Understanding Bill C-51 in Canada: The Anti-Terrorism Act, 2015

Bill C-51 (the “Bill”), which was sponsored by the Minister of Public Safety and Emergency Preparedness (the “Minister”) Steven Blaney, received royal assent on June 18, 2015. It makes significant and controversial changes to national security, anti-terrorism, and privacy law. The Bill amends the Criminal Code of Canada (the “Criminal Code”) and the Canadian Security Intelligence Service Act (the “CSIS Act”) as well enacts the Secure Air Travel Act (the “Air Travel Act”) and the Security of Canada Information Sharing Act (the “Information Sharing Act”). There are many criticisms of this Bill from a civil liberties perspective. 

Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA’s own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA’s work check out the In Focus section of our website. More information about CCLA’s Charter Challenge to the Anti-terrorism Act, 2015, and our ongoing work is available on our main website.

WHAT IS IN THE C-51 BILL IN CANADA?

The Bill makes 6 broad changes to national security, anti-terrorism, and privacy law:

1. It creates a new terrorism offence that criminalizes knowingly advocating or promoting “terrorism offences in general” while aware of the possibility that someone else “may” commit such an offence;
2. It allows the preventive arrest and detention of a person if it is “likely” to prevent a terrorist activity that a “peace officer” reasonably believes “may” be carried out;
3. It creates the new concept of “terrorist propaganda” and allows a judge to order the deletion of such material from the internet;
4. It gives the Canadian Security Intelligence Service (CSIS) the power to take measures to reduce “threats to the security of Canada”, even if doing so would violate the Charter of Rights and Freedoms (the “Charter”) or other Canadian law;
5. It allows government institutions to share information with each other about “activities that undermine the security of Canada”; and
6. It codifies the Minister’s ability to put Canadians on a “no-fly list”.

 

WHAT ARE THE CRITICISMS OF BILL C-51 IN CANADA FROM A CIVIL LIBERTIES PERSPECTIVE?

New Advocating or Promoting Terrorism Offence

(1) Free speech will be “chilled” because the offence is vague and overbroad

This is one of the most significant criticisms of the Bill. The scope of the new offence is unclear because it is vaguely worded to cover “terrorism offences in general”. Moreover, the offence is overbroad because the range of conduct that may be captured under “terrorism offences” is extensive and there are no reasonable defences when charged. The following is an example cited by legal experts to illustrate the kind of conduct that Parliament likely did not mean to criminalize but nevertheless may be criminal under this new offence.

Imagine that an academic or columnist writes “we should provide resources to Ukrainian insurgencies who are targeting Russian oil infrastructure to increase the political cost of Russian intervention in Ukraine.” The writer knows that some people reading this statement may send money to those opposing Russian intervention.

Providing resources to a group whose purpose is a “terrorist activity” – which includes damaging or interfering with an essential service for a political reason in a way that endangers life so as to compel a government to act – is a terrorism offence. Thus, since the writer knows that some people may respond to their opinion by sending money to the insurgency, their acts may constitute the new crime of advocating or promoting terrorism.

While this example is somewhat complex, it demonstrates the problem with this new offence. The writer may have had an innocent purpose, such as provoking a democratic debate or proposing a solution to an intractable international conflict, but the offence does not require a terrorist purpose. One is liable simply if they know or are reckless regarding the risk that someone else might (not necessarily will or does) commit a terrorism offence after hearing or seeing their statement. It is also relevant to note that this example demonstrates that the terrorism in question need not be committed in Canada.

Additionally, like all criminal offences, a person can be guilty if they aid or assist a person in committing the new offence. Thus, a newspaper that publishes the statement made by the writer in the example above could also be found guilty. Or, a group of people who agree to convey the statements might be guilty of a conspiracy to commit the offence. The offence is not limited to those who make the actual statements.

Though the vague and overbroad nature of the offence is a problem, the primary civil liberties criticism of the offence is the impact of that problem on free speech. If the writer in the example above believes that, in expressing their opinion, they may be guilty of a criminal offence, they may not voice their opinion. Similarly, a student may think twice before posting an article on Facebook supporting, say, Hamas, which Canada lists as a terrorist organization. A newspaper may choose not to publish either of the articles in these examples due to fear of prosecution for aiding and abetting. There is no end to the causes whose advocates may be subject to this offence. Many of these people, in choosing not to communicate their views for fear of prosecution, will have their speech chilled. This does harm to Canada’s society and democratic order.

