Legal analysis, without the legalese, on antiterrorlaw.ca bared the ambiguities in controversial Bill C-51—and made Canadians rethink the price of security

Up against a “political juggernaut”: Professor Kent Roach, LLB 1987, co-founder of antiterrorism.ca

Up against a “political juggernaut”:
Professor Kent Roach, LLB 1987,
co-founder of antiterrorism.ca

By Andrew Stobo Sniderman, JD 2014 / Photography by Michelle Yee

From the Spring/Summer 2015 issue of Nexus

When Bill C-51, the so-called “Anti-Terrorism Act,” was first introduced to Parliament on January 30th, U of T law professor Kent Roach, LLB 1987, was ready. So was his longtime collaborator Craig Forcese, a professor at the University of Ottawa, though he happened to be at a raucous pool watching his daughter compete at a swim meet. No matter. That morning, over e-mail, they composed their first critique of the bill for the next day’s edition of the Globe and Mail. That afternoon, television film crews came to Roach’s office to record interviews for evening broadcasts of CBC’s The National and CTV News. (Mercifully, for those former students who are wondering, a narrow camera angle spared viewers the horror of Roach’s notoriously pile-strewn office).

Roach’s early verdict on the bill was clear and scathing: “Privacy and freedom of expression appear to take significant hits, without assuring that Canadians will be safer. And the government continues to turn a blind eye to systemic failings in our national security accountability system.”

Roach and Forcese were facing what one prominent journalist called a “political juggernaut.” A few months earlier, a lone gunman had shot his way into Parliament with an old rifle and the prime minister was forced to scramble into an impromptu hiding spot in a closet. It was a tragic day that could have been much worse. So when the Anti-terrorism Act came along, just in time for passage before the next federal election, pollsters said 82 per cent of Canadians supported the legislation, though the vast majority had probably not read it. 

The 62-page law, passed by Parliament in June, lowers the bar for preventive arrest, criminalizes the promotion of terrorism, and expands the powers of Canada’s spy agency to take action against threats, not just analyze them. Spies will also be able to violate Charter rights subject to a secret warrant system.

Indifferent to the bill’s popularity, Roach and Forcese unveiled critique after critique of the bill. They launched a website, antiterrorlaw.ca, to warehouse their voluminous output.  They called their effort “legal scholarship done in ‘real time’ in a highly politicized environment.” Their output was so prolific it seemed like they had an assembly line churning behind them. It was really just two smart guys methodically poking holes in the government’s arguments.

A few days after the bill’s release, Liberal Party leader Justin Trudeau said he would vote for it despite some reservations. It took two more weeks before the NDP opted for a course of resolute opposition. In the meantime, the role of the official opposition almost literally fell to Roach and Forcese. “For a couple of weeks, Craig and I felt pretty lonely and isolated,” Roach says. One the upside, he notes, “No one ever said I was unpatriotic and on the side of the terrorists, which could definitely have happened south of the border.”

It helped that this was not Roach’s first rodeo. He took a similar jaunt through the eye of a political storm in the wake of 9/11, when the Chrétien government introduced legislation that traded liberty for security at a dubious exchange rate.

Roach, 53, has been thinking about national security policy ever since he wrote his undergraduate thesis at the University of Toronto about Canada’s then-nascent spy agency, the Canadian Security Intelligence Service. After Roach became a law professor, he helped produce the 2006 report of the Commission of Inquiry about Maher Arar, a Canadian who was tortured in Syria on account of dubious information shared with the United States. Next, Roach served as the research director of the inquiry into the Air India Flight 1985 bombing, which wrapped up its five volumes of analysis and recommendations in 2010. He has since worried that the reports attracted as much dust as eyeballs.

This time around, Roach made a deliberate decision to spend more energy communicating his ideas. Many professors are good at being right—and bad at being heard. Roach’s primary audience remains what he calls the “reasonable policy maker,” yet he has become increasingly convinced that outsiders wanting to contribute to public policy need to learn to engage at a more accessible level. For those readers who could handle the whole enchilada, Roach and Force produced five 30-40 page background papers of legal analysis. But they also spoke on radio and television, wrote essays in Walrus Magazine and churned out bite-sized op-eds in the National Post, Globe and Mail, New York Times, Toronto Star and Ottawa Citizen.   

