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When Canadians go to the polls later this
En se rendant aux urnes plus tard cette année,
year, many of them will be making their choice
based on their impression of who can best
manage persistent economic uncertainty. Others
will be concerned about caring for older loved
ones or having the means to adequately provide
for their family. Others still will be assessing each
party’s response to global terrorism and domestic
radicalization.
To help inform voters’ choices, Policy Options
asked leading researchers and practitioners in
diverse fields to identify a pressing policy issue
that should be a priority in the election and to
make the case for how decision-makers can best
address it. While it certainly is not an exhaustive
list, taken together, their responses provide a
compelling agenda for public debate that all
political leaders should consider.
beaucoup de Canadiens donneront leur voix
au parti qui leur semble le mieux apte à gérer
l’incertitude économique persistante. D’autres
seront préoccupés davantage par les soins à
prodiguer à leurs aînés ou les moyens de subvenir
aux besoins de leur famille. D’autres encore
évalueront les mesures préconisées pour lutter
contre le terrorisme international et la radicalisation
des jeunes d’ici.
Pour éclairer le choix des électeurs, Options
politiques a demandé à des chercheurs et des
spécialistes reconnus de déterminer quel enjeu clé il
faudrait mettre au cœur de la campagne, et comment
nos décideurs peuvent s’attaquer à cette priorité.
Sans former une liste exhaustive, leurs réponses
composent un solide programme qui enrichit le
débat public et devrait inspirer tous nos dirigeants.
Responding to Terrorism
We need to have an adult
conversation about security
Kent Roach
Our failure to respond to a series of reviews over the past decade is coming
back to haunt us in the rush to enact legislation to respond to the perceived
emergency of the October attacks and the rise of ISIL.
Notre incapacité de remédier aux insuffisances d’une série d’examens
d’activités de sécurité menés depuis une dizaine d’années revient nous hanter,
comme l’illustre la précipitation avec laquelle a été votée une loi censée
répondre aux attentats d’octobre et à la montée du groupe État islamique.
i
n the wake of the Prime Minister’s rollout of Bill
C-51, a massive antiterrorism bill, at a rally in
Richmond Hill in January, some have speculated
that the upcoming election will be fought on security
issues. The initial signs, however, indicate that opposition
parties may be reluctant to engage the government directly
on security. The result may be that fundamental changes to
our security laws and institutions will be adopted without
an adult debate about their profound implications.
Security is an extremely complex topic. Sound bites
like “tough on terrorism” or “civil liberties are threatened”
or “more oversight” or “rights versus security” cannot do
it justice. There is a need for a sustained, evidence-based
debate that is not marred by claims of bad faith or attempts
to take partisan advantage of such a serious issue.
Unfortunately debate about security issues in
Canada remains less sophisticated and robust than that in
many other democracies, most notably the United Kingdom.
There are many reasons for this. Alone among lawmakers in
democracies, not one Canadian parliamentarian can even see
the secret information that one must have access to in order
to make informed judgments about security operations.
Kent Roach holds the Prichard Wilson Chair in Law and Public
Policy at the University of Toronto. He worked with both the Arar
and Air India commissions, and he is a 2013 Trudeau Fellow. He
and University of Ottawa Professor Craig Forcese are preparing an
extensive analysis of Bill C-51, available at www.antiterrorlaw.
ca, which will be published as a book by Irwin Law.
Demands for parliamentary oversight are in the news,
but often without apparent recognition that oversight is
a real-time process and is quite different from and more
unusual than retrospective reviews of security activities.
Parliamentarians can and should play a role. They must,
however, be supported by full-time professional reviewers
with adequate resources and mandates to review all of the
government’s national security activities. In Canada this
does not exist.
Perhaps because the Ottawa attack in October 2014
hit so very close to home, politicians have not focused on
the inherent security failures. For example, the opposition
parties have not tried to capitalize on the staggering intelligence and protective security failings that forced Sergeantat-Arms Kevin Vickers to end the Ottawa attack by killing
the attacker.
