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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Tuesday
Dec092014

Speaking Note, Senate Study on Security Threats Facing Canada

[This testimony was a variant on the presentation posted here, but in this version I go beyond foreign fighters to discuss broader implications, to the extent time permitted.]

Senate Standing Committee on National Security and Defence

Study on Security Threats Facing Canada

Speaking Notes

Craig Forcese

 

December 8, 2014

Thank you for your invitation.  I will mostly be addressing the third question posed to us, on threat reduction tools. I wish first to provide context, using a diagram I have circulated. [Reproduced in Annex 1]

The diagram contains several circles.  The most important are “foreign fighting”, “radicalization” and “terrorist activity”.

First point: there is sometimes a conflation in the public mind between these three phenomena.  In at least some popular discourse, these three circles are not so much overlapping, as identical.  

Not true, as an empirical matter.

Not all radicals are foreign fighters.  Not all foreign fighters are radicalized. Finally, not every foreign fighter, not every radicalized individual and not even every radicalized foreign fighter is bound to commit a terrorist activity. 

Some do, but based on a dataset spanning 1990 to 2010, we’re talking about one in every nine foreign fighters returning to commit a domestic act of terror.  These are, of course, data that predate the implosion of Syria and Iraq and the ISIS phenomenon.  And I suspect this ratio will change in the next decade.

But the fact remains that these three categories of radicalization, foreign fighting and terrorist activity do not overlap in full.  And that complicates life.  If some but not all radicalized individuals or foreign fighters may commit a terrorist activity, preempting terrorist activity becomes more difficult.

My diagram presents this dilemma most starkly if you juxtapose Zones 1, 2, and 3 with Zones 4, 5, 6.  Zone 1, 2 and 3 represent the vast majority of foreign fighters or radicals who are not then involved in terrorism.  Zone 4, 5, and 6 represent those relatively few who do gravitate to terrorist activity, and especially domestic terrorist activity.

So how then to stop those in Zones 1, 2, and 3 from moving into zones 4, 5, and 6?

The reality is that we are talking about some sort of preemptive approach – that is, stopping conduct before it reaches the point of actual terrorist activity. 

In zones 7, 8 and 9, we have what I’ll call “criminal preemption”.  These are all the terrorism offences that are basically about conduct that has not yet reached the usually kinetic acts of violence associated with terrorist activity.  Facilitation. Participation. Instruction. The new rules on terrorist travel.  Also the general incitement rules in the Criminal Code (that is, counselling an offence), aiding and abetting, conspiracy etc. 

All of these offences have one thing in common: Parliament has concluded that this conduct is sufficiently proximate to terrorist activity that it attracts criminal sanction.

The issue after the Ottawa attacks is whether the criminal preemption circle is big enough.  Should it reach even further into Zones 1, 2, and 3?  I think we need to be very, very careful in making an already vast circle even bigger. I’ll return to this in a moment.

 

Administrative preemption

Criminal preemption is not perfect. 

Substantively, there are limits to the crimes. 

Procedurally, they need to be proved in open court, with real evidence, beyond a reasonable doubt. 

So for these reasons – and others – criminal tools may not be used. 

Instead, the government may resort to a buffet of other mechanisms represented by the circle marked “administrative preemption” and creating zones 10, 11 and 12.  What are these? 

Passport revocation, no fly lists (aka passenger protect), citizenship revocation (when it comes into force), recognizance with conditions (better known as peace bonds). Immigration security certificates.  Regular immigration inadmissibility proceedings. 

These tools are a mixed bag.  They each have pros and cons, which we can discuss if of interest.  I will say this, however.  Peace bonds are mostly unexplored, and probably should be explored more.  And I am not personally persuaded that their non-use is a problem with burdens of proof. 

Nothing in the circle is perfect, but collectively these measures amount to a fairly impressive arsenal. 

 

Investigative preemption

My last tool circle focuses on what I’ll call “investigative preemption”.  This seems a contradiction in terms: an investigation is supposed to lead to something, like a prosecution, not itself preempt.  But of course, the real world is more complicated. 

The most graphic use of investigative preemption would be an investigative hearing under the Criminal Code’s anti-terrorism rules. 

