Public Safety Green Paper Comments – Secret Evidence Edition

This is the final post in my public safety green paper consultation project. This time around, I’ll be focusing on just the questions dealing with secret and classified evidence.

This section is a mixed bag. I think lawyers with security clearances are a great idea (although I have nagging worries about access to them; for all its potential for abuse, at least the special advocate program is free), but I’m deeply creeped out by the concept of classified evidence. It feels fundamentally at odds with a free and democratic society.

I recognize that I’m coming from a place of feeling safe. Terrorism doesn’t feel like much of a threat to me. I care far more about democratic values than the small chance of dying a really horrible death. I even care more about democratic values than the small chance of my loved ones dying horrible deaths. But I understand that other people make that trade-off in different ways. And I can’t say for certain that we wouldn’t have a lot more brutal deaths if the government did things my way. I suspect we wouldn’t, but I understand that many people have much less appetite for risk than I do.

If you want to answer these questions, here’s the link. In this case, more than any of the others, I recommend the background reading.

Do the current section 38 procedures of the Canada Evidence Act properly balance fairness with security in legal proceedings?

I think Section 38 does a mostly acceptable job of balancing fairness with security, but I do have some worries about the unclassified summaries. When given only a summary, the defence attorney is not able to challenge and cross examine the specific sources in the case. This is especially worrisome if the source is a foreign intelligence agency. No one really has any way of knowing how reliable their evidence is. Perhaps the best compromise here would be having a special advocate present as the summary is being prepared. This lawyer would be charged with ensuring that only information known beyond reasonable doubt (in criminal matters) and on a balance of probabilities (in civil matters) was present in the summary and all information was marked with the appropriate confidence (either: “beyond reasonable doubt” or “on the balance of probabilities”).

It may also be useful to follow the lead of Australia and the US and allow private lawyers to hold security clearances. These lawyers could represent their clients in both open and closed proceedings, ensuring fairness.

Could improvements be made to the existing procedures?

Yes. Attaching confidence levels to unclassified summaries (assigned by the federal judge after hearing arguments from the source of the information and the special advocate or security-cleared lawyer) and allowing lawyers to be security cleared would both lead to improvements in the current procedures.

Is there a role for security-cleared lawyers in legal proceedings where national security information is involved, to protect the interests of affected persons in closed proceedings? What should that role be?

Security-cleared lawyers would be an excellent addition to the current system. They could cross examine the parties entering the evidence, ensuring that only adequately proven facts are present in the unclassified brief. They could also provide continuity of representation in cases where closed-door hearings occur (like Division 9 Proceedings) as well as in civil cases that involve classified matters (where security-cleared lawyers from both parties could be present in closed door hearings).

Are there any non-legislative measures which could improve both the use and protection of national security information in criminal, civil and administrative proceedings?

The Government should review the quality of information – especially information from foreign partners – it is providing in criminal proceedings. If the government were to only allow the most ironclad evidence to be used, then there would probably be fewer disclosures (as the judge would be more comfortable with unclassified summaries, making disclosure less in the public interest) and our foreign partners could have more faith in CSIS. This also helps protect Canadians from imprisonment on bad information.

How could mechanisms to protect national security information be improved to provide for the protection, as well as the reliance on, this information in all types of legal proceedings? In this context, how can the Government ensure an appropriate balance between protecting national security and respecting the principles of fundamental justice?

Adopting a more adversarial approach to unclassified summaries would make them much more reliable and therefore lessen the public interest in classified information disclosure, leading to less disclosure of classified information. This has the advantage of protecting fundamental justice and national security at the same time.

I think too many people adopt the false dichotomy between justice and security. The government should be looking for clever solutions that enhance both at the same time.

Do you think changes made to Division 9 of the IRPA through the ATA, 2015 are appropriately balanced by safeguards, such as special advocates and the role of judges?

I think the ability for the government to avoid disclosing some information to the special advocate is deeply troubling. If special advocates are already security-cleared, I see little good reason (and many bad ones) to avoid giving them information.

I also think that the special advocate system is much more prone to abuse than an adversarial system where the private citizen is represented by counsel they retain. As employees of the government, special advocates have little incentive to fight as hard as they can against the governments requests for non-disclosure. Private attorneys will face loss of business if they can’t bring about good outcomes for their clients and will be much more willing to fight as hard as they can for disclosure.

