the canada issue


Fighting terror while protecting rights

Law professor Kent Roach on how to strike the right balance by Jenny Hall

Nathan Cirillo_R

Kent Roach_R copy

Kent Roach

When Canadian soldier soldier Corporal Nathan Cirillo (pictured above) was shot to death while on sentry duty at the Canadian War Memorial in Ottawa in October 2014, the Conservative government of the time responded swiftly by introducing the Anti-Terrorism Act of 2014, commonly known as Bill C-51.

U of T law professor Kent Roach, in turn, responded swiftly to Bill C-51.

Alarmed by the proposed law, some of which he thought was unconstitutional, he teamed up with University of Ottawa law colleague Craig Forcese and Irwin Law, a Canadian legal publisher, to launch a website (antiterrorlaw.ca) that would become an innovative form of “real-time” scholarship. There, Roach and Forcese picked apart the voluminous bill and published their analyses – over 200 pages in February 2015, alone – as they went. The bill passed and became law in June, and in September 2015 Irwin Law published their book False Security: The Radicalization of Canadian Anti-Terrorism. The book is being looked at by the Trudeau government as it responds to the more problematic aspects of the law.

Roach believed that the bill would have a chilling effect on free expression with its broad criminalization of speech that could be construed as supportive of terrorism, and that it “fundamentally changed the mandate of CSIS” by assigning the spy agency sweeping new powers at home and abroad in all areas, not just those related to terrorism.

“A lot of the ideas expressed in the bill were so radical that we needed a place to set out what some of the possible applications of the new law would be.”

They also wanted their message to reach a wide audience.

“We knew that the bill was going to be debated. We knew that people from civil society were going to have to testify about it, and all they had was the government’s one-sided explanation of the bill.”

Universities, he says, have a lot of intellectual capital paid for via tax money, so he feels an obligation to conduct this kind of public-facing scholarship. Besides, he jokes, “If we were just writing for academics who were interested in Canadian security law, we’d be writing for about 10 people.”

Reaching beyond the confines of academia has long been part of Roach’s mission. He served as the director of research for the Air India Commission, which looked into the causes of the 1985 bombing of the Montreal-to-Delhi flight that killed more than 300 people and on the research advisory committee of the Maher Arar inquiry.

“Having worked on both the Arar and Air India files, I have seen the cost to those like Mr. Arar, who was a victim of overreaction and excess, and the 331 people who lost their lives in Air India because of underreaction.”

As such, he believes national security is a “high wire act,” and his criticism of the anti-terror law is not limited to its potential infringement of rights. He doesn’t think it actually does what it sets out to, which is to make us safer.

For example, he says, penalizing speech will make it difficult to talk constructively with would-be terrorists. He gives the example of the RCMP’s counter-violent extremism strategy, which is designed to find people and steer them away from extremism before they commit crimes but which may place the police force in an awkward position if they encounter hotheads who advocate terrorism offences in general. He also worries that CSIS’s new powers may have the unintended effect of making terrorism prosecutions more difficult and less likely.

Roach’s anti-terrorism prescription is twofold.

First, “Canada has to be better at prosecuting people who are intent on committing political or religiously inspired violence either in Canada or abroad.” This is in contradiction to more commonly used tactics such as deporting offenders or seeking peace bonds, which require offenders to adhere to the law.

Second, we need to “reach out to people who may be attracted to this violent ideology and do our best to persuade them that there are other ways to act upon grievances.” And, he says, “The people who actually are going to be the first to spot the signs of radicalization are going to be teachers, health care workers, social workers, and people within the Muslim community. We need to work with those people.”

He is cautiously optimistic about Canada – and the world’s – future.

“We are doing something that we didn’t do after 9-11. We are speaking about the causes of terrorism. That is a positive thing. We’re talking about that partly because ISIS is so fixed on recruiting people and inspiring people in a way that Al Qaida, frankly, wasn’t. ISIS is in some ways a graver threat than Al Qaida.”

Even if we do a better job with the “high wire act” of prosecuting terrorism while protecting rights, though, Roach doesn’t see a future free from terror.

“Corporal Cirillo was murdered steps away from where D’Arcy McGee was assassinated in 1868. Terrorism is unfortunately always going to be with us, but the question is how we as a society respond to it.”