How Ottawa Fails to Meet the Security Challenge

How Ottawa Fails to Meet the Security Challenge

By Kent Roach and Craig Forcese

In responding to last year’s terrorist attacks, Prime Minister Stephen Harper promised his government would not over-react, but also would not under-react, to the ISIS terrorist threat. Unfortunately his government proceeded to do just that.

The over-reactions are well known: a new, sweeping speech offence; citizenship revocation; a complex law making almost everything a security matter for purposes of whole-of-government information sharing, without whole of government accountability review; and CSIS’s new powers to break the law and violate any Charter right, so long as a judge signs off in a secret hearing.

The antidote to both over- and under reaction is ultimately knowledge. Yet so far election debates about security issues have been largely symbolic and divisive.

The under-reactions have received much less attention but should concern voters who are anxious about security.

The terrorist incidents of October 2014 were security failures. Yet the Harper government has been spared criticism, in part because so little is known about what went wrong. No parliamentary committee has access to the secret information on the events. Existing review bodies have not weighed in and would be handcuffed by their inability to follow the trail of evidence across agencies. This untenable accountability situation persists because the government has refused for almost a decade to implement reforms identified by the Arar Commission.

Meanwhile, many reports criticized Parliament Hill’s divided security forces. The RCMP was given the lead only after the attack last Oct. 22.

But the Parliament Hill silo problem is a microcosm of how Canada under-reacts to terrorism.

The Air India bombing commission appointed by Harper in 2006 warned that our anti-terror response remains mired in silos with little central co-ordination or responsibility. It also warned that terrorism prosecutions were more difficult in Canada than they should be. It recommended in 2010 that Canada needs a national security czar of sorts. And it urged that CSIS should be forced to share intelligence about terrorism offences.

This is a crucial reform: CSIS is reluctant to share intelligence with the police because it fears disclosing its “crown jewels” – its sources and methods. As court decisions in the Toronto 18 case noted, the consequence is that the police sometimes don’t know about terrorist conduct.

The Harper government has not only ignored these issues but made the situation worse. The recent effort over the last few weeks of piling on (constitutionally doubtful) supplemental punishment for existing terrorism convictions through citizenship revocation does not change the fact that terrorism prosecutions in Canada are more infrequent, longer and more complex than they need be.

The Air India Commission had an agenda to simplify them.

But in a direct repudiation of its recommendations, the Harper government’s first response to the October attacks protected one of CSIS’s crown jewels by providing that no information identifying the agency’s confidential sources could be disclosed without its consent. No thought was apparently given to how this could frustrate CSIS sources becoming prosecution witnesses, as occurred in the Toronto 18 prosecutions.

Bill C-51’s subsequent emphasis on disruption by CSIS may make terrorism prosecutions even less frequent, as terrorism investigations become mired in more aggressive CSIS conduct. This will open the door to new defences in any subsequent trials and more litigation over secrecy. Because CSIS disruption can never stop bad guys by putting them behind bars, we should worry deeply about a drift from prosecutions to endless and inherently imperfect disruption.

Another under-reaction is the failure to implement a multidisciplinary, community-based program to counter violent extremism, including ISIS’s allure.

Such a program requires leadership, support and coordination with Muslim and other affected communities. Instead, the government loudly insisted on punishing extreme speech in a manner that may make it more difficult to persuade those harbouring extreme ideas to help counter violent extremist initiatives.

It is a difficult and dubious trick to both over- and under-react to terrorism. Bill C-51 is an over-reaction. But the failure of the Harper government to respond to both the Air India and Arar commissions is an under-reaction. We cannot predict which will come to haunt us first: human rights violations caused by over-reactions or security failures and failed or diminished terrorism prosecutions caused by under-reactions.

The antidote to both over- and under reaction is ultimately knowledge. Yet so far election debates about security issues have been largely symbolic and divisive. We need to have a more nuanced and informed debate on security.

This piece was originally published by the Toronto Star. Read the full version here.

Law professors Kent Roach and Craig Forcese are authors of the recently published False Security: The Radicalization of Canadian Anti-Terrorism.

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