On February 3, the RCMP charged three men from Ottawa with terrorism-related offenses. Just one day before, the trial of a couple claiming to be members of al-Qaida got underway. Both stand accused of planting bombs in Victoria in July 2013. Meanwhile, also on Monday, two men who allegedly planned to bomb a VIA Rail train were tried in Toronto.
Not one of these cases needed any special laws, whether anti-terrorism or anti-conspiracy, to bring the accused to face justice. It was sufficient for police and intelligence services, RCMP or CSIS, to rely on their current and rather ample powers – enhanced in 2002 in the wake of the 9/11 attacks in the United States. This is the main argument against the Conservative government’s decision, as presented in Bill C-51, to give police more powers and modify the fundamental role of CSIS from intelligence gathering to being able to carry out arrests. In other words, Prime Minister Harper wants to give Canada more cops and more spies to give a semblance of tough talk for the consumption of voters in the 2015 election. Harper likes to say that “Canada is at war,” a condition that demands unapologetic firmness, but also one that will result in the ‘creation’ of new crimes – and new criminals.
Here is a brief overview of the proposed changes to law enforcement in Bill C-51, which is being considered for adoption by the House of Commons and the Senate:
Broadening the mandate of CSIS. CSIS is granted the mandate to disrupt threats to national security in Canada and abroad. Currently, its mandate is limited to the collection of information and it must communicate with other agencies such as the RCMP. CSIS could now move itself to action in preventing potential movements, among other things, by intercepting weapons shipments or blocking communications inciting terrorism. This new power would be subject to judicial authorization.
The criminalization of “advocating or fomenting” acts of terrorism. A maximum of five years is planned for these new offenses. The government says that these measures are aimed at discouraging more general terrorist acts such as incitement to “carry out attacks against Canada.”
Targeting terrorist propaganda. The current law allows for the seizure of hate material or child pornography. This measure would create two new mandates to prevent individuals or groups from encouraging the commission of terrorist acts.
Facilitating preventative arrests. The bill lowers required thresholds for recognizance, with conditions and a commitment not to disturb public order by changing the terminology.
Bill C-51 raises more concerns than it provides protection from terrorism; it gives CSIS the power to thwart imminent threats to national security, whether in Canada or abroad. This might be expected, but the problem lies in the fact that a judge can grant CSIS the authority to act beyond its traditional mandate and even to violate the law or the Charter of Rights and Freedoms. Bill C-51 has a rather opportunistic character; it is the Canadian government’s response to lone-wolf attacks in St-Jean-sur-Richelieu and Ottawa last fall. The attacks were promptly described as acts of terrorism with apparent evidence to suggest it was Islamist-inspired terrorism.
The Federal Court has already revealed the limits of the current law in an unspecified case related to national security. In the fall of 2013, Justice Richard Mosley ruled that CSIS had been secretive about the foreign and domestic surveillance partnerships it was trying to form – including an eavesdropping warrant which would have extended its powers beyond Canada’s borders. Justice Mosley ruled that such activities, “if conducted in Canada, require the issuance of a warrant.” Bill C-51 has effectively removed such limitations. Therefore, Mr. Harper has acquiesced to changing the law in the manner decided by CSIS rather than the Canadian public. So judges in Canada will now be able to issue a warrant for CSIS to collect information abroad regardless of the laws of the other country.
Speed limits provide a good analogy for the problem of Bill C-51. Politicians advocate speed limits in the same way they ‘sell’ a war – and what better example than the attacks on Parliament Hill in Ottawa? It is merely necessary for the people to believe that the cause is right, and the amount of media coverage certainly achieved this. The point is to frame it and the reaction as being about “freedom and justice” (speed limits are presented as ‘safety’). However, the problem is that any legislation will only be as good at preventing the ‘last terrorist attack”; in other words, it can be a reaction at best and cannot really provide any preventative measures. The Patriot Act in the US, for instance, was designed to prevent another 9/11 and various laws were passed in Britain to prevent bombings and attacks, despite the fact that Britain faced terror attacks throughout the 1970s and 80s by the Irish Republican Army (IRA). Spain too, before the Atocha train station attack in 2004, had suffered a number of attacks by the Basque separatists of ETA, and then there is Italy with the Red Brigades. New laws are adopted but they never really work because the ‘last terrorist attack’ never becomes the norm; thus the new laws are old before they are even adopted. The assumption that new attacks can be prevented by new laws is the problem. It would be better if governments were more concerned about being effective with existing laws rather than pandering to public opinion and risking potential abuses of constitutionally guaranteed rights and freedoms, as is the case with Bill C-51. Indeed, France did not adopt new laws after the Charlie Hebdo attacks.
Most media and (especially in Canada) government discussion about terror attacks, or attempted ones, occurs in response to random events presented as if isolated from a wider reality. If the focus falls on the Sahel one day, on another it shifts to the Arabian Peninsula. In some other place and some other time, it is about Somalia and its pirates, or Afghanistan, or North Africa, or Europe, or for that matter, anywhere in the world and at any time. Most commentators just do the best they can to comment about an event without linking it to other events or other issues. Because of this inability to link issues and topics, no meaningful solutions are proposed. Yemen’s strategic position and its rapidly failing socio-economic conditions, for instance, make it a country of critical concern. Yemen has shown to have immediate security concerns that left unmitigated have the potential to create a situation of chronic instability and militancy.
It would be more effective, rather, for governments to adopt more ‘holistic’ approaches to confront terrorism rather than merely policing and legal ones. This is where Liberal and NDP leaders Justin Trudeau and Thomas Mulcair should press the government during the debate for Bill C-51. There are already more than enough surveillance methods and prison sentences to “arrest your way out of terrorism”; what is lacking is a better understanding of the Muslim community (even though the number of people involved in terrorism is a fraction of a fraction) and a much needed and honest debate over Canada’s foreign policy – and its impact – as a driver for the recruitment of militants. Moreover, while the focus of Bill C-51 is unabashedly on ‘Islamists,’ the conflict between the Islamists and the West (or its perceived proxies) is permanent. Unless major grievances are tackled, Islamic militancy will remain difficult to moderate, even if it may seem to be the case from time to time. More precisely, a solution to the conflict starts with solving the big visible issues, including the fate of the Arab-Israeli conflict, reassessing Western support to the dictatorships in the Arab world, reintroducing a sustainable path of democratization, and inviting moderate Islamists to share in governance, in addition to enforcement and military action.
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