1. New Anti-Terrorism Act, 2015
The Government of Canada introduced its anticipated anti-terrorism legislation in Parliament. Bill C-51, entitled “An Act to Enact the Security of Canada Information Sharing Act and the Secure Air Travel Act” … (the “Anti-Terrorism Act, 2015“) which is intended to arm the government with broader powers to address the increasing threat of terrorism in this country from homegrown terrorists and abroad, mainly as a result of the rise of the Islamic State (“ISIS“) and recent resurgence of al Qaeda. The purpose of the Anti-Terrorism Act, 2015, is to ensure Canada is not used as a conduit for international terrorism.
In a nutshell, it:
- Authorizes CSIS to stop threats to Canada in foreign countries;
- Permits the judicial management of a person suspected of being a terrorist including geographic restrictions on their movements;
- Requires that persons and entities that have electronic custody of terrorist propaganda published online disclose the identity and location of persons who posted the propaganda;
- Makes it a criminal offence to publish terrorist propaganda;
- Requires that the private sector (air carriers) deny air passage to suspected Canadian terrorists at the direction of the government;
- Requires the creation of a secret list of suspected terrorists for the purposes of the no-fly list that the private sector will enforce; and
- Permits the sharing of information among federal agencies to detect activities that undermine the safety of Canada.
I have two criticisms of the Anti-Terrorism Act, 2015, described below, namely that it may erode the Royal Prerogative that CSIS already enjoys to act, and it would be stronger if it considered the appointment of a specialized body of judges who have knowledge of international law and counter-terrorism law.
2. Information Sharing Act
The Anti-Terrorism Act, 2015, enacts a new law to authorize and facilitate the sharing of information among government agencies in situations where there is “activity that undermines the security” of Canada or the lives or security of Canadians.
“Activities that Undermine Security”
The definition of activities that undermine the security of Canada is important because everything in relation to information-sharing for counter-terrorism efforts is pinned to it.
Activity that undermines Canada, and ergo, authorizes the sharing of information, arises in the following situations:
- Interfering with the capability of Canada to undertake intelligence-gathering, defence, justice administration, economic stability or financial stability. This could apply to any terrorism activity or cyber-hacking activities that involve the foregoing. If you hack a major bank, or a Court or Court records, that may interfere with financial stability or the administration of justice.
- Unduly influencing a government agency in Canada by force or unlawfully.
- Covert foreign-influenced activities.
- Proliferating WMD.
- Critical infrastructure interference. This is a key one that is important given that terrorists specifically target critical infrastructure such as energy, electricity, Internet, water supply, government buildings.
- Global infrastructure interference. This means basically our electronic communications (emails, texts, telephone calls or social media communications) carried on through networks that extend beyond Canada.
- Activities in Canada that undermine the security of another state. This applies to all the homegrown terrorists in Canada that work for, support or propagandize for organizations like ISIS or al Qaeda, including sending funds or material support to terrorist organizations. It also applies to social media publications in support of terrorist organizations, or that are terrorist propaganda. See the new terrorist propaganda offence, below, and note that there is a tie in with that new offence and the sharing of information.
Certain federal government agencies are allowed to share information in respect of any person or entity to other federal agencies when there are “activities that undermine the security of Canada.”
The broadness of the circumstances permitting disclosure, above, should not be discounted. Moreover, disclosure of such information is authorized to “detect” activities that undermine the security of Canada, and to prevent, investigate or disrupt such potential threatening activities.
The authorization of disclosure for detection purposes is important because the impugned conduct has not yet occurred. In other words, no terrorist conduct must necessarily have occurred that undermines the security of Canada since disclosure is permitted to detect it.
The agencies that may share information include but are not limited to the CBSA, RCMP, FINTRAC, National Defence, Health Canada, Department of Finance, CIC, CSIS, CRA and Canadian Armed Forces.
3. Secure Air Travel Act
Secret List of Potential Terrorists For Airlines
The Anti-Terrorism Act, 2015 enacts another new law that allows the government to create a secret list of persons that it believes may, inter alia: engage in an act that threatens transportation security; participate in the activities of a terrorist group; fund a terrorist group or a terrorist; or provide material support or property to such a person or group.
