WEBVTT 00:00:03.282 --> 00:00:04.746 My name's Craig Forcese 00:00:04.746 --> 00:00:07.583 I'm a professor of law at the University of Ottawa 00:00:07.583 --> 00:00:09.918 where I teach among other things 00:00:09.918 --> 00:00:12.284 national security law. 00:00:12.284 --> 00:00:14.950 Professor Kent Roach of the University of Toronto and I 00:00:14.950 --> 00:00:16.844 have been conducting what we call 00:00:16.844 --> 00:00:22.280 real-time academic legal analysis of Bill [C-51], 00:00:22.280 --> 00:00:25.183 the government's anti-terrorism law. 00:00:25.183 --> 00:00:29.589 You'll find our analysis and related commentary archived on our special website. 00:00:29.589 --> 00:00:31.342 www.antiterrorlaw.ca 00:00:31.342 --> 00:00:35.811 I've prepared 2 video explainers on Bill C-51. 00:00:35.811 --> 00:00:38.104 This video is the short one, 00:00:38.104 --> 00:00:41.202 designed for people who are mostly familiar with the bills' features, 00:00:41.202 --> 00:00:46.806 and who are looking for a means of navigating its various moving parts. 00:00:46.806 --> 00:00:49.881 In the longer video, I provide the same navigational help, 00:00:49.881 --> 00:00:55.579 but also amplify with more about what the bill does that is troubling. 00:00:55.579 --> 00:00:58.127 So let me begin with a circle. 00:00:59.786 --> 00:01:02.754 Within this circle is a universe of behaviour. 00:01:02.754 --> 00:01:04.291 Behaviour by people. 00:01:04.291 --> 00:01:05.919 Not all behaviour. 00:01:05.919 --> 00:01:07.954 A certain sort of behaviour. 00:01:07.954 --> 00:01:09.255 This is behaviour that - 00:01:09.255 --> 00:01:12.400 in the words of part of Bill C-51 - 00:01:12.400 --> 00:01:15.153 "undermines the security of Canada". 00:01:15.153 --> 00:01:16.991 This part of the bill 00:01:16.991 --> 00:01:19.120 authorizes information sharing 00:01:19.120 --> 00:01:22.852 within and potentially outside government, 00:01:22.852 --> 00:01:25.386 and is concerned with any activity undermining 00:01:25.386 --> 00:01:26.988 -whatever that means- 00:01:26.988 --> 00:01:30.060 the lives and security of the Canadian people 00:01:30.060 --> 00:01:34.750 and the sovereignty, security or territorial integrity of Canada. 00:01:34.750 --> 00:01:36.757 The things that fall into this category 00:01:36.757 --> 00:01:38.359 and thus into the circle, 00:01:38.359 --> 00:01:40.320 are vast in number. 00:01:40.320 --> 00:01:42.420 But the bill says they include activities 00:01:42.420 --> 00:01:46.149 aimed at changing or "unduly influencing" 00:01:46.149 --> 00:01:47.553 -whatever that means- 00:01:47.553 --> 00:01:51.587 any Canadian government by unlawful means. 00:01:51.587 --> 00:01:55.816 I will come back to this concept of "unlawful" in a second. 00:01:55.816 --> 00:01:58.154 The bill also names activities in Canada 00:01:58.154 --> 00:02:02.712 that undermine the security of another state, any state. 00:02:02.712 --> 00:02:05.275 So that would include repressive ones. 00:02:05.275 --> 00:02:10.712 It names activities that interfere with critical infrastructure. Any interference. 00:02:10.712 --> 00:02:14.941 Also included are any threats to Canada's territorial integrity. 00:02:14.941 --> 00:02:18.540 So, presumptively, sovereignty groups. 