The Standing Senate Committee on National Security and Defence has released a report entitled Countering the Terrorist Threat In Canada. The report provides 25 recommendations. Some of the recommendations are common sense and others are controversial or questionable. I was a little upset with the report but perhaps that was because I was taking it too seriously. As one blogger noted "Keep in mind that the Canadian Senate churns out masses of reports that they have no power to implement. In my opinion many are just make-work projects to show that the senate does actually have a valid function, a point much debated in Canada at the moment."
The Standing Senate Committee on National Security and Defence was authorized to study four areas namely:
(a) Cyber espionage;
(b) Threats to critical infrastructure;
(c) Terrorist recruitment and financing;
(d) Terrorist operations and prosecutions;
This interim report deals with the last two issues.
Here is the list of recommendations:
LIST OF RECOMMENDATIONS
The committee recommends that:
Recommendation 1 – The Government make it a criminal offence to be a member of a terrorist group in Canada.
Recommendation 2 – The Government investigate and discourage the spread of violent extremism in Canada as a priority, especially the ideology promoted by the global Islamist fundamentalist movement.
Recommendation 3 – The Government work with “at-risk communities”, especially women, to encourage and support practices which are in keeping with Canadian values.
Recommendation 4 – The Government work to establish a program which provides information about clear and specific indicators of radicalization to frontline workers including teachers, police officers, prison workers, nurses and doctors. It should do more to encourage Canadians to anonymously report information regarding terrorism, criminal extremism or suspicious activities which could pose a threat to safety and security by calling the national security tip line – 1-800- 420-5805.
Recommendation 5 – The Government establish a program to support families who report radicalization and are seeking help.
Recommendation 6 – The Government work with Muslim communities to create an effective counter-narrative to denounce the ideology of Islamist fundamentalism.
Recommendation 7 – The Government establish a publicly accessible “No-Visit List,” which identifies ideological radicals who pose a threat to the security of Canada and who will be prohibited from visiting.
Recommendation 8 – The federal government establish a regular dialogue with the provinces for the purpose of preventing extremism and radicalization within areas of provincial jurisdiction including, but not limited to schools, colleges, universities and prisons.
Recommendation 9 – The federal government work with the provinces and the Muslim communities to investigate the options that are available for the training and certification of imams in Canada.
Recommendation 10 – The Government establish a publicly accessible database of those organizations which have had their charitable status removed on the basis of links to terrorism.
Recommendation 11 – When the Government removes charitable status on the basis of terrorism, it holds individuals responsible for being party to, or providing material support, for terrorist activity.
Recommendation 12 – The Government update the hate laws of Canada and consider including a prohibition on the glorification of terrorists, terrorist acts and terrorist symbols connected to terrorism and radicalization.
Recommendation 13 – The Government inform Canadians of the threat to the security of Canada, and that the communications be clear, quantitative, and unambiguous in providing a realistic overview of the national security situation in Canada and abroad.
Recommendation 14 – The Government publish a “Wanted Terrorist List,” of those Canadians for whom a warrant (national or international) has been issued on grounds of terror related activities.
Recommendation 15 – The Government develop measures to prevent foreign funds from entering Canada, where such funds, donors or recipients have been linked to radicalization.
Recommendation 16 – The Government work with Canadian Security Intelligence Service and the National Security Advisor to ensure a briefing is available to appropriate federal and provincial leaders, at least once per year, to ensure they are aware of threats to the security of Canada within their jurisdiction.
Recommendation 17 – Government authorities establish a protocol with Canadian Security Intelligence Service to require mandatory screening of citizens involved in public outreach.
Recommendation 18 – The Government establish a specialized team of lawyers within the department of the Attorney General of Canada to prosecute terrorism cases and ensure judges who are selected to hear terrorism cases have specialized background and training about terrorism.
Recommendation 19 – The Government encourage police and Crown prosecutors to enforce provisions of the Criminal Code in all relevant matters involving terrorism in the criminal and precriminal space.
Recommendation 20 – The Criminal Code be amended in order to empower relevant law enforcement agencies to lay terrorism charges, without first requiring approval of the Attorney General of Canada or any other federal or provincial minister of the Crown.
Recommendation 21 – The Muslim Brotherhood and entities closely associated with it, be reviewed by CSIS as a priority, with the intent of determining whether it should be designated a terrorist entity.
Recommendation 22 – The Government should encourage provincial governments to implement legislation that protect Canadians who are participating in the public discourse from vexatious litigation.
Recommendation 23 – The Government develop and implement statutory authorities among the national security review bodies, in order to provide for the exchange of operational viii information, referral of investigations, conduct of joint investigations and coordination in the preparation of reports and that independent reviews be implemented for any department or agency involved in national security where none currently exists;
Recommendation 24 – The Government redesign the Kanishka Project in partnership with provinces and municipalities on a cost shared basis to emphasize practical projects that empower “at-risk communities” – especially women – and encourage post-secondary institutions to work on issues related to terrorism and radicalization.
