New anti-terror bill could put chill on freedom of speech
'It’s really more political posturing than sound counterterrorism policy,' says legal expert
By Lucas Powers, CBC News
Posted: Jan 29, 2015 5:00 AM ET
Last Updated: Jan 30, 2015 3:30 PM ET
Prime Minister Stephen Harper said last weekend that new
anti-terror legislation to be introduced on Friday will, among other
things, “criminalize the promotion of terrorism.”
Such a move, however, could have a chilling effect on freedom of
expression in Canada and would not necessarily contribute to effectively
fighting domestic extremism, according to legal experts.
The new bill, which could also include provisions for expanded police
powers, was promised by the federal government in the weeks following
the October attacks in Quebec and Ottawa that left two members of the
Canadian Forces dead.
Justice Minister Peter MacKay suggested that the measures would,
among a host of other consequences, allow authorities to target materials that may be contributing to the radicalization of Canadians, particularly online.
The new bill, however, is largely a knee-jerk response to October’s
attacks and Canada already has the necessary laws on the books to pursue
and prosecute people promoting hatred or inciting violence, says Kent
Roach, a professor at the University of Toronto who specializes in
constitutional and terrorism law.
“The government has the burden before they introduce new laws to
demonstrate why it’s not possible to prosecute these kinds of offences
under existing Canadian law,” he says.
“There’s a real danger when we make laws in reaction to events with
the assumption that those laws will help prevent tragedies from
happening again.”
Government officials have repeatedly stated that any new legislation would be drafted in
accordance with the Charter of Rights and Freedoms and will not infringe on freedom of expression and religion.
'Glorification' offences
Similar legislation criminalizing the "glorification" of terrorist
acts exists in several European countries, and MacKay said last year
that the government was
reviewing specific laws in the U.K. as a possible template.
Earlier this month, Roach co-authored a working paper with Craig
Forcese, an associate professor of law at the University of Ottawa, that
analyzed the prospect of a Canadian law targeting glorification of
terrorism offences.
'Sometimes these things can become
wins for extremists and terrorists. They are trying to provoke further
attacks and if the response reinforces their perspective on the state of
the world, then it ends up helping their cause.'
- Scott Stewart, VP of tactical analysis at Stratfor
Pushing the limits on what kinds of speech are considered criminal
may put a "chill" on the dialogue around terrorism, they wrote,
particularly in communities where discussing the issues around
radicalization and extremism is most critical.
"There are at least two concerns about speech chill: will people not
talk about controversial topics because they’re worried about being
charged under a new offence? And second, will it drive potentially
radicalized individuals further underground?" says Roach.
When people don’t feel free to talk about the political, religious
and ideological elements of extremism, Canadian society won’t be able to
address the underlying forces that drive people toward radicalization
and, in some cases, to acts of violence, says University of Waterloo
sociology and legal studies professor Lorne Dawson.
'It's silencing'
Dawson does extensive research within communities dealing with
radicalization. He says many people are already reluctant to speak
openly about the subject.
"If we expand our laws, it will stoke the fear that people are
susceptible to prosecution just by the suggestion that that they may
empathize in part with the world view of people that are considered
terrorists, but they themselves would never do anything violent or
hateful," says Dawson.
"There is already an increasing sense that it is a forbidden topic
— it’s too potentially dangerous and words could be misconstrued or
misunderstood. It’s silencing."
While there is no question that extremist networks use the internet
to communicate and promote their causes, mounting evidence has shown
online activity is not always a driving force on the path to
radicalization.
"The internet might be a facilitator, but it’s not the cause," says
Forcese, who argued in his paper with Roach that contact with a
charismatic thought leader is almost certainly the strongest influence
on those moving toward extreme viewpoints.
The RCMP has already begun developing an anti-radicalization program
in conjunction with local police forces, and if a community leader was
inciting people to join extremist movements, their actions are already
illegal under the Criminal Code.
Making 'martyrs' of ideas
Similarly, stifling speech plays into the narrative promoted by many
extremist groups that Western societies are hypocritical to espouse free
speech values while repressing contradictory views. In essence, says
Forcese, these kinds of laws can make "martyrs of ideas" and speech that
lie within the definition of protected speech.
The ultimate result is to provide propagandists and recruiters in
foreign groups like ISIS and al-Qaeda, which are far out of reach of
Canadian law, another weapon in their arsenal.
"Sometimes these things can become wins for extremists and
terrorists," says Scott Stewart, vice-president of tactical analysis at Stratfor, a U.S.-based private intelligence and consulting firm.
'It seems to me that Canada’s legal
house is pretty much in order. The problem in Canada is not that the
laws aren’t on the books, but rather the enforcement of those laws.'
- Kent Roach, U of T law professor
"They are trying to provoke further attacks and if the response
reinforces their perspective on the state of the world, then it ends up
helping their cause."
On the other hand, it can be helpful to provide resource-strapped
counterterrorism forces with additional tools in the uphill battle
against homegrown threats. That was the fundamental basis for the laws
that were passed in the U.K., and Stewart says Canada’s new legislation
could be sculpted in the image of those laws.
While critics of the U.K.’s approach to glorification offences argue
there is room for abuses, particularly when it comes to the expression
of political and religious ideologies, "the British have addressed the
possibility of overstepping by surgically applying the laws," says
Stewart.
Enforcement of existing laws
While the U.K.’s efforts have arguably been effective, "Canada can
already accomplish what the U.K. has done in terms of most prosecutions"
under laws already in place, Roach and Forcese wrote.
"It seems to me that Canada’s legal house is pretty much in order,"
says Roach. "The problem in Canada is not that the laws aren’t on the
books, but rather the enforcement of those laws."
For example, Canadian legislation allows for a judge to issue a
warrant that would force internet service providers or individual
websites to take down material if it can be shown that it falls outside
of constitutionally protected speech.
The kinds of terrorist propaganda targeted by U.K. law could largely fall under this category in Canada, according to Roach.
Interestingly, there’s no publicly available evidence that the
provision has ever been used by Canadian law enforcement since being
enacted shortly after the attacks of Sept. 11, 2001.
He points to a history of co-operation between MI-5, the U.K.’s
domestic intelligence agency, and police forces throughout the country
as the primary reason for the U.K.’s ability to keep tabs on homegrown
extremism.
'Political posturing'
CBC News reported earlier this month that the new anti-terror legislation will likely include
provisions to allow increased information-sharing between federal agencies, currently limited by privacy laws.
Ultimately, pushing the limits of criminalized speech in the digital
age "is not going to stop the spread of information and it’s not going
to reduce the flow of propaganda," asserts Dawson.
Rather, it is intended to convey the message that Canada as a nation is trying to do
something to combat domestic threats.
"It’s really more political posturing than sound counterterrorism policy."
Source:
CBC News
