“False Security” – Prof. Kent Roach on Bill C-51 and unintended consequences

Sarah Rostom (2L)

On October 8, 2015, Professors Craig Forcese and Kent Roach launched their new book: “False Security: The Radicalization of Canadian Anti-Terrorism” at the University of Toronto. The book discusses the enactment of Bill C-51 (short title: Anti-Terrorism Act, 2015) and other recent security laws, the domestic and international events that motivated its introduction, and its significant implications on both Canadian security law and civil liberties. The book also provides context to the far-reaching changes to security law that Bill C-51 has introduced. This includes Canada’s history of both under-reacting and over-reacting to terrorism, the Islamic State of Iraq and Syria (ISIS) as an emerging and evolving terrorist threat, and lacking recognition for the role in counter-violent extremism programs in Canadian national security efforts.

Following the book launch, I spoke with Professor Roach about it, his motivations for co-authoring the book, and key themes the book addresses. Professor Roach noted that he and Professor Forcese were shocked by Bill C-51’s content, but also the government’s lack of full explanation on the bill. This motivated them to write their own backgrounders and make them available at www.antiterrorlaw.ca.

But beyond this, Professor Roach observed that he felt he had an obligation to publicly voice his concerns with Bill C-51, given his involvement in both the Air India and Arar commissions, and the government’s complete disregard for their corresponding recommendations.

Having worked 4 years as the director of research on the Air India Commission, and for the two years before that, been part of the research advisory committee for the Arar commission – I really felt like I had an obligation to speak out because for better or for worse, the Canadian people paid a lot of money for these inquiries, and I remain proud of both of them, and the government really ignored many of the recommendations and lessons from those…For me, what was really striking was how both of these commissions of inquiry, which had been sitting on the table gathering the proverbial dust, became very relevant with Bill C-51.

In our conversation, Professor Roach re-iterated a point he made in the panel discussion: that he and Professor Forcese are not questioning the government’s ends, but the means that the government has taken to achieve those ends. Professor Roach gave the example of the new Security of Canada Information Sharing Act enacted in Bill C-51. He noted:

I don’t have problems with properly tailored information sharing, as long as there is review that helps ensure that it’s accurate and reliable, and respects privacy. But the information sharing act was just so over the top, it was just so broad, it really kind of begged the question of who is going to review and how these massive amounts of information within government is shared.

The means the government took with Bill C-51 animated an imperative message in the book, “that this narrative is both violative of rights, and also may – in a purely practical perspective – be counter-productive.” Professor Roach pointed to Bill C-44 as a clear example. Bill C-44 (short title: Protection of Canada from Terrorists Act) essentially reverses the Supreme Court of Canada’s decision in Canada (Citizenship and Immigration) v. Harkat [1] where the court refused to recognize CSIS source privilege as a class privilege. Bill C-44 provides that once a CSIS human source has been promised confidentiality, a class privilege applies, and that individual cannot be identified in any subsequent proceeding unless that person and the CSIS director consent to the identification. Professor Roach observed:

Again, this is an example of the government trying to win a battle but losing the larger war. In the Air India commission, we looked at that question rather closely and concluded that it would not be advisable to give CSIS and CSIS sources such a privilege because it could make terrorism prosecutions more difficult. I had this kind of surreal experience in January or December of going to a parliamentary committee and basically saying, “I know you don’t intend this, but you are making terrorism prosecutions more difficult.”

The Walrus and the University of Toronto host a panel discussion for the book launch

Taking a step back from the details of recently enacted legislation. Professor Roach and I discussed the government’s approach to responding to the murders that took place in October 2014. At the book launch, Professor Roach noted that the factual record on these events remains incredibly sparse, with very little information having been made publicly available (although newly disclosed documents regarding the warnings the RCMP received prior to the shootings at Parliament Hill may provide some additional and disappointing insights). Professor Roach contrasted this with Australia’s approach to the 2014 Sydney hostage crisis, where the Abbott government published a 75-page report one month after the siege. Professor Roach commented on why he believes the Canadian government has remained tight-lipped on the events that took place in October 2014:

I think that it’s partly a particular sense that knowledge is not something that is to be encouraged, because as I said at the book launch, the Abbott government in Australia is very ideologically similar to the Harper government. There was a lot to lose because the terrorist in Sydney, Man Haron Monis, had been granted bail, charged with numerous non-terrorist offences, he had been involved with the mental health system – there was a lot that the government could look bad on but yet it felt that it needed to kind of clear the air…Perhaps it’s a little bit like the long-form census: there is a sense that if you don’t have the information, if people don’t have knowledge, then you won’t have informed criticism. I think that is extremely, extremely regrettable.

