Thursday, February 12, 2015

In a commentary in the National Post, Prof. Kent Roach and University of Ottawa Prof. Craig Forcese provide a hypothetical situation to show how the Canadian government's proposed laws against advocating for terrorism could in fact undermine law enforcement ("The government’s new speech crime could undermine its anti-terror strategy," February 10, 2015).

The commentary is based on their in-depth analysis at

Read the full commentary on the National Post website, or below.


The government’s new speech crime could undermine its anti-terror strategy

By Kent Roach and Craig Forcese

February 10, 2015

The government wants to jail people who by speaking, writing, recording, gesturing or, through other visible representations, knowingly advocate or promote the commission of “terrorism offences in general”, while aware of the possibility that the offences may be committed. We have completed a full legal analysis of this provision at We have the usual lawyerly concerns — not least, we have serious doubts as to the provision’s constitutionality. And we have precisely no doubt that it is capable of chilling constitutionally protected speech.

Our rights focus may not persuade you. But even the most hardcore security-above-all-else proponent should question the wisdom of the proposed offence.

Here’s why: the data suggests that our most promising means of combating radicalization is with on-the-ground programs that anticipate threats and steer people away from violence. Thus the RCMP has launched its new counter-violent extremism (CVE) program, an all-of-civil-society initiative designed to navigate people away from trouble in the “pre-criminal space” — that is, before they violate the law.

This is an uncertain and challenging undertaking. However, it may be the most rational response to a social problem that no prosecutor or penitentiary will ever solve, and may actually make worse. And the government’s new speech crime could undermine it. Let us illustrate why, with a very plausible hypothetical situation.

The new CVE program reaches out to a mosque, wishing to involve it and its membership. It wants people to assess honestly the merits of, and confront squarely, the Al-Qaeda-inspired world view that says Islam is under attack by “Western crusaders,” and that it is the duty of good Muslims to act in defence, even with violence. This airing of views will require, at minimum, a venue in which people can speak freely, and the mosque is asked to provide it.

The imam is aware of the new speech offence, and is worried that some of his members, though they show no propensity for violence, nevertheless hold radical views. He fears what will happen if the RCMP hear statements such as, “the use of violence in defence of Islam is just and religiously sanctified and should be supported.” Some community members are also keen to send money to groups overseas whose conduct may include acts of violence.

And so, wisely, the imam decides to consult with a local lawyer, who concludes that statements like the one above might well be seen as knowing and active encouragement of the concept of “terrorism offences in general.” And he concludes that in making these statements at the CVE meeting, the speaker may be aware that some of his fellows may commit some terrorist offence, including perhaps sending money to group listed as, or associated with, a terrorist group.

Reasonably, the lawyer concludes there is a risk that the meeting could violate the new speech crime. The RCMP’s “pre-criminal” CVE space then turns into a “criminal space.” The imam has no choice but to cancel the meeting.

Is this a good thing? The result may be that members of the community continue to harbour (secret) radical views, and perhaps even radical designs. These are the prime candidates for CVE, but they fall off the radar. Indeed, the smarter ones go silent on social media, making it harder to know what they are thinking and doing.

In this result, we are no safer because of the new offence. On the contrary, we are probably now at greater risk, since the most effective preemptive tool available to authorities — CVE — has been undermined. And the same speech chill means at least some open-source intelligence from social media dries up.

We are perplexed about why the government is persisting with a speech offence that is so high risk to both security and rights. The recent charges in Ottawa, as well as a completed prosecution in Quebec in 2010, suggest that the existing law can be used against those who recruit as well as those who convey operational information, including on the Internet. Threats and incitement of terrorism are already crimes.

So is the new offence wise? We don’t think so. But your member of parliament may have a different view. Why not ask them why that is?