False Security: The Radicalization of Canadian Anti-terrorism is published by Irwin Law Inc.
On 20 October 2014, Martin Couture-Rouleau drove his car into two uniformed members of the Canadian Armed Forces, killing Warrant Officer Patrice Vincent. Authorities had seized Couture-Rouleau’s passport that summer, in order to stop the recent convert to Islam from leaving Canada to fight with the Islamic State of Iraq and Syria (ISIS). Nevertheless, he had not been arrested or charged under new terrorism offences that Canada enacted in 2013 to penalize those who attempted to leave Canada to participate in foreign terrorist groups. Nor did authorities restrict his liberties with an anti-terror peace bond (a form of restraining order).
Two days later, Michael Zehaf-Bibeau — whose passport application had also been delayed within the government for reasons that remain unclear — murdered Corporal Nathan Cirillo, a soldier who was standing ceremonial guard at the National War Memorial. Zehaf-Bibeau fired three shots from his long gun into the back of the defenseless Corporal Cirillo. Incredibly, and despite intelligence issued a few days before about increased threats of terrorism, Zehaf-Bibeau was then able to enter the Centre Block of the Parliament building where the prime minister, the leader of the opposition, and some 230 members of Parliament were in caucus meetings. He wounded the unarmed parliamentary guard who had tried to disarm him before he was killed by Sergeant-at-Arms Kevin Vickers and RCMP officers.
Legislating in Fearful and Politicized Times
Canadians and their political representatives were united in their shock and grief at these attacks. But only for a time. Prime Minister Harper introduced Bill C-51 in an election-style rally on 30 January 2015. He defended the legislation on the basis that “violent jihadism is not a human right. It is an act of war, and our government’s new legislation fully understands the difference.” The bill made the most far-reaching changes to Canadian security laws since 9/11. Bill C-51 was introduced not only in response to the October 2014 attacks, but also as a political reaction to terrorist attacks in January 2015 in Paris and Copenhagen. Those attacks targeted the Jewish community and those perceived to have insulted Islam, most famously the French satirical newspaper Charlie Hebdo.
The cold Canadian winter of 2015 was then beset by security fears. Police charged two people with conspiracy to commit murder on Valentine’s Day and alleged that they had planned to shoot people in a Halifax mall. Minister of Justice MacKay stated that this was not an act of terrorism because of the absence of a “cultural” element, a peculiar turn of phrase given the absence of such a concept in the law. For some, it was a coded phrase suggesting a double standard for Islamic-related terrorism, but the arrests aroused more fear. A week later, al-Shabaab, the al-Qaida-linked Somali terrorist group, issued threats to shopping malls, including the West Edmonton Mall. This led to thirty-five teams withdrawing from a cheerleading competition, one that was fortunately still held without incident and with 2,700 competitors.4 This al-Shabaab threat was cited by government politicians as an indication of the need to enact Bill C-51 in a hurry and was reproduced in part in a Conservative party fundraising video.
In March 2015, Jahanzeb Malik, a permanent resident, was arrested and held in immigration detention pending his subsequent deportation to Pakistan. He had allegedly told an undercover officer of plans to bomb the American consulate in Toronto and that he had trained in Libya and was interested in joining ISIS. He reportedly told the undercover officer that it was legitimate to attack taxpaying Canadians because of Canada’s role in bombing ISIS. Other developments included a mysterious tunnel near a Toronto Pan Am Games venue that turned out to be a “man cave” and a white powder sent to federal ministers from Quebec that turned out to be innocuous. Nevertheless, these incidents also raised the fear level. As a result, Bill C-51 was debated and enacted in a fearful and politicalized environment. Public opinion polls suggested that over 80 percent of Canadians supported Bill C-51 in February 2015. This support declined as Canadians debated the bill, with a slim majority of those who closely followed the debate actually opposing the bill. But Canadians were scared and they wanted to be safe.
In a transparent effort to capitalize on a “security bump” in public opinion and a cascade of foreign and domestic threats, government politicians legislated aggressively and quickly, deploying unusually heated terminology and rhetoric. They were not deterred by — and perhaps, they welcomed — criticisms that Bill C-51 violated the Charter — Canada’s constitutionalized bill of rights — and transformed the role of the judiciary from a protector of Charter rights into a pre-authorizer of Charter violations. With the October 2015 election closing in, the debate about the law became partisan. At times, ministers and parliamentarians disparaged those who had concerns about the proposed law, implying that these people were uncommitted to security or even, in one egregious case, that they had ties with terrorists.
