Assessing How the Provisions of Canada’s New Anti-Terrorism Act (Bill C-51) Contributes to Effective Counter-Terrorism

This article discusses the provisions of Canada’s new Anti-Terrorism Act (also known as Bill C-51)[1] within the context of what are considered to be the components of effective anti-terrorism (defensive) and counterterrorism (offensive) measures in a Western society. Such effective components are especially crucial in democratic societies, which recognize the need for enhanced security while safeguarding their citizens’ civil liberties during a heightened period of terrorist threat, such as the current period in Canada. The article’s final part attempts to demonstrate how the provisions of C-51, had they been in place previously, could have prevented the October 2014-terrorist attacks by Martin Couture-Rouleau and Michael Zehaf-Bibeau. As well, such provisions could more effectively track the travel of Canadian extremists to conflict zones like Syria and Iraq and the return of many of them to Canada, thereby inhibiting potentially catastrophic terrorist attacks by such returnees.

Background

Several terrorist events in late October 2014 coalesced to highlight the need for the new anti-terrorism legislation when Canada experienced two significant back-to-back terrorist attacks.[2] On October 21, 2014, twenty-five year old Martin Rouleau intentionally ran his car over two soldiers in a parking lot in Quebec, killing Patrice Vincent, a 53-year-old warrant officer, and injuring the other soldier.[3] In the second incident, two days later, Michael Zehaf-Bibeau, aged 32, shot Corporal Nathan Cirillo while on ceremonial guard at a memorial in the center of Ottawa and then forced his way into the nearby Parliament building where he continued firing his weapon, shooting an officer in the leg to enter the facility.[4] In both events the perpetrators were immediately killed by the local security officers.

Although investigators found that there was no apparent link between the two attacks, Canadians felt threatened by the worrisome parallels, and timing, of the two incidents. Both attackers were Canadian citizens with troubled personal circumstances. Zehaf-Bibeau had a long history of drug abuse, criminally-linked arrests, and imprisonment.[5] Both had converted to Islam and were radicalized into becoming adherents of what is now the world’s most militant and ambitious Islamist group—the Islamic State (IS).[6]

Most worrisome is that prior to carrying out their attacks both perpetrators were known to Canadian law enforcement authorities. In fact, Rouleau was included in the list of 90 Canadian nationals considered at ‘high risk’ for possible involvement in terrorist activities; yet at the time not considered sufficiently serious to warrant tighter surveillance of his activities, surveillance that might have prevented his attack. Interestingly, in Rouleau’s case, he had sought to travel to Syria via Turkey to join IS in July 2014, but was prevented from doing so by Canadian authorities who had seized his passport at the airport because he had, met the threshold for inclusion on the ‘no-fly’ list. In a follow-up meeting on October 9, Rouleau was interviewed by the Royal Canadian Mounted Police (RCMP)—who maintained minimal surveillance of his activities—but, as later explained by RCMP Supt. Martine Fontaine, “We did not have an indication, none whatsoever, of his wanting to commit a crime here or overseas. Because if we did we would have arrested him.”[7] Similarly, while Zehaf-Bibeau reportedly had ongoing connections online with other Canadian Islamist extremists, he was considered by RCMP Commissioner Bob Paulson as having “a very developed…non-national security criminality of violence and of drugs and of mental instability,”[8] and therefore not a terror risk.

According to those in close contact with Zehaf-Bibeau, however, he did not appear to pose as a terror risk, making the discrepancy in how he appeared to people and what he actually did in his shooting rampage especially worrisome. It was reported that the day prior to his attack he was overheard by several bystanders engaging in an angry and loud discussion with an individual while waiting in a line that had formed outside the Service Ontario outlet at the Ottawa Westgate shopping mall about the justification of killing of civilians by soldiers, in which he stated that, “If soldiers bombed your family, wouldn’t you want to kill them?”[9] Angry statements, especially when directed against a stranger he did not know, should have raised warning signals that such an individual may act violently. This is especially worrisome in a period of heightened terror threats, although it appears that the bystanders who had overheard this heated diatribe did not report it to the appropriate law enforcement authorities prior to the incident, because Canada had yet to adopt the practice used in other countries of “if you see something, say something.”

The second worrisome aspect of Zehaf-Bibeau’s attack was his relative ease in entering Parliament’s Centre Block’s main door, which is controlled by a security officer to prevent access to the building.[10] In fact, many of the uniformed guards on Parliament’s grounds at the time were unarmed as part of Canada’s relatively relaxed security culture, as explained by Liberal senator Jim Munson, of attempting to avoid “becoming an ‘armed camp’ like Capitol Hill in Washington, D.C., or London’s Westminster, where guards hold machine guns.”[11] The attack has since been viewed as a wake-up call necessitating a complete overhaul of security practices on Parliament Hill.[12]

These two attacks, therefore, represent the first instances of successful terrorist attacks by homegrown extremist Islamists on Canadian soil. It also displays a significant setback to Canadian anti-terrorism measures. In Canada’s most successful counterterrorism operation, for example, Canadian authorities thwarted the ‘Toronto 18’ plot in 2006 where 18 people loosely tied to al Qaida were arrested for planning a series of coordinated attacks, including detonating truck bombs, shooting in a crowded area, taking hostages, and attacking prominent government buildings.

