My name's Craig Forcese
I'm a professor of law at the University of Ottawa
where I teach among other things
national security law.
Professor Kent Roach of the University of Toronto and I
have been conducting what we call
real-time academic legal analysis of Bill [C-51],
the government's anti-terrorism law.
You'll find our analysis and related commentary archived on our special website.
www.antiterrorlaw.ca
I've prepared 2 video explainers on Bill C-51.
This video is the short one,
designed for people who are mostly familiar with the bills' features,
and who are looking for a means of navigating its various moving parts.
In the longer video, I provide the same navigational help,
but also amplify with more about what the bill does that is troubling.
So let me begin with a circle.
Within this circle is a universe of behaviour.
Behaviour by people.
Not all behaviour.
A certain sort of behaviour.
This is behaviour that -
in the words of part of Bill C-51 -
"undermines the security of Canada".
This part of the bill
authorizes information sharing
within and potentially outside government,
and is concerned with any activity undermining
-whatever that means-
the lives and security of the Canadian people
and the sovereignty, security or territorial integrity of Canada.
The things that fall into this category
and thus into the circle,
are vast in number.
But the bill says they include activities
aimed at changing or "unduly influencing"
-whatever that means-
any Canadian government by unlawful means.
I will come back to this concept of "unlawful" in a second.
The bill also names activities in Canada
that undermine the security of another state, any state.
So that would include repressive ones.
It names activities that interfere with critical infrastructure. Any interference.
Also included are any threats to Canada's territorial integrity.
So, presumptively, sovereignty groups.
My key point on this definition is this:
This is a law of behaviour,
including behaviour we generally accept in a democratic society,
even if it may annoy us or we may dislike it.
But there is a safeguard.
This concept of undermining security
does not reach lawful protest, advocacy or artistic expression.
So this line bisecting the circle
is what I shall call the line of lawfulness.
On the left hand side of the line
your behaviour is perfectly lawful,
and you are not captured by any feature of Bill C-51.
But pause here on what is required to be lawful.
By lawful I mean just that.
You comply with all laws.
Municipal, regulatory, provincial, federal, criminal and non criminal.
If you participate in a street protest
without a municipal permit
it is unlawful.
If you participate in a wildcat strike
it is unlawful.
The list of examples of potential unlawfulness
could go on for some time.
If you do any of this
you are on the right hand side of the lawful line in my circle.
And so you are now in the universe
in which C-51
could begin to apply to your behaviour.
Under the law that creates this undermining security of Canada concept,
the government may share between
17 different agencies and maybe more
information about your conduct.
Now we drill down a bit to another circle.
So within this circle
we include matters that could be more pernicious.
This is a subset of all the things that "undermine the security of Canada".
Here in this second circle
we are talking about state powers
that go well beyond information sharing.
In this second circle I am focusing on behaviour
that CSIS is able to investigate under its current law.
CSIS is the Canadian Security Intelligence Service.
It is designed, at present,
as an intelligence gathering operation.
Its mandate is tied to something called
"threats to the security of Canada",
a defined term found in its own statute.
The concept of threats to the security of Canada
includes a lot of things
that people would mostly all agree
should be investigated:
espionage and sabotage, political violence and terrorism, violent subversion.
Violence of some sort is at the core of each of these three items.
But note two things:
First, this definition in the CSIS Act
isn't and never has been just about terrorism.
And second, this definition also includes a fourth threat:
so-called foreign influenced activities.
And so CSIS may investigate
foreign influenced activities
that are clandestine, and viewed by the government
as detrimental to the interests of Canada.
CSIS' review body, SIRC [Security Intelligence Review Committee],
was very unhappy with this concept in 1989
when it reviewed the CSIS act
and made recommendations for that act's amendment.
The definition of foreign influenced activities
contains too much eye-of-the-beholder ambiguity.
SIRC critiqued this ambiguity,
especially the use of "clandestine",
which means really, simply "secret".
And "detrimental to the interests of Canada"
was also critiqued.
"Detrimental to the interests of Canada"
is whatever the government says it is.
If you apply this ambiguity to democratic protest movements,
it is possible that the threats definition
covers this sort of scenario:
A foreign environmental foundation
funding a Canadian environmental groups' secret efforts
to plan a protest done without proper permits
in opposition to the Keystone pipeline project;
a project that the government of Canada sees
as a priority and strongly in the interests of Canada.
Note the reference to "without permits".
This is added because
-like the "undermine" definition that I started this discussion with-
the CSIS "threats" definition
includes an exception for lawful activities.
And remember what "lawful" means.
It means fully compliant with the law;
and more than simply compliance with the criminal law.
It means full compliance with regulatory and municipal rules and labour law,
including in relation to strikes.
So no wildcat strikes.
Or protests. No protests without city permits.
So what does Bill C-51 change for CSIS?
Well, it doesn't change this "threat" concept.