Other investigative techniques include overt surveillance, covert wiretaps that reveal other, more easily prosecutable crimes, and even traffic stops.  All these can provoke conduct that police can then act on. 

Investigative preemption of this sort has obvious merits.  But it is also potentially the most lawless form of counterterrorism.  Using police or security intelligence powers, not to pursue criminal prosecutions or collect intelligence, but instead to provoke and disrupt people who, to that point, were acting lawfully, is a dangerous practice. 

Investigative preemption is an area calling out for careful policy guidance, possible legislative action and lots and lots of review by review bodies much more robust than those we have at present.

 

Next steps:

So where to now?  Let me end with a few brief observations.

1. We need to solve the intelligence/evidence problem.  I suspect that many potential prosecutions or peace bond processes lie in limbo because of this issue. The government needs to sit down with the Air India inquiry report and take its many recommendations on this issue seriously, something it has not done with Bill C-44.  

2. We need to be wary about thinking that more criminal offences will solve our problems.  Like Australia, I would like to see a robust foreign enlistment law to deal with the foreign fighters issue. But I think UK, Spanish or French-style glorification offences are both unnecessary, constitutionally doubtful and, ironically, would shut down some of the very online speech that law enforcement and intelligence services turn to in order to unravel conspiracies.  We need to be very, very nuanced in this area.

3. Giving the RCMP new criminal laws without asking why they aren’t using all the tools presently, places the cart before the horse.  This whole issue may be about resources, not law.  I would add this: I think we should be throwing money hand over fist at the RCMP’s nascent counter violent extremism program.  We deceive ourselves in presenting this as a problem to be solved by prosecutions and penitentiaries.  Law is a partial and imperfect strategy, and empirical studies of past deradicalization efforts suggests that too much coercive law can precipitate exactly the consequence it is supposed to deter.

4. Last, if you keep pressing the thumb on “more powers for the cops and spies” scale and keep ignoring the fact that our review system is broken, you are queuing up another legitimacy crisis.  The CSIS Act lasted 30 years more or less unamended because it was enacted with deliberation and balancing power with accountability.  In comparison, the post-9/11 measures have lurched from controversy, to challenge, to new controversy.  Policy and law makers needs to sit down with the Arar Commission policy report and take it seriously.  Anti-terrorism law cannot be all sails and no anchor.

 

Thank you.

 

Annex: Anti-terrorism Diagram

 

 

Annex: European Glorification Laws

I provide this discussion for information only.  I do not believe these laws to be suitable for a Canadian context.  I also note that in France and the United Kingdom at least, prosecutions brought under these laws (or their predecessors) have sometimes been very controversial and would, if transposed to Canada, reach deeply into the area of protected speech under the Canadian Charter of Rights and Freedoms.

Spain

Spanish criminal law creates a broad offence of terrorism glorification: “glorification or justification, through any form of public information or communication, of …[terrorism] offences … or of persons having participated in their perpetration, or the commission of acts tending to discredit, demean or humiliate the victims of terrorist offences or their families”.[1]

France

In October 2014, France revised its anti-terrorism law, criminalizing in its penal law not just direct provocation of terrorist acts but also making public “apologie” for these acts.[2] The new law also allows a judge to issue a stop order to internet service providers where connected to the criminalized incitement or “apologie” and manifestly illicit.[3]

United Kingdom

The United Kingdom Terrorism Act 2006 introduced two new offenses, aimed at speech: “encouragement of terrorism”[4] and “dissemination of terrorist publications”.[5]  Both impose maximum sentences of seven years imprisonment.  In both instances, the crimes reached “indirect encouragement”, presumed to include statements or publications that “glorify” the commission or preparation of terrorism crimes, whether in the past, future or generally, so long as members of the public could reasonably infer that the glorified behaviour was conduct that was to be emulated in the existing circumstances.  “Glorification” “includes are form or praise or celebration, and cognate expressions are to be construed accordingly”.[6]

The publication offence “focuses not on the original publisher but on those who pass the publication on”.[7]  It appears to reach internet service providers (ISPs) and the owners of websites on which people can post statements.[8]

