One Last Thing

Bill C-51: Analysis without the Hype

15 March 2015

One of the most alarming aspects of the recent and growing terrorism attacks within domestic Western societies is their Islamist ideological motivation and the assurances from the bad guys that there will be more to come. The people who ‘lead’ these death cults have also figured out that they can advance their perceived cause by inspiring and instructing susceptible people in those same Western countries not simply to travel abroad to join them but rather to commit their horrific crimes in their own neighbourhoods so as to generate maximum fear value.

Those same ‘bad guys’ also realize that exploiting the freedoms of Western society is a tactic they can use and they actually hope that their atrocities will lead to alienation of Muslims in Western societies who they then hope to draw into the Islamist ‘us against the world’ mindset.

In short, it’s an incredibly complex situation – one that must be addressed.

These events, and the continuing malevolent determination behind them, have rightly led to a review of how we as a society are prepared and enabled to effectively detect and interdict these ‘home grown’ threats while respecting and preserving the very Western values that make us who we are. This effort now includes C-51, which is the anti terror legislation introduced by the Government of Canada.

In counter terrorism operations, unlike the traditional criminal justice sector, success is measured in prevention rather than just prosecution. This is especially so when it comes to preventing radicalization and detecting and interdicting those intent on causing us harm. This greater proactive focus legitimately raise concerns to ensure that the nature of the threat does not needlessly result in undermining cherished aspects of Western society, such as privacy and freedom from government intrusion.

There is clearly no single ‘solution’ and this effort will necessarily involve a balancing of interests to maximize targeted operational effectiveness while minimizing the potential for both ‘mission creep’ and unnecessary violation of individual privacy rights.

One of the best ways to achieve this difficult task is through specially crafted, purpose-based, independent ‘authorizations’ of operational activity with checks and balances that include ongoing operational oversight and after-the-fact mandated review with appropriate accountability mechanisms.

Contrary to some of the criticisms levelled against it, C-51 does contain a number of internal ‘checks and balances’ which are intended to prevent this kind of abuse by government. These measures exist throughout the various Parts of C-51 and they include defined criteria for action, mandated judicial oversight with defined criteria, applicability of existing measures, and increased after-the-fact reviews for new powers created.

In Part 1a new Security of Canada Information Sharing Act confirms authorization for federal government entities to share and receive information related to protecting Canada against activities that undermine the security of Canada which is itself specifically defined.

Section 5 of the Act makes the information sharing discretionary and further restricts the requesting authority to 17 defined Departments and Agencies (in Schedule 3 to the Act). It further adds the qualification that the information sharing should be restricted to circumstances where “…the information is relevant to the recipient institution’s jurisdiction or responsibilities under an Act of Parliament or another lawful authority in respect of activities that undermine the security of Canada, including in respect of their detection, identification, analysis, prevention, investigation or disruption.”

This deliberate inclusion is a clear reinforcement of the principle of the rule of law and critics of the section would do well to remember that no matter how important or noble they may think their particular ‘cause’ is, they are not above the law.

Further, the existing authority of government institutions to share personal information in security and law enforcement matters pursuant to Section 8 of the Privacy Act already permit much of what some critics complain about as being ‘created’ in C-51. The existing powers of complaint based and self initiated investigation by the Privacy Commissioner under the Privacy Act, including multi agency examination, are also left intact which serves as a further check on what is in C-51.

Part 2 creates The Secure Air Travel Act and the most significant change in this new Act appears to be an appropriate upgrade of the criteria for entry on the ‘No Fly’ list through s. 8 to go beyond immediate threats to aviation security and to include specified terrorism offences as well as indictable offences that also constitute the broader ‘terrorist activity’.

Section 8 contains a glaring defect, however, in that it omits ‘photographs’ from information that can be included to assist in identifying persons on the list. This is no trivial matter because, like other countries, Canada is in the process of field testing and hopefully deploying face recognition biometrics technology at Class 1 airports to detect and interdict people using false documents who are inadmissible to Canada.