The circle doesn't get any bigger or smaller.
What it does change is what CSIS can do in that circle.
Up to now it can only spy.
After C-51 it will be empowered
to take measures reducing the threat,
what the government calls "disruption",
and a power that Kent Roach and I have called "kinetic",
that is, the power to do things to people and things
in the real world.
Again, remember,
these are powers that will apply to all of CSIS' mandate,
not just its counter-terrorism activities.
I underscore again
the extent to which C-51 is about more than counter-terrorism.
So what are the safeguards
on this power of disruption?
Well the bill would prohibit CSIS
from inflicting bodily harm,
that is, physical or psychological injury;
obstructing justice, that is, interfering with court proceedings for instance.
Or violating sexual integrity.
Anything else is permissible
so long as reasonable and proportional in the circumstances.
But what about judicial oversight and warrants?
Well there has been some confusion in the discussion of this.
First point:
CSIS will need to get a warrant
for its kinetic activities
where that conduct violates a law
or any of the rights in the Charter of Rights and Freedoms.
Up to that point,
up to the point where the law is violated
or the Charter is violated,
there is no requirement for a warrant.
So let's say CSIS wanted to do something
that had the effect of limiting one's ability to speak.
Perhaps as simple as wrecking their internet connection.
Or perhaps CSIS does something
that hinders a citizen's ability to return to Canada.
Those would be Charter breaches,
and so CSIS would need a warrant.
And that might sound OK to people,
but it is a radical concept.
CSIS may come to judges asking them
to bless in advance constitutional breaches.
The proceeding will be secret.
Only the government will be represented.
There is no appeal mechanism.
The person affected will not know about it.
They may never know who caused the problems
that they then would encounter.
That's because the whole thing is covert.
We just have never seen anything like this
in Canada before.
Personally, I would expect judges
to consider all this unconstitutional,
and that they could never let CSIS breach the Constitution.
But you and I may never know
because as I've said,
this legal question will likely
be decided as part of secret proceedings.
OK. Now it's time to drill down even further,
to another circle.
This one is even smaller.
This is the actual crime circle.
So this circle covers all the bahaviour
that not only would undermine the security of Canada
as defined in that information sharing statute in Bill [C-51],
not only would it be a threat to the security of Canada
as defined in the CSIS Act,
but it would also be criminal.
Lots of crimes possibly fall in this circle,
but among them would definitely be
the terrorism offenses in the Criminal Code.
The Criminal Code has a very precise definition of terrorist activity.
Boiled to it's essence, it means basically
violent conduct done for political, religious or ideological reasons,
for the purpose of compelling or intimidating a government or person
to do or refrain from doing something.
Bill C-51 does not change any of this.
It does not expand the definition of terrorist activity.
What it does instead
is create a new speech crime tied to this definition.
The government wants to jail people
who by speaking, writing, recording, gesturing,
or through other visible representations
knowingly advocate or promote the commission of terrorism offenses in general,
while aware of the possibility that the offenses may be committed.
Did you understand that?
Roach and I tried to explain it in 10,000 words
and we still aren't sure what it means.
This offense raises many serious issues
and should at best be considered extremely concerning.
The scope of the new offense is not clear,
and the offense is sweeping
in the amount of speech it captures.
Including speech potentially far far removed
from actual violence.
I want to talk about one final feature now of C-51.
The concept of preventive detention and peace bonds.
What are these?
Well, these are tools the police can use
to deal with people who they fear, are, or may be implicated in terrorist activity,
but for whom they don't have enough to actually bring criminal charges.
And so, these tools enable police to act,
and go after people,
within this zone that I've demarcated on the diagram,
a little further out from actual crime.
With peace bonds,
the police will be allowed to limit the liberty of someone
if they have reason to believe he or she [etc] might be about to commit a terrorism related crime.
With the so-called preventive detention provisions,
they could hold such a person
and detain him or her [etc] briefly, right now,
for a maximum of 72 hours,
supervised by judicial order.
Neither of these tools are new.
But preventive detention has never been used,
and peace bonds have been used only 6 times.
What C-51 does is make it easier to use these tools.
They can be triggered sooner,
when the police are even less certain someone is dangerous.
And preventive detention goes from a maximum of 72 hours, to 7 days.
Roach and I can imagine circumstances
in which such provisions become a necessary evil;
but we believe that this necessary evil
needs to be closely scrutinized,
and carefully constrained.
We will have suggestions on this front.
There is, however, one core virtue
to this regime, as compared to the CSIS powers that I've described.
All of this preventive detention and peace bond activity
will be done in open court,
and with reference to terrorist offences that
-whatever their breadth-
do not reach as far as the CSIS circle does.
So there you have it.
Basically, C-51, not quite in a nutshell,
but as close as I can make it.
If you want more details,
I will produce a lengthier video;
and see also our writing on www.antiterrorlaw.ca
Thank you.