With INTREPID Podcast on vacation, I'm going old-school and engaging in thought expermients via blog. Except for everyone who (quite properly) threw their phones into the lake, most people are likely aware of the sudden contretemps between Canada and Saudi Arabia. I am in no position to evaluate the foreign relations dimension of this. The people you need to follow on this are @thomasjuneau and @b_momani. However, there was one development in this spat that caught my (academic) lawyer's eye:
1. Terrorist Promotion and Advocacy
A twitter account reportedly with some sort of affiliation with the Saudi government tweeted (then deleted, modified and apologized for) an image of a large Air Canada plane flying low toward the Toronto skyline, with the CN Tower straight ahead. It was captioned: "Sticking one's nose where it doesn't belong! As the Arabic saying goes: 'He who interferes with what doesn't concern him finds what doesn't please him.'". Not surprisingly, given that 15 of the 19 9/11 hijackers were Saudi nationals, the (predictable and perhaps intended) reaction in Canada was that this image alluded 9/11, in a threatening manner. (For more on this tweet, see here). Saudi tweeters asserted (in response) they simply meant to signify the return home to Toronto (500 or so km from the capital) of Canada's expelled ambassador to the Kingdom.
I do not need here to discuss the (de)merits of twitter diplomacy, and the downside of inflaming public sentiment. I instead find this an opportune time to conduct a legal thought experiment: would a tweet like this be prosecutable under the Criminal Code?
At first blush, this is a silly question. Indeed, it is a silly question at second blush. It is, however, a question that must be posed, given the speech crime introduced by Bill C-51 to the Criminal Code in 2015:
83.221 (1) Every person who, by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general — other than an offence under this section — while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed, as a result of such communication, is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years.
2. A Doubtful Law
Elsewhere, Kent Roach and I condemn this excessive offence as unnecessarily uncertain and (in our view) constitutionally doubtful. The Harper government chose to draft this crime without the features of the hate speech provisions in s.319 of the Criminal Code that allowed the latter to survive (barely) constitutional challenge in cases like Keegstra. Specifically, the "wilful promotion of hate" offence depends on the promotion being "wilful" (not just knowing) and then there are defences (for things like public interest). The Supreme Court accepted an interpretation of "wilful" requiring that the accused subjectively "desires promotion of hatred or foresees such a consequence as certain or substantially certain to result from an act done in order to achieve some other purpose". Put another way, they need to want the pernicious outcome, or be essentially certain it will come about.
The s.83.221 speech crime requires mere "knowing", not "wilful". I can know that I am promoting a bad thing, without desiring that this bad thing come about. For example, as a classroom reading, I may knowingly promote Frantz Fanon's writings about the necessity of violence in anti-colonial struggles. I may not wish that this violence ensue -- I am not willfully promoting it, in other words. But I intend to promote (encourage) consideration of the content, even if only for pedagogical purposes. I am knowingly promoting it. And maybe I think that he's right, and that anti-colonial type struggles (say in apartheid South Africa) do require violence to be successful and I say it. Arguably, that gets me promoting the "commission". And I don't know who is sitting in my classrooms, with malevolent designs, or reading whatever book I have written reproducing Fanon's passage. (Which we actually did, in False Security, in describing this same problem of uncertainty and overbreadth.) So I am surely reckless. Added to which: no one really understands what "terrorism offences in general" mean. But I am pretty sure that some of Frantz Fanon's writings would fall within the uncertain limits of this concept and are about the commission of terrorism offences in general. And I have no defences, as I would if I were (merely) promoting hatred. So a pedagogical motive isn't going to help me.
This hypothetical may be a reach, but it's easy to come up with others that would be more directly implicated by this offence and still be a long way away from actual violence or threats of violence -- the sort of thing that is not protected speech.
This is not, in other words, an offence that follows the sort of pattern for speech crimes that have been found constitutional. It seems likely a court would give it the narrowest possible read if it were ever used. But even so, it sits on the books blinking red, occasionally justifying wiretap warrants. Not a great look.
I have never been entirely sure what sort of truly bad speech the new crime is intended to capture that isn't captured by the many other terror and non-terror crimes that can penalize speech of various sorts. But whatever that bad speech might be, the provision surely captures a lot of speech that is constitutionally protected because very remote from actual violence or threats of violence. (I shouldn't have to worry about assigning Frantz Fanon to my students. Not that I do. I teach law.)
But maybe they wanted to go after this kind of tweet?
3. Would the Law Reach the Tweet?
I and others have urged that the unworkable provision needs to be rolled back. And that is what bill C-59 does, converting the crime from a promotion offence into a (perhaps redundant) version of a counselling offence. But that is another story. For our purposes here, would a tweet like the Saudi tweet violate the law, as it stands at present?
Sure, in theory. The offence does reach imagery. If (like many Canadians) a court were to see the image, with its caption, as "promoting" (encouraging) the commission of "terrorism offences in general", then it also seems likely that tweeting it to the world in a highly politicized dispute with Canada is "reckless as to whether any of those offences may be committed". All that is left is whether the promotion was "knowing"? It doesn't matter if the tweeters didn't want a terror attack. All that matters: Would the twitters know (subjectively) that what they were doing was promoting terrorism offences in general. Well, I guess not if they really believed that all they were doing was portraying the premature landing of the ambassador's airplane in downtown Toronto. Perhaps they did not know that Billy Bishop airport can't handle big jets?
You can see why this would get silly. But still, in principle, I see no reason why, on the letter of the law, the crime could not reach the tweet.
4. Would the Law Reach These Tweeters?
Now, it is true that on the facts of this case -- involving foreign authors -- things get even more complicated. Terrorism offences are extraterritorial, but they are not so sweepingly extraterritorial as to reach conduct by a non-national with no connection to Canada. Still, it is not necessarily clear to me how to define the territoriality of a tweet. Part of the actus reus surely reaches Canada, which may be enough to create the real and substantial link which the Supreme Court discusses in Libman. Not that I'd want to be the prosecutor to have to argue all these complexities.
But that is neither here nor there. Because of course, this is an academic question. No Canadian police officer will ever lay hands on the authors of the tweet -- its not like they'll be an extradition granted even if it were possible to seek one. And if those authors were government officials, and this tweet was construed as an official act of state, it would enjoy state immunity under international law (though not under the State Immunity Act, which does not apply to criminal law).
I guess another interesting subset of this question: could the Charter free speech protections extend to limit the application to those who speak abroad, of what (as I believe) is a constitutionally-excessive law? Foreigners overseas are not likely to have Charter free speech protections. Still, it would be the height of absurdity to apply a law that is unconstitutional to the prosecution in Canada of persons who are not themselves protected by the Charter because of where they uttered the communication for which they are being prosecuted. We have long settled that even corporations can challenge laws under Charter rights reserved to human beings, where the law is equally capable of capturing both human beings and corporations. The same logic would apply here.
As I say, this is all academic. Still, it is pretty stupid that we have a law that could put a person into jail for 5 years for nothing more than an offensive tweet. You may not like the tweet. I don't. It made my mild-mannered blood boil. And you'd be right to condemn it. But to have an offence that would jail someone for it? That would be...a little bit like Saudi Arabia putting a blogger and his relatives into prison.