00:02:18.540 --> 00:02:22.271 My key point on this definition is this: 00:02:22.271 --> 00:02:24.570 This is a law of behaviour, 00:02:24.570 --> 00:02:28.335 including behaviour we generally accept in a democratic society, 00:02:28.335 --> 00:02:32.341 even if it may annoy us or we may dislike it. 00:02:32.341 --> 00:02:34.039 But there is a safeguard. 00:02:34.039 --> 00:02:36.106 This concept of undermining security 00:02:36.106 --> 00:02:41.907 does not reach lawful protest, advocacy or artistic expression. 00:02:41.907 --> 00:02:45.204 So this line bisecting the circle 00:02:45.204 --> 00:02:48.774 is what I shall call the line of lawfulness. 00:02:48.774 --> 00:02:50.668 On the left hand side of the line 00:02:50.668 --> 00:02:53.109 your behaviour is perfectly lawful, 00:02:53.109 --> 00:02:58.008 and you are not captured by any feature of Bill C-51. 00:02:58.008 --> 00:03:01.504 But pause here on what is required to be lawful. 00:03:01.504 --> 00:03:03.942 By lawful I mean just that. 00:03:03.942 --> 00:03:05.770 You comply with all laws. 00:03:05.770 --> 00:03:10.567 Municipal, regulatory, provincial, federal, criminal and non criminal. 00:03:10.567 --> 00:03:12.440 If you participate in a street protest 00:03:12.440 --> 00:03:13.951 without a municipal permit 00:03:13.951 --> 00:03:15.750 it is unlawful. 00:03:15.750 --> 00:03:17.850 If you participate in a wildcat strike 00:03:17.850 --> 00:03:20.347 it is unlawful. 00:03:20.347 --> 00:03:22.938 The list of examples of potential unlawfulness 00:03:22.938 --> 00:03:25.548 could go on for some time. 00:03:25.548 --> 00:03:27.480 If you do any of this 00:03:27.480 --> 00:03:32.182 you are on the right hand side of the lawful line in my circle. 00:03:32.182 --> 00:03:33.781 And so you are now in the universe 00:03:33.781 --> 00:03:35.605 in which C-51 00:03:35.605 --> 00:03:38.809 could begin to apply to your behaviour. 00:03:38.809 --> 00:03:42.880 Under the law that creates this undermining security of Canada concept, 00:03:42.880 --> 00:03:44.759 the government may share between 00:03:44.759 --> 00:03:47.714 17 different agencies and maybe more 00:03:47.714 --> 00:03:50.826 information about your conduct. 00:03:51.811 --> 00:03:54.963 Now we drill down a bit to another circle. 00:03:54.963 --> 00:03:56.630 So within this circle 00:03:56.630 --> 00:04:03.291 we include matters that could be more pernicious. 00:04:03.291 --> 00:04:07.462 This is a subset of all the things that "undermine the security of Canada". 00:04:07.462 --> 00:04:09.727 Here in this second circle 00:04:09.727 --> 00:04:12.258 we are talking about state powers 00:04:12.258 --> 00:04:15.840 that go well beyond information sharing. 00:04:15.840 --> 00:04:18.722 In this second circle I am focusing on behaviour 00:04:18.722 --> 00:04:22.725 that CSIS is able to investigate under its current law. 00:04:22.725 --> 00:04:25.920 CSIS is the Canadian Security Intelligence Service. 00:04:25.920 --> 00:04:28.086 It is designed, at present, 00:04:28.086 --> 00:04:31.260 as an intelligence gathering operation. 00:04:31.260 --> 00:04:34.352 Its mandate is tied to something called 00:04:34.352 --> 00:04:37.357 "threats to the security of Canada", 00:04:37.357 --> 00:04:40.956 a defined term found in its own statute. 00:04:40.956 --> 00:04:43.194 The concept of threats to the security of Canada 00:04:43.194 --> 00:04:44.820 includes a lot of things 00:04:44.820 --> 00:04:46.488 that people would mostly all agree 00:04:46.488 --> 00:04:48.399 should be investigated: 00:04:48.399 --> 00:04:53.554 espionage and sabotage, political violence and terrorism, violent subversion. 