New anti-terror bill could put chill on freedom of speech

The federal government is set to introduce legislation Friday that will criminalize the "promotion of terrorism," a step that legal experts say could infringe on the freedom of expression enshrined in the Charter.

'It’s really more political posturing than sound counterterrorism policy,' says legal expert

Pushing the limits of criminalized speech could stifle discussion about sensitive topics, such as extremism and radicalization, in communities where that conversation is most needed. (Ben Curtis/Associated Press)

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.

RCMP Commissioner Bob Paulson in October outlined his force's plan to lead an anti-radicalization program in communities nationwide. These kinds of preventive measures are more effective than clamping down on speech, legal experts say. (Blair Gable/Reuters)
"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."

The U.K. enacted a series of laws that criminalized the "glorification" of terrorism following the 2005 attacks on London's public transit system that killed 52 people. (Dylan Martinez/Reuters)
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."