Civil Liberties in the Age of Terror: Canada’s Anti-Terrorism Act

Saad Omar Khan

The international jihadist movement has declared war on Canada. We are being targeted because jihadi terrorists hate our society and the values it represents. Jihadi terrorism is not a human right; it is an act of war.

The Conservative Party uses the above quote to introduce Bill C-51 (otherwise known as the ‘Anti-Terrorism Act’) on their website, a clear and unambiguous statement on the danger Canada faces from the international jihadist movement. This statement on Bill C-51 accepts as a truism that Canada is not merely facing a criminal threat: we are in a state of war in its most literal sense, and Canadians must accept the realities and sacrifices that any war will bring.

These sacrifices invariably include granting greater power to federal authorities to fight terrorism. If Bill C-51 is passed, the Canadian Security Intelligence Service (CSIS) would see its authority broadened to include considerable “powers to disrupt” any terrorist activity. And the legislation’s scope extends beyond committing specific acts of violence: advocating or encouraging terrorism would also be prohibited under a stipulation that would criminalize terrorist promotion “knowing or reckless as to whether [that advocacy] would result in terrorism” while still ensuring “the constitutionally protected right of freedom of expression.

Repellent as supporting terrorist acts may be, having a policy explicitly criminalizing speech is fundamentally vulnerable to abuse. For example, “promoting terrorism” has been used as an excuse to detain journalists working in Egypt, where new legislation has also made illegal any speech that “directly or indirectly promote acts of terror” online. It would be easy to point to Canada’s relatively stronger traditions of liberal democracy as a means of pushing aside any criticism of Bill C-51’s potential for creating a chilling effect on free speech — yet what makes Bill C-51 so problematic is how its language mirrors the vagueness inherent in foreign legislation around the world (including other Western countries such as France). As the post-9/11 age of terror has coincided with the digital age, governments are increasingly scrutinizing online speech for supporters of terrorism and voices of dissent, without much differentiation between the two.

Threats to free speech aside, critics of Bill C-51 point also to the considerable power it would give to law enforcement to add individuals to “no-fly lists” and to detain individuals they feel “may commit” acts of terrorism. The threshold for detention is remarkably low: law enforcement agencies would not be required to prove that a suspect will commit an act of terrorism, only that there is a possibility that an act is being planned.

Currently, law enforcement must prove that the detention of a suspect is an absolute necessity. Under Bill C-51, agencies could hold suspects without warrants if detaining them is “likely to prevent” the commission of a terrorist act. The legislation therefore softens judicial language by allowing detention based on a vague likelihood that terrorism may be committed, as opposed to a certainty that those suspects will indeed commit a criminal act. This has alarmed legal scholars, none the least because of the expanded definition of what constitutes a security threat. Under Bill C-51, security is not only defined in terms of physical safety; acts against Canada’s “economic or financial” stability are also considered threats. For some civil libertarians, this expanded notion of “national security” has the potential to widen the scope of the bill to label a range of activist causes as dangerous to public safety.

Despite protests from the general public (including a recent nationwide “Day of Action”) and considerable opposition from legal scholars and intellectuals, Bill C-51 does not suffer from a lack of public approval. According to a recent Angus Reid survey, 82 per cent of Canadians support the bill. Even with acknowledging that polls may be unreliable or phrased in a way that may overestimate support, it is not inconceivable to assume that a great deal of the general public would back the bill given the contemporary climate of wariness – if not outright fear – of terrorism in Canada. The spectacle of violence displayed by ISIS on social media, widely publicized attacks on civilians by Boko Haram, and the killings of cartoonists in Paris have coincided with attacks in Ottawa and Montreal by Canadian “fellow travellers” supporting jihadist aims. It is difficult to raise a civil libertarian argument against Bill C-51 in this context, especially as the spectre of terror continues to linger with Canadians as al-Shabab militants in Somalia recently called for attacks on Canadian soil (similar to the Westgate mall attack in Nairobi).

Without adequate scrutiny, Bill C-51 could certainly prove to be a dangerous piece of legislation – like a pistol with no safety latch, there is no built in mechanism to prevent its misuse. With even former CSIS officials warning against the inevitability of future abuse, litigation, and government embarrassment, and with former prime ministers urging for the creation of an oversight agency to monitor CSIS activities, the Conservative government’s impatient push for legislative approval of Bill C-51 seems to be ongoing without consideration to any reputational or legal risks.

“Jihadist terrorism” may not be a human right. Our political integrity suffers, however, when we act as if our security regime needs safeguarding from monitoring. We should be more concerned that our democracy needs better protection from those authorities mandated to guard Canada’s society and its values.

Saad Omar Khan is a 2016 Master of Public Policy candidate at the School of Public Policy and Governance. He holds a Bachelor degree in Peace and Conflict Studies and Psychology from the University of Toronto, and a Master degree in the History of International Relations from the London School of Economics. Saad has worked in the non-profit, financial, and academic sectors. His policy interests include international relations, human rights, immigration, and cultural policy.

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2 responses to “Civil Liberties in the Age of Terror: Canada’s Anti-Terrorism Act

  1. Pingback: “This threat that we face”: the Senate’s report on terrorism | The Public Policy & Governance Review·

  2. Pingback: The Paris Attacks and the New Paradigm of Terrorism | The Public Policy & Governance Review·

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