Politically, Bill C-51 received mixed responses from political parties, with the Liberals supporting, but promising to amend, the bill and the NDP promising to repeal the bill entirely. Professor Roach commented on the difficulties of repealing Bill C-51, given that CSIS may already be exercising powers that the bill grants the agency, including the ability for a judge to provide a warrant authorizing a violation of the Charter, so long as that violation does not cause bodily harm, the obstruction of justice, or a violation of a person’s sexual integrity. Moreover, he noted that even if it were possible to repeal Bill C-51, the government would also have to repeal parts of Bill C-44. Ultimately, Professor Roach observed that the repeals would not dispense with the need to move ahead on improving both review and oversight and discussing more comprehensive approaches to countering violent extremism.

Professor Roach also discussed his concerns with the Liberal government’s approach and his hopes for the incoming government – both particularly relevant given Canada’s newly elected Liberty majority government.

My concern with what the Liberals are saying is that, one, it confuses what we think is a pretty fundamental difference between review and oversight. So they talk about parliamentary oversight…[but] we don’t want parliamentarians telling CSIS and the RCMP in real time what to do. They simply don’t have the competence and there are a lot of dangers in doing that…But also, the book agrees that we need a parliamentary committee that has access to secret information…but that’s not necessarily enough.

The end of the book has a pretty ambitious platform for legislative changes, which would not entirely eliminate C-51 but would certainly change big chunks of it, but would also introduce new subjects on the table. But I also think it’s important to note that we say: look, the ultimate litmus test isn’t whether a new government follows our particular list. Our list is there and if people find it helpful, that’s great. But we need to have a much more consultative sort of process. So ideally, what I would like to see a new government do is probably repeal some of the worst and most problematic features of C-51 before they take root, although they already may have taken root, and then to open up more ambitious legislation and policy-making through a kind of white paper.

This is also another thing law students need to be aware of: we are all, including myself, focused on legislation and court decisions, but it also matters how the government communicates its strategy. With any new government, I would be looking at the signals that it sends. I mean, yes, I do think that parts of C-51 are both unconstitutional and counter-productive. I would hope that a new government would repeal them fairly promptly and not simply wait for Charter litigation which already started, but at its speediest would take 5-6 years, and I don’t think we can wait that long. But I would also be looking for a new government ideally to start a conversation, and one the best ways to start it is to figure out exactly what went wrong last October, and to the extent it doesn’t harm our ongoing security efforts, to make that public, and then let’s have an informed debate.

Speaking to students specifically, Professor Roach provided his insights on how we as law students should respond to legislation such as Bill C-51, particularly at an institution such as the Faculty of Law where these issues are not always widely discussed. While Professor Roach recognized the pressures law students face, he emphasized that at the most basic level, students should be aware and informed on these issues in order to intelligently respond to questions that members of our families, communities and friendship groups may ask of us.

Moreover, Professor Roach observed that students should be asking and expecting law faculties to have debates about these issues, and be prepared to contribute to and partake in those discussions. Professor Roach’s final comments addressed his hopes for the Faculty of Law at the University of Toronto in particular:

For U of T particularly, I would like to see a faculty that is more attentive to these important policy issues with legal dimensions that are being discussed in Canada every day. I just think that we as a community – professors, students, alumni – have a responsibility to engage on these issues and to educate ourselves about them.

“False Security: The Radicalization of Canadian Anti-Terrorism” is available for purchase from Irwin Law and extracts of the text are available online. This information can be found in full on www.antiterrorlaw.ca.

This interview has been edited and condensed.

[1] [2014] 2 SCR 33