The Canadian Terrorist Attacks and Canadian Counter-Terrorism Law

Care should be taken to avoid the tendency for legislative quick fixes in the wake of these shocking and tragic events, says Kent Roach.
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October 27, 2014
Royal Canadian Mounted Police (RCMP) officers stand guard at the base of the Peace Tower on Parliament Hill in Ottawa. REUTERS
Professor of Law at the University of Toronto

The Canadian Terrorist Attacks and Canadian Counter-Terrorism Law” by Kent Roach, originally published on JustSecurity.org on October 23, 2014.

Canada has been rocked by a series of home grown and apparently lone wolf terrorist attacks in the last few days. The attacks have left two brave members of the Canadian Forces dead.  One was run down by car in Montreal Oct. 20 and the second was shot at a war memorial next to Parliament in Ottawa on Oct. 22. The perpetrators in both cases were shot dead by the police.

Before these events are ascribed to a shortcoming in Canadian counter-terrorism care should be taken by both Canadians and their allies in order to avoid the tendency for legislative quick fixes in the wake of these shocking and tragic events.

The second and more spectacular attack involved Michael Zehaf-Bibeau, a person with past criminal convictions relating to drugs and uttering threats. Zehaf-Bibeau was shot dead by the Sergeant in Arms in the middle of Canada’s Parliament building after he shot and killed a soldier at Canada’s war memorial. It is not yet known if ideology played a role in this more recent crime. Zehaf-Bibeau had a prior criminal record and some have suggested that mental illness might be a factor.

The first incident while less dramatic, is more troubling from a legal perspective. This is because legal mechanisms aimed at thwarting such attacks are already in place.

In July 2014, Canadian security officials arrested and then released the 25-year old Muslim convert suspected as the culprit in this week’s first attack, Martin Couture-Rouleau. He was arrested as a potential terrorist foreign fighter and saw his passport suspended. However, officials determined at the time that there was insufficient evidence to charge him under four new offenses added to Canada’s Criminal Code that make it illegal to leave Canada with the intent to participate in a terrorist organization, instruct, facilitate, or commit terrorist activities abroad.

These are broad and powerful offenses that suggest Canada was ahead of the curve with respect to the focus on foreign terrorist fighters in UN Security Council Resolution 2187. Still, the failure to charge and prosecute Couture-Rouleau is an important reminder of the difficulties of gathering evidence that satisfies high criminal standards of proof. We clearly need to know more about why the evidence was sufficient to suspend his passport but not to prosecute him under these broad new laws.

Couture-Rouleau was one of 90 people in Canada reported to have been radicalized, and Canadian security officials were monitoring him. The suspension of his passport re-affirms the need for western democracies to think creatively about how to control those like Couture-Rouleau who are apparently sympathetic to the aims of the Islamic State. There is a need to balance due process with the need for security.

In these debates, it should not be forgotten that Canada has legal provisions that allow preventive arrests and peace bonds to be imposed on suspected terrorists. These provisions are infrequently used, and in many cases, a terrorist prosecution where the accused face reverse-onuses to be released on bail would be preferable. Bail in Canada can be denied on both public safety and public confidence grounds.

Simply put, the issue appears to be the enforcement of the criminal law rather than the need for more criminal law.

The government has also indicated its intent to respond to Security Council 2178 with new legislation that would amend Canada’s 1984 legislation establishing the Canadian Security Intelligence Service (CSIS); a law that has not been substantively reformed since its enactment.

The proposed amendments would reverse the Supreme Court of Canada’s recent decision that police informer privilege should not be extended to the human sources of Canada’s civilian intelligence agency.

The effects of such an amendment are debatable. On the one hand, it would give CSIS a greater ability to protect the identity of informers and this could assist in receiving more intelligence about potential terrorists. At the same time, it will likely hinder criminal investigations.

The 2010 Commission of Inquiry into the Bombing of Air India Flight 182 did not recommend the creation of a new privilege because of its concerns that CSIS had made the criminal prosecutions related to the 1985 bombings that killed 331 people more difficult.

The commission also identified continued difficulties of co-operation between the police and CSIS that stemmed from their different mandates and the reluctance of intelligence agencies to expose their sources and methods to possible disclosure in a criminal prosecution. With this in mind, the best way to investigate and punish those who use violence remains the criminal law.

Privacy Concerns

The bill will also purportedly authorize judges to grant warrants that will make clear that CSIS can conduct electronic surveillance outside of Canada and in co-operation with the “Five Eyes” community of signals intelligence agencies in the Australia, Canada, New Zealand, the United Kingdom and the United States.

This would reverse a decision, that the government of Canada is already appealing, where a judge with much national security experience severely criticized CSIS for using Five Eyes assistance without specific legislative or judicial authorization.

The effects of this amendment are also debatable. On the one hand, it can be argued that legislative and judicial authorization is preferable than simply relying on secret practice. On the other hand, there are concerns that sharing intelligence with other nations may result in abuses, as it did with respect to Maher Arar.

If Zehalf-Bibeau turns out to have similar motivations as Couture-Rouleau, this will serve as another confirmation of the security threat from foreign terrorist fighters that confronts Canada and many other democracies. At the same time, we must remember that Canada has many laws already on the books to deal with security threats.