No Re-Entry to Canada
The purpose of the list is to identify persons in Canada (or outside of it) that are a threat to national security and to require that air carriers prevent such a person from boarding an aircraft, or require that they be screened before entering an air carrier or an airport. The blocking of a person applies in and outside of Canada. What this means is that Canadian defectors who renounced allegiance to Canada by joining a terrorist organization in Syria or Iraq, for example, may be prevented from returning to Canada by air.
A person denied entry to fly out of or into Canada may apply for removal from the list within 60 days and they can appeal an unfavorable result.
De Facto Stateless Refugees
Blocking a Canadian terrorist from returning to Canada by air is problematic. The UK in its Counter-Terrorism and Security Bill addressed the issue of defectors returning to the UK from terrorist hot-spots with the concept of temporary exclusion orders that prohibit a terrorist from entering the UK by any means, unless the person successfully applies for re-entry from another country. Canada accomplishes the same result by requiring that air carriers refuse to fly them.
The Canadian approach is more efficient, however both approaches will render a citizen denied re-entry a de facto refugee and may be contrary to the United Nations Universal Declaration of Human Rights, the UN Convention Relating to the Status of Refugees and the Charter of Rights and Freedoms, The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (the “Charter“).
But not necessarily so – it depends upon the terrorist group they joined and its history of war crimes and the commission of atrocities. In international human rights law, persons that commit heinous crimes that shock our moral consciousness, or belong to groups that commit such crimes, are not entitled to the same level of legal protection as would otherwise be the case. These cases will likely be resolved at the national level as matters of high treason.
Allow Re-Entry or Not?
If this provision is struck by Canadian courts in the future as unconstitutional, it will be partly because the solution is unworkable internationally. If we do not re-admit a terrorist from organizations like ISIS and prosecute them for war crimes, treason and terrorism, we offload the problem to the country in which they are trying to board the aircraft to return to Canada. Practically speaking, the person is just as much of a threat to that country as they are to Canada. They must be prosecuted somewhere but where, if we render them stateless? With ISIS, for example, until a war crimes tribunal is set up for its members, defectors who attempt to return to their countries of origin will need to be managed internationally when they seek re-entry. It is an international problem, not solely a national one. Most Canadians would agree that such persons should never be permitted to re-enter Canada under any circumstances, but refusing re-entry does not solve the problem.
4. Criminal Code
The Anti-Terrorism Act, 2015, also amends the terrorist provisions in the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Criminal Code“), by making it an offence to make statements, or communicate statements that advocate or promote, inter alia, terrorist acts, terrorist financing, or providing material support or property to a terrorist or terrorist group knowing that a terrorist offence will result or being reckless as to whether it results.
The amendments also authorize the seizure of terrorist propaganda in hard copies. If there is terrorist propaganda published online, a court may require that an electronic copy of the material be provided to the court, order its removal from the Internet and order that the custodian of the propaganda disclose the identity and location of the person who posted the propaganda. This would apply not just to ISPs but anyone who is publishing terrorist propaganda.
Terrorist propaganda is mostly published by foreign social media companies unwittingly, including Twitter, Ask.fm, WhatsApp, JustPasteIt, Kik and Facebook.
Monitoring & House Arrest of Suspected Terrorists
The Criminal Code will also be amended to permit special procedures for persons who are likely to commit a terrorist offence, including terrorist financing. Such a person may be ordered to enter into a recognizance to keep the peace for up to 12 months. They may also be ordered to participate in a counter-terrorism program, wear an electronic monitoring bracelet, be under house-arrest for certain hours each day, surrender his or her passport, and be geographically restricted. This amounts to a type of de facto house arrest, or incarceration-lite for such persons without criminal due process because they have not been charged with any offence, prosecuted or found guilty.
The Canadian approach is different that the UK anti-terrorism approach which requires, through the use of Terrorist Prevention & Investigation Measures, the relocation of persons at risk away from their homes, families and employment so that they are isolated from their circle of influence and radicalizing factors to prevent them from radicalizing others and continuing to be radicalized. In Canada, this amendment contemplates keeping persons at risk within the same circle of influence and able to continue to access the Internet. There is no evidence that one approach is more effective than another.
5. CSIS Act
The Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23 (“CSIS Act“) will also be amended to authorize CSIS to reduce threats inside or outside of Canada if it has reasonable grounds to believe an activity threatens the security of Canada.
