Criminalizing Terrorist Propaganda can violate Charter Rights and Freedoms

By Jessica Marano, M.A. Candidate at the Norman Paterson School of International Affairs at Carleton University

THE ANTI-TERRORISM ACT, 2015

Bill C-51 made significant and controversial changes to anti-terrorism efforts, national security, and privacy laws. Bill C-51 was designed to encourage and facilitate information sharing between Government institutions, ensure safer transportation services, and allow law enforcement officials to arrest individuals without questioning them, if they suspect a terrorist attack will be carried out. Additionally, Bill C-51 added two new offences to the Criminal Code. Section 16 of the Anti-Terrorism Act creates a terrorism offence that criminalizes those knowingly advocating or promoting “terrorism offences in general” and it creates a new concept of “terrorist propaganda,” where judges have the power to order the deletion of such material deemed as terrorist propaganda. These offences created under Bill C-51 potentially restrict Canadians’ fundamental freedoms, as expressed within Section 2 of the Charter of Rights and Freedoms, specifically their “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” These criticisms must be considered before convicting individuals of terrorism-related offences.

CONCERNS WITH THE ANTI-TERRORISM ACT

Advocating or Promoting Terrorism

Critics have suggested that Section 83.221(1) of the Criminal Code can potentially “chill” people’s free speech. The scope of the new offence is vaguely worded to cover “terrorism offences in general,” and does not specify what types of terrorist-related offences can be criminalized. For instance, students who post articles on Facebook supporting Hamas could be prosecuted under this new provision, as Canada deems this group a terrorist organization. Many of these people will fear prosecution and refrain from communicating their views, thus restricting their freedom of speech.

Secondly, opponents have argued that the government will also undermine its own anti-terrorism efforts. By preventing extremist expression, the Act may send these types of conversations underground where it is more difficult for intelligence agencies to monitor. For the Royal Canadian Mounted Police’s countering-violent extremism (CVE) program, successful de-radicalization may become impossible. The CVE program entails an organization to host a meeting where members can openly discuss and confront radical views, in hopes that such conversation will reduce the potential for radicalization. With the new speech provisions, members may be apprehensive to attend or share their radical views, thus, being more susceptible to violent extremist views.

Terrorist Propaganda

Critics have argued that the terrorist propaganda definition in Section 83.222(1) of the Criminal Code is too general because it references the vague and overbroad speech offence. Terrorist propaganda could encompass content that Parliament did not intend to be captured, such as opinions that are politically extreme and irresponsible, but that are far from actual or threatened terrorist violence.

Changes to anti-terrorism laws have occurred internationally. In 2010, the U.K. Government set up a “Counter-Terrorism Internet Referral Unit,” which removed terrorist material from the Internet. The U.K. Government also reached an agreement with Internet Service Providers (ISPs) to voluntarily block outside material at the request of the counter-terrorism unit, with no court order required. In Canada, Bill C-51 now allows a judge to seize or delete terrorist propaganda. To do so, the Crown must go before a judge and prove, on a balance of probabilities, that the material in question constitutes as terrorist propaganda. The Crown does not need to prove that the poster knowingly or recklessly advocated or promoted terrorism offences in general. Once a deletion order has been granted, the Crown must ask the computer owner to remove the post. Many individuals will not appeal the deletion order as there is an increased risk of being persecuted under the new speech offence.

Social media sites like Facebook and Twitter were created to provide individuals with the ability to share their opinions and express both popular and undesirable ideas. These sites have their own terms of services (TOS) that attempt to regulate user’s online behaviour. While these social media sites and many more alike uphold their own TOS, they are conscious of the material being removed and strive to not violate individual’s freedom of speech and expression, thus being more lenient on what web content can remain online. If the Government relies too heavily on these new Criminal Code provision and increase the amount of demands on ISPs, we could begin to see the deletion of material that does not even meet the overtly broad definition of terrorist propaganda.

Together, civil liberty groups such as the Canadian Civil Liberties Association and critics like Kent Roach and Craig Forcese, have argued that the Anti-Terrorism Act stretches the definition of security, as the language is far-reaching. It fails to define terrorism clearly and attempts to remove all terrorist propaganda from the Internet, which will effectively censor one’s freedom of expression. The Anti-Terrorism Act has been heavily criticized and will likely be challenged in court as it seems to violate Section 2 of the Charter, Canadian’s fundamental freedoms and their privacy rights. The security of Canadians is an important issue that the Government must protect, however, at what point does the cost of our freedom outweigh the benefit of security?

Stop Bill C-51” by Jeremy Board is licensed under CC BY 2.0

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