The Anti-Terrorism Legislation Has Likely Been Oversold

Published in the Ottawa Citizen, January 28, 2015

The Canadian government has been beating the drum about the need for new counter-terrorism powers since the October, 2014 terror attacks in Quebec and Ottawa. A legislative package is finally scheduled to be tabled in Parliament on Friday. The substance of this new legislation has been subject to some intermittent and generalized remarks by our political leaders, reaching a slight crescendo in recent days, and by wider media speculation. To no one’s surprise, there have been no substantive leaks. This is not the style of the Harper government.

The closer we get to the birth date, the more hinting there has been from ministers. This can be seen as a calculated effort to prepare the ground for what is bound to be an intense political debate in Parliament about the merits of any extension to Canada’s significant suite of anti-terror laws, originally passed in 2001. The broad lineaments of that debate are already clear, even without sight of the new proposals.

The reality is that the government has over-sold its intentions, both in terms of the scale of the legislative overhaul, and in terms of their responsiveness to the terror attacks of October 2014.

On Jan. 25, Stephen Harper told an audience that the new measures are: “designed to help authorities stop planned attacks, get threats off our streets, criminalize the promotion of terrorism, and prevent terrorists from travelling and recruiting others.” He also pledged to safeguard constitutional rights. Both the tough on terrorism angle, and the rights protection pledge, are shots across the bow of the opposition parties, who are ready to respond in kind.

The Liberal party has signalled its “reasonableness” stance, which may be part of a broader electoral strategy to appeal to Canadians. The Liberals are somewhat exposed in terms of their muddled position on the Canadian contribution to the campaign against ISIL and were, of course, the party that sponsored the original and extensive set of measures that comprised the Anti-Terrorism Act in 2001. The Liberal’s public-safety critic (former Solicitor General Wayne Easter) has been quoted as saying that “if they are reasonable in what they are presenting on the expansion of this legislation, we are reasonable people … If the government is sensible about it, and trying to fight terrorism rather than playing politics, then we will be supportive.” This gives the Liberals lots of ground to manoeuvre.

The New Democratic Party will take a stand on protecting civil liberties and on the need to avoid knee-jerk reactions. The NDP continues to resist the conclusion that Michael Zehaf-Bibeau’s assault on Parliament on Oct. 22 and the killing of honour guard Cpl. Nathan Cirillo was a clear act of terrorism. The RCMP have aided the obfuscation by failing to release the video in their possession made by Zehaf-Bibeau prior to his attack, and by failing to provide any public update on its investigations into the attacks of October.

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So we are in the slightly odd position of knowing more about how the government and opposition parties will present their views on the new anti-terror legislation than about the legislation itself. The political stage is set, but how to set the stage for digesting the substance of the new legislation?

Prediction is always a hostage to fortune, especially on the eve of the unveiling of the legislation itself. But let me make some “reasonable” predictions about the anti-terror legislation in terms of what it will and won’t contain, and the historical baggage of some of its contents.

First, the new measures won’t contain any legislation to establish a Parliamentary capacity to scrutinize Canada’s security and intelligence practices. The Harper government is dead set against this and showed its colours in voting down a private member’s bill that would have proposed both the establishment of a Parliamentary review body and changes to CSE’s (Communications Security Establishment) powers, last October.

I don’t anticipate any (much-needed) clarification of the powers to lawfully intercept Canadian metadata (information about communication network traffic), or any spelling out of the lawful basis of Canadian intelligence relationships with foreign partners in the Five Eyes community and beyond, as they are subject to secret treaties and agreements that the government is determined to keep secret. There will be no changes to the current exercise of ministerial discretion in denying or rescinding Canadian passports, which has emerged as a tool to deal with the challenge posed by Canadians attempting to travel abroad to fight.

I am also doubtful that the Canadian government will step into the swamp of extending the powers of preventative detention beyond what is currently allowed. These powers, originally embedded in the 2001 Anti-Terrorism Act and resuscitated in an act passed in 2013 (The Combating Terrorism Act) have never been used and are really designed to meet an unlikely emergency situation in which the state authorities have enough information to suspect an imminent terror plot and be aware of some of the actors involved, but not quite enough information to lay charges. The starker reality is you either have the intelligence knowledge or you don’t.

The recently enacted powers (again part of the 2013 act) to criminalize overseas travel for the purpose of engaging in terrorism, which made Canada a pioneer in this field of legal sanctions, will also be left un-touched.

What does this leave? The reality is that the government has over-sold its intentions, both in terms of the scale of the legislative overhaul, and in terms of their responsiveness to the terror attacks of October 2014. What they are engaged in is mostly fine-tuning of a set of legal powers that have, over time, proved themselves as workable, as proportional, and have been tested in the courts.

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What we will see are clarifications to the privacy barriers for the circulation of threat-related information between government departments (where, often the problem was less the law than culture and bureaucratic practices). We will see clarification of the procedures for the judicial application of peace bonds against individuals suspected of presenting national security threats (this is different from preventative arrest). We will see clarifications to the application of the Passenger Protect program, which is Canada’s no fly list. But on Passenger Protect it is worth noting that even though this has also emerged in the news as a new form of counter-terrorism measure to deal with the foreign fighter problem, the roots of this change go back years to efforts to harmonize Canadian practices with those of our U.S. ally under the provisions of the “Beyond the Border” strategy.

No doubt there will be one big-bang item, and my betting is that this will involve new powers to deal with terrorist usages of the Internet. I don’t think we will get a “glorification of terrorism” offence, another legal swamp, but I think we will see efforts to define lawful authority around identifying, targeting, and taking down terrorist communications on the web.

It may be an underwhelming package, but that would be legally fitting for a society such as Canada’s with a prudent embrace of incremental legal change. The rhetoric will be another matter. Whether we can hope for a new tone in Parliament, on something so fundamental as the protection of Canadian security, is beyond prediction.

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