Recommendation 25 – The Government encourage greater coordination, on the part of Public Safety Canada, for the purposes of facilitating terrorism-related emergency preparedness with municipalities, provinces and the private sector, and this effort include an analysis of the continuing utility and appropriateness of the Emergencies Act.
Here are a few of my thoughts:
1) Lieutenant Sylvain Guertin, Chief of the Sûreté du Québec’s Division of Investigations on Extremist Threats, noted that "The majority of the service’s active files deal with the extreme right and, for 25 per cent of the files, with hate crimes. Then we have the files on Islamic radicalism, a little under 25 per cent of the cases, lone violent offenders and anti-government movements. In total, those four areas account for about 70 per cent of our activities. The other 30% is devoted to other extremist elements". [my emphasis] Although the report notes the importance of extreme right terrorism, it then goes on to largely ignore that important threat and focus on Islamic terrorism. For example, only a month before the report came out a Freemen on the Land follower killed a police officer in Alberta. Here is a note from the Law Society of British Columbia on that movement.
2) The report notes correctly that "Much can and needs to be done at the community level. Police and intelligence officials noted that stigmatization is counterproductive to their investigative efforts. They need the trust of community members to do community outreach work in the ‘pre-criminal space’ – before push comes to shove and individuals have moved past thinking about things to doing things. People need to be comfortable enough with police to approach them with critical information so that they can prevent violent action before it happens." [my emphasis] What that means is that efforts by some to stigmatize Muslim communities or members is obviously problematic but also counterproductive. Governments at all levels should try to work with the local communities. From what I know some of the most valuable information on radicalization and preventing terrorism has come directly from Imams and people within the Muslim community who oppose extremism. It is those who oppose radicalization with the Muslim community that face the greatest threat.
3) Recommendation 9 in which "The federal government work with the provinces and the Muslim communities to investigate the options that are available for the training and certification of imams in Canada." has garnered the most media attention. It seems that no religious leader of any faith who espouses violence and terrorism should be allowed to operate in Canada and the recommendation should have been broader to cover any faith group.
4) There is some discussion of charities with my comments in [square brackets]:
C. Terrorism financing
The committee emphasizes the importance of money in enabling terrorists to maintain their organizations, propagate dangerous messages, finance terrorist operations, and recruit. It is important to recall that major terrorist attacks may require extremely limited financial outlays, relative to the resultant loss of life and economic cost. Terrorist propaganda can spread and reinforce narratives tending to alienate fellow-citizens from the mainstream and to draw them closer to violent action. As in the case of terrorist activity, limited funding can advance the aims of extremists to a significant degree. [Although financing is often discussed as the primary concern relating to charities and non-profits there are so many sources of financing, both legal and illegal available to terrorists that the main effort should be focussed on terrorists using charities and non-profits for other purposes such as ideological cover, easier travel, use of facilities, indoctrination, etc.]
The committee heard concerns raised by witnesses about funding entering Canada from foreign entities. Foreign money need not travel from far-distant nations in order to invite questions about attempts by radicals to secure influence in Canadian institutions. Concerns were raised about the capacity of security organizations to identify money laundering and terror-financing, given the complicated nature of money flows, and problems with interagency information-sharing.
The Canada Revenue Agency (CRA) confirmed to the Committee its mandate for tracking foreign money entering Canada for religious, political and educational purposes. Ms. Hawara, the Director General for the Charities Directorate informed the committee that: Registered charities cannot receive funds from state sponsors of terrorism, and there are two currently: Iran and Syria. [Actually they can receive the funding - but it is grounds for losing their charitable status] That’s currently the only exception when it comes to foreign funds. But, in their annual returns, charities are required to provide certain pieces of information about foreign donations and more detailed information on donations above $10,000. That information is, however, confidential and is used only by us. It isn’t available to the public. The committee was informed that eight charities have had their status revoked as a result of a link to terrorism, and one, the Islamic Relief Fund for the Afflicted and Needy (IRFAN), has been designated a terrorist entity for funding Hamas. It is concerning that this specific terrorist designation took ten years from the time concerns were initially raised by a parliamentarian in 2004. [Glad that the Senate noticed that it takes 10 years to get rid of group with alleged links to terrorism. Too bad they are only noticing it now. By the way if a charity is late by about 6 months in filing their T3010 annual return they immediately lose their registered status!] In spite of confirmed links to terrorism, the Committee is concerned there appears to be no liability for the directors and staff of these charities who have been linked to terrorism. The committee recommends that:
Recommendation 10 – The Government publish a publicly accessible database of those organizations which have had their charitable status removed on the basis of links to terrorism. [I think this misses the point - there is already such a list. Here is the link. http://www.cra-arc.gc.ca/ebci/haip/srch/advancedsearch-eng.action The problem is that CRA is not able to identify groups involved with terrorism, or allegedly involved in terrorism, until after they are revoked which can take many years or 10 years in the case of IRFAN which is alleged to have been supporting terrorism. Also although charities are revoked as a result of audit (what used to be termed "for cause") it is not searchable so you have to go through hundreds of revocations to find those that might mention terrorism. Here is a list that I prepared which has the text in a PDF of recent revocations which is at least searchable: https://www.globalphilanthropy.ca/images/uploads/Canadian_Charities_Recently_Revoked_by_CRA_for_cause_or_result_of_audit_-_August_2014.pdf Furthermore, there are 80-100,000 non-profti organizations (that are not registered charities) for which there is little to no transparency. Many of them file annual returns and CRA inputs them into a database but it is not disclosed to the public. How ironic that if a registered charity is accused of involvement with terrorism it may after 10 years lose its registered charity status but then the non-profit does not have to file a public annual return, only a private one which means there is no transparency about the activities of the group! ]
Recommendation 11 – When the Government removes charitable status on the basis of terrorism, it holds individuals responsible for being party to, or providing material support, for terrorist activity.
