Between them, the Nuttall/Korody case and the Driver take-down raise tremendous questions about Canadian anti-terror strategies. And there is a tremendous temptation to rush to judgment, which can be perilous. On the other hand, there should be judgment and it should be expeditious.
A. Are we a learning society?
Canada is bad at drawing public lessons from past incidents. Lessons, when articulated and even when heeded (sometimes), usually follow time-consuming, expensive, protracted and often delayed (and in the Air India bombing, woefully delayed) commissions of inquiry. Even now, close to two years after the October 2014 attacks, we know very little. The focus of accounting there was on Parliament Hill's security structure, not the broader security and intelligence landscape.
All of this opaqueness can be contrasted with Australia’s detailed seventy-five-page report released shortly after a December 2014 terrorist attack in Sydney.
B. The Risk of Insta-Conclusions
An early judgment from the Driver case might be that we got lucky. The peace bond failed. The tip-off came from the FBI, not a domestic service. And the intervention from authorities came when the bombing plot was on the cusp of execution. This is too Jack Bauer a plot line for comfort.
Another early judgment might be that authorities got it wrong. The court got it wrong. The people who concluded Driver was not violent got it wrong. The insta-judgment may be that Driver was always dangerous. The conditions should have been tightened, not relaxed. Surveillance should have been unrelenting.
Those are the narratives that risk becoming rooted, which is fine if they are true. But they may not be.
1. Was everyone wrong?
For instance, it could be the case that the authorities were right: Driver was not at high risk of violence when the peace bond was issued. Instead, Driver made the move from radicalized to radicalized-to-violence after the peace bond -- and perhaps (as colleagues Dawson and Amarasingam have suggested) because it unrooted him from the few stabilizing elements in his life, however unpalatable those were. Psychology is not physics. Things change, they are not immutable.
If this is true, it leads to very different policy conclusions than the "everyone was wrong" thesis. Not least, it reaffirms the need to get to grips with counter violent extremism programming and develop best practices in that area.
2. Surveillance on steroids?
There will be very close consideration also of whether the authorities should have maintained more intrusive surveillance. Those will be compelling calls. And more intrusive surveillance could have been facilitated by a more intrusive peace bond.
The conditions imposed, for instance, on Mr. Harkat in an (analogous) security certificate were, at one time: fitting of an electronic monitoring bracelet, to be worn at all times; a strict curfew, with solo departures from his house precluded and accompanied departures only on CBSA approval; strict geographic limits on his ventures outside his house; no visitors other than those listed in the order; no communication with anyone supporting “violent Jihad”; consent to interception by CBSA of all communications; consent to CBSA searches of his house and possessions; surrender of travel documents; and, a bar on possessing weapons.
These conditions seem of the sort that would have forestalled a Driver-type plot.
But there is the difficulty of tailoring conditions to actual risk -- with hindsight certainly, security certificate conditions were overkill, and also deeply controversial.
And more materially (literally), there is cost. By the end of the last decade, the government was budgeting $59 million for two-year periods on security certificates – over $11 million per person on a security certificate. This included more than surveillance costs -- it also included legal costs for the fraught legal contest. But even if you limit these costs to CBSA, CSIS and CIC funding, it still amounts to $3 million per person per year in support of the security certificate.
In February 2016, the government was aware of more than 180 individuals with Canadian connections who were abroad and suspected of engaging in terrorism related activities. One hundred of these were believed to be in Iraq and Syria. Another 60 had returned home. Earlier, in October 2014, the RCMP was reportedly tracking 90 individuals who intended to travel, or had returned from overseas, although it is not clear how many of these were affiliated with Daesh. And these numbers don't include the terror fans who are prepared to be think globally, act locally.
For the sake of argument, let us assume that we impose peace bonds on only 50% of 100 of these potentially dangerous people -- some proportion of the others are prosecuted (even more expensive), die overseas, never return or return and a decision is made that they are not dangerous. (And some of the latter would probably be surveilled anyway, even if no other legal step is taken against them).
Now, given Driver, we decide to apply security certificate-style surveillance to these 50 people. If we assume that the agency costs noted above cover surveillance, that works out to $150 million dollars a year. In 2016-2017, the RCMP's planned budget for all federal major criminal investigations into "serious and organized crime to reduce its impact on Canada and Canadian interests; financial crime to maintain the integrity of the Canadian economy, government and financial systems; and national security threats to support and protect Canada’s national security" is $294 million. So we are talking about adding the equivalent of 1/2 of that total budget in the form of terror-peace bond surveillance costs alone.
I am not saying this is beyond Canada's means -- the RCMP has a huge budget and CSIS has a big one. And I am not disputing that the $3 million/year cost might be bloated and that policing can be very inefficient. But it is not so bloated and inefficient that there are no real costs at issue. And real costs require real prioritization.
Keep in mind, meanwhile, that the government has pledged $35 million over five years on counter-violent extremism. This looks like chump change against the costs of persistent surveillance.
So what should our priorities be? I spend more time than I care to admit trying to understand this area of law and policy. But I am not comfortable arriving at a definitive conclusion on the data we have before us.
C. Learning to Learn Lessons Learned
So I circle back to my original point: If this were Australia, we might have a prompt, public lessons-learned report to help us decide and justify, based on facts and not rooted insta-judgment.
This is one practice well worth emulating.