In fact, a third provision in the UK Act established detailed rules for statements or publications communicated via internet (or electronically).[9]  Once a constable gives notice to a person that – in the opinion of the constable – the statement or material is “unlawfully terrorism-related” and that it should be removed from public circulation, a person failing to comply within two days is presumed to endorse the statement or article.  (In practice, police give this notice in consultation with the Crown Prosecution Service.)[10]

The presumed endorsement is not an offence in its own right, but does narrow the basis for any defence if the person is then charged with encouragement or terrorism or dissemination of terrorist publications.  “Unlawfully terrorism-related” includes material that (in the eyes of a person it has or may become available) directly or indirectly encourages or induces the commission, preparation or instigation of a terrorism act, or which is likely to be useful in the commission or preparation of such acts.  As with the two offences described above, “glorification” is presumptively of indirect encouragement.    

The two 2006 offences supplemented another speech-related offence, found in the Terrorism Act 2000: collection of information.  Under this provision, it is a crime punishable with imprisonment of up to 10 years to collect or make a record of “information of a kind likely to be useful to a person committing or preparing an act of terrorism”, or possessing a document or record containing this sort of information.[11] 

The UK Home Office reports that between September 11, 2001 and March 2014, there were a total of 460 charges and 220 convictions entered under anti-terrorism legislation in Great Britain.  Of these, 48 persons where charged with the principal offence of collection of information under the Terrorism Act 2000.[12]  A total of 33 convictions were entered under this provision,[13] producing a conviction rate of 69%.

The Terrorism Act 2006 came into force in April 2006.  Between that time and March 2014, there were four instances in which the principal charges brought against a person were for encouragement of terrorism,[14] and 3 convictions.[15]  There were also 12 instances where the principal charge was for dissemination of a terrorist publication,[16] and 8 convictions.[17]

 


[1]           Spanish Penal Code, article 578.

[2]           Projet de loi renforcant les dispositions relatives a la lutte contre le terrorisme, Assemblee Nationale, Texte Adopte no. 415 (29 octobre 2014), art. 4.

[3]           Ibid, art. 6.

[4]           Terrorism Act 2006, 2006 c.11, s.1.

[5]           Terrorism Act 2006, 2006 c.11, s.2.

[6]           Terrorism Act 2006, 2006 c.11, s.20.

[7]           David Anderson, Report on the Operation in 2010 of the Terrorism Act 2000 and of Part 1 of the Terrorism Act 2006 (July 2011) at para. 10.7, online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/243552/9780108510885.pdf

[8]           Tufyal Choudhury, “The Terrorism Act 2006: Discouraging Terrorism,” in Ivan Hare and James Weinstein (ed.), Extreme Speed and Democracy (Oxford: Oxford University Press, 2009) at 467.

[9]           Terrorism Act 2006, 2006 c.11, s.3.

[10]         Anderson, above note 7 at para. 10.8.

[11]         Terrorism Act 2000, 2000 c. 11, s.58.

[12]         UK Home Office, Operation of police powers under the Terrorism Act 2000: data tables, financial year ending March 2014, at table A_05a, online: https://www.gov.uk/government/statistics/operation-of-police-powers-under-the-terrorism-act-2000-data-tables-financial-year-ending-march-2014.

[13]         Ibid at table A_08a.

[14]         Ibid at table A_05a.

[15]         Ibid at table A_08a.

[16]         Ibid at table A_05a.

[17]         Ibid at table A_08a.

Thursday
Dec042014

Limiting Foreign Fighting by Canadians: Stop Gap Legal Measures

I have opined here and here about the troubles associated with foreign fighting.  I do not limit my concerns about these troubles to fighting with a listed terrorist group.  I find persuasive the Australian view, at least as recorded by that country's independent reviewer of anti-terrorism law.  That person reported in 2014 “repeated apprehensions expressed by those seeking to implement the [counter-terrorism] Laws … that the return of trained and desensitized (perhaps radicalized) Australians from foreign conflicts such as Syria was a plain terrorist threat regardless what side, party, faction or group the returning Australian had fought with.” 

This is a reasonable position, given that in places like Syria a certain lesson must be that the enemy of my enemy is not necessarily my friend. 

In an article that has disappeared in the maw of law journal peer review, Ani Mamikon and I advance an argument in favour a revamped Canadian neutrality law allowing the Canadian executive to assert closer legal control over citizen freelancers, of whatever stripe.  I hit some of the highlights here.