We rely on our adversarial system to bring about justice not because we don’t trust the government, but because we acknowledge that some decisions are so momentous that they can only be made after someone has argued as hard as they can for the opposite. What is true in ordinary criminal proceedings is true here as well.


Public Safety Green Paper Comments – Cyberspace Edition

This is a special edition of my public safety green paper consultation project. This time around, I’ll be focusing on just the questions dealing with digital investigations, encryption, etc. It’s all one section on the consultation website.

In contrast to many of the other sections, where I felt that the questions were leading in a positive direction, I’m deeply worried with where the government wants to go with digital investigative powers. I feel like there’s a fundamental disconnect between how the government thinks online security and encryption works and how they actually works. I hope that others who understand the value of encryption can join with me in voicing our fears to the government.

Investigative Capabilities in a Digital World

How can the Government address challenges to law enforcement and national security investigations posed by the evolving technological landscape in a manner that is consistent with Canadian values, including respect for privacy, provision of security and the protection of economic interests?

As long as almost all crimes that cause actual harm to someone must be undertaken in the physical world, it makes sense to value the privacy of Canadians and their economic interests (especially as Canada tries to become a leader in digital technology) more highly than simple investigatory convenience.

It is impossible to make encryption with a back-door only the government can use. It’s impossible to expect Canadian businesses to be competitive internationally if they’re crippled by the costs of maintaining more data than they need to for their own business operations or maintain expensive intercept capabilities. And maintaining subscriber data puts Canadians at much higher risk of embarrassment, extortion, or identity theft in the event of a data breach.

As things currently stand, privacy right and economic interests are too important to allow any significant compromises to them to be made.

In the physical world, if the police obtain a search warrant from a judge to enter your home to conduct an investigation, they are authorized to access your home. Should investigative agencies operate any differently in the digital world?

Not particularly. Requiring a judge to approve most requests – like subscriber information or intercept capability – is an equally useful norm in both the physical and digital worlds. With respect to encryption, encryption keys should fall under the general protection from self-incrimination that everyone enjoys under the charter.

Currently, investigative agencies have tools in the digital world similar to those in the physical world. As this document shows, there is concern that these tools may not be as effective in the digital world as in the physical world. Should the Government update these tools to better support digital/online investigations?

Any tools that would better support investigations must have their potential utility balanced against their real and significant privacy risks. In this document, the government has failed to explain how these tools would justify the substantial risk to privacy rights that they pose.

Is your expectation of privacy different in the digital world than in the physical world?

I wouldn’t say they’re different, precisely. It would be better to say that I believe that the digital world offers us, for the first time ever, adequate privacy. This is a precious thing and the rise of organizations like OpenMedia show how dedicated Canadians are to maintaining it.

Basic Subscriber Information (BSI)

Since the Spencer decision, police and national security agencies have had difficulty obtaining BSI in a timely and efficient manner. This has limited their ability to carry out their mandates, including law enforcement’s investigation of crimes. If the Government developed legislation to respond to this problem, under what circumstances should BSI (such as name, address, telephone number and email address) be available to these agencies? For example, some circumstances may include, but are not limited to: emergency circumstances, to help find a missing person, if there is suspicion of a crime, to further an investigative lead, etc…

Circumstances where authorities can obtain subscriber information without a warrant should be limited to those where the health or safety of the subscriber  or others at that dwelling can be reasonably assumed to be at risk. Some examples: suicide threats where trained professionals believe there is probable cause to worry, a missing persons case being filed for the subscriber or there being reasonable grounds to suspect the subscriber is a missing person, posts on social media that cause family and child services to worry for the safety of children at the residence, or posting a ransom demand.

Do you consider your basic identifying information identified through BSI (such as name, home address, phone number and email address) to be as private as the contents of your emails? your personal diary? your financial records? your medical records? Why or why not?

I consider it to be approximately as private as the contents of my emails. While I conduct almost all of my online activities under my own name, it is occasionally useful for me to go incognito (for example, if I expect harassment or threats as a result of what I write). Because of this, I have expectations that my subscriber information will be kept private in almost all cases, as I would with my private emails.

Do you see a difference between the police having access to your name, home address and phone number, and the police having access to your Internet address, such as your IP address or email address?

Yes. Having access to a home address simply tells you where someone might be found. Having access to an IP address and an email allows you to develop a complete profile of someone. What sites they visit, who they interact with, and what they comment — all laid bare. It is much more invasive than having a mere physical address or a phone number (as few places keep records of what number they were called with, while almost all website keep record of what IPs visited them).

