Prime Minister Stephen Harper today announced that the Government has introduced legislation to protect Canadians from the evolving threat of terrorism and keep our communities safe. The Prime Minister made the announcement at Richmond Hill’s Bayview Hill Community Centre. He was joined by Peter MacKay, Minister of Justice and Attorney General of Canada, Steven Blaney, Minister of Public Safety and Emergency Preparedness, and Julian Fantino, Associate Minister of National Defence.
The world is a dangerous place and, as most brutally demonstrated by last October’s attacks in Ottawa and Saint-Jean-sur-Richelieu, Canada is not immune to the threat of terrorism. The proposed legislation will provide Canadian law enforcement and national security agencies with additional tools and flexibility to keep pace with evolving threats and better protect Canadians here at home.
In line with measures taken by our allies, the Government is taking additional action to ensure our law enforcement and national security agencies can: counter those who advocate terrorism; prevent terrorist travel and the efforts of those who seek to use Canada as a recruiting ground; and disrupt planned attacks on Canadian soil.
The proposed legislation includes checks and balances to ensure it respects the rights of Canadians and complements other legislation passed by our Government in order to better protect Canadians and secure institutions, including the Combating Terrorism Act and the Strengthening Canadian Citizenship Act.
- The proposed legislation includes a comprehensive package of measures that will:
- criminalize the advocacy or promotion of terrorism offences in general;
- counter terrorist recruitment by giving our courts the authority to order the removal of terrorist propaganda online;
- enhance the Canadian Security Intelligence Service (CSIS)’s powers to address threats to the security of Canada while ensuring that courts maintain oversight;
- provide law enforcement agencies with enhanced ability to disrupt terrorism offences and terrorist activity;
- enhance the Passenger Protect Program by further mitigating threats to transportation security and preventing travel by air for the purpose of engaging in terrorism;
- make it easier for law enforcement agencies to detain suspected terrorists before they can harm Canadians and to toughen penalties for violating court ordered conditions on terrorist suspects;
- enable the effective and responsible sharing of relevant national security information across federal departments and agencies to better identify and address threats;
- ensure that national security agencies are better able to protect and use classified information when denying entry and status to non-citizens who pose a threat to Canada; and,
- provide witnesses and other participants in national security proceedings and prosecutions with additional protection.
- Although not part of this proposed legislation, we are also working with communities to prevent radicalization and intervene when individuals show signs of becoming radicalized.
“Our Government is serious about taking action to keep Canadians safe. Recent attacks in Canada, which led to the deaths of Corporal Nathan Cirillo and Warrant Officer Patrice Vincent, as well as attacks in France and Australia, are reminders that the world is a dangerous place and that Canada is not immune to the threat of terrorism. Recent terrorist actions in Canada are not only an attack on our country, but also our values and our society as a whole.” – Prime Minister Stephen Harper
“Our Government understands that extreme jihadists have declared war on us, on all free people, and on Canada specifically. Our Government will continue to protect the rights and safety of all Canadians. We will not, however, privilege the so-called rights of terrorists and others who would harm Canadians over the rights of law-abiding citizens. The proposed legislation would provide our security and law enforcement agencies with the required tools and flexibility they need to effectively detect and disrupt national security threats before they happen, keeping Canadians safe.” – Prime Minister Stephen Harper
on Criminalizing the Advocacy or Promotion of Terrorism Offences in General
on the Security of Canada Information Sharing Act
on the Canadian Security Intelligence Service Act and Prevention Activity
on Division 9 of the Immigration and Refugee Protection Act
Amending the Canadian Security Intelligence Service Act to give CSIS the mandate to intervene to disrupt terror plots while they are in the planning stages
Our Government is working to disrupt acts of terrorism before they come to pass. This Bill proposes to give CSIS a new mandate to intervene in order to disrupt threats to the security of Canada. Currently, CSIS does not have a legal mandate to take action concerning threats. Instead, CSIS is limited to collecting and analyzing information and intelligence, and advising the Government of Canada. For instance, when CSIS conducts an interview as part of an investigation, the sole purpose of the interview must be to collect information, not to dissuade the subject from actions that threaten the security of Canadians.
With its new mandate, CSIS could 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. Threats to the security of Canada are defined in the CSIS Act, and include espionage, sabotage, foreign influenced activities, terrorism and domestic subversion (activities against the constitutionally established system of government in Canada).