00:04:53.554 --> 00:04:57.885 Violence of some sort is at the core of each of these three items. 00:04:57.885 --> 00:04:59.996 But note two things: 00:04:59.996 --> 00:05:03.622 First, this definition in the CSIS Act 00:05:03.622 --> 00:05:07.289 isn't and never has been just about terrorism. 00:05:07.289 --> 00:05:11.345 And second, this definition also includes a fourth threat: 00:05:11.345 --> 00:05:14.586 so-called foreign influenced activities. 00:05:14.586 --> 00:05:16.178 And so CSIS may investigate 00:05:16.178 --> 00:05:17.983 foreign influenced activities 00:05:17.983 --> 00:05:20.949 that are clandestine, and viewed by the government 00:05:20.949 --> 00:05:24.751 as detrimental to the interests of Canada. 00:05:24.751 --> 00:05:27.684 CSIS' review body, SIRC [Security Intelligence Review Committee], 00:05:27.684 --> 00:05:30.285 was very unhappy with this concept in 1989 00:05:30.285 --> 00:05:31.816 when it reviewed the CSIS act 00:05:31.816 --> 00:05:35.445 and made recommendations for that act's amendment. 00:05:35.445 --> 00:05:37.584 The definition of foreign influenced activities 00:05:37.584 --> 00:05:41.619 contains too much eye-of-the-beholder ambiguity. 00:05:41.619 --> 00:05:43.851 SIRC critiqued this ambiguity, 00:05:43.851 --> 00:05:45.516 especially the use of "clandestine", 00:05:45.516 --> 00:05:48.449 which means really, simply "secret". 00:05:48.449 --> 00:05:50.180 And "detrimental to the interests of Canada" 00:05:50.180 --> 00:05:52.047 was also critiqued. 00:05:52.047 --> 00:05:53.675 "Detrimental to the interests of Canada" 00:05:53.675 --> 00:05:56.308 is whatever the government says it is. 00:05:56.308 --> 00:06:00.176 If you apply this ambiguity to democratic protest movements, 00:06:00.176 --> 00:06:03.049 it is possible that the threats definition 00:06:03.049 --> 00:06:05.717 covers this sort of scenario: 00:06:05.717 --> 00:06:07.882 A foreign environmental foundation 00:06:07.882 --> 00:06:11.080 funding a Canadian environmental groups' secret efforts 00:06:11.080 --> 00:06:13.978 to plan a protest done without proper permits 00:06:13.978 --> 00:06:16.878 in opposition to the Keystone pipeline project; 00:06:16.878 --> 00:06:18.878 a project that the government of Canada sees 00:06:18.878 --> 00:06:23.119 as a priority and strongly in the interests of Canada. 00:06:23.148 --> 00:06:25.984 Note the reference to "without permits". 00:06:25.984 --> 00:06:27.317 This is added because 00:06:27.317 --> 00:06:32.184 -like the "undermine" definition that I started this discussion with- 00:06:32.184 --> 00:06:34.147 the CSIS "threats" definition 00:06:34.147 --> 00:06:37.252 includes an exception for lawful activities. 00:06:37.252 --> 00:06:38.685 And remember what "lawful" means. 00:06:38.685 --> 00:06:40.346 It means fully compliant with the law; 00:06:40.346 --> 00:06:43.089 and more than simply compliance with the criminal law. 00:06:43.089 --> 00:06:47.486 It means full compliance with regulatory and municipal rules and labour law, 00:06:47.486 --> 00:06:49.485 including in relation to strikes. 00:06:49.485 --> 00:06:51.318 So no wildcat strikes. 00:06:51.318 --> 00:06:55.224 Or protests. No protests without city permits. 00:06:55.224 --> 00:06:59.530 So what does Bill C-51 change for CSIS? 00:07:00.206 --> 00:07:03.105 Well, it doesn't change this "threat" concept. 