This technology can also be used to detect arriving and departing persons of national security interest and people who are on the No Fly list. Recent cases such as the unexplained departure of known security threats Ali Mohammed Dirie and Mohammed Monir El Shaer illustrate the importance of this technology deployment.

Part 3 creates amendments to the Criminal Code which include:

  • Creation of a new offence of knowingly advocating or promoting a terrorism offence while knowing or being reckless that such an offence will be committed;
  • Authorizing seizure of terrorist propaganda (defined) where approved by the Attorney General and authorized by court order;
  • Authorizing, where approved by the Attorney General, a court order directing the takedown of terrorist propaganda on a public available computer system (ISP) with a subsequent dispute process;
  • Reducing the qualifying criteria for a court ordered preventive recognizance (peace bond) in s. 83.3 and new s. 810.011 from ‘will commit a terrorism offence’ to ‘may commit’ and that such an order ‘will’ prevent it to is ‘likely’ to prevent such an offence as well as increasing the potential sentence for breach of the conditions.

It is important to note the presence of both AG approval and judicial authorizations that are required under these preventive measures. The terrorism propaganda takedown provision is also likely to be extremely important in preventing radicalization, recruitment and assisting jihadi travel. One area that is unclear is how broadly this will apply as, hopefully, it will include all internet based communications, including social media, and not just websites hosted in Canada.

Part 4 amends the CSIS Act by significantly expanding the mandate of the agency from its traditional information gathering and analysis role into a clear operational role with a mandate to ‘reduce the threat to the security of Canada’. The rationale for this dramatic change includes a conclusion that expedited action may be necessary to deal with domestic terrorism threats. An inevitable consequence of this new CSIS operational role will be an increased need for inter agency co-ordination which remains an issue of concern.
It also includes changes related to the increased CSIS mandate including:

  • A defined process whereby CSIS must obtain approval of the Deputy Minister pursuant to s.7(2) to seek a judicial order under new s. 12.1 authorizing actions which, without judicial approval, would be contrary to the law or a Charter breach (akin to the recent SCC ruling in the Spencer case- (R. v. Spencer, 2014 SCC 43) with specific actions being expressly prohibited pursuant to s. 12.2 and with defined criteria in new s. 21.1 to obtain the order;
  • A mandatory after the fact reporting obligation pursuant to new s.6(5) on CSIS to both the Minister and the Security Intelligence Review Committee (SIRC) with regards to the new operational authorities provided by C-51

Part 5 amends the security certificate sections of the Immigration and Refugee Protection Act to permit the Minister to seek judicial approval to withhold information from the special advocate and with the authority to appeal rulings of the Federal Court without their designation by the Court that they are of sufficient ‘importance’ for an appeal.

Although these amendments increase the authority of the Minister with respect withholding information and decrease the ability of the Federal Court to prevent appeals, they have received little attention. This may be because the security certificate regime has failed to actually expedite the removal of persons on security grounds from Canada.

In summary, C-51 provides a series of legislative amendments designed to improve the ability of officials to deal with the new reality of domestic terrorism. Concurrent with these new authorities, C-51 creates specialized criteria for their application as well as new oversight and review procedures. Requiring a five year review of the Bill by a specially constituted and empowered Joint House-Senate Committee, however, would be a welcome amendment which would address a legitimate concern regarding the sufficiency of review for security agencies.

 C-51 has attracted considerable criticism precisely because, by necessity, it deals with matters which potentially impact on important Canadian values and principles that are rightly cherished and protected. While the terrorist threat must not be exaggerated, neither must the potential privacy or liberty intrusions be over stated or based on speculative assumptions of misconduct.

Security and liberty can – and must – co-exist and, in fact, each, when properly balanced, are the best guarantors of the other.

FrontLine Advisor Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer to the Canadian Police Association and a Security Policy Advisor to the Governments of Ontario and Canada.
© FrontLine Security 2015