Recognizing the need for new anti-terrorism legislation to address the escalation in the terrorist threat following Zehaf-Bibeau’s attack, Prime Minister Stephen Harper, in a televised address, labelled the shootings a terrorist act, and stated that:

“this will lead us to strengthen our resolve and redouble our efforts and those of our national security agencies to take all necessary steps to identify and counter threats and keep Canada safe here at home, just as it will lead us to strengthen our resolve and redouble our efforts to work with our allies around the world and fight against the terrorist organizations who brutalize those in other countries with a hope.”[13]

Finally, the new anti-terrorism legislation was also intended to remediate other security vulnerabilities revealed by the attacks in October 2014 including the relatively relaxed security around Parliament to enable it to remain “accessible”[14] to the general public, and, in a major upgrade, to address such shortfalls by providing Parliament’s security forces with “the capacity to receive classified information from intelligence partners” on potential threats—a capability that was not reported to be present in October 2014.[15]

Provisions of Anti-Terrorism Act (C-51)

In response to the October 2014 terrorist attacks, the Canadian government introduced a comprehensive set of legislative measures in January 2015 to upgrade the country’s anti-terrorism (defensive) and counterterrorism (offensive) capabilities. These upgrades took the form of amendments to bills C-13 (Law Protecting Canadians From Online Crime), Bill S-4 (Digital Privacy Act), Bill C-44 (Act to Amend the Canadian Security Intelligence Act), and most important, Bill C-51(Anti-Terrorism Act).  Bill C-51s legislation, therefore, represents the first and most sweeping comprehensive reform of the country’s anti-terrorism measures since 2001 because it amended more than a dozen Canadian laws, including the Criminal Code.

Bill C-51 is:

“An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts.”[16]

It is intended to strengthen the powers and broaden the mandate of the Canadian Security Intelligence Service (CSIS), criminalize the promotion of terrorism and provide the RCMP with new powers of preventive arrest. The bill also eases the sharing of terrorism-related information about suspects between relevant federal agencies involved in anti-terrorism and criminalizes extremists’ promotion of terrorism, for instance, in social media’s extremist websites and forums.

The C-51 bill passed its third reading in the House of Commons on May 6, 2015 with a vote of 183-96. It later obtained ‘royal assent’ with its passing in the Senate on June 9, following a vote of 44-28 in favor. Bill C-51 became law on June18, 2015 when it received royal assent. This vote was necessary prior to the dissolution of Parliament in late June in preparation for the October 19, 2015 general election.

C-51 consists of five parts, which are discussed below, including reference, where relevant, to previous legislative provisions that it is intended to strengthen.

Part 1 – Information Sharing

The Bill’s Part 1 enacts the Security of Canada Information Sharing Act, which authorizes the disclosure and sharing of terrorism-related classified intelligence information “proactively or in response to a request,”[17] throughout government agencies for activities that “undermine” Canadian security. Under Bill C-51s information sharing’s new amendments, Federal agencies and departments that have “jurisdiction or responsibilities” for activities involving terrorism-related cases will be able to exchange intelligence information more easily, including terrorism-related tax information from the Canada Revenue Agency (CRA).[18]

Part 2 – Securing Air Travel

With Canada’s foreign fighter problem worsening, the Bill’s provisions enact the Secure Air Travel Act:

“in order to provide a new legislative framework for identifying and responding to persons who may engage in an act that poses a threat to transportation security or who may travel by air for the purpose of committing a terrorism offence.”[19]

Bill C-51s enactment of the Secure Air Travel Act also amends the Canadian Passport Order, which intended to establish “a more formal and speedy system”[20] for countering Canadians engaged in suspicious travel. This was done by creating a no-fly list that included mechanisms and prohibitions for suspected high-risk individuals who pose a threat to air transportation or travel abroad to commit terror offences. In such cases, it empowers transportation security authorities to “cancel, refuse or revoke” their passports without notice for up to 10 years.[21] In such a way, it broadens the government’s no-fly list powers and empowers the Canadian Security Intelligence Service (CSIS) to thwart the travel plans of suspected individuals to countries of concern—including Syria and Iraq.

