Tools to respond to a terrorist threat: changes to Canadian law

In 1984, the Canadian Security Intelligence Service (CSIS) was created to provide an intelligence gathering service separate from the RCMP. The RCMP’s illegal and embarrassing efforts to infiltrate the FLQ in Quebec, such as the barn-burning incident, had led the McDonald Commission to recommend that intelligence-gathering and policing be separated. It was also viewed as important that the intelligence service require judicial oversight and warrants for surveillance, and that its activities be subject to civilian oversight. The Security Intelligence Review Committee (SIRC) was created for that purpose.

Since 9-11, Canada has expanded the role of CSIS. Changes to the law allowed for “security certificates,” bending what had been rigid principles of the British Commonwealth’s rule of law and concepts of fairness. Under security certificates, a suspect could be held for an indefinite time without knowing the charges against him or her, without the usual protections of habeas corpus or access to a lawyer. We have also expanded the ability of the RCMP and CSIS to keep track of potential terrorists.

Since 2001, Canada has adopted many laws aimed at tracking and preventing terrorist acts: the Anti-Terrorism Act of 2001, changes to the Aeronautics Act of 2011, the Public Safety Act of 2002, changes to the Criminal Code to deal with suicide bombers in 2001, the Fair and Efficient Trials Act of 2011, the Combating Terrorism Act of 2012, the Nuclear Terrorism Act of 2013, changes to the Citizenship Act in 2014 to allow revocation of Canadian citizenship in the case of dual citizens convicted of criminal and/or terrorist activity, and the Protection of Canada from Terrorists Act of 2014.

Collectively, these acts have created watch lists and no-fly lists, powers to seize property and freeze assets. These acts vastly extend the powers of electronic surveillance. They deal with money laundering. They permit “preventative arrest” – allowing the arrest of a person suspected of being about to commit a terrorist act.

In other words, the range of tools for responding to and preventing terrorism is wide and has, at every stage, reduced some elements of the Charter of Rights and Freedoms. Nevertheless, most Canadians have accepted these reduced liberties because the threat of terrorism must be addressed.

But C-51 is an omnibus bill that goes far beyond any previous measure. The reality is that no law enforcement agency has complained that they lack tools. In fact, a number of the anti-terrorism powers and measures approved in previous bills have not yet been used by the RCMP and CSIS. The Conservative administration has not presented any evidence that this morphing of the intelligence functions of CSIS into a wide-ranging secret police will improve our anti-terrorism efforts. Indeed, some experts think C-51 could undermine such efforts.

Legal experts Professor Craig Forcese (who had been supportive of earlier anti-terrorism bills and teaches at University of Ottawa Law School) and Professor Kent Roach (University of Toronto Law School) have concluded:

“We are hard pressed to imagine a course more counterproductive than a crime that discourages cooperation, chills open dialogue, and forecloses speech that allows for early counter-violent radicalization intervention.”

“We simply do not believe that this offence will make us safer, and indeed are inclined to the opposite view.”