There has been surprisingly little questioning about
the revelations in mid-January that prosecutors denied
an attempt to obtain a peace bond to restrain the movements of Martin Couture-Rouleau before he committed
the Quebec terrorist attack in October. The response
in Bill C-51, the Anti-terrorism Act, 2015, is lower standards for peace bonds and preventive arrests. It would
also strengthen the ability of government to share information and place people like Couture-Rouleau on
watch lists. But a person can commit a terrorist act
while on a watch list or even when subject to a peace
bond. The question of why there was no prosecution of
Couture-Rouleau and how we would prosecute other similar individuals remains unasked and unanswered.
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Kent Roach
In the absence of legislative expertise, the executive, most
notably the security agencies, will dominate the debate. The
Canadian Security Intelligence Service (CSIS) has been the
biggest winner in the government’s response to the October
attacks. The proposed legislation will give CSIS more powers
and privileges, but without ensuring that the intelligence
agency delivers or that it is sensitive to the effects of its
actions on other national security actors, such as police,
prosecutors, the military and Foreign Affairs officials.
The changes for the police will make it only slightly
easier to obtain peace bonds and preventive arrests. There is
no public evidence yet to demonstrate that the changes are
needed. Even assuming that they are, preventive detention
is at most a temporary solution. It may also spawn the type
of massive litigation over the scope and breach of peace
bonds that could duplicate the United Kingdom’s unhappy
experience with control orders.
The police have doggedly made multiple arrests in
Ottawa under existing laws, including offences added in
2013 to target foreign fighters. Prosecutors have launched
what promise to be long terrorism trials in both Toronto
and Victoria. This is important work that establishes that
Canada believes in fair trials. It also has the potential to
send a message denouncing the violence in terrorism. It
suggests that our present law may be quite effective even
without the new legislation.
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SEPTEMBRE-OCTOBRE
2014
The role of specially designated Federal Court judges
will be increased under new legislation that contemplates
a range of new warrants CSIS can use to address activities
that infringe foreign laws and the Charter. The government
has stressed that warrants demonstrate that there is oversight, but there are no provisions to allow for special advocates to play a challenge function. The new warrants may
generate much jurisprudence that will be kept secret or will
be heavily redacted for operational reasons.
Most fundamentally, the new CSIS disruption warrants
in C-51 are based on the radical concept that judges can authorize Charter violations, as opposed to trying to prevent
them, as is the case when they traditionally grant search
warrants. Judges will be able to authorize the violation of
any Charter right, including the right of Canadian citizens
to return to Canada. In other words, the Bill is asking that
judges be given a blank cheque to authorize all Charter
violations. This is rather ironic for a government opposed
to judicial activism.
Royal commissions have long played an important role with respect to Canadian security. This reflects
Canada’s traditional but fading passion for public inquiries. Inquiries have allowed judges and their helpers to
have a peek behind the ring of secrecy in a manner that
has been denied to parliamentarians and was granted
Responding to Terrorism
only with extreme r eluctance, caution and delay in the
Afghan detainee affairs.
The McDonald Commission in the 1980s revealed
RCMP illegalities and the need for special review of the
intelligence function. It was the most successful inquiry,
as measured by its legacy in creating CSIS as a civilian
intelligence agency subject to special review. At the same
time, much has changed since then, and we need to update
our security structures to avoid repeating past failures. Between 2004 and 2010 the Arar and Air India commissions
of inquiry proposed major reforms. The failure to have an
adequate debate about these reforms haunts the current
debate. It raises concerns that the present quasi-emergency
legislation may threaten both rights and security.
The
security debate
in
Canada
is less
robust than it is
in other democracies.
Although the Arar Commission is best known as
a success for putting a face to post-9/11 security excesses,
its recommendations for better integrated review to match
whole-of-government information sharing were dead on
arrival. The Ottawa security establishment complained
this would be too much bureaucracy, presumably with a
straight face. The proposed (and Orwellian-sounding) Security of Canada Information Sharing Act, part 1 of Bill C-51,
demonstrates Arar amnesia, especially in section 6, which
contemplates that once information is shared it could be
shared again “to any person, for any purpose.”