In addition to revoking the passports of Canadian travelers for terror based reasons to countries of concern, this provision also revokes Canadian citizenship for dual citizens and denies it to permanent residents who are convicted of terrorism-related offenses.[22]

Part 3 – Enhanced Detention Measures and Criminalizing Terrorist Propaganda

Part 3 amends the Criminal Code relating to terrorist activity or a terrorism offence, including the promotion of terrorism.[23] The first provision of Part 3 provides a series of measures to enhance the ability of government security services to detain terror suspects. This is done by lowering the threshold required to permit such preemptive measures when an arresting officer “believes that a terrorist activity will soon be carried out but does not necessarily have more details,”[24] in order to prevent such suspects from conducting a possible attack. Judicial authorization of such detention is still required, however, “either before (peace bonds) or after the arrest (recognizances).”[25] Once detained, the period of preventative detention under such recognizance is extended from three days to a potential total of seven days, while subject to periodic judicial review.[26] Bill C-51s amendment of the Criminal Code, in such a way, is intended to make it easier for an agency like the RCMP to obtain a peace bond in order to restrict the movement of terror suspects and extend the amount of time they can be kept in preventative detention.[27]

This provision details that security services, when they deem it necessary, can withhold classified information in terror-related court cases from the specially appointed national security approved Special Advocates. These advocates are retained to represent a detained person in confidential and closed national security hearings.

The second provision of Part 3 is about preventing radicalization from turning into terrorism. The Criminal Code is substantially amended by criminalizing the expression of extremist ideas that promote terrorist acts of violence against Canadians. This amendment supersedes the previous law, which does not consider a terrorist offence as including “someone who instructs others to ‘carry out attacks on Canada’ because no specific terrorism offence is singled out.”[28] Under the new law, the penalty for individuals convicted of such an offence would be a maximum of five years in prison.[29]

The Bill also authorizes government agencies via the courts, when deemed necessary, to remove terror-related propaganda and other radicalization activities from Internet websites located in Canada.[30] Defining the parameters of terrorist propaganda must ensure that new enforcement power does “not apply to what would be considered ‘lawful’ advocacy, protest and dissent.”[31]

Part 4 – Proactive Counterterrorism

Part 4 of the Bill amends the Canadian Security Intelligence Service Act to authorize the expansion of the Canadian Security Intelligence Service’s (CSIS) mandate to operate both inside and outside of Canada (also in conjunction with Bill C-44) and to operate in a more proactive and preemptive manner as opposed to its previous role which limited it to “collecting and analyzing information and intelligence, and advising the Government of Canada.”[32] Under the new legislation CSIS is granted the ability to “disrupt terror plots, make it easier for police to limit the movements of a suspect, expand no-fly list powers, crack down on terrorist propaganda, and remove barriers to sharing security-related information.”[33] These counterterrorism measures are granted once they are authorized by the Federal Court, following reporting requirements per case for CSIS, including a follow-up review of its performance by the Security Intelligence Review Committee.[34]

Under this new expansion of its mandate, CSIS would be empowered to “take measures, at home and abroad, to disrupt threats when it had reasonable grounds to believe that there was a threat to the security of Canada.”[35] This legislation would empower authorities to thwart Canadian suspects’ terror-related travel plans, cancel bank transactions, and covertly monitor extremist websites.[36]

It is in countering the activities of Canadians suspected of involvement in terror-related overseas conflicts that the new Bill C-51 especially provides greater powers to CSIS with “more latitude to obtain a court-ordered warrant authorizing security investigations abroad.”[37] This provision, therefore, amends previous court judgments that had restricted CSIS’s powers to operate outside Canada. Specifically, it served to supersede an objection by Federal Court Justice Richard Mosley against CSIS for not requesting warrants to track two Canadians with technical help from the Communications Security Establishment, Canada’s electronic spy agency.[38] As of June 2015, the legal proceedings in this case were still ongoing, with Canada’s Supreme Court agreeing to consider the case.[39]

Part 5 – Terrorist-Related Immigration and Refugee Matters

Part 5 amends parts of the Immigration and Refugee Protection Act by defining obligations related to the government’s provision, or withholding of terrorist-related information (including classified intelligence information) used as evidence in judicial proceedings against immigrants and refugees (such as asylum seekers) suspected of terrorism involvement.[40]

Additional Anti-Terrorism Programs

In addition to the new provisions introduced by Bill C-55, the Canadian government has introduced additional programs and resources to upgrade the country’s anti-terrorism capabilities. In June 2015, as part of the Economic Action Plan 2015, the government increased the budgetary resources of the country’s intelligence and law enforcement agencies by $292.6 million over a five-year period.[41] Several related response measures were also introduced by the government. First, Canada Revenue Agency’s resources were increased by approximately $10 million over five years[42] to detect and counter the financing of terrorist groups through their supportive charities that are registered in Canada.[43] Another measure expanded biometric screening measures for all foreign travelers entering Canada on a visa in order to provide Canada Border Services (CBSA) agents the tools to verify their identity, thereby improving border security.[44]