(2) The offence undermines anti-terrorism efforts

By chilling speech, critics have argued that the government will also undermine its own anti-terrorism efforts. First, by chilling extremist expression on social media and elsewhere, the Bill may simply send chatter underground where it will be more difficult to monitor. Second, and more importantly, it may chill speech necessary for the RCMP’s counter-violent extremism (CVE) program, an initiative to steer people away from violence.

This second point is demonstrated by the following plausible example formulated by legal experts. As part of the CVE program, the RCMP asks an organization to host a meeting in which its members can openly discuss and confront radical views regarding the use of violence to further the organization’s goals. It is the RCMP’s hope that such a meeting will reduce the potential for radicalization in the organization. The organization is aware of the new speech offence and is worried that some members, though they show no propensity for violence, hold radical views and may make statements to that effect. Some members may be keen to send money to groups who may use violence. The organization consults with a local lawyer who concludes that statements made at the CVE meeting may be criminal under the new speech offence. The organization therefore does not host the meeting.

Failing to have the meeting in the above example may not be a good thing; members of the organization may continue to harbour secret radical views that are unaddressed. Such people are prime candidates for the CVE program but may continue to be unknown to the authorities or their own community. As the data suggests that programs like CVE are the most promising way to combat radicalization, this new offence threatens Canada’s security by undermining the CVE program’s effectiveness.

Additionally, given the current focus on groups like ISIS and the unrest in Muslim countries, it is likely that the burden of the new offence will fall disproportionately on Muslim communities. That is, in conducting surveillance or gathering intelligence for the purpose of finding speech that is criminal under the new offence, Muslim communities are most likely to be scrutinized. This may make such communities less likely to cooperate with CVE programs that combat radicalization. In the result, Canada may put itself at greater risk by undermining its own prevention programs.

(3) The offence is unnecessary

There are already 14 existing broadly defined terrorism offences in the Criminal Code. These include terrorism offences that rely on concepts such as instruction, facilitation, participation, incitement, and threatening. Thus, the existing terrorism offences already apply to speech that has a terrorist purpose.

The Justice Department backgrounder on the new speech offence claims that “the current law would not necessarily apply to someone who instructs others to ‘carry out attacks on Canada’ because no specific terrorism offence is singled out.” However, the existing terrorism offences already appear capable of criminalizing any speech the government seeks to combat with the new speech offence. The new offence is thus unnecessary to meet the government’s stated objective and may be unconstitutional.

(4) The offence applies to private conversations and may lead to increased surveillance

The new speech offence criminalizes statements made in both private and public, unlike other similar speech offences which have express exceptions for private conversations. Thus, CSIS, which has expansive anti-terror wiretap and surveillance powers, can justify increased surveillance of private conversations to investigate the new speech offence. This means that potentially legitimate democratic conduct that is linked to religious or political causes may be swept up by state surveillance. As explained above, such surveillance runs counter to Canadian civil liberties interests by chilling free speech, undermining anti-terrorism efforts, and may lead to increased discrimination of religious minorities.

Preventive Arrest and Detention

(1) There is a low standard for using preventive powers and an extended period of preventive detention

The Criminal Code already contains provisions for preventive arrest, detention, and restraint on liberty. These “preventive” powers are intended to allow the government to detain someone without charge on the suspicion that they will commit a crime at some point in the future. This violates the presumption of innocence, a basic and fundamental constitutional right in the Charter. Preventive powers should only be used in accordance with a high standard set by law and in accordance with the principles of fundamental justice.

The Bill lowers the standard for preventive arrest and detention, allowing such measures if they are “likely” to prevent a terrorist activity that a peace officer reasonably believes “may” be carried out. This is a significant change from the current standard, whereby preventive arrest and detention are allowed if they are “necessary” to prevent a terrorist activity that a peace officer reasonable believes “will” be carried out.

It is important to note that the preventive powers can be exercised without a warrant in certain circumstances. It is also important to note that the new low standard for preventive powers can also be used to take a person’s passport away from them.

In addition, the Bill extends the period during which a person can be preventively detained without charge to seven days. There is nothing that regulates what happens during the seven days.

