On January 30, 2015, Prime Minister Stephen Harper unveiled Canada’s new anti-terrorism bill (Bill C-51) – an Act of Parliament that will significantly change core security-related legislation by delivering new mandates and by greatly enhancing the authority of departments and agencies entrusted with national security matters. In our latest Insight, Ray Boisvert, one of H+K’s national security experts, provides background and analysis of this important new legislation and some of its possible future implications.

At Issue

An Act of Parliament introduced on January 30th, 2015 will significantly change core security-related legislation by delivering new mandates and greatly enhancing the authority of departments and agencies entrusted with national security matters. Critical to these initiatives are changes to the CSIS Act that grant unprecedented power to take “measures to reduce threats,” both inside and outside Canada. Other notable measures include a lowering of the threshold for adding persons to the national “no fly” list, along with augmented information-sharing tools for investigative agencies.

The Backstory

Midway through the second decade of the 21st Century, and more than a dozen years since 9/11 and the controversial “War on Terror,” Canadians had become fatigued with the conflicts in Afghanistan, Iraq and elsewhere. Despite persistent media coverage of anti-terror operations at home and abroad – from arrests in Canada and the use of Security Certificates and other forms of pre-emptive detentions, to drone strikes killing alleged terrorists – most Western citizens were increasingly focused on economic challenges at home, a sustainable environment and the everyday demands of living a First-World existence.

There was also a belief among Canadians that the West had vanquished Al Qaeda-inspired terror since the death of Osama bin Laden and, at least in the first phase, that democratic inspirations unleashed through the Arab Spring would take root. Within a year, however, Canadians faced a rapidly deteriorating global security environment.

The anxiety over public safety issues is palpable, particularly after a number of high-profile cases involving unprecedented violence that are well cataloged: the daylight beheading of a British soldier in the United Kingdom; the murder of more than 130 school children in Peshawar, Pakistan; the beheadings of aid workers and others in Syria and Iraq; hostage taking and murder in a Sydney, Australia café; twin deadly “active shooter” assaults in Paris; and two radicalized Canadians taking the lives of serving military personnel at home and, following one of those attacks, the killer storming the Canadian Parliament.

Now in an election year and at a time when acts of terrorism compete with economic issues for the public’s attention, Prime Minister Stephen Harper’s government has introduced sweeping new security legislation.

The Legislation: Bill C-51

The new legislation introduced on January 30th – with the prime minister leading the communications thrust and key ministers (Justice and Public Safety) engaging media outlets – is a composite piece that will create a new “Security of Canada Information Sharing Act” and a “Secure Air Travel Act,” along with amending the Criminal Code of Canada, the Immigration and Refugee Protection Act and relevant chapters of other existing legislation. Most prominent, however, is a seismic shift in the enabling legislation for the Canadian Security Intelligence Service (CSIS).

Some Details and Context

+ Security of Canada Information Sharing Act (New)

o With the Charter of Rights and Freedoms (1982) and the Privacy Act (1983), the security establishment believed some officials defaulted too readily towards the over-protection of privacy rights – to the detriment of national security investigations.

o A catalogue of examples demonstrated how difficult information sharing had been on a number of fronts, including threat-to-life matters, the proliferation of weapons or materials, attempts to identify suspected intelligence agents, and, more recently, efforts to interrupt the travel of aspiring terrorists. This reality led to a specific new Act to remove impediments to the creation of actionable threat intelligence and to better protect officials who share information.

+ Secure Air Travel Act (New)

o In the wake of 9/11, the federal government moved to build a Canadian “no fly” list. Its first iteration was highly complex and challenging to engage. Subsequent changes made the framework more responsive to security concerns and air carrier requirements, but the threshold for inclusion remained high: individual malicious intent needed to be directly relevant and an immediate threat.

o The new Act further streamlines efforts, specifically empowers the Transport Minister and broadens the flight-denial criteria to include those who “threaten transportation security” or “travel by air for the purposes of committing an act” (of terrorism). The former is to specifically enhance air transportation security, and the latter is to prevent people from using air travel to engage in acts of terrorism outside of Canada.