Criticism of Anti-Terrorism Act (C-51)

While generating mostly favourable support for its anti-terrorism provisions, Bill C-51 has also received some criticism since it was introduced in January 2015. To some critics, the definition of what constitutes a national security threat is “‘vague’ and ‘broad,’ as its targets are anything that ‘undermine the national security of Canada.”[45] The Bill’s definition has also been criticized for “[going] too far [as it] risks ensnaring environmentalists and aboriginal people in the fight against terrorism.”[46]

Amnesty International, for example, has warned that the Bill’s measures could potentially “[leave] human rights behind in the name of protecting national security,” with the provisions of Part 4, for example, potentially being, “used against activists who protest without an official permit or despite a court order.”[47] As explained by Alex Neve, Secretary General of Amnesty International Canada, “It is absolutely vital that terrorist threats be addressed through measures that are in keeping with international human rights obligations.”[48]

In response, Public Safety Minister Steven Blaney, at his appearance before the Senate Committee on National Security and Defence, stated that some of these concerns would be addressed by the government. In particular, he said that “he would ensure that whenever CSIS obtains a warrant to disrupt potential terrorist activities, the agency would report on the matter to its watchdog, the Security Intelligence Review Committee.”[49] He also said “the agencies that will benefit from new powers under C-51 will complete a ‘privacy impact assessment’ to ensure that the rights of Canadians are protected.”[50] Mr. Blaney stated that the new powers granted to CSIS would only be used if there are reasonable grounds to believe a particular activity constitutes a threat to the security of Canada.[51] Finally, in answering the legislation’s critics, Prime Minister Harper explained that the bill offered “‘considerable’ oversight, and that it is a fallacy to suppose that ‘every time you protect Canadians, you take away their liberties.’”[52]

How Bill C-51 Could Have Prevented October 2014s Attacks

This section attempts to demonstrate that if the new provisions of Bill C-51 had previously been in place, they could have prevented the October 2014-type attacks by Rouleau and Zehaf-Bibeau, as well as make it much more difficult for the estimated 130 extremist Canadian individuals to travel to conflict zones such as Syria and Iraq. This includes the estimated 80 individuals who had returned to Canada which would thereby serve to prevent even worse types of future terrorist attacks in Canada by such returnees.

First, in the case of Zehaf-Bibeau, with Part 3 criminalizing the “promotion of terrorist attacks” and, “lowering the threshold for arrest,” with the police empowered to arrest those who advocate attacks on Canada (even in the most general sense), he would have been eligible for arrest for such an offence on October 22, 2014, the day of his angry outburst at the Ottawa shopping mall justifying the killing of Canadian soldiers, when he stated that, “If soldiers bombed your family, wouldn’t you want to kill them?”[53]

Second, Bill C-51s Part 1 on information sharing, which breaks down many of the previous intelligence information ‘silos’ within government agencies and departments, would have allowed authorities to more effectively and preemptively understand Zehaf-Bibeau’s ongoing online connections with other Canadian Islamist extremists. This would help authorities point to his “highly developed, national security criminality” that posed a potential terror risk to Canada and would likely have preemptived Rouleau’s attack during its formative phase.

Third, with the international jihadi movement declaring war on Canada (arising from Canada’s participation in a coalition led by the United States, and with the estimated 130 Canadian Islamist extremists traveling to Syria and Iraq to join the jihadi insurgents, new judicial mechanisms were required to contain the escalating threat. This was provided by the speedier implementation of Part 2 of Bill C-51s securing air travel provisions for placement on the ‘no-fly’ list and Part 1 of Bill C-51s call for seamless intelligence information sharing, thereby making it easier to preemptively detect and prevent suspect individuals from travelling to such overseas conflict zones. Moreover, with CSIS granted counterterrorism powers to operate overseas, tracking the activities of Canadian extremists in such conflict zones is easier and increases the likelihood that they will be arrested at border crossings if they decide to return to Canada.

Finally, provision of Part 4 of Bill C-51 entails a more proactive counterterrorism capability. It enables CSIS  to devote greater resources than previously, as well as making it easier and quicker to obtain judicially warranted surveillance authorization, to track and prioritize the threats posed by a larger pool of ‘at terrorism-risk’ individuals, whether domestically or overseas.

In conclusion, the substantial toughening of Canada’s anti- and counter-terrorism laws produced by Bill C-51 legislation, as well as the budgetary increases to provide for the greater resources required to address the terrorist threats, will likely strengthen the country’s capability to more effectively protect itself in the near- and mid-terms. As a vibrant democracy, the Canadian government recognizes that such tough measures must still be balanced to preserve its citizens’ civil liberties in the pursuit of greater security.