Interception Capability

The Government has made previous attempts to enact interception capability legislation. This legislation would have required domestic communications service providers to create and maintain networks that would be technically capable of intercepting communications if a court order authorized the interception. These legislative proposals were controversial with Canadians. Some were concerned about privacy intrusions. As well, the Canadian communications industry was concerned about how such laws might affect it.

I agree with Canadians who expressed privacy concerns and the concerns of our communications industry.

Should Canada’s laws help to ensure that consistent interception capabilities are available through domestic communications service provider networks when a court order authorizing interception is granted by the courts?

Only if the fully cost is borne by the government and interception is only done after court orders are granted. Furthermore, the government should conduct thorough security audits of any intercept capability it develops. Bad actors using intercept capabilities would be devastating for any Canadians affected and seriously shake overall faith in law enforcement.


If the Government were to consider options to address the challenges encryption poses in law enforcement and national security investigations, in what circumstances, if any, should investigators have the ability to compel individuals or companies to assist with decryption?

There should be no circumstances under which individuals or companies are compelled to assist with decryption. Requiring companies to decrypt devices weakens security for all Canadians. It is impossible to build a backdoor that can’t be exploited and any weakening of security on commercial devices opens Canadians up to much higher risk of identity fraud or theft. Individuals should not be compelled to hand over their encryption keys for the same reasons they are not compelled to self-incriminate in testimony.

How can law enforcement and national security agencies reduce the effectiveness of encryption for individuals and organizations involved in crime or threats to the security of Canada, yet not limit the beneficial uses of encryption by those not involved in illegal activities?

This is impossible. You can’t simultaneously weaken and maintain security. Police must accept that encryption is here to stay. Without it, simple actions like shopping online would be impossible. Any effort to weaken encryption in Canada would be devastating to our technology sector and threaten the viability of the internet in Canada.

Data Retention

Should the law require Canadian service providers to keep telecommunications data for a certain period to ensure that it is available if law enforcement and national security agencies need it for their investigations and a court authorizes access?

Yes, but only if the period is reasonable. Forcing providers to keep data for longer than a month would quickly strain their infrastructural capabilities, increasing our already high internet costs to unacceptable levels.

If the Government of Canada were to enact a general data retention requirement, what type of data should be included or excluded? How long should this information be kept?

For the law to be any use at all, websites visited would have to be tracked. This could be balanced with privacy concerns by only recording the domain name and leaving out specifics of which pages were visited. Information should be kept for at most one month. Beyond that, law enforcement can’t claim it urgently needs the data. This strikes the right balance between the usefulness and the cost of maintaining this type of record.



Public Safety Green Paper Comments (Part 3)

The Canadian government is currently reviewing the national security framework and is soliciting public comment. I’ve decided to post my comments publicly, in the hopes of spurring discussion and providing model comments for others to riff off of.

If you care about limiting government spy powers and government accountability, I urge you to read the Green Papers and comment yourself.

In Part 3, I cover Procedures for Listing Terrorist Entities and Terrorist Financing.

Procedures for Listing Terrorist Entities

Does listing meet our domestic needs and international obligations?

I noticed that the listing process doesn’t officially include an arms embargo, which seems to be required under UNSC Resolution 2253. I assume that the legislation listed as stemming from UNSC Resolution 2253 included an arms embargo, but it doesn’t seem like a bad idea to automatically forbid Canadian companies and citizens from selling any arms or military equipment to any entity listed through the criminal code.

In addition, I notice that there seems to be no provision for listing state sponsors of terrorism. Countries like Saudi Arabia and Iran do funnel money to various terrorist groups. While it would obviously be implausible to expect the Government of Canada to freeze and seize the assets of a foreign government, it may make sense to apply some of the penalties that are applied to other entities that support terrorist groups to state sponsors of terrorism, especially my proposed arms embargo.

The Criminal Code allows the Government to list groups and individuals in Canada and abroad. Most listed entities are groups based overseas. On which types of individuals and groups should Canada focus its listing efforts in the future?

There seems currently to be little effort put into listing state sponsors of terrorism, which seems like it could be a fruitful place to focus more attention. Beyond that, I would suggest that the government should focus on groups have some presence, be it recruitment or fundraising in Canada. If insurgent group Y in country Z has no connection to Canada, reviewing it should be given lower priority than insurgent group A in country B that raises $50 million from Canada each year.

