Nathan by Jamie McCaffrey (CC BY 2.0) https://flic.kr/p/pLRHqW

Nathan by Jamie McCaffrey (CC BY 2.0) https://flic.kr/p/pLRHqW

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Responding to the Attacks: Why We Need to Resist Quick-Fix Anti-Terrorism Measures

Two shocking terror attacks on Canadian soil, one striking at the very heart of the Canadian parliament buildings and both leaving behind dead soldiers. Office buildings, shopping centres, and classrooms placed under lockdown for hours with many confronting violence first hand that is rarely associated with Canada.

Last week’s terror events will leave many searching for answers and seeking assurances from political and security leaders that they will take steps to prevent it from happening again. There will be an obvious temptation to look to the law to “fix” the issue, and if the past is a guide, stronger anti-terror legislation and warnings that Canadians may need to surrender more of their privacy and civil liberties in the name of greater security will soon follow.

My weekly technology law column (Toronto Star version, homepage version) notes that if there are legal solutions that would help foster better security, they should unquestionably be considered. Yet Canada should proceed with caution and recognize that past experience suggests that the unintended consequences that may arise from poorly analyzed legislation may do more harm than good.

The Canadian experience with lawful access reform provides an instructive lesson in how knee-jerk legislative responses rarely provide the desired solutions. Lawful access bills began appearing soon after the events of 9-11 with the initial bills envisioning the creation of a massive surveillance infrastructure. It featured provisions mandating that Internet providers disclose detailed personal information on subscribers and requiring them to install extensive surveillance equipment on their networks.

The public expressed disapproval with the proposals, raising serious questions about the lack of evidence to support claims the legislation would address actual law enforcement problems, the associated costs, and the implications for striking a reasonable balance between security needs and privacy safeguards.

Lawful access has remained a hot button issue, but successive bills have gradually retreated from those early plans. Bill C-13, the latest lawful access bill (labelled as cyber-bullying legislation), has generated well-deserved criticism, yet many of the most invasive provisions have been removed. As the bill heads for Senate review, there is still room for improvement, but even the fiercest critic must acknowledge that many of the biggest privacy concerns have been addressed.

New anti-terrorism legislation is next on the legislative docket. The forthcoming bill is ostensibly a response to last year’s federal court decision that rebuked Canada’s intelligence agencies (CSEC and CSIS) and the Justice Department for misleading the court when they applied for warrants to permit the interception of electronic communications.

Justice Mosley, a former official with the Justice Department who was involved with the creation of the Anti-Terrorism Act, expressed concern about warrants involving two individuals that were issued in 2009 permitting the interception of communications both in Canada and abroad using Canadian equipment. At the time, the Canadian intelligence agencies did not disclose that they might ask their foreign counterparts (namely the “five eyes” partners in the U.S., U.K., Australia, and New Zealand) to intercept the foreign communications.

The government appealed Mosley’s decision, but the Federal Court of Appeal ruling has not been publicly released. Many observers suspect that the government lost the appeal and plans to use legislative changes to address issues related to interceptions and information sharing.

In the aftermath of the Canadian terror attacks, there will likely be calls to go even further, granting police and intelligence agencies more powers. But before we look to the law to address our security concerns, a better understanding of the possible security and intelligence failures that may have contributed to the terror attacks is needed. If agencies are not effectively using their current powers, more powers will do little to remedy the current situation.

Moreover, legislative reforms must also address Canada’s weak oversight and accountability mechanisms. One of the glaring problems with Canada’s current system is the lack of oversight: limited Parliamentary review, long delays in issuing reports from the CSEC Commissioner, and sporadic public revelations about the operations of Canada’s security and intelligence agencies.

Notwithstanding the urge to “do something”, Canada should be cautious about looking to more laws as the primary means to prevent a repeat of this week’s tragic events and ensure that any reforms that emerge be accompanied by effective oversight and accountability.

15 Comments

  1. There was an overreaction already, which needs to be reviewed and criticised:

    The lock-down should have been followed by positioning troops at all the access points to the people threated (meaning all over the place), but then followed by a thorough room-by-room sweep, with the rooms cleared being evacuated.