Legislating without Evidence
The government made no transparent attempt to learn from the security failures that might have led to the two October 2014 attacks. In June 2015, it did eventually release narrowly framed police and parliamentary reports on the shootings and security responses at Parliament. In contrast, the Australian government published a seventy-five-page report detailing all government dealings (and there were many) with a terrorist who launched an attack in Sydney in December 2014. The report was public one month after the attack.
Nothing like this report has emerged in Canada. We still do not know the full story about why Couture-Rouleau’s passport was seized in the summer of 2014 to stop him from leaving for Syria, but there was no subsequent peace bond or prosecution. Disturbing information emerged in June 2015 about how siloed security allowed Zehaf-Bibeau to enter the Parliament buildings, but none of the laws enacted as a result of the attacks were responsive to these security flaws, and many questions remain about how such a stunning security breach was possible in the face of previous recommendations and intelligence warnings.
When enacting its 2015 security laws, the government consistently rejected the outside policy advice it received, whether that advice related to rights or security. It radically ramped up information sharing about even marginal security threats, but disregarded advice it had received from the Privacy Commissioner and the judicial inquiry into Maher Arar’s mistreatment that Canada’s system of independent review was partial, stuck in silos, and manifestly inadequate. The government also disregarded the advice it received from four former prime ministers and a score of other former officials urging that increased review and oversight of national security activities were necessary and could improve rather than detract from security.
The new 2015 legislation ignored the Air India Commission’s 2010 recommendations that CSIS be obliged to share intelligence about possible terrorism offences and that its human sources not be given a veto on whether they can be compelled to be witnesses in prosecutions, a recommendation that was echoed in a unanimous 2011 report of a Senate committee chaired by Senator Hugh Segal. In the final analysis, the 2015 “reforms” were long on rhetoric about a war against “violent jihadis” and attempts to secure partisan advantage, but woefully short on evidence and deliberation.
We regard many features of these new laws as unwise, and some as unconstitutional. But in all the debate over these laws, we have never called for them to be abandoned. Our concerns revolved not around the ends, but rather, the means.
We accept the government’s general objectives for legislating. ISIS is a new terrorist threat, one that is somewhat different from al-Qaida. The United Nations Security Council has labelled the foreign terrorist fighting inspired by ISIS and others a threat to international peace. We think government politicians have overstated (and probably inflated) the risk through their political rhetoric, but the government has a responsibility to protect Canadians from terrorism, and to stop Canadians from participating in terrorism in foreign lands.
We supported a 2013 law that added four new terrorism offences applicable to those who attempt to leave Canada to participate in foreign terrorist fights. We also accept that some speech related to terrorism and some material on the Internet can be criminalized — it already is and has been since 2001. Like the Arar Commission, we recognize that enhanced security information sharing is necessary, and we agree with the Air India Commission that CSIS should share intelligence about possible terrorism acts and offences — in fact, we think it must share this information.
Our concerns are not with these objectives, but with how the new laws purport to achieve these important goals. The means matter; the details matter; proportionality matters. We are concerned that in their design and manner of addressing their legitimate objectives, the new laws make us less free, and will also likely fail to make us safer from real terrorist threats.
Our critique of Canada’s new terror laws is not one that can easily be captured in a slogan or a catchphrase. Indeed our search for a title was one of the more difficult parts of writing this book. We are concerned that the new laws ignore the hard lessons of how Canada has both over- and underreacted to terrorism in the past, and also ignores the considerable informed advice the government has received about how to avoid these dangers in the future. We are concerned that under Bill C-51, Canada may be repeating past mistakes of institutionalized illegality in the name of security. We are also concerned that the new laws ignore warnings about dysfunctions in how Canada investigates and prosecutes terrorism. For these reasons, we think these 2015 laws make a false promise of security, even as they present a radical challenge to established rights and freedoms in a free and democratic society.
We briefly outline here themes that recur and will be developed throughout this book.
The Limits and Dangers of Disruption
As noted, Canada’s radical new laws change the mandate of CSIS to include threat reduction measures capable of violating both the Charter and other laws. The police are also given enhanced powers to disrupt terrorists through preventive arrests and peace bonds. We will argue that these new powers of disruption are, at best, temporary and problematic solutions.
CSIS will act in secret, and its warrants (where actually required) will be obtained from the Federal Court in secret hearings that could be completely one-sided. Some might be willing to let CSIS engage in illegalities and dirty tricks if these acts were to make Canada safer. But we fear they won’t — they may just disrupt other security agencies with the real power to put bad guys behind bars. As the new law itself confirms, CSIS is not a law enforcement agency that will arrest terrorists for criminal trials. Rather, the risk we spell out in this book is of sidelined or impaired police criminal investigations, as CSIS engages in perhaps endless surveillance and disruption of security threats — until its resources run out and a disrupted terrorist slips through the cracks.