What could be done to improve the efficiency of the listing processes and how can listing be used more effectively to reduce terrorism?

Applying penalties to state sponsors of terrorism sends a clear message that their behaviour will have consequences on the international stage and might be effective in reducing terrorism, especially if Canada engaged with our allies and raised a united front.

Do current safeguards provide an appropriate balance to adequately protect the rights of Canadians? If not, what should be done?

As I’ve said in some of my other feedback, I’m sceptical of any legal system that doesn’t allow the accused to see the full evidence against them. I think this is tolerable insofar as it affects organizations, but if individuals are charged due to their involvement with an organization that has been listed as terrorist under the criminal code, then they (and their lawyers) must be allowed to see all evidence collected against them.

Terrorist Financing

What additional measures could the Government undertake with the private sector and international partners to address terrorist financing?

Manual review is tedious, time consuming, and exposes personal information. On the other hand, deploying sophisticated machine learning algorithms that have been trained to flag suspicious patterns and trends allows for more terrorist activity to be caught, while, if done properly, actually enhancing privacy for almost all Canadians.

The government should partner with industry leading machine learning companies (such as Google) to develop algorithms that can track terrorist financing, whether or not the transactions are below $10,000.

What measures might strengthen cooperation between the Government and the private sector?

Ensuring that all measures taken are cost effective and don’t add undue burden to financial institutions will make them much more willing partners. It is much easier to stomach a secure government server on premise, running software developed by Google or a similarly trusted vendor with an excellent security record than it is to hire and train additional staff to conduct manual reviews of information that isn’t related to what the bank wants to be doing (namely, making money).

Are the safeguards in the regime sufficient to protect individual rights and the interests of Canadian businesses?

The current safeguards seem adequate for protecting individual Canadian rights. If more elaborate technologies are used to detect suspicious activity, any suspicious activity found should be only admissible in court for terrorism related offences. Bulk data collection for the purpose of terrorism reduction is acceptable. Bulk data collection in case someone somewhere may have committed a crime probably violates Charter Rights.

What changes could make counter-terrorist financing measures more effective, yet ensure respect for individual rights and minimize the impact on Canadian businesses?

Moving as much of the review process away from humans as is possible. It’s much better (from a privacy standpoint) to have a machine briefly review your data than have another human do it. Since machines are cheaper and don’t make as many mistakes as humans, this is a win for everyone.


Public Safety Green Paper Comments (Part 2)

The Canadian government is currently reviewing the national security framework and is soliciting public comment. I’ve decided to post my comments publicly, in the hopes of spurring discussion and providing model comments for others to riff off of.

If you care about limiting government spy powers and government accountability, I urge you to read the Green Papers and comment yourself.

In Part 2, I cover Information SharingThe Passenger Protect Program, and Criminal Code Terrorism Measures.

Information Sharing

The Government has made a commitment to ensure that Canadians are not limited from lawful protest and advocacy. The SCISA explicitly states that the activities of advocacy, protest, dissent, and artistic expression do not fall within the definition of activity that undermines the security of Canada. Should this be further clarified?

One person’s lawful protest is another person’s riot. Whether protestors are given sympathetic treatment or labelled as an unruly mob often depends on how much people agree with them. It is also true that protests can have multiple factions and we often see peaceful protestors unfairly detained due to the actions of a few radicals (e.g. during the G20 protests).

Due to the inherent ambiguities here, all protestors who haven’t been charged with a crime should be considered legitimate protestors. This bar ensures that lawful protestors will never have their privacy rights violated and gives and clear threshold for information sharing with no room for subjectivity. Similarly for other activities of dissent. If criminal charges aren’t brought, then the activity shouldn’t be treated as undermining the security of Canada, even if the activity is against the national interests of Canada as the government decides them (protesting at pipelines, for example, may be viewed by the government as against Canada’s national interests, but shouldn’t trigger information sharing).

Artists groups should be consulted to see what recommendations they would make to ensure that artists are protected. I lack domain specific knowledge to make good suggestions here.

Should the Government further clarify in the SCISA that institutions receiving information must use that information only as the lawful authorities that apply to them allow?

One hopes that institutions understand that they must act within the law at all times, with shared information or not. If this seems at all in doubt, then it is of course necessary to clarify the wording to remind institutions that they aren’t above the law.