    Keeping prospective victims in the *threatened area* while an attacker could still be around is a bad idea: keeping them for a long time smacks of panic. Instead, pin down and squeeze the attackers out of the vicinity of the victims, then evacuate the prospective victims from the danger area. Briskly.

    –dave
    [This is roughly what I remember from training on house-to-house combat, many *many* years ago in 2 E&K SCOT. Probably improved since.]

  2. Has anyone yet written a nicely-written letter that can be signed and sent to one’s MP, to try and convince them to vote against this poor legislation?

  3. Peter Mackay says:

    Why do you keep referring to them as “terror attacks”?

  4. Agreed, calling them terror attacks seems like a very large stretch.

    • There is no question this was a terror attack.

      • There is a strong question in my mind about the one attacker: he rather appears to be a case of “suicide by cop”. Absolutely abetted by terrorist propaganda, mind you!

      • There is not question that this WAS NOT a terror attack. These were uncoordinated independent acts of deranged individuals. This was no more a terror attack than any other homicide, assault, or shop-lifting offence, for that matter, but that doesn’t sell nearly as many newspapers, nor does it make make for good political visibility, so the media and politicians are shouting “Terror! Terror! Cower in fear! Buy papers, and sell your freedoms!” and those that have been raised on faith and conditioned to unquestioningly accept the word of authority figures repeat “Terror! Terror” Sell me papers and tell me what to do!”

  5. Michael Heroux says:

    GOD BLESS YOU MICHAEL GEIST 🙂

    Michael Heroux said michaelheroux1967@gmail.com

    They are terror related attacks ment to terrorize the Canadian people, that’s why the media and government call them terror attacks.

    We sent our case against the RCMP CSIS and CSEC to Steven Blaney on October 16th so he can help us get our intelligence information released. We received conformation from his office that they received our case and they said they will review what we sent him and get back to us. We hope it doesn’t take too long. It has been almost a year we have been applying to numerous government agencies to get our intelligence information and not one will help us get our information and they keep lying to us. We are the two people Justice Mosley has ruled on, Judge Richard Mosley saved our lives because Canadian Intelligence was trying to murder us. They though abusing us would make us into radicals but we feel sorry for people like that because they lack the mental mechanism to love, all they know is hate. THANK GOD FOR JUDGE RICHARD MOSLEY, he saved my wife and I and our 3 children’s lives. We would be dead now if it wasn’t for him. We would still like to find out where our two older daughters are buried and exactly how they were murdered while they were working for Candian Intelligence. We know you Michael Geist helped save us also because allowing us to get our story out has changed things exponentially for us in our lives and it has made them realize that they better start obeying the rule of law like The Supreme Court Of Canada has layed out. Follow the money. Thanks for reading.

  6. Calling these events terror attacks elevates them to much greater status than they deserve. The overreaction by the police only spreads the panic. Having some kind of political motivation is not enough to make an attack a terrorist one. Targeting police and military does not imply terrorism. It does show that some people are terribly pissed-off with police and authority. Massive shows of force and lock-downs only promote such attitudes. Legislation making police more accountable would be more productive than giving them more power.

    • When you have Isis wanting supporters to attack in Canada and these people did that no question its terror.

      • There is no doubt that ISIS encourages these attacks anywhere in the world, and they revel when the press and politicians characterize the attacks as terrorism. What could be more effective in a country where they cannot hope to have a meaningful organization? Saying that these isolated acts by deranged individuals are terrorism merely plays into the hands of the real terrorists.

  7. They’re attacks by individuals, one of whom seems to be less than stable, unsuccessfuly tried to get himself imprisoned, and was frustrated when he failed to go somewhere he might be killed (Syria!) So he got himself killed here.

    Rather that terrifying me, it makes me wonder why we didn’t get him some help with his problems. That might be a more effective way of preventing such problems than adding to the power of our spies.

  8. Pingback: Separating mental illness from terrorism | Ted Summerfield aka Punzhu Puzzles

  9. Thanks again Michael! Most Canadians have no idea who you are, but you are our watchdog. Your expertise, knowledge, reasonable views and ability to raise awareness when needed are much appreciated.

    I commend you for your patronage to the people of Canada and your dedication to keep this country a great nation to reside in.

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