What to Look for in Tomorrow's Anti-terror Law

By tomorrow afternoon, I and others will be huddled over the much anticipated anti-terror bill.  Putatively a response to the October attacks, media reporting (apparently relying on government sources) suggests that this will be a major overhaul -- the biggest since Bill C-36, the 2001 Antiterrorism Act.  This supposition seems to be supported by the bill's ambitious long title: "An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts".

Wesley Wark has published an insightful piece on what he expects to see. Here, I shall briefly outline the questions I will be asking as I pour over the bill, in order of potential controversy:

1. Glorification of terrorism: Will they make this a crime?  Given the present expansive reach of the current criminal provisions when it comes to terrorist propaganda, a glorification crime would be about criminalizing "hurray the terrorists" type statements. As Kent Roach and I argue, constitutional Red Card.  And operational nightmare.  These provision would hurt the Charter, hurt investigations and make us no safer.

Better alternative (which I do not jump up and down and feel good about, but think is defensible): extend the reach of existing hate crime provisions that allow court orders concerning removal of hate promoting internet materials to forms of speech already criminal under the existing law.  For examples of that kind of speech, see my description of this case.

2. Preventive Detention: Will they move the needle on the thresholds for detention in exigent circumstances in s.83.3 of the Criminal Code, making it easier to detain?  Will they really extend the permissible possible length of that detention past the current 72 hours to the rumoured 7 days? Constitutional unknown.  The current basis for detention in s.83.3 is low -- lower than conventional criminal arrest powers.  Moreover, we don't have detention without charge of this duration elsewhere.  Expect that any use of this to be a huge Charter issue.  So at the very least a constitutional Yellow Card.  Setting that aside: has the case been made that the 72 hour period needs to be longer.  Section 83.3 hasn't been used.  So how can anyone say that it needs renovation because of past difficulties?

3. Peace Bonds: Lots of confusion here.  Section 83.3 preventive detention is supposed to end in a peace bond process.  There is also a separate peace bond provision in s. 810.01.  Will they tinker with peace bonds in either of these sections?  Will they make the grounds for seeking such a measure easier?  The standard right now is quite low.  Pushing it lower may make getting in the door to seek a peace bond easier, but them you still need to persuade a judge in open court to impose restrictions on liberty (which constitutionally must fall short of outright detention).  That will still require evidence, and presumably more evidence the more onerous the restrictions.  Moreover, has the case been made that there are problems with the present system?  Apparently, the RMCP and Justice had different views on whether a peace bond was viable for Couture-Rouleau.  Could we please know more about that before we decide the law is at fault? 

Here it is possible to imagine an aggressive amendment going offside constitutionally, but everything depends on the details.

4. CSIS powers: Will we go the way of Australia and allow our security intelligence body the power to detain? Or, as some reports suggest, is this about new powers of "disruption"?  Disruption is a commonly invoked concept, but not really governed at present by law.  Lots of law needed to make sure it is meted out reasonably.  And safeguards.  Adding new powers for CSIS without bolstering its review body, SIRC, is a mistake of epic proportions.  Good for people like me, who sometimes get to work on exciting public inquiries when things go off the rails.  Bad for the rest of the world.  The mantra of anyone studying this bill should be: Show me the accountability!

5. Information Sharing: A whole new, Security of Canada Information Sharing Act!  So more than simply tinkering with the Privacy Act to allow more internal government information sharing.  Will this new Act fix the Wakeling problem -- that calls out for urgent solution.  And also: no measures that would allow information collected for administrative reasons to be used to do an end run around the police (or CSIS's) obligation to get warrants, where reasonable expectations of privacy are in play.  In a different context, the Supreme Court has told us this sort of administrative stalking horse for prosecution approach is a constitutional no go.

5. No Fly: And wow, a whole new Secure Air Travel Act!  This is probably responsive to the very slender and delicate statutory basis for the Passenger Protect system.  The latter is a total work around of a very imperfectly drafted provision in the Aeronautics Act.  That provision is tied strictly to aviation security.  So aspiring to be a foreign fighter is not currently a natural basis alone for refusing boarding.  Here's hoping the whole system is placed on firmer statutory footing, with criteria that spell out clearly the grounds for which someone can be refused boarding (and can know about and appeal that decision).

6. IRPA Changes: Really? Immigration law in response to attacks that involved citizens.  And I had thought all that immigration secuirty certificate stuff was resolved by the Supreme Court in Harkat.  Was there something is someone's drawer, and this seemed like a good time to throw it into the stew?  So in a beautiful world, these IRPA changes would repeal provisions allowing people to be removed to torture, in recognition that so removing would violate international law and that the Supreme Court's Suresh exception probably doesn't really exist if the Supreme Court means what it's said about international law and the Charter in more recent cases.  I hope one day to live in that perfect world.

Feared Omissions:

  • Bolstered SIRC
  • Bolstered Communication Security Establishment Commissioner
  • Correction of deficiencies in powers of the new RCMP external review commission
  • Extension of review and accountability beyond these three bodies to include other powerful agencies, like CBSA
  • Powers to allow the review bodies to coordinate their reviews (and not be threatened with breaches of their secrecy obligations)
  • National security committee of parliamentarians
  • An independent reviewer of anti-terrorism law, like in the UK and Australia
  • A fix for s.4 of the Security of Information Act (held unconstitutional by an Ontario court but still lurking in the statute book)
  • A true anti-foreign fighter law, like in Australia, that doesn't depend on convoluted legal definitions of terrorism
  • Federal court warrant regime for CSE

I will dance a gig if these are included.  If they are not, why not?

All told, I suspect Kent Roach and I will have enough to fill our insta-book.