(2) A low standard for preventive powers may lead to religious and ethnic profiling

The significant lowering of the standard for preventive powers may lead to religious and ethnic profiling, particularly against Muslims. Due to the lower standard, a peace officer who sees a group of Muslim men outside of a mosque in heated discussion in a foreign language may arrest and detain the men in order to investigate further, despite not knowing what the men are speaking about.

The peace officer no longer has to believe that a terrorist activity will be carried, only that it is a possibility. They also no longer have to believe that arrest is the only way to prevent the terrorist activity, only that it is likely to do so. This level of discretion allows for a higher risk of prejudice, profiling, and discrimination in the enforcement of the law. It is difficult to deny that such changes will disproportionately impact the Muslim community.

Additionally, under the new lower standard, it will be difficult to successfully challenge a peace officer’s decisions to take discriminatory actions, such as in the example above.

Terrorist Propaganda

(1) The definition of terrorist propaganda is too broad because it references the new vague and overbroad speech offence

The Bill amends the Criminal Code by adding provisions that allow a judge to order that terrorist propaganda be seized or deleted from a computer system in the court’s jurisdiction. Terrorist propaganda is defined as a written, audio, or visual recording that advocates or promotes “the commission of terrorism offences in general” or “counsels the commission of a terrorism offence.” The latter part of the definition may be reasonable, as it involves explicitly criminal conduct, but the first part suffers from the same problems described above regarding the new speech offence. That is, the vague and overbroad nature of an offence for advocating or promoting for “terrorism offences in general”.

As with the new speech offence, terrorist propaganda encompasses content which Parliament likely did not intend to be covered. For example, if the article used as an example above (by the academic who believed resources should be provided to Ukrainian insurgencies) is published, it constitutes terrorist propaganda and a judge can order its deletion (for example, from a website). There is no requirement that the material have a terrorist purpose and there are no reasonable exceptions for provoking democratic debate or proposing a solution to an intractable international conflict.

Unlike the new speech offence, deletion orders do not need to be justified beyond a reasonable doubt; instead, the Crown only needs to prove on a balance probabilities that the material is terrorist propaganda. Moreover, there is no need to prove that the poster of the alleged terrorist propaganda was knowingly or recklessly advocating or promoting terrorism offences in general. These facts, in combination with the reality that many posters may not appeal a deletion order out of fear of exposing themselves to prosecution for the new speech offence, may result in excess usage of the new terrorist propaganda provisions.

(2) Without an effective and independent self-initiated review body, judicial oversight in the Bill may be circumvented

While the deletion of terrorist propaganda is intended to be ordered by a judge under the Bill’s provisions, without a proper review body, police or CSIS may attempt to accomplish this by making informal demands to internet service providers. This may lead to deletion of material that does not even meet the broad definition of terrorist propaganda.

(3) Customs officials may have difficulty understanding what material should be seized as terrorist propaganda

A related amendment in the Bill adds the broad new category of “terrorist propaganda” to a customs tariff that currently authorizes warrantless seizure and detention of obscenity and hate propaganda at the border. Customs officials have historically had difficulty applying the legal tests for “obscenity” to gay and lesbian pornography. As the legal test for “terrorist propaganda” is even more complex, in that it extends to 14 existing terrorism offences and includes the qualifier “in general”, it is not the kind of test that customs officials should have the latitude to apply based solely on their own discretion in border inspections. Without an effective review body, there is a strong chance of abuse and misapplication of the test by the Canadian Border Services Agency.

CSIS’s Power to Reduce Threats

(1) The Bill radically and unnecessarily changes the nature of CSIS without changing its broad mandate

CSIS was originally created after the McDonald Commission was called to investigate illegal activities by the national security arm of the RCMP in the 1970s. The McDonald Commission found that national law enforcement and security intelligence were incompatible and should not be done by the same organization. Thus, its principal recommendation was to separate security intelligence responsibilities from the RCMP by creating a new security intelligence agency, which became known as CSIS. CSIS was given a broad mandate for this very reason – it was only to act as an intelligence agency. CSIS had no police powers so allowing it to investigate a broad range of “threats to the security of Canada” did not create the same risk of recreating the problems of the RCMP in the 1970s. The Bill ignores this philosophy, which has been the foundation of CSIS for 30 years. It radically restructures CSIS so that it has the power to “reduce” the same broad range of “threats to the security of Canada”. The Bill therefore effectively creates a “secret police force.”

