Answer this section here

• Are the thresholds for obtaining the recognizance with conditions and terrorism peace bond appropriate?

The ATA, 2015 lowers the existing thresholds for preventive arrest and peace bonds, lengthens the amount of time someone can be held (from 3 days to 7 days), and provides for the imposition of harsher conditions once released, all with no criminal charge. The peace officer will only have to believe that a terrorist activity “may” be carried out and to “suspect” that the detention is “likely” to prevent a terrorist activity. “May” could simply be speculation and “likely” a mere hypothesis.

There is also the problematic issue of investigative hearings under Section 83.28. This section allows a police officer to bring a person before a judge in order to compel him or her to answer questions raised by the police. This introduces inquisitorial judicial procedures in the Canadian justice system, a totally new paradigm concerning relations between the state, the police, the courts and the citizens. In Canadian Common law we have an adversarial system. Investigative hearings are a breach in the independence of the courts and the justice system. Under these procedures the judge becomes an instrument of the state. Such procedures are usually associated with totalitarian regimes. The persons targeted by these measures will be associated with terrorism in the mind of the public although they have not been convicted of anything. This is reminiscent of McCarthyism in the US.

Allowing individuals to be subjected to severe restrictions to their liberty without a criminal charge – much less a conviction – was already permitted under existing Criminal Code provisions before 2001. The measures introduced in ATA, 2001 and extended in ATA, 2015 should be repealed.

• Advocating and promoting the commission of terrorism offences in general is a variation of the existing offence of counselling. Would it be useful to clarify the advocacy offence so that it more clearly resembles counselling?

This crime of advocating and promoting is so vague that a person who discusses terrorism issues or repeats the words of a group on a terrorist list could be targeted, even though they don’t support that group in any way. This will push individuals towards self-censorship and stifle public debate on issues of terrorism. In particular, academics and journalists could choose to address less controversial issues or be forced to reveal the identity of research subjects or sources who would otherwise have remained confidential.

The list of existing terrorism offences in the Criminal Code is already extensive and includes facilitating, participating, instructing, harbouring, financing and counselling. If the offence of counselling already exists, why modify a problematic promotion offence to make it more like counselling? This section must be repealed.

• Should the part of the definition of terrorist propaganda referring to the advocacy or promotion of terrorism offences in general be removed from the definition?

The ATA, 2015 provides for the seizure and destruction of terrorist propaganda defined in very broad and ambiguous terms. The primary impact of this new offence will be to chill legitimate speech and send suspicious online expression – which can provide valuable leads for intelligence agencies and law enforcement – underground. This measure is similar to the infamous Padlock law of Maurice Duplessis in Quebec. The whole section should be repealed.

• What other changes, if any, should be made to the protections that witnesses and other participants in the justice system received under the ATA, 2015?

Protections for witnesses were already adequate before the adoption of the ATA, 2015; the protection of witnesses should not counter the need to repeal C-51. However, if it is demonstrated that more protections are necessary, they should be introduced in a new bill, and properly debated.

There are also concerns regarding the use of witness protections to extend to sources of national security agencies. Specifically regarding the Protection of Canada from Terrorists Act, 2015 (previously Bill C-44): it requires that CSIS’s human sources remain confidential, even to the judge, unless a court orders otherwise. This is despite a clear finding by the Supreme Court of Canada in Harkat that this protection was not necessary given the broad powers that prevent public disclosure of harmful information under the IRPA. Furthermore, it prevents defense lawyers from cross-examining sources, and prevents the accused from knowing the full case and evidence against him or her. Finally, C-44 created a blanket rule for all kinds of procedures, regardless of their nature, scope or source of information. As others, including the Canadian Bar Association, have argued, this kind of blanket regulation ignores the nuances in different types of proceedings, including criminal prosecution, immigration or security certificate proceedings. It makes no attempt to strike a balance between national security and civil liberties.

This section of C-44 should be repealed, along with C-51, and no further “protections” should be awarded to national security witnesses or sources unless proven necessary.