Do existing review mechanisms, such as the authority of the Privacy Commissioner to conduct reviews, provide sufficient accountability for the SCISA? If not, what would you propose?

As with any expansion of security agencies, oversight can become ineffective if there isn’t a corresponding expansion in the capabilities of the review agency. As reviewing new SCISA cases will inevitably take time, the Privacy Commissioner should see its staff and budget increased to meet the additional demand. For further comments on accountability, please refer to my specific suggestions under that heading, which I think apply double here.

To facilitate review, for example, by the Privacy Commissioner, of how SCISA is being used, should the Government introduce regulations requiring institutions to keep a record of disclosures under the SCISA?

Yes. This will definitely make the Privacy Commissioner’s job much easier and will probably allow some money to be saved in hiring additional staff for the privacy commissioner.

Some individuals have questioned why some institutions are listed as potential recipients when their core duties do not relate to national security. This is because only part of their jurisdiction or responsibilities relate to national security. Should the SCISA be clearer about the requirements for listing potential recipients? Should the list of eligible recipients be reduced or expanded?

While I agree that all government institutions should be able to share important information they have, it makes sense to limit the pool of recipients to only those organizations with the know-how and wherewithal to stop or disrupt terrorist plans. While the Department of Fisheries should be able to share information with CSIS, the reverse should probably not be true.

Therefore, I think only organizations related to national security (a non-exhaustive list would include the DND, RCMP, and CSIS) should be listed as eligible recipients.

The Passenger Protect Program

At present, if the Minister does not make a decision within 90 days about an individual’s application for removal from the SATA List, the individual’s name remains on the List. Should this be changed, so that if the Minister does not decide within 90 days, the individual’s name would subsequently be removed from the List?

Yes. Currently the minister can abrogate review duties (say, due to a busy schedule) and largely escape censure because names will remain on the list. While this may be devastating to individuals wrongly added to the list, it will not cause much public embarrassment to the government. Defaulting to names being removed from the list unless the minister acts aligns the incentives of the Minister and law-abiding citizens who have been wrongly added to the list (as both now want the minister to review their applications within 90 days). The Minister would have to grapple with the potential danger of not fulfilling his or her review duties and would have no incentive to let people languish.

To reduce false positive matches to the SATA List, and air travel delays and denials that may follow, the Government has made a commitment to enhance the redress process related to the PPP. How might the Government help resolve problems faced by air travellers whose names nonetheless generate a false positive?

The government must be committed to paying all costs associated with false positives. Costs include (but are not limited to) re-booked tickets, accommodations, transportation, additional time off work, additional accommodations at the destinations to maintain total trip duration, as well as all of these expenses for minors when a guardian is prevented for travelling or these expenses for at least one guardian when a minor is prevented from travelling. This should be the default, with no application or wait period required.

In addition, the government should not add individuals to the list unless it knows their approximate date of birth. Having a toddler prevented from flying because his or her name happens to match a name on the no-fly list is patently ridiculous. An alternative approach would be to not screen against the no-fly list anyone younger than 12.

Finally, these delays happen because individuals do not know they are on the no-fly list. Keeping the list secret gives individuals no opportunity to pre-emptively clear their name before they go to fly. The government should have learned from the PROFUNC debacle that it is wrong to keep secret list of citizens suspected of committing crimes. Individuals on the no-fly list should be notified when they are added to it.

Are there any additional measures that could enhance procedural fairness in appeals of listing decisions after an individual has been denied boarding?

Individuals (and more importantly, their lawyers) should have access to all information used to make the decision to put them on the no-fly list. It is impossible for anyone to seek to clear their name if they aren’t allowed to know the evidence against them. In addition, the government must be on the hook for all costs incurred when an individual is denied boarding.

Criminal Code Terrorism Measures

Are the thresholds for obtaining the recognizance with conditions and terrorism peace bond appropriate?

Given the significant restrictions that recognizance or peace bonds place on individual liberty, I believe that the previous threshold were much more appropriate.

Advocating and promoting the commission of terrorism offences in general is a variation of the existing offence of counselling. Would it be useful to clarify the advocacy offence so that it more clearly resembles counselling?

Given that counselling already carries the same sentence as the crime that the accused counselled others to commit, I see no reason why a separate advocacy of terrorism offence is at all necessary. It seems like there was adequate redress before additional offences were added to the criminal code, so I question the usefulness of the duplication.

Should the part of the definition of terrorist propaganda referring to the advocacy or promotion of terrorism offences in general be removed from the definition?