By giving CSIS the powers it does while leaving its original broad mandate in place, the Bill risks a return to the problems of integrated intelligence and police powers that the McDonald Commission was called to investigate. As CSIS begins operations that, but for a warrant, would be illegal, its overall culture may be contaminated. This is the one of the reasons most democracies separate security intelligence and special operations. As there have already been instances of CSIS illegally using police powers, the changes in this Bill may exacerbate the proclivity for using unauthorized powers, as warned by the McDonald Commission.

It is also important to note that the government has failed to give any satisfactory explanation for why this radical change to the nature of CSIS is necessary. The current process, whereby CSIS calls the police to take certain actions, is equally capable of addressing new national security threats.

(2) CSIS’s power to “reduce” threats is too broad and may lead to countless Charter violations

CSIS’s power to reduce threats to the security of Canada has only one set of broad limitations. That is, the measures taken must not: cause death or bodily harm; wilfully obstruct, pervert, or defeat the course of justice; or violate the sexual integrity of an individual. This outer limit on CSIS activity clearly demonstrates the government’s intent to change CSIS effectively into a police force with the ability to take actions that significantly impact the lives of Canadians.

More significantly though, the Bill explicitly allows CSIS to violate the Charter or other Canadian law if it is authorized to do so by a warrant. This is an unprecedented grant of power that may lead to countless Charter violations, including detention without charge (similar to Guantanamo Bay). These grave violations may be unknown to the public and potentially even the victims.

(3) The new warrant procedure fundamentally misunderstands the Canadian constitutional system by allowing judges to pre-authorize violations of any Charter right

The Bill allows CSIS to reduce threats by taking measures that will violate the Charter or other Canadian law, if they are authorized by a warrant from a Federal Court judge. Thinking that a court can pre-authorize a violation of a Charter right in response to such a broadly worded provision misunderstands the Canadian constitutional system on a fundamental level.

It is Parliament’s role to prescribe limits on Charter rights and a court’s role to protect such rights by determining if those limits are reasonable. By assigning its role to judges, Parliament is acting contrary to foundational expectations about the rule of law and the role of the judiciary. It further ignores common expectations about the separation of powers in Canada’s constitutional system. Judges effectively undertaking legislative functions (limiting Charter rights) can no longer be the independent and impartial adjudicator required by the constitution.

It is also relevant to note that assigning legislative function to judges will lead to a lack of debate or public accountability with respect to rights violations. That is, if a judge authorizes a rights violations in secret under the new warrant procedure, the merits of the idea will not be debated or subject to public accountability in the same way as parliamentary actions. This would be deeply problematic, for the limitations of fundamental liberties should be debated openly in a democratic society.

(4) There will be very little, if any, effective defence of the rights of people affected by warrants because the proceedings are secret

Warrant proceedings are held in secret, which means that only the government side is present and represented. This is particularly troubling in the case of CSIS because there are numerous reports that it has failed to meet its duty of candour in secret proceedings, where judges are especially dependent on it. If only CSIS is represented at a warrant proceeding but it is not honest with the judge about the basis for the warrant or the actions it plans to take, the warrant may be approved and the government’s position will go unchallenged.

No civil rights groups will be able to weigh in on the impact of the warrant on Charter rights. At best, a “special advocate” may be invited by the court (though that is not identified in the Bill as a possibility) to defend the public interest. However, the “special advocate” model suffers from inherent disadvantages, such that they will be unable to effectively defend the rights of the person affected by the warrant. In the result, the individual subject to the warrant will not have their interests effectively protected and may never even know who authorized or conducted illegal activity that affected them.

It is also relevant to note that, even if CSIS met its duty of candour consistently, warrant proceedings are inherently one-sided. It is inevitable that mistakes will be made because, in the absence of a person with the means, incentive, and access to challenge the government, the judge is only aware of the government’s positions. However, mistakes when authorizing physical actions by CSIS under the new CSIS warrants are much more serious than mistakes authorizing surveillance under a normal warrant.

