Category: Terrorism and Security Page 2 of 4

National Security, Bill C-59, and CSIS’s Continuing Power to Act Disruptively in Violation of the Charter

On June 23, 2017

By: Michael Nesbitt

PDF Version: National Security, Bill C-59, and CSIS’s Continuing Power to Act Disruptively in Violation of the Charter

Legislation Commented On: Bill C-59, An Act Respecting National Security Matters, 2017; Anti-terrorism Act, 2015, SC 2015, c 20

Government Report Commented On: Protecting Canadians and their Rights: A New Road Map for Canada’s National Security, SECU Committee Report, May 2017, 42^ndParliament, 1^st Session.

Introduction/Overview of Bill C-59 & CSIS’s Disruptive Powers

On Tuesday, June 21, 2017, right before Parliament rose for the summer break, the Liberal government released its long-awaited national security legislative update, marketed in part as a response to the Conservative government’s controversial Anti-terrorism Act (2015), known as Bill C-51. The Liberal government’s response came in the form of Bill C-59 and not only did it address many—though not all—of the perceived issues with Bill C-51, it went much farther afield. In general, we are all better off for that.

I will provide more detailed thoughts on Bill C-59 as a whole in short order, after I collect my thoughts. But first I want to address one issue that I see as potentially very controversial and—if Twitter can be trusted, an admittedly dubious proposition—that remains one of the least understood elements of the new (and old) anti-terror legislation: CSIS’s powers under both Bills to act disruptively (physically) to counter threats, including taking actions in breach of the Charter or of other Canadian laws.

Impending National Security Legislation: A “New Road Map” to Update Canada’s National Security Framework

By Michael Nesbitt

On June 19, 2017

In Terrorism and Security

By: Michael Nesbitt

PDF Version: Impending National Security Legislation: A “New Road Map” to Update Canada’s National Security Framework

Legislation Commented On: Anti-terrorism Act, 2015, SC 2015, c 20

Government Report Commented On: Protecting Canadians and their Rights: A New Road Map for Canada’s National Security, SECU Committee Report, May 2017, 42^nd Parliament, 1^st Session

Introduction/Overview

At some point soon, possibly as early as Tuesday, June 20^th, the government will table legislation that would make significant changes to Canada’s national security framework. It will do so, at least in part, to fulfill the Liberal Government’s election promise to respond to the Anti-terrorism Act, 2015, commonly known as Bill C-51.

What the government might do or how broad the legislation might be is unknown at this point, though signs point to it being a fairly hefty legislative package. It’s also unknown whether the various issues that have been floated regarding amendments to Canada’s national security framework will be legislated in one fell swoop, or whether a larger Act will be followed by further amendments as they are studied over the months and years to come.

Right now, the government would seem to have two recent sources—two Liberal government-led studies—upon which it might base all or some of its legislative proposals. (There is a third document, but it is highly focused and deals only with one—albeit highly controversial—aspect of Bill C-51, that being information sharing within the government. See the Security of Canada Information Sharing Act, SC 2015, c 20, s 2. Admittedly this is a topic upon which pending government legislation will have something to say, but this post will reserve comment until that day comes.)

Anti-Terrorism Law Reform: Required Changes to the Terrorism Financing Provisions

By Hayleigh Cudmore

On December 20, 2016

In Constitutional, Criminal, Terrorism and Security

By: Hayleigh Cudmore, Elliot Holzman, Andrea Mannell, and Sarah Miller

PDF Version: Anti-Terrorism Law Reform: Required Changes to the Terrorism Financing Provisions

Provisions Commented on: Sections 83.02, 83.03 and 83.04, Criminal Code, RSC 1985, c C-46

Editor’s Note: This is the third in a series of three posts on Reviewing Canada’s National Security Framework.

This law reform proposal is focused on the “Financing of Terrorism” provisions in the Criminal Code of Canada, RSC 1985, c C-46. The government is currently engaged in public consultations and substantive review of the controversial aspects of Bill C-51, the Anti-terrorism Act, 2015. The purpose of this post is to consider the structural problems within the Criminal Code and the current anti-terrorism financing regime, discuss the apparent shortcomings in bringing prosecutions under this regime and provide recommendations to improve the efficacy of these provisions.

The particular provisions of the Criminal Code which prohibit terrorism financing – sections 83.02, 83.03 and 83.04 – were neither enacted nor varied by Bill C-51. These provisions came into force as part of the Anti-terrorism Act, SC 2001, c 41, in response to the terrorist attacks of September 11, 2001 and the following UN Resolution 1373 on the financing of terrorist acts. Despite the fact that the provisions are not anchored to Bill C-51, it is still a good opportunity to revisit these provisions and restructure this part of the Code.

Acting Out of Order: The Need for Real Time Oversight of CSIS Judicial Warrants

By Navreet Bal

On December 19, 2016

In Constitutional, Criminal, Terrorism and Security

By: Navreet Bal, Tim Horon, Tiana Knight, Ryan Shudra, and Jessie Sunner

PDF Version: Acting Out of Order: The Need for Real Time Oversight of CSIS Judicial Warrants

Provisions Commented On: Sections 12 to 12.2 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23

Editor’s Note: This is the second in a series of three posts on Reviewing Canada’s National Security Framework.

A recent Federal Court ruling, which has been referred to in the media as the “Metadata Case”, has renewed questions about the secrecy of judicial warrants granted to the Canadian Security Intelligence Service (CSIS) as well as CSIS’s duty of candour to the Court (see In the Matter of an Application by [REDACTED] for Warrants Pursuant to Sections 12 and 21 of the Canadian Security Intelligence Act, RSC 1985, c C-23 and In the Presence of the Attorney General and Amici and In the Matter of [REDACTED] Threat-Related Activities,(2016) FC 1105). This post will discuss the specific difference between review and oversight in Canadian national security law, provide an overview of recent Federal Court decisions related to CSIS judicial warrants, and look to future options related to CSIS judicial warrants.

In this post, we suggest that a robust system of real-time operational oversight is needed throughout Canada’s national security agencies, including CSIS, in order to improve the coordination and effectiveness of these agencies and to ensure the protection of citizens’ civil liberties. Particularly, we will be focusing on the oversight needed in the CSIS judicial warrant architecture. We propose the return of the Office of the Inspector General – which was eliminated in 2012 – that would act as an active, expert, and full-time oversight body over CSIS and handle real time oversight of judicial warrants. We also suggest the introduction of a special advocate regime within the judicial warrant process to act for the targets of CSIS warrants.

Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code

By Kiran Fatima

On December 15, 2016

In Constitutional, Criminal, Terrorism and Security

By: Kiran Fatima, Meagan Potier, Jordan Szoo and Stephen Armstrong

PDF Version: Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code

Provision Commented On: Section 83.221 of the Criminal Code, RSC 1985, c C-46

Bill C-51, the Anti-terrorism Act, 2015, sailed through Parliament and received Royal Assent on the 18th of June, 2015, amidst much political debate. One of the more controversial provisions was a new advocating terrorism offence contained in what is now s 83.221 of the Criminal Code, RSC 1985, c C-46. The provision criminalizes knowingly advocating the commission of terrorism offences in general and being reckless as to whether such offences are actually carried out. This post will address the political dynamics and constitutional issues with respect to the new advocating offence and make suggestions for how the Government of Canada should move forward.

Interestingly, our group was divided on the best approach to addressing the issues with respect to the provision. Meagan and Jordan were in favour of repeal, whereas Stephen and Kiran favoured amending the provision. We present the case for both repeal and amendment below and leave it to the reader to reach their own conclusions.