Yes. Advocacy or promotion should refer to advocating or promoting a specific terrorist plot, not advocating for terrorism in general.

What other changes, if any, should be made to the protections that witnesses and other participants in the justice system received under the ATA, 2015?

There is a long accepted common law right to know and face your accuser. While I understand the rationale behind these laws, it cripples an effective defence when the lawyer for the accused does not know the identity of the accuser. Without his or her identity, the lawyer cannot effectively cross-examine or raise character flaws that may make the testimony less compelling. Therefore, these protections should be removed to protect the due process rights of accused. See R v Seaboyer for the jurisprudence behind bringing up past witness behaviour at a trial.


Public Safety Green Paper Comments (Part 1)

The Canadian government is currently reviewing the national security framework and is soliciting public comment. I’ve decided to post my comments publicly, in the hopes of spurring discussion and providing model comments for others to riff off of.

If you care about limiting government spy powers and government accountability, I urge you to read the Green Papers and comment yourself.

In Part 1, I cover AccountabilityPrevention, and Threat Reduction.


Should existing review bodies – CRCC, OCSEC and SIRC – have greater capacity to review and investigate complaints against their respective agencies?

Yes. The recent revelations about metadata collection show that oversight bodies need to be strengthened. In addition, it may be very useful for review bodies to be allowed (and required) to do some amount of independent investigation, without having to wait for a complaint to be made. Preventative audits of our national security services would help increase Canadian’s faith in these services.

Should the existing review bodies be permitted to collaborate on reviews?

Yes. This seems in line with the government’s moves to strengthen interdepartmental cooperation and prevent useful information from being siloed.

Should the Government introduce independent review mechanisms of other departments and agencies that have national security responsibilities, such as the CBSA?

This seems the most reasonable way to ensure adequate civilian and parliamentary oversight of all agencies dealing with national security. Given that national security agencies are now able to collaborate much more easily, it makes sense for oversight to be broadened beyond those organizations that have traditionally had oversight.

While existing oversight agencies could expand their mandates as a stopgap measure, it seems likely to be more effective to spin up new agencies for this task. Or, if there are clear cost saving to have in amalgamating review agencies, funding and staffing must be increased to allow adequate oversight. An oversight body without adequate staff is a useless oversight body.

The proposed committee of parliamentarians will have a broad mandate to examine the national security and intelligence activities of all departments and agencies. In light of this, is there a need for an independent review body to look at national security activities across government, as Commissioner O’Connor recommended?

There is something to be said for a well-trained group of bureaucrats who are able to monitor an agency for a long period of time and build up specific expertise in that task. Due to the constantly shifting nature of parliament, an independent, arms-length agency empowered to monitor national security agencies and report on them to parliament has serious merit as a supplementary measure to any parliamentary committee. A permanent organization would also allow oversight to be maintained during transitions of power between governments and would alleviate the gap in effective oversight we would expect every time the responsibility falls to a new batch of MPs.

The Government has made a commitment to require a statutory review of the ATA, 2015 after three years. Are other measures needed to increase parliamentary accountability for this legislation?

Statutory review must involve members of parliament from all major parties, with adequate security clearances to review non-redacted documentation. If statutory review meets these standards, then it would represent acceptable accountability.


The Government would like your views about what shape a national strategy to counter radicalization to violence should take. In particular, it is looking to identify policy, research and program priorities for the Office of the community outreach and counter-radicalization coordinator. What should the priorities be for the national strategy?

Counter-radicalization programs must be based in the community and must have the trust of members of the community. They cannot exist in an environment which has punitive penalties for merely holding radical beliefs; if parents or friends believe that approaching the authorities for help will lead to their friend or loved one being arrested, they will be much less likely to. Programs that allow family members or friends to report radicalized individuals without worry that there will be negative involvement with the Criminal Justice System will always be much more effective in gaining the trust of the community.

In addition, programs should focus on the breadth of ways that individuals can become radicalized. Too narrow a focus (i.e. focusing just on radical Islam) can leave parents or friends struggling with individuals radicalized into other ideologies (like white supremacy).

Finally, counter-radicalization programs should involve formerly radicalized individuals who have become disillusioned with their radical viewpoints. These individuals are ideally positioned to both explain the errors in radical narratives and show how reintegration into mainstream communities is possible.

What should the role of the Government be in efforts to counter radicalization to violence?