Under their new Bill C-51 powers, the police must act more transparently than CSIS, but many suspected terrorism supporters have already agreed to peace bonds, in part to avoid additional adverse publicity. Peace bonds risk sacrificing the clear moral focus of criminal trials. They also risk posing a Goldilocks dilemma: too strong and perhaps counterproductive when applied to those who engage in mere threatening babble; too weak when applied to determined terrorists.
As a back-end and temporary solution to terrorist threats, CSIS and police disruptions are no substitute for efficient terrorism investigations and prosecutions leading to convictions and lengthy prison terms. They are also no substitute at the front end for multi-disciplinary and community-based programs attempting to curb radicalization to violent extremism. Indeed, to the extent that Bill C-51 sets us on the path of otherwise illegal, covert conduct by a secret security service, it risks creating communities of perpetual suspicion, surveillance, and disruption — a development that may well be counterproductive and likely to fuel the very extremism it seeks to stamp out.
Bill C-51’s extreme whack-a-mole response may just produce more moles while managing to whack a lot of things that are not moles. It may also undermine what some call (often contemptuously) the “softer” side of anti-terrorism, a dimension that Canada has not seriously explored compared to other democracies, notably Australia, much of Europe, the United Kingdom, and even the United States.
“Less is More”: The Distant and Dysfunctional CSIS-Police Relationship
Bill C-51’s focus on disruption needs to be understood in the context of the troubled relationship between intelligence and evidence in Canadian anti-terrorism law and practice. It is first necessary to understand the imperfect CSIS-police relationship. The way this relationship has been described by insiders is summarized by the phrase “less is more.” This term describes the standard information sharing arrangement from CSIS to the police.
CSIS is often the first agency investigating a threat — its mandate is broader and reaches pre-criminal conduct. When and if the matters it examines do cross the criminal boundary, Canadians might reasonably expect that CSIS will then share the full fruits of its investigations with police. This is not, however, Canadian practice. Rather than sharing full information, CSIS gives the police the bare bones — just enough to spark an independent police investigation of the matter. The “less is more” system is not about malice and jealous agencies, at least not any more. CSIS gives, and the police receive, sparse information so that CSIS may protect its sources and methods from disclosure under Canada’s broad constitutional disclosure rules in criminal trials. Both CSIS and the police fear that if CSIS discloses more, prosecutions will be burdened with risky and perhaps unsuccessful attempts to keep the intelligence secret. And “less is more” is a rational, albeit bureaucratic, response to this secrecy preoccupation. It is, however, a dangerous security practice.
The government bills its “less is more” system of information sharing between CSIS and the RCMP as “One Vision.” We think it would be better labelled as “Blurred Vision.” It is a system condemned in 2010 by the Air India inquiry, and it is one that knowledgeable security insiders consider reckless in a dynamic security environment, where Canadians might expect the state to deploy all the tools at its disposal. Bill C-51 makes no effort to cure this problem, and instead tempts CSIS to circumvent the dilemmas associated with keeping its secrets secret by charting its own course of disruption. Bill C-44 also enhances CSIS’s abilities to keep secrets — in this case, the identity of any informer who the intelligence agency has promised confidentiality. CSIS is the big winner with these laws, but we fear this is occurring at the price of making terrorism trials even more infrequent and complex than they already are. This may mean that Canada will come to depend increasingly on the deeply imperfect whack-a-mole disruption strategies noted above.
Chilling Free Expression and Outreach
Another part of Bill C-51 that draws our gaze is an uncertain and broad new speech offence against advocating or promoting “terrorism offences in general.” We are not free speech absolutists. As it is, our criminal law is replete with existing restrictions on speech sufficiently tied to violence or threats of violence — matters that the Supreme Court has ruled do not infringe freedom of expression. But we fear that this new Bill C-51 offence is so carelessly and sweepingly drafted that it embraces all sorts of speech only very distantly linked to (and in no meaningful way correlated with) violence. We note later in this book how some of the passages we reproduce from radical (but very far from marginal) writers could run afoul of this new law, as might we for reproducing them.
All of these concerns would have been mitigated by careful wordsmithing attentive to the standards established in Canadian law and Charter jurisprudence, with no peril to the government’s stated objectives. But the government chose a more radical and reckless course of action, one that will chill both freedom of expression, and the necessary efforts to engage with Muslim communities in an effort to counter the appeal of the brutal practices of ISIS to some Canadians. This new offence and other aspects of the new laws will be challenged under the Charter — most likely successfully. It is not clear how they fit into a balanced, evidence-based, and effective anti-terrorism strategy going forward. Instead, they simply constitute damaging anti-terror theatre, attractive only in a politically charged atmosphere, and make the mistake of equating radical and extreme ideas and ideology with violence.