But we should not assume that the government is now caught between the significant scylla of trying to use anti-terrorism law as a foreign fighter tool and the rather modest charybdis of actually legislating in Parliament on the issue.

In Australia, the government has employed not only Australia's robust neutrality law (now revamped in Australia's criminal code), but also its international sanctions laws.

While we don't have an adequate neutrality law, we do have international sanctions law of relatively recent vintage: the Special Economic Measures Act.  (We also have the UN Act.  That allows us to implement UN Security Council sanctions.  But so far UN Security Council resolutions such as 2178 (2014) confine their reach to foreign "terrorist" fighting, whatever that is).

Back in the day, I spent considerable time contemplating SEMA in the area of business and human rights.  Boiled to its essence, there are two issues.  First, when can it be triggered? Second, what does it allow the government to do?

Trigger for the SEMA

The SEMA is triggered in two circumstances: first, it may be deployed in response to a "decision, resolution or recommendation of an international organization of states or association of states, of which Canada is a member, that calls on its members to take economic measures against a foreign state".  Second, it may be used unilaterally "where the Governor in Council is of the opinion that a grave breach of international peace and security has occurred that has resulted or is likely to result in a serious international crisis".  In the late 1990s, there was considerable SEMA-geek debate focusing on whether the latter trigger was applicable to the situation in Burma (or Sudan).  (That debate fell away when the current government employed SEMA against Burma.)

But whatever the niceties of that archaic issue, no one can doubt that the situation in Syria amounts to "a grave breach of international peace and security" that "has resulted or is likely to result in a serious international crisis".  And lo and behold, we have used SEMA against Syria.  But we have limited these sanctions measures to trade, financial and investment relationships.

Could we also use SEMA on foreign fighters?  That raises the second issue of SEMA's scope.

Can SEMA reach foreign fighters?

SEMA is the the special ECONOMIC measures act.  So at first blush, it seems inapplicable.  But the text of the law speaks of the provision of all sorts of services.  Section 4(e) allows the government to bar "(e) the provision or acquisition by any person in Canada or Canadian outside Canada of financial services or any other services to, from or for the benefit of or on the direction or order of that foreign state or any person in that foreign state". 

So the sanctions measure can reach government and non-governmental entities, including (one assumes) insurgencies. 

Moreover, the provision of military services is a "service" on any plain meaning, although context is sometimes everything in statutory interpretation.  But even with that context, military service is an economic benefit: a volunteer is one soldier you don't have to pay for.  And a fighter provides a fighting service.  And more than that, every volunteer bringing their own supplies and cash (to, e.g., by AK-47s in the local bazaar) provides a clear economic benefit. 

In keeping with this reasoning, in the Australian sanctions rules for Syria, a "sanctioned service" includes "a military activity" and also "the manufacture, maintenance or use of an export sanctioned good for Syria" (e.g., weapons). (s.5)

In a similar fashion, I think it plausible that the current SEMA regulations on Syria could be amended to add:

"it is prohibited for any person in Canada and any Canadian outside Canada to...(j) travel, or attempt to travel to, or remain in Syria for the purpose of providing, using, maintaining, supplying or acquiring a military service or any good that is subject to paragraph (e) of this section" (relating to goods exported Syria). 

Violating a SEMA order carries a penalty of up to 5 years imprisonment.

Caveat: Second Best Option

A couple of caveats.  I do not enthusiastically embrace this idea.  I do not like crime through regulation, and there is reason to doubt the constitutionality of that approach (a matter raised, but not resolved, in the Libman Hussein case from the last decade).  Expect this to be front and centre if charges were ever brought.

I also especially don't like pounding square pegs into round holes -- and national security law is starting to amount to a lot of splintered square pegs.  Using SEMA as a tool to deal with foreign fighters would be in that unhappy tradition.  Gerrymandering existing law for reasons of expedience and convenience rather than going to Parliament and debating and airing issues that demand both is anti-democratic and liable to all sorts of second order impacts, not least when courts get into the mix.

So first choice: amend the Foreign Enlistment Act and make it a real foreign fighter tool.  Last gasp stop gap: SEMA.  Unpersuasive: "our hands are tied" or "terrorism law is good enough".