All this allowed them to engage the “reasonably well-informed Canadian” as well as the reasonable policy maker, he says. “As academics, I think we have an obligation to produce simpler yet rigorous summaries of what our thinking is, and we have to do that even if we are afraid of sniping from other academics.”

Roach had a prolific pen and trenchant legal analysis, but social change takes more than that. It takes people, lots of people, changing their minds and doing something about it.

A Faculty of Law student who just completed his first year, Riaz Sayani-Mulji, began actively campaigning against the bill in Toronto after reflecting upon the likely disproportionate effects of C-51 on Muslim communities. “The truth is that most people don’t pay attention to legislative developments and only end up feeling the effects of laws,” he says. “But I started getting asked to explain what C-51 was about, since I was a law student and people tend to assume that law students understand the law.”

The first thing Sayani-Mulji did was to visit the website Roach and Force set up and read everything he could. Before long he was participating in workshops to explain the legislation without legal jargon. “Not everyone understands what an ‘overbroad’ law means, but people can understand agents breaking into their house, what Roach and Forcese calls ‘kinetic operations’,” Sayani-Mulji says. He became a legal translator, which came naturally after years of community organizing. “I am comfortable talking to a room full of Muslim mothers asking about why they should be concerned about their children’s well-being, and turning some of the more technical and dry aspects of Roach’s analysis into language people can understand.”

In March, Sayani-Mulji was invited to speak in Toronto to thousands of protesters against the bill. (Alas, a group of longwinded speakers kept him from the stage, though CTV News interviewed him for their broadcast that night).

Shortly after Justin Trudeau and the Liberal Party decided to support the passage of C-51, an organization called Leadnow ramped up its online organizing. It has about 425,000 Canadian members who started receiving e-mails explaining C-51 and exhorting them to take a stand against it. Many of these e-mails linked to Roach and Forcese’s work, which gave the intellectuals another megaphone; 110,000 people ended up signing the petition against the bill, and Leadnow helped organize protests all across the country.

As it turns out, Leadnow was co-founded by a recent U of T law alumnus, Adam Shedletzky, JD 2014, who now chairs its board of directors. “It is absolutely critical to have credible people like Kent Roach making a case against bills like C-51,” he says. “We’re capable of reaching and mobilizing a large number of people, but having objective, clearly non-partisan experts speaking out helps inform and inspire our community.”

All the writing and interviews and petitions and protests had a dramatic effect. Recall that when Bill C-51 was first introduced, it had garnered 82 per cent support. By April, polls showed that 56 per cent of Canadians opposed the bill. One might be tempted to say that Kent Roach’s pen was mightier than the prime minister’s law.

That would be wrong, of course, because despite a turning tide in opinion, the bill progressed like clockwork through the House of Commons and the Senate with few amendments. A majority in Parliament need not listen to a majority of Canadians.

Still, Roach can point to at least one clear victory. An early draft of the bill permitted the government to disclose intelligence gathered about individuals to “any person, for any purpose.” This could authorize precisely the kind of looseness with information that put Maher Arar in a Syrian torture chamber. In a subsequent version of the bill, that open-ended language disappeared, poof

In mid-May, Roach was among a handful of academics who attended a highly unusual closed-door conference in England with current and former heads of spy agencies from the United States, Australia, France, Germany, and Sweden. These days Canada is among many countries tinkering with the relationship between security and liberty.

The conference has him worrying about “the danger that national security debates are becoming increasingly polarized. There are people who are interested in these issues with grave concerns, but there is also a large number of people who don’t have the time or interest to read a detailed legal analysis or even shorter op-eds,” he says. “I am worried about the perspective I heard from security officials that some people will always complain and grumble, but the majority will support what is being done in the name of security so let’s just go ahead. My view is no, wait, we have to accommodate the reasonable concerns being raised about security laws and practices.”

The good news is that the more people learn, the more concerned they become. The challenge for Roach and others will be the extent to which voter apathy is a reality and the reasonable policymaker is a myth.