Determining the gravity of the threat to national security posed by a defector attempting to return to Canada is an example where it requires that CSIS be in terrorist hot spots. Such investigations, to be effective, require that CSIS be overseas. Without such power, it could not undertake its mandate to protect Canada, its critical infrastructure, the rule of law or its citizens from terrorist threats.
CSIS has the jurisdiction to do the foregoing now, in any event, pursuant to the Royal Prerogative.
Not Allowed to Intentionally Kill a Person
If CSIS determines that the elimination or reduction of the threat to Canada will contravene the Charter or Canadian law, CSIS must obtain court approval to undertake its measures. When reducing or eliminating threats to Canada, CSIS may not kill a person or physically harm them intentionally or negligently. The latter is a completely unnecessary addition to the legislation. It should be removed.
If CSIS’ intended course of action isn’t likely to infringe the Charter, or Canadian law, no warrant is needed. There will obviously be cases where CSIS takes the position that its mitigation steps to eliminate harm to Canada does not infringe the Charter and in hindsight it may be wrong in its pre-assessement, meaning that while in operation overseas, a suspect’s rights are unforeseeably infringed.
6. Two Criticisms
The Royal Prerogative
I have a few criticisms of the legislation.
The first is purely legally academic and it is that much of the proposed legislation in respect of CSIS is authorized by the Royal Prerogative.
The Royal Prerogative is ancient, dating back to the medieval monarchy, and in a nutshell, it preserves in the Crown, residual, discretionary and arbitrary powers that can be exercised in numerous circumstances. The Royal Prerogative powers cannot be catalogued but key areas include powers relating to the legislature, the judicial system, foreign affairs, defence of the realm, conferring state honors and appointments, state immunity, emergency powers and parens patriae role. The Royal Prerogative is not widely taught at law schools in Canada and the most recent law text book on it was written in 1820, and because powers exercised pursuant to the Royal Prerogative are largely non-judiciable, there are few cases on its scope.
Acting pursuant to the Royal Prerogative makes most of what CSIS does for national security and to defend Canada’s democratic way of life, non-judiciable. The Royal Prerogative is alive and well in Canada, and was preserved in law precisely for the circumstances we are facing in Canada with terrorism. As a matter of law, it is possible to erode the Royal Prerogative by statute, and the CSIS Act amendments risk doing that, without any rationale that I can determine. Such a move should be considered in the Senate before being adopted.
The second criticism is that the Anti-Terrorism Act, 2015, would be stronger if it established a specialized terrorism judicial body with judges that receive specialized legal training on the combination of terrorism law, international law, immigration law, criminal law and human rights, such as exists in many countries. Or at the very least, that certain judges be required to be trained regularly in respect thereof and be assigned terrorist-related cases.
By way of illustration on why that is needed in Canada, in the first terrorist financing case, Canadian judges at two levels in the province of British Columbia, upheld a six month sentence for a member of a terrorist organization convicted of terrorist financing who, the Court said, showed no remorse. The Court noted that a six month sentence was adequate because a conviction for terrorist financing has “long-lasting effects” on a terrorist and “interferes with [a terrorist's] ability to travel beyond Canada.” The Court did not consider the effects of terrorist financing on victims who are killed or maimed by weapons purchased with terrorist funds, or who are subjected to repressive regimes when their democratic way of life is eradicated by terrorists, such as has happened in Syria. The Court held that the severity of sentences for terrorist financing should be assessed on a scale that is tied, inter alia, to how much money was raised in funding. The lower the amount, the lesser the sentence, a concept which is inconsistent with how terrorist financing works. The worst terrorist attack in Canadian history, the bombing of Air India Fight 182, killed 280 Canadians and only required $3,000 in terrorist financing to carry out. It is not the amount that matters in terrorist financing, it is the conduct.
France’s top lawyer and judge on counter-terrorism, Marc Trévidic, explains at the end of this interview (en français) that it is not the breadth (or lack thereof) of counter-terrorism law that matters, but rather it is that the proper exercise of judicial power in cases of alleged terrorism. This interview with Le Monde illustrates succinctly the need for a specialized judiciary. People who are accused of terrorist-related offenses, as well as the Canadian public, deserve to have judges who are knowledgeable and have experience with terrorism decide issues of such fundamental importance.
Antiterrorisme, libertés inviduelles : le juge… by lemondefr