CSIS could only take reasonable and proportional measures to disrupt threats. To do this, CSIS would consider the nature of the threat, the nature of the proposed measures and the reasonable availability of other means to disrupt the threat.
Intelligence services in most of Canada’s close democratic allies have had similar mandates and powers for many years.
A number of stringent safeguards would govern the new mandate:
- CSIS would be required to have “reasonable grounds to believe” that an activity was a threat to the security of Canada before it could take measures to disrupt the threat. This is more stringent than the “reasonable grounds to suspect” currently required to launch an investigation under CSIS’s existing intelligence collection mandate;
- CSIS would need a court warrant whenever proposed threat disruption measures contravene Charter rights or would otherwise be contrary to Canadian law. This is similar to the current intelligence collection warrant system, where CSIS must have a warrant before using intelligence collection techniques that engage a person’s privacy rights. CSIS would have to satisfy a judge that a warrant was required to enable it to intervene to address a threat to the security of Canada, and that the measures proposed were reasonable and proportional in the circumstances;
- Threat disruption warrants would be limited to a maximum of 120 days, with the possibility of limited renewal if the judge believes there are grounds to do so. This is in contrast to the existing system of intelligence collection warrants, which can last up to one year;
- CSIS would have to fulfill new reporting requirements to ensure that the Minister of Public Safety and Emergency Preparedness was appropriately informed of CSIS’ activities under its threat disruption mandate; and
- The Security Intelligence Review Committee (SIRC) would annually examine the performance of CSIS in its threat disruption mandate. SIRC would then summarize its findings in its annual report to the Minister, which is later laid before Parliament. SIRC would also report statistics on CSIS threat disruption warrants.
The Bill would also authorize judges to make assistance orders. These orders would require a person or organization to assist CSIS in carrying out its warranted authorities when the judge felt that the assistance was reasonably necessary. Assistance orders could apply to both intelligence collection and threat disruption warrants.
The Criminal Code currently authorizes judges to make assistance orders in relation to certain types of law enforcement warrants. This Bill would create a similar power for CSIS warrants.
Criminalizing the Advocacy or Promotion of Terrorism Offences in General
Under the current criminal law, it is a crime to counsel or actively encourage others to commit a specific terrorism offence. However, the current law would not necessarily apply to someone who instructs others to “carry out attacks on Canada” because no specific terrorism offence is singled out.
The proposed legislation would help stop those who promote terrorism by creating a new Criminal Code offence that would criminalize the promotion of terrorism, including attacks on Canadians.
The proposed offence would fill a current gap in Canadian criminal law by making it a crime for a person to knowingly promote or advocate others to carry out a terrorism offence.
The penalty for the new offence would be a maximum of five years in prison. This penalty is comparable to the maximum sentence for the offence of advocating or promoting genocide against an identifiable group, which is the most serious of the three hate propaganda offences in the Criminal Code.
The proposed offence prohibits the intentional advocacy or promotion of terrorism, knowing or reckless as to whether it would result in terrorism. It is defined to safeguard the constitutionally protected right of freedom of expression.
The proposed new offence is similar to one recently enacted by Australia, that prohibits advocating a terrorist act or the commission of a terrorism offence—all while being reckless as to whether another person will engage in this kind of activity. In Australia’s law, “advocacy” includes the promotion of terrorist activity. The maximum punishment is five years imprisonment.
Strengthening Prevention Powers
Giving law enforcement agencies the tools they need to do their job and prevent attacks is imperative to ensuring the safety and security of all Canadians against the increasingly complex threat of terrorism.
The proposed amendments would enhance the ability of law enforcement agencies to detain suspected terrorists before they can harm Canadians through changes to the Criminal Code’s recognizance with conditions and peace bond provisions, while still requiring judicial authorization of the detention either before (peace bonds) or after the arrest (recognizances).
The amendments would also toughen penalties for violating court ordered conditions on terrorist suspects.
The purpose of the recognizance with conditions measure is to address a situation where a police officer believes that a terrorist activity will soon be carried out but does not necessarily have more details. The tool is flexible enough to be used on individuals who may in some way be connected to carrying out terrorist activity.
The purpose of a terrorism peace bond is to prevent or disrupt a specific individual from committing a terrorism offence.
