Understanding How Much Terrorist Propaganda is already criminal, even without C-51

In reviewing the commentary on the new speech crime in Bill C-51, there appears be to an underappreciation of how much speech is already criminalized in Canada's current anti-terrorism law. We invite readers to consider the actual record.  For instance, in 2010, Mr. Namouh was charged and successfully prosecuted for (among other things) "enthusiastically participat[ing] in most of [a terrorist groups' propaganda activities".  Among other things, the accused participated in conveying "a message to Austria and Germany threatening terrorist action if their soldiers are not withdrawn from Afghanistan".  The accused also participated in most of the groups more clearly propagandistic activities, including (as described by the court):

  • analyzing the speeches of Al Qaeda leaders
  • inciting violent jihad
  • calling for support for jihadist groups
  • redistributing Al Qaeda materials
  • acting as a spokesperson for captured jihadists
  • singing the praises of jihadist leaders who died for the cause 
  • ensuring the security of online communications between jihadists
  • taking part in psychological warfare
  • providing military training with the purpose of implementing violent jihad 
  • producing a series of videos called the “Califate Voice Channel,” with the aim of transmitting news from the jihadist front
  • publishing jihadist magazines online
  • acting as an official media outlet for two groups taking part in terrorism. 

The accused was deeply invested in his cause and was not an idle apologist of things terroristic.  This undoubtedly contributed to the ultimate outcome.  But still, the behaviour cited by the Court in support of the participation and facilitation convictions ranges from outright threats to propaganda more distantly linked to violence.  Nevertheless, this propaganda style speech contributed to the convictions.

If you wish to review a digest analyzing the reach of the current law (and listing the practical reasons why we should be very cautious in going further in criminalizing speech), see the law review article Professor Roach and I prepared, issued as a working paper for TSAS, and now forthcoming, Alberta Law Review.

To sum up: this is not, and never has been and never should be, a debate about "is free speech absolute".  In our law, it clearly is not, and never has been.

And so the debate about the proposed new speech crime -- which Professor Roach and I assess as extremely vague and potentially vast -- is not (and never has been) "should terrorist incitement, threats, recruiting, instruction, or similar sorts of propaganda be outlawed".  It already is.  Instead it is about "what else should be considered 'terrorist propaganda'" -- that is, how much speech should be swept into that orbit. 

Professor Roach and I have argued in both the media and in our more detailed analysis that too much is caught up in the new offence -- we have no difficulty naming situations in which the law will penalize unpopular speech very far removed from violence.  We have no difficulty naming situations in which the law could penalize popular speech very far removed from violence.  We have also been underscoring our concerns about what speech chill may mean for the most important tools available to the state in dealing with radicalization to violence -- counter violent extremism programs and open source intelligence. 

We fear that the offence overreaches and violates rights while at the same time diminishing security.  If we are right, this would be an accomplishment few would be content to claim.  It takes some doing to offend civil liberties while at the same time making it harder for the RCMP to keep us safer.  Whatever this offence's constitutionality, it certainly pays little heed to the "law of unforeseen (or even foreseeable) consequences".

This concern with forseeable consequences and unforeseeable second order effects will animate our critiques of the areas of this bill, which we are working on now.

And so we hope that these are exactly the issues before every lawmaker contemplating this law. 

As lawyers, we can set out in firm detail our opinion on the speech provision's reach and its constitutionality, and are happy to have the usual lawyerly debate. 

But there are also operational issues in play, and lawmakers and the public deserve a response.  Can we expect an unfettered and unmanaged explanation of how the new offence would dovetail with the RCMP's important counter violent extremism program, one that appeals to our logic and does not simply reflect "marching orders" from political masters?

We live in this society too, and we want an effective response to radicalized violence, even if we do not believe the facts (as they exist at present) require us to go as far as the prime minister in seeing it as an existential crisis.