Security review is conducted in silos, even while others
in government have come into the 21st century and started
sharing information and working together. The review silos
have struggled. Two chairs have resigned from the Security
Intelligence Review Committee (SIRC), which reviews CSIS,
and the position of inspector general has been abolished.
Commissioners who review Communications Security Establishment Canada (CSEC), Canada’s version of the National
Security Agency, have been defensive of the agency, whereas
prior commissioners, including the late chief justice Lamer
and justice Gonthier, raised some alarm bells about how the
agency interpreted its mandate. The RCMP complaints body is
off the national security radar except for its 2012 report, which
seems to have concluded, contrary to many other reports, that
little went wrong when Toronto hosted the G20 in 2010.
A security-cleared parliamentary committee may play a
role, but there is now a need for integrated full-time professionals — an intelligence auditor general or super-SIRC — to
review all of Canada’s integrated national security activities.
The government may equate review with red tape, but
review does provide a vehicle to learn lessons and adjust
strategies. It also can build social capital and licence, especially with communities who may have reason to fear security
excess. Part-time and amateur parliamentary review needs to
be supplemented by full-time professional review with adequate resources and a whole-of-government mandate.
We should have had the review debate and reforms
after the Arar Commission’s 2006 report. Now the govern-
ment is responding to a perceived emergency again, without having the necessary debate. It is not yet committing
itself to a future debate through sunsets or a review of the
impact of its new legislation. Even if this is done, it is unfortunate that we discuss review only some time after giving the agencies new powers.
In 2006, the current government appointed retired Supreme
Court Justice Jack Major to examine the 1985 Air India
bombing in light of present-day security arrangements. The
commission’s five-volume report has been ignored in recent
debates about security reforms, even after Major publicly
speculated in the wake of the October attacks about whether
his report had been read or understood. The sound bite was
reported, but there was no sustained questioning of why
Major would complain in such a public manner.
Even though the government has an action plan to
respond to his report, Major had plenty to complain about,
because many of his key recommendations to make it easier
to convert intelligence into evidence — prosecutorial reform,
court reform, no “class privilege” for CSIS sources and an enhanced role for a national security adviser to resolve disputes
between CSIS and the RCMP — were rejected.
The government’s unwillingness to address the
intelligence-evidence relationship has worsened with new
legislation. Bill C-44, the government’s initial response
to the October attacks, has sailed through the Commons
with little attention to its decision to reject the Air India
Commission’s recommendation that CSIS’s human sources
should not be protected by a class privilege.
The new class privilege means that whenever CSIS
promises its sources confidentiality, which has routinely
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Kent Roach
been the case, sources will have an absolute veto on whether they can be called to testify in a prosecution or whether
any identifying information can be disclosed — for example, to sustain a judicial warrant against Charter challenge. This new privilege will have the unintended effect
of making terrorism prosecutions, including those against
people who attempt to leave Canada to join foreign terrorist fighters, more difficult.
The Air India Commission recognized that CSIS’s emphasis on collecting intelligence will often clash with the
RCMP’s emphasis on evidence and prosecutions. Sometimes intelligence must take priority over prosecutions.
CSIS, however, should not make such decisions unilaterally.
The commission recommended that disputes should be
resolved in the public interest by someone who can see the
big picture. It recommended that the prime minister’s national security adviser be in charge, but others might think
it should be the minister of public safety, who is responsible for both CSIS and the RCMP.
There are concerns that resort to a security czar would be
too slow and too cumbersome, but the alternative that seems
to have been accepted is to allow CSIS, which should be first at
the scene, to make decisions that will make terrorism prosecutions more difficult. The new legislation will not change the
fact that CSIS and the RCMP have been forced to run parallel
and in some senses competing investigations, as was the case
in the aftermath of the Air India bombing.
Although it is heresy to say it, the range of intelligence failures since 9/11 and the Snowden revelations of
the infinite data that are being collected may suggest that
intelligence can be overrated. For example, there was intelligence about an increased threat to Parliament Hill, just as
there was intelligence about a threat to the single Air India
plane that left Canada each week in June 1985. Intelligence
is useful only when it can be used by those who can stop
terrorism attacks. Neither reviewers nor parliamentary committees are in a good position to determine whether we get
value for money from intelligence.