Thursday
Dec042014

Neutrality Law, Anti-terrorism and the Legal Response to Foreign Fighters

Workshop, Canadian Network for Research on Terrorism, Security & Society

Dec 3, 2014

Neutrality Law, Anti-terrorism & the Legal Reponse to Foreign Fighters from Craig Forcese on Vimeo.

 

Speaking Notes

Thank you for your invitation.  What I’d like to do is take 20 minutes is to “tee up” some thinking on law and policy approaches to what we generally call “foreign fighting” and “home grown” “radicalized” terrorist activity.

If this were a full academic paper, I would begin by defining these terms.  I shan’t, as I suspect everyone in this room will have a more or less shared understanding of what we’re speaking.  The one comment I’ll make on this point is that by “radicalized” here I am referring to jihadi radicalization.  Please assume that my invocation of jihadism here comes with all the usual caveats concerning how the religious concept of jihad has been misappropriated by a particularly pernicious and violent ideology. 

What I am going to use is a diagram.  It’s an effort to reduce everything we need to think about in this area into a series of overlapping circles.

 

Boolean Circles

So let me start with the three most important circles.  We have “foreign fighting”.  We have “radicalization”.  And we have “terrorist activity” – and here, I mean terrorist activity as defined in the Criminal Code.

First point: there is sometimes a conflation in the public mind between these three phenomena.  In at least some popular discourse, these three circles are not so much overlapping as identical.  Foreign fighting equates with radicalization (and vice versa) and it all necessarily boils over into terrorist activity, or at least terrorism offences. 

Not true, as an empirical matter.

Not all radicals are foreign fighters – if that were true our homegrown terrorism issues would be much simpler.  Not all foreign fighters are radicalized.  Recent reporting suggests a bevy of Canadian Armed Forces veterans are embarked on foreign fighting, but few would be radicalized in the sense we mean here. 

Finally, not every foreign fighter, not every radicalized individual and not even every radicalized foreign fighter is bound to commit a terrorist activity. 

Some do, but based on a dataset spanning 1990 to 2010, we’re talking about one in every nine foreign fighters returning to commit a domestic act of terror.  Of course, given the implosion of Syria and Iraq and the ISIS phenomenon, there is every reason to expect that these historical data understate future patterns.  And of course, some of these foreign fighters likely committed acts overseas that are cognizable as terrorist activity.

But the fact remains that these three categories of radicalization, foreign fighting and terrorist activity do not overlap in full.  And that complicates life.  If some but not all radicalized individuals or foreign fighters may commit a terrorist activity, preempting terrorist activity becomes more difficult.

My diagram presents this dilemma most starkly if you juxtapose Zones 1, 2, and 3 with Zones 4, 5, 6.  Zone 1, 2 and 3 represent the vast majority of foreign fighters or radicals who are not then involved in terrorism.  Zone 4, 5, and 6 represent those relatively few who do gravitate to terrorist activity, and especially domestic terrorist activity.

So how then to stop those in Zones 1, 2, and 3 from moving into zones 4, 5, and 6?

 

Passive Approach

Well, one approach is let nature take its course.  I’ll call this the passive approach.  Some foreign fighters die.  Some radicalized foreign fighters return disillusioned.  Some radicalized individuals don’t ever make a step into actual violence. 

But then again, some do.

So “let’s wait and see” is hardly the sort of situation many of us would be comfortable with, and no government could responsibly favour that strategy.

 

Purely Reactive Approach

Another approach is to wait until people actually stray into zones 4, 5, and 6 – that is, they commit a terrorist activity.  Depending on the nature of that activity, there are scores of crimes they could be convicted of.  And indeed they may be killed in the course of their conduct anyway.  I’ll call this the purely reactive approach.

But of course, all this necessarily requires us to accept the potentially significant injury caused by the actual terrorist activity.  Outside of the world of Tom Cruise’s Minority Report, we generally accept that actual injury precedes crime.  But for reasons I think we can debate, we don’t with terrorism.

And so again, I doubt that this is the sort of approach that resonates with policy makers, especially after events this past October.

 

Criminal Preemption Approach

So, the reality is that we are talking about some sort of preemptive approach – that is, stopping conduct before it reaches the point of actual terrorist activity.  And here is where reasonable minds begin to quibble.

