't already criminalized in many different ways in the Criminal Code.

But in so promising, and in imagining that in their tenure they have crafted the most perfect policy in the most perfect world, the Conservatives have opted to be the party that is so enamoured with hammers that it sees every problem as a nail.  A government needs a full toolbox.  I hoped for some tangible realization that jailing and citizenship stripping, disrupting and alienating only gets you so far -- and indeed, can be counterproductive -- in a complicated anti-terrorism context.  Other than a nod to financing for more research, there was no real hint in the platform of any glimmer of understanding. And while I am all for more research, it is meaningless without a government willing to listen to it.

Third, I am distressed by what I have learned through access to information documents and quiet discussions about the inner workings of executive government under the Conservatives.  I do not wish to exaggerate.  I do not think the civil service is broken.  But there are key units in the security area that seem dangerously impaired.

In this election, I gave money to candidates from each party, supporting individuals who I believe were and could be excellent MPs, guided by personal friendship and by the innovative approach of GreenPAC.  But the fact is: if I were a single issue voter whose only concern in the world was security, even then -- especially then -- I could not cast a vote for the Conservative Party.

Because whatever their flaws (and there are flaws) and despite being encumbered by a status of opposition parties without access to the resources of government, the anti-terror aspects of the opposition party platforms show more real promise -- and a closer grounding in reality.

I know that barbs have been traded between the NDP the Liberals over bill C-51 and whether it should be amended or repealed.  Our work seems sometimes to have been deployed in that dispute -- not something I wished or anticipated when we set out to dissect C-51. 

It is time to move past which party was most incapable of swaying an indifferent Conservative Party from its reckless course during the enactment of C-51.  This is an argument over which party had the noblest failure, faced with a government that was deaf to reason.

As best as I can tell, there has never been any doubt that both parties would reject C-51 in its present form.  And it has never been clear to me that much difference should exist between "amend" and "repeal", since the problems that C-51 tries to so ineptly cure (and indeed, often makes worse) are real problems that any government will need to fix.  As we have said repeatedly, this is not a "C-51 good, C-51 bad" conversation.  It is bad.  The question then becomes how to fix it, and go beyond it to address the accumulated backlog of ignored problems.

In False Security, we offer our views in 600 pages or less.  But we are just two voices grappling with immense complexity, and the last thing we need is a repeat of the Harper government hubris in thinking a shambling, omnibus Frankenstein law can emerge in perfect form from the deep recesses of a handful of idiosyncratic minds -- ours or anyone else's. 

In all the opposition platforms, with their various pledges, there is much to work with.

But I will take special heart from the statement in the Liberal platform, promising amendments to C-51 and pledging that "as this legislation is tabled in Parliament, we will launch broad public consultations, to engage and seek the input of Canadians and subject-matter experts."  Readers may scoff that I single-out a process promise.  And I certainly do not believe good process always guarantees good outcomes.  But it is certainly a prerequisite to them.  C-51 is "exhibit A" to what happens with the failure of rational process.

And so my analysis, and ultimately my faith in this promise, shall guide my political preferences in this election, in the earnest hope that False Security will have a short shelf life.