00:07:03.105 --> 00:07:06.402 The circle doesn't get any bigger or smaller. 00:07:06.402 --> 00:07:11.161 What it does change is what CSIS can do in that circle. 00:07:11.161 --> 00:07:13.481 Up to now it can only spy. 00:07:13.481 --> 00:07:15.779 After C-51 it will be empowered 00:07:15.779 --> 00:07:18.661 to take measures reducing the threat, 00:07:18.661 --> 00:07:20.790 what the government calls "disruption", 00:07:20.790 --> 00:07:24.265 and a power that Kent Roach and I have called "kinetic", 00:07:24.265 --> 00:07:26.501 that is, the power to do things to people and things 00:07:26.501 --> 00:07:28.365 in the real world. 00:07:28.365 --> 00:07:30.504 Again, remember, 00:07:30.504 --> 00:07:33.659 these are powers that will apply to all of CSIS' mandate, 00:07:33.659 --> 00:07:36.654 not just its counter-terrorism activities. 00:07:36.654 --> 00:07:37.793 I underscore again 00:07:37.793 --> 00:07:43.059 the extent to which C-51 is about more than counter-terrorism. 00:07:43.059 --> 00:07:44.925 So what are the safeguards 00:07:44.925 --> 00:07:47.593 on this power of disruption? 00:07:47.593 --> 00:07:49.345 Well the bill would prohibit CSIS 00:07:49.345 --> 00:07:51.211 from inflicting bodily harm, 00:07:51.211 --> 00:07:53.602 that is, physical or psychological injury; 00:07:53.602 --> 00:07:57.481 obstructing justice, that is, interfering with court proceedings for instance. 00:07:57.481 --> 00:08:00.274 Or violating sexual integrity. 00:08:00.274 --> 00:08:02.204 Anything else is permissible 00:08:02.204 --> 00:08:06.776 so long as reasonable and proportional in the circumstances. 00:08:06.776 --> 00:08:10.204 But what about judicial oversight and warrants? 00:08:10.204 --> 00:08:13.578 Well there has been some confusion in the discussion of this. 00:08:13.578 --> 00:08:15.340 First point: 00:08:15.340 --> 00:08:17.045 CSIS will need to get a warrant 00:08:17.045 --> 00:08:18.461 for its kinetic activities 00:08:18.461 --> 00:08:21.811 where that conduct violates a law 00:08:21.811 --> 00:08:25.374 or any of the rights in the Charter of Rights and Freedoms. 00:08:25.374 --> 00:08:27.147 Up to that point, 00:08:27.147 --> 00:08:29.539 up to the point where the law is violated 00:08:29.539 --> 00:08:31.111 or the Charter is violated, 00:08:31.111 --> 00:08:33.845 there is no requirement for a warrant. 00:08:33.845 --> 00:08:36.302 So let's say CSIS wanted to do something 00:08:36.302 --> 00:08:39.175 that had the effect of limiting one's ability to speak. 00:08:39.175 --> 00:08:42.238 Perhaps as simple as wrecking their internet connection. 00:08:42.238 --> 00:08:44.645 Or perhaps CSIS does something 00:08:44.645 --> 00:08:47.506 that hinders a citizen's ability to return to Canada. 00:08:47.506 --> 00:08:49.476 Those would be Charter breaches, 00:08:49.476 --> 00:08:51.743 and so CSIS would need a warrant. 00:08:51.743 --> 00:08:53.876 And that might sound OK to people, 00:08:53.876 --> 00:08:56.428 but it is a radical concept. 00:08:56.428 --> 00:08:59.167 CSIS may come to judges asking them 00:08:59.167 --> 00:09:01.835 to bless in advance constitutional breaches. 00:09:01.835 --> 00:09:04.096 The proceeding will be secret. 00:09:04.096 --> 00:09:05.829 Only the government will be represented. 00:09:05.829 --> 00:09:07.301 There is no appeal mechanism. 