We’ll start with the basics, harkening back to my diagram.  In zones 7, 8 and 9, we have what I’ll call “criminal preemption”.  These are all the terrorism offences that are built around the concept of terrorist activity.  These are basically about conduct that has not yet reached the usually kinetic acts of violence associated with terrorist activity.  Facilitation. Participation. Instruction. The new and somewhat duplicative rules on terrorist travel that amplify the terrorism offences introduced in 2001.  Also the general incitement rules in the Criminal Code, aiding and abetting, counseling an offence, conspiracy etc. 

All of these offences have one thing in common: Parliament has concluded that this conduct is sufficiently proximate to terrorist activity that it attracts criminal sanction.

Thirteen years ago, this was a contentious view.  It has become now part of the Canadian legal landscape, and the RCMP and Crown prosecutors have had good success in obtaining criminal convictions under these provisions, and defending them from constitutional challenge.  Where they have failed – as in the recent Sher case – it is because they used these broad sweeping offences in circumstances where the connection to terrorist activity was too far removed.  One off-colour conversation does not a terrorist conviction make.

The issue du jour after the Ottawa attacks is whether the criminal preemption circle is big enough.  Should it reach even further into zones 1, 2, and 3?  I think we need to be very, very careful in making an already vast circle even bigger.  For instance, for a long list of policy, operational and legal reasons I have been exploring in an article on which I am working, I would strongly oppose a new terrorism “glorification” offence, or some equally counterproductive effort to quash internet speech.  But in the area of foreign fighters, I think we should move.  I’ll return to this in a moment.

 

Administrative preemption

Criminal preemption is not perfect. 

Substantively, there are limits to the crimes. 

Procedurally, they need to be proved in open court, with real evidence, beyond a reasonable doubt. 

So for theses reasons – and others – criminal tools may not be used. 

Instead, the government may resort to a buffet of other mechanisms represented by the circle marked “administrative tools” and creating zones 10, 11 and 12.  What are these? 

Passport revocation, no fly lists (aka passenger protect), citizenship revocation (when it comes into force), recognizance with conditions (better known as peace bonds).  (I’m happy to call that an admin tool, although it is contained in the criminal code). 

Security certificates would also be on this list, although I suspect use of these measures will not now be enthusiastically embraced by the government as an anti-terrorism tool.  Regular immigration admissibility proceedings are also on the table. 

These tools are a mixed bag.  They each have pros and cons.  We can discuss those in more detail later, but a few highlights:

Passport revocation seems the most popular tool at present to deal with those who seem about to embark on foreign fighting, at least of the radicalized sort.  But it impedes travel without fully stopping it, and doesn’t resolve local threats. 

Citizenship revocation will be more trouble than it is worth, both because it applies to the narrowest tranche of potential targets and because its constitutionality is doubtful.  It is, in my view, nothing more than anti-terrorism political theatre.

No fly is supposed be about aviation security, and not about radicalization or foreign fighting.  Use it for these things alone, and you act illegally.

Peace bonds are mostly unexplored, and probably should be explored more.  But they still require an open court proceeding in front of a judge, which raises the perennial concern about the intelligence/evidence divide. 

So nothing is perfect, but collectively these measures amount to a fairly impressive arsenal. 

 

Investigative preemption

My last tool circle is investigative tools.  And here I am really contemplating what I’ll call  “investigative preemption”.  This seems a contradiction in terms: an investigation is supposed to lead to something, like a prosecution, not itself preempt.  But of course, the real world is more complicated.

The most graphic use of investigative preemption would be an investigative hearing under the Criminal Code’s anti-terrorism rules.  It’s never actually been used to date, probably for good reasons we can discuss.  But whatever purpose it serves as an actual investigative tool, it also is a tool of disruption.  It could shake up a plot, place a stick in the spoke of a conspiracy and generally foul the gears of even a lone wolf, at least in theory.

Other investigative techniques include overt surveillance, covert wiretaps that reveal other, more easily prosecutable crimes, and even traffic stops.  All these can poke the bear and provoke conduct that police can then act on – some of you will have seen the story on Luqman Abdunnur in last week’s Ottawa Citizen. 