The proposed amendments would:
- Lower the threshold to obtain a recognizance with conditions in circumstances where a peace officer believes on reasonable grounds that a terrorism activity “may be carried out” instead of the current law that requires that a peace officer must believe that a terrorism offence “will be carried out”, and replaces the additional current requirement that a recognizance is “necessary to prevent” with “is likely to prevent” the carrying out of a terrorist activity;
- Increase the period of preventative detention under a recognizance from 3 days to a possible total of up to 7 days, with periodic judicial review;
- Create a stand-alone terrorism peace bond provision for situations where a person believes an individual “may commit” a terrorism offence, instead of the current “will commit” a terrorism offence requirement. It would include surrendering their passport and extending the duration of the peace bond from 2 years to 5 years for those previously convicted of terrorism offences. Currently the terrorism peace bond is co-located in the Criminal Code with the organized crime peace bond;
- Require judges to consider imposing certain conditions on the person, such as to surrender their passport or not leave the jurisdiction. Judges may also consider imposing conditions such as reporting requirements or electronic monitoring;
- Increase the maximum penalty for breaches of these court-ordered conditions from 2 to 4 years imprisonment;
- Improve the efficiency and effectiveness of peace bonds and recognizance with conditions across Canada by allowing for the use of video-conferencing when necessary and for inter-provincial transfer of existing peace bonds.
The proposed amendments would facilitate the use of these provisions, including making them easier to obtain through the courts and therefore more effective in preventing terrorism.
To ensure appropriate oversight, Attorney General consent would continue to be required for the use of the recognizance with conditions and peace bond powers. Recognizance with conditions would also continue to be subject to annual Ministerial reporting to Parliament on their use.
The proposed measures are needed to ensure public safety, and are consistent with counter-terrorism laws in other countries. The United Kingdom and Australia for example, also have preventative powers including the ability to impose conditions and to detain—although their approaches may vary (e.g., the maximum period of detention is 14 days in the United Kingdom).
Division 9 of the Immigration and Refugee Protection Act
Division 9 of the Immigration and Refugee Protection Act allows the Government to use and protect classified information in immigration proceedings to determine whether non-citizens can enter or remain in Canada. Some of these proceedings, such as security certificates, are used in cases related to national security matters, including terrorism and espionage. The information cannot be disclosed publicly because doing so would injure national security (for example, by revealing investigation techniques) or would endanger the safety of a person (for example, by putting a witness’ life in danger).
The use of Division 9 proceedings is rare. For instance, since 1991, only 27 individuals have been subject to a security certificate proceeding.
The Bill would allow the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration to appeal or have the Court review orders for public disclosure during Division 9 proceedings. Currently, an appeal or judicial review may be available only at the end of a proceeding. Even if the Minister sought and won an appeal at the end of the proceeding, it could be too late, as the information could have been disclosed publicly and the injury to national security may have already occurred, or a person’s safety may have already been endangered. While the Minister could seek to withdraw this information from the case to mitigate the risk of injury, this may not be possible or doing so could weaken the case.
The new appeal and judicial review would, therefore, offer another opportunity for the Government to ask the Court to protect this information.
The Government’s experiences with recent Division 9 cases have shown that there are times when classified information was made part of the case even when it was not useful to the Government or to the non-citizen subject to the proceedings. Some judges have commented on the inclusion of such information in past proceedings, when this meant that cases could not proceed as expeditiously as possible.
In order to ensure expeditious proceedings, the Bill outlines what information would form part of security certificates before the Federal Court and cases involving applications for non-disclosure before the Immigration and Refugee Board. This would include information:
- that is relevant to the case,
- on which the case is based, and
- that allows the person to be reasonably informed of the case.
The Bill would also create an exception to the provision of information to special advocates. The Ministers could ask the Court to be exempted from providing some classified information to the special advocate, but the judge would only grant this exemption if he was satisfied that the information would not enable the person to be reasonably informed of the Minister’s case. In making a decision on the exemption, the judge could consult the special advocates as need be. This new exemption aims to provide another protection for classified information, while establishing a fair process that is subject to judicial discretion.
Overall, these amendments will ensure that Division 9 proceedings continue to be fair, while offering more robust protections for classified information. It is expected that Division 9 proceedings will continue to be rarely used.