(5) CSIS’s new powers may make terrorism prosecutions more difficult or even impossible

If CSIS uses its new police powers prior to a target committing a criminal act and then passes the case on to the RCMP for criminal prosecution, the RCMP’s subsequent investigation may be tainted. The evidentiary record needed for a criminal prosecution may also be tainted. Defence lawyers may even argue that CSIS misconduct in executing a warrant counts against the state and merits a stay of proceedings for abuse of process. If the trial judge believes that a fair trial is not possible for any reason, they must halt the prosecution. In fact, this has already happened in a case due to CSIS’s actions.

In R v Mejid, CSIS illegally used police powers to coerce a man into supplying his computer for searches to determine if he was posting extremist Islamist literature. No relevant evidence was found but CSIS used the opportunity to extract photos from the man’s computer so that he could be prosecuted for possession of child pornography. The evidence obtained by CSIS was excluded by the judge as a violation of the Charter’s section 8 protections against unreasonable search and seizure.

Legal uses of CSIS’s new police powers may similarly lead to the exclusion of evidence or findings that a fair trial is not possible due to misconduct, rendering terrorism prosecutions impossible. This may threaten Canada’s national security by undermining what may have been otherwise sound prosecutions and preventing those rightfully accused from being convicted. In the result, the government may subvert its own anti-terrorism efforts and place Canadians in greater danger.

Even if a terrorism prosecution is not halted, it may be made significantly more difficult as a result of CSIS’s new powers and privileges in the Bill and recent proposed amendments to the CSIS Act (see document on Bill C-44 for further information). The criminal trial may be mired in questions about the warrant authorizing CSIS to take action and doubts about whether a CSIS operation contributed to or was associated with the crime at issue. Claims for disclosure by the accused will be met by claims of privilege and national security confidentiality, which may make the prosecution more difficult. Significant time may also be spent debating whether human source privilege granted in Bill C-44 should be set aside because the source assisted CSIS in using its new police powers. All of this makes a prosecutor’s job more difficult and potentially reduces the possibility that an accused will be convicted.

(6) Oversight and review mechanisms do not accompany the significant increase in CSIS’s powers

This is one of the most significant and common criticisms of the Bill. Unlike any of Canada’s major national security partners (the “5 eyes”), parliamentarians in Canada do not have regular access to the information necessary to know how CSIS does its job. Moreover, in 2012, the government abolished the office of the Inspector General, which was responsible for ensuring the Minister remained appropriately informed of CSIS’s activities. Nevertheless, the Bill ignores recommendations to add more oversight from multiple commissions of inquiry into national security matters. The Air India Commission, for example, proposed enhancing the role of National Security Advisor in the Privy Council Office to act as an integrated national security oversight body.

CSIS’s current review body, the Security Intelligence Review Committee (SIRC), is not an adequate review body and has acknowledged that it is “struggling to operate efficiently.” Moreover, many of CSIS’s actions already cry out for increased oversight. CSIS has failed to consistently report sensitive and potentially controversial actions to the Minister, breached its duty of candour in court proceedings, and failed to cooperate appropriately with the SIRC. The SIRC has even found that CSIS fails to properly confirm the value and reliability of intelligence it obtains abroad. All of these issues already highlight the need for robust review and oversight.

The new police powers in the Bill only further necessitate the need for oversight and review. If CSIS is to radically change, it should be subjected to significantly increased review by a well-funded “super-SIRC”. Moreover, a parliamentary review committee should be created. This committee could perform the same function as similar committees in most other Western democracies: holistic review, compared to the snapshot review done by even a super-SIRC.

Instead of implementing essential oversight measures, the Bill creates further gaps in the review process by allowing other persons or organizations who may not be subject to any form of review to assist CSIS in exercising its police powers. Further, the Bill allows many of CSIS’s police powers to be exercised without any court authorization – the provision only requires warrant authorization if the actions “will” (not “may”) violate the Charter or other law.

CSIS’s international operations, where the Charter and Canadian law do not apply, are also exempt from court authorization. Even where warrant authorization is required, the Federal Court is in a poor position to review what actions are taken under their authority because there is no formal need for CSIS to report back or account for its conduct. All of this, in combination with a poorly funded and staffed SIRC, leaves Canada’s national security regime with effectively no oversight or review. It is inevitable that there will be abuses that may significantly violate the civil liberties of Canadians.