Some of the 2015 laws concern us because they are not confined to anti-terrorism. Once limited to gathering information, CSIS now will be able to take physical or kinetic actions and violate laws and the Charter to reduce not only the terrorist threat, but also other threats CSIS has historically been authorized to investigate: espionage, sabotage, domestic sedition, and “foreign influenced” activities. Some of these broad concepts require no actual connection to violence, and can reach even lawful protest if carried out in conjunction with any of the investigated activities. This is exactly the sort of breadth that alarms environmental, Indigenous, diaspora, and other activists. The defenders of such overbreadth typically point to internal safeguards, a hard-pressed CSIS accountability regime, and resourcing limitations to suggest that we need not worry about overreaching formal legal powers. This is not, in our view, the appropriate approach to national security law, something that should always be crafted to constrain the practices of its worst purveyors, not dependent on the endless good judgment of the virtuous.
The government has similarly used the October terrorist incidents and the threat presented by ISIS to justify information sharing within government about almost anything. To be sure, there are the exemptions for protest, but as we imply above, these exemptions are themselves unworkable. In any event, they will not be policed by an adequate whole-of-government accountability review system.
Despite its title, much of the Anti-terrorism Act, 2015 (Bill C-51) reflects a new visioning of national security, one that depends on fear generated by terrorism to justify a march toward vaguer and broader “security” where more and more people can be defined as security risks and threats. Pursuing this sweeping and radical new concept of security will chill our democracy. It may also come with a price in the courts. The Supreme Court has been relatively deferential to anti-terrorism law because of concrete concerns about terrorism, but it should be less deferential to broader, vaguer security objectives, especially given its post-9/11 warnings against falling “prey to the rhetorical urgency of a perceived emergency or an altered security paradigm.”
A Large, Unfinished Reform Agenda
In 2015, the government grew its arsenal of anti-terrorism and security tools, but a bevy of tactics do not equal an anti-terror strategy. In this book, we lay out concerns that several key pieces of such a strategy are still missing and that existing pieces may not fit together in a co-ordinated manner.
The most obvious missing piece is the lack of an effective and multi-disciplinary program to prevent radicalization to violent extremism. Canada appears to be inching toward a counter–violent extremism program, with the RCMP and now perhaps CSIS in the vanguard. In other countries, teachers, social workers, health care professionals, and community leaders are playing a more significant role.
A structural challenge for Canada is that coherent counter–violent extremism requires co-operation and co-ordination between federal and provincial levels of government. It is not clear to us that this is happening, as Quebec embarks on its own controversial path and other provinces seem to have demonstrated little movement. Another challenge is that the government seems not to regard “soft” or “sociological” pre-emption tools to be a priority. Indeed, such tools are sometimes treated as a form of appeasement. The government has insisted on hard-nosed but shortsighted political rhetoric and actions that have strained its relations with segments of Canada’s diverse Muslim communities.
Even more critically, the government has yet to demonstrate much commitment to ensuring that whatever strategy it has is subject to effective oversight and review to ensure it works properly. Here the government demonstrates a disturbing complacency in light of the security failures that allowed a terrorist so close to the seat of power. The government has insisted that existing mechanisms are more than adequate. And yet, an unedifying aspect of the Bill C-51 debate was the failure to engage this issue with attention to proper understandings or existing but unimplemented reform proposals. The term “oversight” refers to advance or real-time command and control of agencies. It is the province of the executive government, through ministers, and ultimately, the prime minister.
But in Canada, it is not clear who is in charge of the anti-terror arsenal in performing an overarching oversight function. The traditional answer has been the responsible minister. The minister of public safety already has a vast ministry but has assumed new duties under the 2015 legislation. Ministers of public safety in the past have failed to co-ordinate CSIS and the RCMP, let alone a much vaster array of anti-terrorism tools, including no-fly listings and passport revocation. The public safety department is ill-positioned to make the call on all of Canadian anti-terrorism. We will return again to one of the clear calls of the Air India Commission: someone at the centre of government — most plausibly, the prime minister’s national security advisor — needs to have clear responsibilities (and not just discretionary and undefined influence) to perform a centralized anti-terror role that other democracies are finding to be necessary.
But even with enhanced oversight — that is, better command, control, and co-ordination of security agencies — the other side of the unfinished reform agendas is modernizing our antiquated and weak review system. Review, in Canadian practice, is after-the-fact auditing of agency performance. The government’s repeated description during the Bill C-51 debate of Canada’s existing review structure as the “envy of the world” is astonishing. For almost a decade, the government has ignored the Arar Commission’s warnings that Canada’s review structure was inadequate and the many candid statements by reviewers that they do not have the necessary information, powers, and resources to do their jobs properly.