+ Criminal Code of Canada (Amended)

o A number of amendments covering a broad spectrum of federal statutes, from the Canada Evidence Act to the Customs Tariff Act, are included in the legislation.

o A factor critical to national security is met through sections that will criminalize the actions of persons “advocating or promoting commission of a terrorist offence.”

o Tangentially, Provincial Courts will be authorized to empower investigative officials to seize or interrupt offending material. Equally relevant is that web services or Internet Service Providers (ISPs) can be compelled to do the following (if the Court has jurisdiction, which in effect means this will be limited to Canada or Canadian entities):

  • surrender suspect data to a law enforcement or investigative agency
  • remove and prohibit re-posting of suspect data on a network or Internet site
  • provide information to identify and locate the person who posted the material

Other areas of adjustment to the Criminal Code of Canada touch upon controversial subjects such as Security Certificates (where non-Citizens are detained and subjected to a removal from Canada). In this specific area, amendments will further protect national security information from being disclosed during adjudication.

o Where a witness comes forward to identify a potential terrorist threat, or where an informant must be protected during a terrorist-related trial, specific steps will have to be taken to protect his or her identity.

o Likely to be most controversial are the new powers to compel a suspect to enter upon a specific terrorism-related Recognizance restriction for up to 12 months (or up to five years if the person has been previously convicted of a terrorism offence), along with a prohibition on owning weapons or firearms, and the requirement to surrender his or her passport; and a provision to allow for preventative arrests – with a judge’s consent, for up to 12 months without trial – in cases where such action can thwart a terrorist act.

+ Canadian Security Intelligence Service Act (CSIS Act) (Amended)

o The proposed changes to the Act represent the most significant transformation of Canada’s security intelligence agency since its inception in 1984. When CSIS was created, it included a very intentional and specific prohibition against engaging in counter-measures or taking action to mitigate threats. Now, CSIS will have authority to undertake “measures to reduce threats to the security of Canada.”

o On another front, and as a formal recognition of its already expanded operational doctrine to engage the threat wherever it may emerge, CSIS will now be specifically authorized to operate “within or outside of Canada.”

Impacts on Privacy and Charter Rights

As expected, many informed observers, particularly those from the privacy constituency and the legal community, have raised some red flags. Opinions vary greatly, however, with some predicting gross Charter violations while others question the need for such powers when existing laws have yet to be fully put into play by security officials.

The counter points have been equally germane. Ministers and security pundits have argued that existing laws are flawed, include unattainable thresholds or are not sufficiently specific to the task of a modern-day, transnational terrorist threat.

The Government has taken pains to underline its confidence in the Charter “worthiness” of the new measures. Specifically, it points out that new enforcement actions cannot be arbitrary in nature, as each requires judicial authority. In addition, the Security Intelligence Review Committee (SIRC) is specifically tasked in the new CSIS Act to review the new powers granted to CSIS.

Opposition Reaction

Opposition leaders, as well as Critics from the New Democrats and Liberals, have been circumspect in their comments, with few admonishments – likely reflecting opinion polls and the need in an election year to not hand the prime minister the title of “best protector of national security.” While events will shape further debate, the Government’s will on this file is expected to be unshakable and will reflect a determined pace.

Reaction in the United States and Western Capitals

The continued domination of the security agenda in Washington ensures that the new Canadian measures will have been well noted, as they almost certainly will have formed part of an early “President’s Daily Brief” for President Obama by the U.S. Director of National Intelligence. Given the importance of maintaining a “thin” border that is unimpeded by security concerns, the new legislation will likely contribute to current or enhanced North American trade opportunities.

In other countries, particularly those of the “Five Eyes” community of nations sharing defence and intelligence efforts (Canada, U.S., U.K., Australia, New Zealand), these measures will be seen as community leading and relationship securing. In Europe, France has already enacted new laws, but other non-Five-Eyes nations – such as the Nordic countries, Germany, the Netherlands, Poland, Spain and Portugal – may now be motivated to craft similar laws to address citizen concerns that the extremist threat is growing across the Continent.

Looking Ahead

The security agenda is now a clear Government priority in this session of Parliament and in the lead-up to a federal election. Previously pursuing a “law and order agenda, the government had been more focused on violent criminal matters, sentencing and victims’ rights. The shift towards national security-related priorities was not as forthcoming – until the events at the National War Memorial and on Parliament Hill on October 22nd, 2014.

Once this proposed legislation is enacted in its final form, it will be important to see how CSIS, the RCMP and other security agencies will move to act on their new powers. This will largely depend on the nature and impact of the next domestic terrorist event. Charter challenges are widely expected, especially following a first indictment.

Gaps remain with respect to the reach of the legislation, such as enforcing authority upon Internet or web services outside of Canada. Given the ubiquitous nature of the Internet, it is likely to have limited value to proposed counter-radicalization efforts.

Equally, a number of important gaps remain with respect to resources (both technological and human). Irrespective of any new powers, security agencies claim they continue to be overwhelmed by the number of radicalized individuals currently in Canada and by the potential number of those now in conflict zones but who intend to return to Canada if they survive their experience. As such, important budgetary considerations remain unresolved, potentially handicapping any new laws and regulations put forth to combat threats to national security, including terrorism.