Government Institutions Sharing Information

(1) Allowing government institutions to share information about “activities that undermine the security of Canada” is a very broad standard and a radical departure from conventional understandings of privacy

Under the new Information Sharing Act, a government institution may, on their own initiative, disclose information to another government institution “in respect of activities that undermine the security of Canada.” This new concept in Canadian law is broadly defined as any activity “that undermines the sovereignty, security, territorial integrity of Canada or the lives or the security of the people of Canada”, including activities that “unduly influence” government and interfere with public safety or the “economic or financial stability of Canada”.

The only restriction is that it does not include “advocacy, protest, dissent, and artistic expression.” Nevertheless, “activities that undermine the security of Canada” is so broad and subjective that it effectively allows for total information awareness across government institutions.

The Information Sharing Act thus allows almost any information about an individual given to or obtained by a government institution to be shared with an unrelated government institution without the individual’s knowledge or consent. It is therefore a radical departure from conventional understandings of privacy.

(2) There are no internal or external safeguards to ensure reliability and proper relevance of the information that is shared, which may seriously endanger or cause major difficulties for Canadians

There is nothing in the Information Sharing Act regarding steps to ensure reliability and proper relevance of the shared information. Without such safeguards, information may be shared improperly, resulting in rumours, innuendo, and speculation being treated as fact. Moreover, improperly shared information may be used by receiving government institutions or other parties to justify terrible actions, like those that were the subject of the Arar and Iacobucci inquiries.

In the case of Maher Arar, the RCMP provided American authorities raw information and sensationalist commentary linking Mr. Arar and his wife to Al Qaeda. The Arar Commission found that this was the likely cause of Arar’s rendition to Syria, where he was tortured. The Iacobucci inquiry similarly found that Canadian officials indirectly contributed to the maltreatment of three individuals in foreign custody when they shared information about the detainees.

To avoid injustices similar to those above, the Arar Commission recommended that information sharing decisions be centralized and governed by clear policies regarding reliability, relevance, and accuracy. The Commission also recommended caveats limiting who could access shared information and how it could be further transmitted. Perhaps most importantly though, it recommended that integrated information sharing be matched with integrated review by independent review bodies able to self-initiate their own investigations. The Information Sharing Act incorporates none of these recommendations.

Without proper safeguards to ensure reliability and relevance, either initially by the government itself or by an independent review body, situations similar to the Arar and Iacobucci inquiries are a real risk. For example, a government institution like the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) may investigate an individual for potentially financing terrorist activities and share such information with CSIS.

Without proper safeguards for reliability, CSIS may pass this information to foreign intelligence agencies, which then view the person as a terrorist and mistreat, arrest, or torture them. Or, less seriously, CSIS may share the information with the Minister who views the individual as a threat to transportation security and places them on the no-fly list, which may prevent them from travelling.

Moreover, if FINTRAC ultimately determines that the individual was not financing terrorist activity and thus removes them from its database, the incorrect information may remain on the database of many other government institutions because there is no integrated review body. The individual may then face difficulty dealing with many branches of the state for years. This example therefore clearly demonstrates how the Information Sharing Act may endanger or cause difficulty for Canadians.

(3) The secretive process, lack of independent review, and government immunity from civil liability may lead to unfettered information sharing

Information shared under the Information Sharing Act is shared secretly and without consent. This means that legal restrictions on information sharing, including Charter rights, will be difficult to enforce because the victims of information sharing may not know they are victims. Moreover, there is no independent review body to ensure compliance with the legal restrictions on information sharing. Finally, the Bill grants immunity from civil liability for any good faith sharing of information.

All of these facts may lead to unfettered information sharing among government institutions and even third parties, as the institutions may later share information received with such parties “in accordance with the law”. Unfettered information sharing is particularly worrying in the context of government collaboration with telecommunication and internet service providers that have large amounts of personal information about Canadians.

It is also relevant to note the final point – government immunity from civil proceedings – will leave victims without any recourse for the serious harm they may incur as a result of information sharing.

No-Fly List

(1) There is a very low standard to be put on the no-fly list but a high standard to be taken off

To put a person on the no-fly list under the new Air Travel Act, the Minister need only have reasonable grounds to suspect that the person will engage in an act that would threaten transportation security or travel by air for the purpose of committing an act of terrorism. “Reasonable grounds to suspect” is an extremely low standard that means something more than mere suspicion but less than reasonable belief. This low standard is thus inappropriate given the significant restraint on liberty involved with putting a person on a no-fly list.

