Ottawa’s Aftermath: Legislate in Haste, Repent in Leisure

Editors’ NoteThe following post is the eighth installment of a new feature, “Monday Reflections,” in which a different Just Security editor will take an in-depth look at the big stories from the previous week and/or a look ahead to key developments on the horizon.

Emergency regulation has become a part of our new normal post 9/11. But Canada, as a mature democracy, has an historic opportunity to learn a lot from other countries’ past mistakes and avoid repeating them. Multiple democratic states have added to their arsenal of national security rules, including modifications to detention practices, privacy, surveillance, rules of evidence and procedure, and court form.  They have also limited freedom of expression and assembly to greater or lesser degrees.  The need to demonstrate a robust response to the threat of terrorism has had both internal reference points and external incentives, the latter in part provided by the UN Counter-Terrorism Committee (CTC) as well as by the influence of regional and bilateral institutional pressure from other states. There is no obvious end  in sight as the conversation and practice of rule augmentation continues to grow in many democracies.  The ratchet effect is palpable.  No sooner have we experienced an apparently new dimension of terrorism, or the execution of a terrorist act within a western democracy than we find a (by now) predicable call for greater powers, newer powers, deference to the executive, and the need to go outside existing legislative frameworks to address the form, prevalence, and specificity of the threat identified.

It should be no surprise therefore that in the aftermath of the Ottawa shooting and the subsequent attack on the Canadian Parliament, Ottawa plans to rush controversial proposals through Parliament that are aimed at bolstering Canada’s counterterrorism laws. One proposed law would go so far as to allow Canadian authorities to temporarily detain people who it suspects are about to participate in terrorist activity—a form of “preventative detention.” Public Safety Minister Steven Blaney has said:

Legislation is being prepared to adjust to the reality of the terrorist threat we are facing in this country,” he said. “In the situation where we see a direct threat to Canada through terrorist organizations — and specifically the Islamic State — we need to be able to table legislation that clearly defines the mandate and also enables the agencies to appropriately protect Canadians.

The aftermath of of the shooting has led to familiar soul searching on whether intelligence failures, insufficient planning and lax security led to this terrorist attack.  In some part, I am always struck by the extent to which these conversations reflect almost a zero policy tolerance for any harm, and the presumption (highly fraught) that if sufficiently robust measures were in place essentially no terrorist attacks would occur. The obvious point being of course, that an open society will inevitably be vulnerable to violence, not that this makes such violence acceptable or unlawful but a cogent reality of free societies around a world.  Political rhetoric that suggests otherwise creates the inevitable groundhog day effect of “attack, outrage, call to greater power, and acquiescence in power given.”  This vicious and virtuous cycle is one that we should be far more cynical and critical about.

The events of last week were compounded by a recent report from the Canadian Security Intelligence Service (CSIS) claiming that 90 Canadians were attempting to join ISIS in Iraq or commit terrorist attacks in Canada. In advance of the debates next week and beyond, the government claims that more can and should be done to counter radicalization in Canada and to address threats to the state and to citizens.  The legislation also comes at a time when some Canadian courts have adopted a robust approach to balancing security measures against encroachment on civil liberties and the Canadian Charter of Rights and Freedom.  In November 2013, a Federal Court decision took the CSIS to task for spying on Canadians abroad by using foreign agencies to intercept communications. Justice Richard Mosley “deemed the approach a back-door way of spying on Canadians on foreign soil that put them at risk of being detained abroad.” These immediate and preceding developments will be critical in shaping the legislation and the terms of the debate that emerges in the next couple of weeks. Although this new legislation is not yet published the following measures are being widely reported as likely contenders for inclusion:

  • Enhancing powers for the Canadian Security Intelligence Service (CSIS).
  • Allowing CSIS to obtain information on Canadians fighting abroad with terror groups through the “Five Eyes” spy network, which includes Canada, the United States, the United Kingdom, Australia and New Zealand.
  • Letting CSIS more easily track Canadians engaging in terrorist activities abroad, and similarly helping any Five Eyes country track its nationals working with terror groups in Canada.
  • Giving CSIS informants the same anonymity accorded to police sources.
  •  Changing the threshold for preventative arrests.
  • Closely tracking and monitoring people who may pose a threat, such as requiring them to check in with an officer regularly even without any charges against them.
  • Criminalizing support of terrorists’ acts online.

Despite the hype that suggests national security measures are new to Canada, the country has not been immune from the use of exceptional courts or the legal and political controversies that often accompany their use. As Kent Roach as forcefully articulated,

Canada did not use its newly enacted anti-terrorism law to prosecute suspected terrorists in the ordinary criminal courts for three years after 9/11. Instead, it relied on administrative detention under immigration law that had been authorized but not used extensively before 9/11.

