Tackling the Government Green Paper on National Security: Part 1

September 19, 2016
This is our first in a series of responses to the federal government’s Green Paper on Canada’s current national security framework. The Green Paper generally argues in favour of the current national security framework and defends the changes made by Bill C-51. In these brief posts, CCLA will provide context for the discussion and dig deeper into the key issues raised in the consultation. We will discuss why there is no incompatibility between a strong commitment to national security and a strong commitment to our Charter rights and freedoms, and explain the concerns we raise in our Charter Challenge to the Anti-terrorism Act, 2015In the end, we hope this information helps you decide what position you would like to take on national security reform. 
This week, we focus on one of the criminal offences at issue in CCLA’s constitutional challenge to the Anti-Terrorism Act, 2015 (the “ATA, 2015”), commonly known as Bill C-51: the speech related offence of advocating or promoting terrorism offences in general.
Make your voice heard!  The first online National Security Consultation  is over, but we now have a new national security bill before Parliament, Bill C-59.  There will likely be consultation activities, yet to be announced, in the fall of 2017. CCLA has a C-59 campaign and will to be active in any and all consultations. See our detailed submission in response to the Green Paper here! 

Criminalizing the Advocacy or Promotion of Terrorism Offences in General

The ATA, 2015 introduced a new offence to the Criminal Code: knowingly advocating or promoting the commission of terrorism offences in general. The new offence requires that the person’s speech is made with the knowledge that a terrorism offence will result or with recklessness as to whether any terrorism offence may result. It carries a penalty of imprisonment for up to five years.

Does this offence violate my Charter rights and freedoms?

Yes, the new offence is an unjustifiable limit on the Charter’s guarantee of freedom of expression.

In a democratic society committed to freedom of expression, speech crimes demand careful scrutiny. The new speech crime did not receive such scrutiny when passed and cannot come close to meeting such scrutiny. The offence places unconstitutional limits on freedom of expression because the prohibited speech – private or public statements concerning “terrorism offences in general” – is exceptionally broad in scope and is too vague to be a definable category of speech.

“Terrorism offences in general” are never defined in the Criminal Code. The use of a vague and undefined term to describe a new category of criminal speech suggests that the provision is intended to apply broadly. At minimum, the offence prohibits private and public speech advocating or promoting any of the several terrorism offences in the Criminal Code, some of which are non-violent offences, as well as speech advocating or promoting indictable criminal offences committed for the sake of or in association with terrorist groups. For instance, under the new provision, speech that promotes tax fraud benefiting a terrorist group can be a terrorist offence.

In spite of the sweeping scope of the new speech crime, it has no exceptions or defences to guard against overreach. An individual that commits the new speech crime while acting in good faith, or while providing public commentary, is still guilty of a terrorist offence. In Australia, the country with a provision most akin to Canada’s, and a country without a constitutional document like the Charter of Rights and Freedoms, both activities are explicitly exempted from criminal sanction.

The potential effects of this new and sweeping speech crime are hard to overstate. The new speech crime will lead to an almost limitless guessing game by individuals and courts as to whether an individual’s speech is promoting terrorist offences “in general”, which will compel some individuals to limit their speech on controversial issues. Although this attempt to chill dangerous speech may assist law enforcement in criminalizing the behaviour of individuals who they see as legitimate threats to national security, it is likely to cause more national security problems than it solves. For instance, the new offence will frustrate the detection of threats by driving controversial speech and controversial speakers underground. By making it more difficult to engage in controversial speech, the new offence will also chill efforts to engage radical elements in our communities and community efforts to de-radicalize extremist views.

Consider a scenario where the new provision could be used . . .

In its Green Paper, the Government presents several scenarios in which the new terrorism provisions may assist national security authorities in addressing a national security threat. These scenarios highlight the challenges faced by national security authorities, but they often fail to capture the problematic elements of the new provisions, including the challenges they pose to individuals attempting to exercise their Charter rights and freedoms. To illustrate this problem, it is worth considering an alternative scenario where the provision might criminalize or silence healthy democratic speech:

Ms. A is an immigrant to Canada. Ms. A fled her country of birth because she believed that her ethnic and religious community, which is a minority in her native country, was suffering state persecution. In Canada, Ms. A runs a popular website that provides historical and political commentary on her native country. The website includes forums for discussion.

Ms. A is a leading voice for a separatist movement in her native country. The movement seeks a peaceful transition to a new state in which Ms. A’s ethnic and religious community would be the majority population. However, Ms. A’s historical and political commentary also documents a rival separatist movement that has sought separation through violence. Canada has listed this violent separatist movement as a terrorist group.  Although Ms. A does not support violence as a means to separation, her historical commentary argues that violence has sometimes advanced the aims of her ethnic and religious community. Ms. A’s commentary is sometimes publicly and favourably cited by supporters of the listed terrorist group. Others denounce her as a traitor to the cause.  Members of her website’s forums often debate the merits of the various separatist movements but there is no indication that the forums are being used to facilitate and organize terrorist attacks or to otherwise facilitate terrorist activity.

After reading about the new terrorism offence criminalizing the advocacy or promotion of terrorism offences in a newspaper article, Ms. A worries that her website might be a criminal offence. She decides to close the site.

Given the ambiguity in the law, Ms. A’s decision to close her site is not an unreasonable one.  However, the decision has several unfavourable consequences, both for Ms. A’s Charter-protected right to freely express herself, and for our capacity to meaningfully address national security threats. Ms. A loses a right to speak on a controversial topic; the public loses an important voice on the need for non-violence; extremist views are no longer out in the open and easy to confront; and extremist views are no longer in dialogue with a sympathetic but countervailing viewpoint.

Is this new provision necessary?

The government Green Paper has argued that the new offence was required to cover the criminal counselling of terrorism offences when counselling is not specific as regards the offence or type of offence.

This is not a credible justification for the new offence. The terrorism offences in the Criminal Code do not require specificity regarding the offence or even type of offence to lead to a conviction.  For instance, the Criminal Code has made it a criminal offence to knowingly instruct others to carry out terrorist activity, or to knowingly instruct, directly or indirectly, any person to carry out any activities for a terrorist group for the purpose of enhancing a terrorist group’s ability to facilitate or carry out a terrorist activity. Under this provision, an individual who gives instructions to carry out a terrorist attack can be guilty of a terrorist offence even if the individual fails to state the exact location of the attack or the weapon to be used.

The Criminal Code contains several offences that address terrorism in a variety of different forms, including financing offences, participating offences, facilitating offences, instructing offences, and harbouring offences. These specific terrorist offences in the Criminal Code simply do not require clarification or a separate offence to extend to terrorist offences that do not specify the exact manner or nature of the offence. Accordingly, Canadians should take this opportunity to demand the repeal of the sweeping and vague offence of advocacy or promotion of terrorist offences in general in order to better address threats to national security and to prevent unconstitutional violations of freedom of expression.

Other posts in this series