A person may appeal the Minister’s decision to place them on the no-fly list to a judge of the Federal Court. However, it is not enough to demonstrate that the Minister was wrong in putting the person on the no-fly list, the person must also demonstrate that the Minister acted unreasonably in doing so. This is a very high standard that inherently gives deference to the Minister and will likely be very difficult to meet in most cases.

(2) The procedure for appealing the Minister’s decisions violates a Charter right

In addition to the high standard that needs to be met when appealing the Minister’s decision to put a person on the no-fly list, the procedure used in the appeal incorporates rules from the old Immigration and Refugee Protection Act (IRPA) security certificate regime. This means that the Minister can ask the court to hold part of the hearing in secret so that the person on the no-fly list, their lawyer, and the public are excluded. The judge can then base their entire decision on evidence that was presented during the secret portion of the hearing and thus unknown to the person on the no-fly list or their lawyer.

In a 2007 decision, the Supreme Court of Canada found that the IRPA’s above procedure was unconstitutional when used in a security certificate regime. Although being put on the no-fly list is a less serious infringement of liberty than being subject to a security certificate, the section 7 right of a person to know the case they must meet is still triggered. The procedure in the Air Travel Act clearly violates this Charter right by allowing the judge to base their decision on secret information.

 

Sources and Related Reading

Bill C-51: the Anti-Terrorism Act, 2015.

Roach and Forcese, “Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence”.

Roach and Forcese, “Bill C-51 Backgrounder #2: The Canadian Security Intelligence Service’s Proposed Power to ‘Reduce’ Security Threats through Conduct that May Violate the Law and Charter”.

Roach and Forcese, “Bill C-51 Backgrounder #3: Sharing Information and Lost Lessons from the Maher Arar Experience”.

Roach and Forcese, “Bill C-51 Backgrounder #4: The Terrorism Propaganda Provisions”.

Roach and Forcese, “Bill C-51 Backgrounder #5: Oversight and Review: Turning Accountability Gaps into Canyons?”.

Roach and Forcese, “The government’s new speech crime could undermine its anti-terror strategy”, National Post.

Globe Editorial, “Parliament must reject Harper’s secret policeman bill”, Globe and Mail.

“Criminalizing the Advocacy or Promotion of Terrorism Offences in General”, Department of Justice.

Philip Rosen, “The Canadian Security Intelligence Service”, Library of Parliament.

Ian McLeod, “Depleted Spy Watchdog SIRC Scrambles to Keep up with CSIS”, Ottawa Citizen.

“Submission to the Standing Committee on Public Safety and National Security regarding Bill C-51, An Act to enact the Security of Canada Information Sharing Act and the Secure Air Travel Act, to amend the Criminal Code, the Canadian Security Intelligence Service Act and the Immigration and Refugee Protection Act and to make related and consequential amendments to other Acts (Anti-Terror Act, 2015)”, CCLA.

Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom and Security Under the Law (Volume 2) (Ottawa: Minister of Supply and Services Canada, 1981).

Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Public Works and Government Services of Canada, 2006).

Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review Mechanism for the RCMP’s National Security Activities (Ottawa: Public Works and Government Services Canada, 2006).

Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom and Security Under the Law (Volume 2) (Ottawa: Minister of Supply and Services Canada, 1981).

Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 (2006-2010) (Chair: Mr. Justice John Major), Air India Flight 182: A Canadian Tragedy, Volume Three: The Relationship Between Intelligence and Evidence and the Challenges of Terrorism Prosecutions (Ottawa: Public Works and Government Services, 2010).

Government of Canada, Honourable Frank Iacobucci, Report, Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nureddin (Ottawa: Public Works and Government Services, 2008).

Security Intelligence Review, Lifting the Shroud of Secrecy: Thirty Years of Intelligence Accountability, Annual Report 2013-2014 (Ottawa: Public Works and Government Services of Canada, 2014)

Re X, 2014 FCA 249 (F.C.A.).

R v Ahmad, [2011] 1 SCR 110 (S.C.C.).

R v Mejid, 2010 ONSC 5532 (Ont SCJ).

R v Chehil, 2013 SCC 49 at para 26 (S.C.C.).

Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (S.C.C.).

Almrei (Re), 2009 FC 1263 (F.C.).