Intelligence errs on the side of false positives, whereas
many rules of evidence are designed to prevent wrongful
convictions. As we use intelligence to impose consequences
on people, however, this has implications for social relations.
Muslims who are wrongly targeted, perhaps only because they
have the same name as a suspected terrorist, may obtain redress under the enhanced no-fly list, but in many other cases
there will be no redress. Bill C-51’s sharing-of-information act
will increase the flow of intelligence, which, as the Arar case
should remind us, can be wrong.
Federal and local security officials must work to build
and maintain relationships within Canada’s diverse Muslim
communities, who are in the best position both to counter
extremism and to send early warnings. The Cross-Cultural
Roundtable on Security may have been a good idea in 2004,
but it has not lived up to its promise. The militant and polarized fallout from Paris under the competing banners of “Je
suis Charlie” and “Blasphemy” seems to have reignited the
dangerous clash-of-civilizations thesis.
The government has raised the post-Paris temperature
even more with Bill C-51’s proposed offence of promotion and
advocacy of terrorism. Some in the Muslim community took
offence when the Prime Minister passionately insisted that
the legislation must apply in mosques and stated that violent
jihadism “is not a human right. It is an act of war. And our government’s new legislation fully understands that difference.”
Leaving aside serious questions of speech chill and compliance with the Charter, one must question the marginal
utility of adding promotion and advocacy of terrorism as the
15th terrorism offence in the Criminal Code. This is especially true when recent arrests and convictions demonstrate
that speech that recruits and provides operational support for
terrorism can already be prosecuted under existing laws. It is
one thing for the government to provoke its usual suspects of
civil libertarians and defence lawyers; it is another to alienate
the 1.1 million Canadians who are Muslims. In a recent poll,
91 percent of Canadians supported the offence.
CSIS is the biggest winner
in the government’s
to the October attacks.
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response
It will be interesting to compare the debate about
Bill C-51 with that conducted immediately after 9/11
over the first Anti-terrorism Act. The Chrétien government was determined to enact a similarly broad antiterrorism measure, in large part to respond to American
security fears and comply with international mandates.
Nevertheless, it was sensitive to critics who expressed
concerns that the new laws would encourage discriminatory religious and racial profiling. After Bill C-36 was
introduced in October 2001, the government amended
it to provide that the expression of religious or political
views short of threats to commit terrorism would not be
an act of terrorism. It also tied speech and Internet regulation to Charter-compliant definitions of hate propaganda contained in the Criminal Code, which contains
defences relating to religious beliefs.
The proposed new offence of advocating or promoting
terrorism has no similar moderating restraints. The Prime
Minister’s rhetoric when he introduced the Bill suggests
that this may be intentional. Time will tell whether the
government will entertain some moderating amendments,
but its past track record suggests that it will not. The new
offence, punishable by five years’ imprisonment, will be
challenged under the Charter if it is used. More importantly, it could jeopardize outreach to those Muslims who are at
risk of being radicalized.
The lack of serious public debate on security issues is
troubling. Our failure to respond to the inadequacy of review
revealed by the Arar Commission in 2006 and continuing
problems in the CSIS-RCMP relationship pointed out by the
Air India Commission in 2010 are coming back to haunt us
in the rush to enact legislation to respond to the perceived
emergency of the October attacks and the rise of ISIL.
Our ability to conduct public debates is facilitated by
the Internet, but it is also adversely affected by the shrinking
of nonpolarized space in civil society, which includes the
media, think tanks and universities.
The government’s two security bills will be passed.
Security agencies, especially CSIS, will get more powers and
perhaps more resources, but without really having to account for past failures.
The opposition may avoid the government’s dare to
make security — inevitably translated as toughness versus
softness on terrorism — an issue in the next election. A
simplistic debate would be unlikely to improve Canadian
security policy and it could harm our social fabric. There
is some truth to the statement attributed to Prime Minister Kim Campbell that an election is no time to discuss
serious issues.
Security is a very serious and complex issue. We must
create the time and space to debate it, because both our
rights and our security may suffer from our failure to have
adult discussions. n
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