Investigative preemption of this sort has obvious merits.  But it is also potentially the most lawless form of counterterrorism.  Using police or security intelligence powers, not to pursue criminal prosecutions or collect intelligence, but instead to provoke and disrupt people who, to that point, were acting lawfully, is a dangerous practice. 

It is the kind of thing that when it goes wrong, sparks judicial commissions of inquiry. 

Investigative preemption is an area calling out for careful policy guidance, possible legislative action and lots and lots of review by review bodies much more robust than those we have at present.

 

Next steps:

So where to now?  Well, there are several things I could mention (and will in different versions of this talk over the next few weeks), but as this is a talk on foreign fighters, I want to focus on that issue, and specifically the question of whether law should shrink zone 1, by making more foreign fighting illegal.

My view on this is “yes, we should”. There may be instances where Canadian interests are furthered by the removal of despotic regimes by rebel forces.  There may also be other instances where the participation by Canadians in such acts is contrary to Canadian interests.  These are matter of executive judgment.  Canada’s antiquated neutrality law – called the Foreign Enlistment Act -- does not allow that judgment to be exercised in any meaningful way. 

The propriety of overseas armed violence by Canadians is instead left to be litigated in court, with reference to laws designed for a very different purpose, namely anti-terrorism.

So Canadian authorities must squeeze a broad concern with foreign fighters through the grinder of anti-terrorism law.  The terrorism concern may undergird many of the fears associated with foreign fighting.  It is, however, manifestly ill-suited as a comprehensive foreign fighter tool, for at least four reasons. 

First, as noted, any criminal offence requires the government to prove guilt beyond a reasonable doubt. 

Second, this prospect is particularly difficult when at issue is “terrorist activity” that includes many, potentially difficult to prove elements, undertaken in many instances extraterritorially and possibly in a war zone. 

Third, the “armed conflict” exception in the Criminal Code definition of terrorist activity may seriously limit the relevance of terrorism offences in at least some foreign fighter situations. 

And four, terrorism offences do not penalize foreign fighting per se, as my diagram has tried to show.  As noted, it is surprising to me that this is so.  I note that in Australia, the independent reviewer of terrorism laws has reported a view in the Australian security services that any foreign fighting in a place like Syria is problematic – in the complicated brew of the place, it is not clear which armed group will pose tomorrow’s security dilemma, and skills and aptitudes gained with even favoured insurgencies can be deployed later for nasty purposes.

Australia has moved on this issue, initially in its own neutrality law, and now in provisions codified (and amplified) in its criminal law. 

It is a crime attracting a sentence of up to life imprisonment for an Australian citizen or resident to “enter a foreign State with intent to engage in a hostile activity in that foreign State” [or to engage in these activities].

“Hostile activity” captures a broad and intuitive range of violent actions.

The government can make exemptions, allowing Australian participation in some foreign conflicts. 

And the government also has the power, subject to exceptions, to designate certain places as no-go areas because of terrorist operations in that region. 

Because of this law, in Australia, the government is able to say to those considering fighting in Syria “don’t do it, it’s against the law and if you choose to illegally participate in a foreign conflict then you’re not only putting yourself in danger, but also breaking the law.”

Canadian officials can’t make this statement, at least not without a series of provisos and caveats.

Revamped neutrality law of this sort is no silver bullet, of course.  Offences still need to be proved. 

On the other hand, an Australian-style “hostile activities” offence would have fewer elements and a greater breadth than do Canadian terrorism offences, easing prosecutorial burdens. 

New criminal offences tied to “hostile activities” in foreign armed conflicts, and not just terrorist activity, would authorize new forms of police investigation, and potentially permit earlier interventions.  And the government could, as Australia has done, retain the power to waive application of the law to favoured armed forces or insurgencies.

To date, however, we remain inactive.  And so we are legally indifferent to Canadian participation in foreign wars, unless they fit the narrow window demonstrated as zones 4-9 on my chart.

Yet, if there is one area that is clearly the responsibility of the executive branch, it is the management of foreign affairs – citizen freelancers, whether proto-terrorists or not, run roughshod over that principle. 

It is, therefore, close to astonishing that Canada has not acted to regulate foreign fighting. Well past time to change that.  

So let me end there.