00:09:07.301 --> 00:09:08.966 The person affected will not know about it. 00:09:08.966 --> 00:09:11.295 They may never know who caused the problems 00:09:11.295 --> 00:09:13.732 that they then would encounter. 00:09:13.732 --> 00:09:16.956 That's because the whole thing is covert. 00:09:16.956 --> 00:09:19.017 We just have never seen anything like this 00:09:19.017 --> 00:09:21.667 in Canada before. 00:09:21.667 --> 00:09:23.260 Personally, I would expect judges 00:09:23.260 --> 00:09:25.626 to consider all this unconstitutional, 00:09:25.626 --> 00:09:29.535 and that they could never let CSIS breach the Constitution. 00:09:29.535 --> 00:09:30.865 But you and I may never know 00:09:30.865 --> 00:09:32.334 because as I've said, 00:09:32.334 --> 00:09:33.564 this legal question will likely 00:09:33.564 --> 00:09:38.191 be decided as part of secret proceedings. 00:09:38.191 --> 00:09:40.765 OK. Now it's time to drill down even further, 00:09:40.765 --> 00:09:42.283 to another circle. 00:09:42.283 --> 00:09:43.995 This one is even smaller. 00:09:43.995 --> 00:09:46.925 This is the actual crime circle. 00:09:46.925 --> 00:09:49.525 So this circle covers all the bahaviour 00:09:49.525 --> 00:09:52.161 that not only would undermine the security of Canada 00:09:52.161 --> 00:09:58.393 as defined in that information sharing statute in Bill [C-51], 00:09:58.393 --> 00:10:01.425 not only would it be a threat to the security of Canada 00:10:01.425 --> 00:10:03.103 as defined in the CSIS Act, 00:10:03.103 --> 00:10:05.406 but it would also be criminal. 00:10:05.406 --> 00:10:07.909 Lots of crimes possibly fall in this circle, 00:10:07.909 --> 00:10:09.844 but among them would definitely be 00:10:09.844 --> 00:10:12.870 the terrorism offenses in the Criminal Code. 00:10:12.870 --> 00:10:18.740 The Criminal Code has a very precise definition of terrorist activity. 00:10:18.740 --> 00:10:21.775 Boiled to it's essence, it means basically 00:10:21.775 --> 00:10:25.569 violent conduct done for political, religious or ideological reasons, 00:10:25.569 --> 00:10:29.306 for the purpose of compelling or intimidating a government or person 00:10:29.306 --> 00:10:32.700 to do or refrain from doing something. 00:10:32.700 --> 00:10:35.733 Bill C-51 does not change any of this. 00:10:35.733 --> 00:10:39.335 It does not expand the definition of terrorist activity. 00:10:39.335 --> 00:10:40.803 What it does instead 00:10:40.803 --> 00:10:44.608 is create a new speech crime tied to this definition. 00:10:44.608 --> 00:10:46.373 The government wants to jail people 00:10:46.373 --> 00:10:49.157 who by speaking, writing, recording, gesturing, 00:10:49.157 --> 00:10:51.151 or through other visible representations 00:10:51.151 --> 00:10:54.838 knowingly advocate or promote the commission of terrorism offenses in general, 00:10:54.838 --> 00:10:59.070 while aware of the possibility that the offenses may be committed. 00:10:59.070 --> 00:11:00.871 Did you understand that? 00:11:00.871 --> 00:11:03.535 Roach and I tried to explain it in 10,000 words 00:11:03.535 --> 00:11:05.866 and we still aren't sure what it means. 00:11:05.866 --> 00:11:08.040 This offense raises many serious issues 00:11:08.040 --> 00:11:11.074 and should at best be considered extremely concerning. 00:11:11.074 --> 00:11:13.359 The scope of the new offense is not clear, 00:11:13.359 --> 00:11:14.855 and the offense is sweeping 00:11:14.855 --> 00:11:17.260 in the amount of speech it captures. 