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.

Friday
Feb272015

Bill C-51: Backgrounder #5: Oversight and Review: Turning Accountability Gaps into Canyons?

Canada’s system of national security “oversight” is imperfect. Its system of national security “review” is frayed, perhaps to the breaking point. The government’s antiterrorism law, bill C-51, will accelerate this pattern. Without a serious course correction, we risk the prospect of avertible security service scandals.

There is often a misunderstanding about the distinction between “oversight” and “review”.

In Canadian practice, oversight is usually an executive branch function. This system has not always worked – the Air India Commission suggested (and the government rejected) new centralized oversight systems for reconciling competing national security interests.

C-51 does not introduce new reforms in this area. The government instead points to judicial warrants authorizing the new CSIS powers – a form of oversight. But this is, at best, a partial form of oversight. CSIS will not always require warrants. Judges will issue warrants in secret proceeding in which only the government side is represented. Nor will they always know what is then done in their name. There is no formal “feedback” loop between CSIS and the judge concerning the execution of the warrant, a key concern where (as with CSIS warrants) the conduct is covert and the warrant never disclosed.

In these circumstances, accountability depends on review. “Review” is an audit of past performance, to ensure compliance with law and policy. CSIS’s review body is SIRC. The idea that SIRC review is adequate and enhanced review is needless red tape is simply wrong.

SIRC’s resource constraints and design mean that it is incapable of reviewing all of CSIS’s activities, or even CSIS’s conduct under all its existing warrants. A necessarily partial approach to review will be spread even thinner as CSIS’s powers expand.

More than this, SIRC (and other review bodies) are unnecessarily hamstrung by legal limitations that “stovepipe” their functions to specific agencies, and prevent them from “following the trail” when government agencies collaborate – an increasingly common practice that C-51 (and C-44) will unquestionably increase.

The Arar Commission recommended that “statutory gateways” be created allowing SIRC to share secret information and conduct joint investigations with Canada’s two other existing independent national security review bodies. The government has not acted on this report, or the Privacy Commissioner’s 2014 report that its powers were inadequate to review security information sharing – and information sharing is to be dramatically increased in C-51.

Meanwhile, not even SIRC reform would address the fact that Canada, alone among its “Five Eye” security partners, does not give parliamentarians access to secret information. As pointed out recently by four former prime minister’s (and others) a parliamentary review is not redundant – it can perform valuable “pinnacle” review by examining the entire security and intelligence landscape.

Other democracies have made parliamentary review work well with independent expert review bodies. They have also shown that parliamentary review powers contribute to a broader parliamentary competence in an area where it is essential: national security law.

Download the paper at the download site on the Social Science Research Network (SSRN).  Or use the mirror site (we shall not keep the paper on the mirror site up to date with additions).

[Please note that while SSRN catalogs this paper into its collection, “Under Review by SSRN” will appear as a watermark on this screen. The paper will nevertheless be available for download]

Friday
Feb272015

Bill C-51: Backgrounder #4: The Terrorism Propaganda Provisions

 

Proposed s.83.222 of the Criminal Code creates a new concept of “terrorist propaganda”. It also allows judges to order deletion of “terrorist propaganda” from the internet.

We support the concept of deletion orders for “terrorist propaganda” in principle. We believe they can have a role as part of a balanced and evidence-based counter-radicalization strategy that aims both to reduce the supply of terrorist material and (even more importantly) the demand for it.

However, the details matter. We remain concerned about the breadth of the definition of “terrorist propaganda”. It includes cross-referencing to the new speech crime proposed by bill C-51. As we discuss in backgrounder #1, that new offence risks sweeping in too much speech that is not tied to violence or threats of violence.

We think instead the terrorist propaganda concept should be anchored to existing terrorist crimes, which capture already the vast range of actually dangerous speech.

Such an approach would ensure that deletion orders were appropriately focused on material proximately related to actual and threatened violence, as opposed to extremist and objectionable ideas that advocate the use of political violence for any number of causes, including ones that many would regard as “mainstream” (e.g., contesting the Assad regime in Syria).

The first part of this backgrounder will examine the definition of “terrorist propaganda” set out in bill C-51 and the procedures it contemplates for deletion of this material from the internet.

The second part will discuss consequential amendments that would add the broad new category of “terrorist propaganda” to the Customs Tariff that allows officials with the Canadian Border Service Agency to seize obscenity and hate propaganda at the border. The last part of this backgrounder will also discuss how the proposed deletion procedures will fit into what is known in the research literature about counter-radicalization programs.

This backgrounder will suggest that the focus of the “terrorist propaganda” should be drawn more narrowly in bill C-51 to include material that is already criminal – something it accomplishes in part by simply by listing material that counsels the commission of terrorist offences. The much broader and vaguer reference to material that advocates or promotes “terrorism offences in general” should be deleted from the bill.

[Note: 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.]

 

Friday
Feb202015

Bill C-51: Brief Explainer Video

I have prepared a brief explainer video on the more concerning aspects of C-51.  If you have 15 minutes and don't mind that I misspoke twice (and said C-59 rather than C-51), this may help viewers understand the broad contours of this complicated law (and some of our concerns).  (Or it may just be more confusing!)