Notably Canada has made extensive use of Security Certificates first introduced in Canadian immigration law in 1978 as a means to regulate security threats, thereby regulating entry, exit and the right to remain in Canada in the post 9/11 era.  This followed the deadliest act of aviation terrorism until 9/11—the 1985 Air India bombing killing 331 people— which enabled specific provisions of the security certificates to detain members of terrorist organizations.  In short, Canada is not without an existing arsenal of legal resources to regulate the threats it now faces, and this raises the obvious question of why there is an need for more.  There are also a storehouse of historical measures which resulted from the Quebec crisis, and the attendant use of terror tactics by Quebec Libre in the early 1970’s, as well as more recent emergency powers occasioned by student protests in Quebec at the state level.

The rush to legislate is a known phenomenon in the aftermath of terrorist and atrocity crimes. Violent terrorist acts create immense pressures on all three branches of government to “do something” about the threat. History has shown that these events bring about a broadening of the powers of the executive in general, and law enforcement agencies in particular. The need to respond quickly to future threats, as much as the need to assure the public that its government is acting with a vengeance against past and future terrorists, frequently results in legislation that is passed without much debate. We have seen the persistent tendency to forego normal legislative procedures and to adopt new or revamped tools in the counter-terrorism arsenal without much reflection, even when such measures deviate from otherwise entrenched notions of civil liberties and individual rights. The prevailing belief may be that if new offenses are added to the criminal code and the scope of existing offenses broadened, and if the arsenal of law enforcement agencies is enhanced by putting at their disposal more sweeping powers to search and seize, to eavesdrop, to interrogate, to detain without trial, and to deport, the country will be more secure and better able to face the emergency. As politicians and legislators engage in “symbolic alignments” (in which what counts is not the nature of the target, but rather being seen as taking a position against the devil and on the side of angels), the focus is put on a particular, identifiable, threat (such as terrorism) that is caused by a clearly identifiable group of “others” who can often be described as folk devils. In such circumstances, mapping exceptional measures—legislative, judicial, or executive—that would be activated only against that identifiable group, becomes easier to obtain politically since it carries with it the innate promise (often proven illusory in hindsight) that such measures will, in fact, only be used against “Them” and not against “Us.”

Thus, for example, the military commission scheme promulgated by President George W. Bush came in the close aftermath of the events of September 11 when the body politic remained traumatized and fearful of further territorial attacks. We should remember that rather than being created by an act of Congress, the creation of the Military Commissions came by way of executive fiat, circumventing the usual process of inter-party negotiation, notice and as well as (possibly) tempering input from specialized agencies and interests. Moreover, when issued it was understood that such judicial institutions would only have jurisdiction over foreign nationals rather than over citizens of the United States, although historically the United States has used military commissions to try US citizens, notably during the Civil War and the Dakota wars.

The passage of emergency legislation in many countries provides parallel examples of the challenges I see here. The series of Prevention of Terrorism (Temporary Provisions) Acts (PTA)  in the UK is illustrative. Originally introduced in the British Parliament in 1974 as a temporary measure, in response to a series of bombings by the IRA in mainland Britain, it was amended in 1975 and 1983, and re-enacted in 1984. In 1989, the PTA became a permanent part of the statute books of the United Kingdom. Similarly, Congress overwhelmingly supported the passage of the USA PATRIOT Act only six weeks after the terrorist attacks of September 11th. Congress acted despite strong claims that it was interfering unnecessarily and excessively with individual rights and liberties. Established legislative procedures—such as the committee process and floor debate—were abandoned in the name of speed.

Canadian legislators would do well to look elsewhere and learn the harsh lessons of the costs of speed and a lack of due process to the augmentation of security powers in the midst of crisis.  The comparative lessons tell us that haste to legislate in the aftermath of crisis has left little thoughtful room for reflection on the capacity of the ordinary law to cope, and the consequences for the separation and balance of power within a state to shift exceptional powers more firmly towards the executive. Rarely are these measures accompanied by a slew of necessary protections to the individual and particularly vulnerable groups in society.  Pause and modesty might be good catch-words to bear in mind for the Canadian government in the weeks ahead, and mantras that we should use more often in the aftermath of atrocity before we move to perilous action.

[Editor’s Note: This post has been revised to include attributions for certain factual statements to Justin Ling, Ottawa shootings: a spectacular failure for Canadian intelligence, Guardian, Oct. 22, 2014; Lauren Gambino, Canadian PM hid in store cupboard while gun battle was fought nearby, Guardian, Oct. 24, 2014] 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism; This article is written in the author's personal and academic capacity; Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).