The Conservative Government’s new anti-terror legislation is promising to build a whole new realm of national security legal framework, without any new oversight.
The omnibus legislation takes aim at a myriad of issues: its primary concern is with giving CSIS agents a new mandate to address terror threats as opposed to simply collecting information on them.
The bill also creates criminal prohibitions for advocating terror attacks in Canada, as well as a complementary take-down power that allows courts to destroy online and physical communications that promote or glorify terrorism.
What’s more, the bill expands the preventative detention and peace bond powers found in Canada’s original anti-terror legislation, lessening evidentiary thresholds and expanding their utility.
The proposed legislation, Bill C-51, also seeks to expand information sharing, prevent those with terror links from entering the country, beef up the no-fly list, and legalize proactive reporting of suspicious Canadians by government bureaucrats.
CSIS’ new powers
Complementing powers introduced last year, the new bill widely expands CSIS’ mandate.
While the spy agency was previously concerned with information-gathering and investigations to aid other agencies’ prosecutions, it will now be empowered to “disrupt” threats.
That broad new power comes with a new warrant, which allow a judge to sign-off on just about any activity or practice that CSIS says would prevent an attack. It would need “reasonable grounds to believe” that national security is at risk.
CSIS would have to convince a judge that the measures would be reasonable and appropriate, and that they would directly address a real threat. The warrant is good for up to 120 days — though it can be renewed twice — and it would allow the agency to “enter any place or open or obtain access to any thing,” as well obtaining or copying any document, install or remove anything, and “to do any other thing that is reasonably necessary to take those measures.”
That broad power can override Canadian law, individuals’ privacy rights and even foreign laws, Bill C-51 stipulates.
The bill also gives judges the power to issue assistance orders, requiring companies to assist CSIS in its investigation.
Bill C-51 is taking direct aim at material that advocates, glorifies or incites terrorist activity.
The prohibitions are styled after existing measures that target online advocacy of genocide against protected groups.
Like the current laws that forbid publishing material that instructs or incites violence against an identifiable group, the new measures would punish the incitement of terrorism attacks against Canada.
As a government background document explains, “under the current criminal law, it is a crime to counsel or actively encourage others to commit a specific terrorism offence. However, the current law would not necessarily apply to someone who instructs others to ‘carry out attacks on Canada’ because no specific terrorism offence is singled out.”
The standard, however, is that the accused individual be shown to have published the material “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.”
That’s a very different standard than the hate propaganda section currently in the Criminal Code, which criminalizes communications that advocate violence only “where such incitement is likely to lead to a breach of the peace.”
The criminal prohibitions are augmented by new seizure warrants, which allows police to order Canadian-based website hosts and publishers to delete or remove information that advocates or glorifies terrorism.
Under Bill C-51, the process may occur on an ex parte basis and the owner, host or publisher of the information may chose to represent themselves only if they wish.
The combination of the new crimes raises the question of whether the lower threshold required to investigate and order seizure warrants — “reasonable grounds to believe that any publication…is terrorist propaganda” — could serve as a backdoor to investigating criminal incitement of terrorism, by allowing police to obtain information about the original publisher of the material.
Long cited as insufficient for anti-terror investigations, Bill C-51 is seeking to lessen the barriers around preventative detention and peace bond powers.
When seeking to obtain a recognizance with conditions order — which will theoretically be used to detain the suspect linked to a terror plot — police will no longer be required to prove to a judge that a terrorism offence “will be carried out.” Instead, investigators need only establish that an attack “may be carried out.” Similarly, it replaces the language that the recognizance order is “necessary to prevent” with the less stringent verbiage of “is likely to prevent.”
Bill C-51 also increases the maximum holding time to seven days, up from three.
And by creating a new terrorism peace bond — with a similarly lesser threshold of “may commit,” as opposed to “will commit” —judges will be empowered to impose conditions on individuals that could include revocation of passport, electronic monitoring and travel limitations within Canada. The bonds can be issued for up to five years, with penalties for disobeying the bond running up to four years in prison.
These powers had been introduced in the 2001 anti-terror legislation that was introduced by the Chrétien Government, but were sunsetted several years later. They were reintroduced by Stephen Harper’s 2012 legislation renewing the authorities, but were never used.
The changes are designed to give law enforcement more flexibility in detaining those with an identified nexus to terror groups, but for whom police don’t have enough evidence to build a full case.
These provisions will sunset in 2017, as prescribed by the 2012 legislation.
No-fly and information sharing
The bill also gives the Minister of Transport new powers to keep individuals on the no fly list.
If a Canadian appeals their placement on the list, a judge may hear and accept evidence, "even if it is inadmissible in a court of law.”
Also, the bureaucrats at Citizenship and Immigration as well as the Minister of Public Works are being given new authorities to share information with law enforcement agencies. For Immigration, bureaucrats can send along individuals’ passport information, while Public Works can disclose any information relating to the use or possession of materials on the Controlled Goods Program. The ability to proactive disclose Canadians’ personal data comes without any sort of reporting or oversight mechanism.
The bill was tabled on Friday, and Parliamentary debate will begin in February.