The government should create space in the criminal code for counter-radicalization programs to work, perhaps by allowing individuals to avoid the threat of charges if they participate (or, when criminal convictions are made, using discharges conditional on completion of such a program in lieu of incarceration). In addition, the government should develop model programs and recommended strategies and provide funding for cities to run radicalization programs. As a last resort, the federal government should be willing to step in when a province or municipality cannot or will not provide a counter-radicalization program. Finally, the government should support research into the most effective counter-radicalization strategies and seek to make Canada a centre of excellence in counter-radicalization research.

Research and experience has shown that working with communities is the most effective way to prevent radicalization to violence. How can the Government best work with communities? How can tensions between security concerns and prevention efforts be managed?

The government must give assurances that in all cases (except imminent attacks or clear intent to join a foreign militant group), anyone referred to a counter-radicalization program will not face consequences with the criminal justice system. Parents shouldn’t be torn between desire to help their children and keep their children out of jail.

The government must acknowledge that perfect safety isn’t attainable. Counter-radicalization programs will always present more of a short-term risk than arrest. But it is important that the government be willing to stay the course on counter-radicalization to reap the long-term benefits of reduced radicalization that programs that win the trust of communities can bring.

Efforts to counter radicalization to violence cannot be one size fits all. Different communities have different needs and priorities. How can the Office identify and address these particular needs? What should be the priorities in funding efforts to counter radicalization to violence?

Funding should be given to communities on a flexible basis, to allow each community to adapt to the most pressing local concerns. What’s a problem in Brantford, ON and Moncton, NB are probably very different and each municipality will need the flexibility to meet its own unique challenges. That said, the Office must be willing to demand a minimum standard of all programs and ensure that programs exist for commonly occurring narratives (e.g. white supremacy, radical Islam) everywhere those narratives exist.

Radicalization to violence is a complex, evolving issue. It is important for research to keep pace. Which areas of research should receive priority? What further research do you think is necessary?

Randomized controlled trials of different counter-radicalization methods are necessary to ensure that only methods that actually work are used. While experimenting with something so important may sound callous or naive, the fact of the matter is that we don’t fully understand which programs work best (or work at all). Determining which methods are most effective will net huge long-term gains.

What information and other tools do you need to help you prevent and respond to radicalization to violence in your community?

A public directory or website (e.g. radicalization.gc.ca) with information about all local programs, Canada-wide, generic counter-radicalization resources, and a 24/7 hotline number would be very useful.

Threat Reduction

CSIS’s threat reduction mandate was the subject of extensive public debate during the passage of Bill C-51, which became the ATA, 2015. Given the nature of the threats facing Canada, what scope should CSIS have to reduce these threats?

While I can see the appeal of giving CSIS the ability to act directly to reduce clear and present threats, I remain worried that CSIS lacks appropriate expertise in direct action. Therefore, I believe that CSIS should be returned to its traditional mandate, with threat disruption left to organizations like the RCMP with much more experience in expertise in disrupting criminal activities.

The threat of terrorism shouldn’t be treated as a special class of crime onto itself. It’s a crime like any other and we already have tools to deal with crime. Terrorism isn’t worth letting intelligence agencies be active domestically. Law-enforcement is far more accountable to the people and therefore should be preferred.

Are the safeguards around CSIS’s threat reduction powers sufficient to ensure that CSIS uses them responsibly and effectively? If current safeguards are not sufficient, what additional safeguards are needed?

Ultimately, CSIS is less accountable to the public than law enforcement because so much of what it does is classified. If you can’t tell people about it, then people can’t tell you if they think it’s a problem.

I appreciate that the nature of the classified information CSIS deals with makes public oversight and reports like Canadians exercise over police impossible. I wonder if more effective oversight could be achieved by giving all parliamentarians the security classification necessary to review CSIS’s actions. MPs could then raise troubling actions during question period or directly to the public, (with classified and identifying details redacted, of course).

The Government has committed to ensuring that all CSIS activities comply with the Charter. Should subsection 12.1(3) of the CSIS Act be amended to make it clear that CSIS warrants can never violate the Charter? What alternatives might the Government consider?

Yes. As long as CSIS’s activities are classified, it is always possible that they will violate the charter, as was seen recently with metadata collection. Making it explicit that they may not violate the charter (and rely on their classified status to escape the ire of Canadians) would be a strong signal to CSIS that it must act in accordance with our shared democratic values.