00:11:17.260 --> 00:11:19.888 Including speech potentially far far removed 00:11:19.888 --> 00:11:22.825 from actual violence. 00:11:22.825 --> 00:11:26.225 I want to talk about one final feature now of C-51. 00:11:26.225 --> 00:11:29.117 The concept of preventive detention and peace bonds. 00:11:29.117 --> 00:11:30.952 What are these? 00:11:30.952 --> 00:11:33.917 Well, these are tools the police can use 00:11:33.917 --> 00:11:38.600 to deal with people who they fear, are, or may be implicated in terrorist activity, 00:11:38.600 --> 00:11:42.482 but for whom they don't have enough to actually bring criminal charges. 00:11:42.482 --> 00:11:45.668 And so, these tools enable police to act, 00:11:45.668 --> 00:11:47.127 and go after people, 00:11:47.127 --> 00:11:50.832 within this zone that I've demarcated on the diagram, 00:11:50.832 --> 00:11:53.987 a little further out from actual crime. 00:11:54.770 --> 00:11:56.108 With peace bonds, 00:11:56.108 --> 00:11:58.523 the police will be allowed to limit the liberty of someone 00:11:58.523 --> 00:12:04.656 if they have reason to believe he or she [etc] might be about to commit a terrorism related crime. 00:12:04.656 --> 00:12:07.125 With the so-called preventive detention provisions, 00:12:07.125 --> 00:12:08.961 they could hold such a person 00:12:08.961 --> 00:12:11.695 and detain him or her [etc] briefly, right now, 00:12:11.695 --> 00:12:14.033 for a maximum of 72 hours, 00:12:14.033 --> 00:12:17.905 supervised by judicial order. 00:12:17.905 --> 00:12:20.402 Neither of these tools are new. 00:12:20.402 --> 00:12:22.634 But preventive detention has never been used, 00:12:22.634 --> 00:12:26.443 and peace bonds have been used only 6 times. 00:12:26.443 --> 00:12:29.964 What C-51 does is make it easier to use these tools. 00:12:29.964 --> 00:12:31.357 They can be triggered sooner, 00:12:31.357 --> 00:12:34.496 when the police are even less certain someone is dangerous. 00:12:34.496 --> 00:12:40.588 And preventive detention goes from a maximum of 72 hours, to 7 days. 00:12:40.588 --> 00:12:42.498 Roach and I can imagine circumstances 00:12:42.498 --> 00:12:45.726 in which such provisions become a necessary evil; 00:12:45.726 --> 00:12:48.128 but we believe that this necessary evil 00:12:48.128 --> 00:12:50.453 needs to be closely scrutinized, 00:12:50.453 --> 00:12:52.944 and carefully constrained. 00:12:52.944 --> 00:12:55.959 We will have suggestions on this front. 00:12:55.959 --> 00:12:57.886 There is, however, one core virtue 00:12:57.886 --> 00:13:03.757 to this regime, as compared to the CSIS powers that I've described. 00:13:03.757 --> 00:13:06.594 All of this preventive detention and peace bond activity 00:13:06.594 --> 00:13:08.788 will be done in open court, 00:13:08.788 --> 00:13:10.890 and with reference to terrorist offences that 00:13:10.890 --> 00:13:12.189 -whatever their breadth- 00:13:12.189 --> 00:13:16.956 do not reach as far as the CSIS circle does. 00:13:16.956 --> 00:13:18.692 So there you have it. 00:13:18.692 --> 00:13:21.863 Basically, C-51, not quite in a nutshell, 00:13:21.863 --> 00:13:23.929 but as close as I can make it. 00:13:23.929 --> 00:13:25.494 If you want more details, 00:13:25.494 --> 00:13:27.896 I will produce a lengthier video; 00:13:27.896 --> 00:13:32.518 and see also our writing on www.antiterrorlaw.ca 00:13:32.518 --> 00:13:34.256 Thank you.