5) There is some discussion of informing the public. I have been arguing for years that the confidentiality provisions of the ITA essentially provide a cover to groups to be able use various charities for terrorist financing and there is little that CRA can do to alert the public until the charity has been revoked:
E. Public information The Committee believes the public must be informed about the terrorism threat facing Canada, and be in a position to make knowledgeable judgments and choices about the direction of security policy- and decision-making. As part of this, public awareness about extremism and terrorism requires that Canadians be given notice of the status of certain persons and organizations connected to terrorist activity, including charitable organizations. It is important that the Government communicate directly with Canadians about terrorist threats. The committee is concerned that some federal security statements have resorted to terminology that obscures material information about sources and trends in terrorism. The 2014 Public Report On The Terrorist Threat to Canada, for example, which represents a prime means of enlightening Canadians about terror threats, was purged of language that would identify the specific religious political or ideological motivations claimed by today’s international terror perpetrators. During its hearings, the committee was concerned by its inability to extract a direct answer from officials about the number of Canadians that have left to join terrorist groups abroad.
To better inform Canadians about the threats to the security of Canada, the committee recommends:
Recommendation 13 – The Government inform Canadians of the threat to the security of Canada and that the communications be clear, quantitative, and unambiguous in providing a realistic overview of the national security situation in Canada and abroad.
Recommendation 14 – The Government establish and publish a “Wanted Terrorist List,” of those Canadians for whom a warrant (national or international) has been issued on grounds of terror related activities.
To repeat the report notes "the public must be informed about the terrorism threat facing Canada, and be in a position to make knowledgeable judgments and choices about the direction of security policy- and decision-making. As part of this, public awareness about extremism and terrorism requires that Canadians be given notice of the status of certain persons and organizations connected to terrorist activity, including charitable organizations". [my emphasis] Unless the confidentiality provisions of the ITA are changed CRA will not be able to alert the public of their concerns. I have made a number of submission to the Finance Committee on this issue including here and here and here.
6) It is nice to see that some conservative senators are now paying attention to foreign funding of terrorism. There fixation for the last number years was on foreign (largely US) funding of environmental organizations who they alleged were involved with money laundering!
FOREIGN INFLUENCE IN CANADA
A. Foreign Funding To promote their own fundamentalist brand of Islam – Wahhabism – here in Canada, the committee has heard that wealthy Saudis, Qataris and Kuwaitis are using charities as conduits to finance Canadian mosques and community centres. ...Similarly, Ms. Ali told the Committee that organisations in, “countries like Saudi Arabia and the oil wealthy Gulf countries that have absolutely everything that money can buy, yet many of them choose, for their philanthropy, radical Islamic goals, institutions, activities, jihad.” The committee recommends that: Recommendation 15 – The Government develop measures to prevent foreign funds from entering Canada, where such funds, donors or recipients have been linked to radicalization.
7) There is Recommendation 17 which notes "Government authorities establish a protocol with CSIS to require mandatory screening of citizens involved in public outreach." Not clear what that means.
8) The report discusses how certain interests use litigation to stifle discussion on important issues. Oil companies sue environmental group to shut them up. Those involved with terrorism sue people for making allegations that they are involved with terrorism. Lance Armstrong sued a newspaper a few years back and he won that lawsuit because the newspaper suggested that he may be doping. If you want to talk about a "chill", I would argue that the biggest chill on open discussion of certain issues in this country is the threat or actual implementation of lawsuits for slander or defamation to shut people up. What is sad is that some people only seem to notice this problem when it is the thing that they are concerned about is not being discussed out of fear of litigation. The report notes:
B. Strategic Litigation Against Public Participation (SLAPP)
Open discourse is vital in a democracy, and it is for good reason that freedom of expression has been termed “the first freedom.” Without it, governments and their officials could not be challenged, and ideas, tested. Canada, like many other liberal democracies, does recognize certain exceptions to free expression; however, people may be sued in Canada for libel, for instance. This is to enable individuals to protect their good names. In recent years, this exception to free expression has triggered questions about the way in which libel law is used to deter people from discussing in frank terms, terrorist and other threats to security. On a number of occasions, primarily in the context of public debate about terrorism, extremism and radicalization, plaintiffs have claimed to be defamed, and have launched lawsuits against those whom they alleged to have inflicted reputational damage upon them by stating or implying they had an association or affinity with radicalism. It is a growing worry, including in the province of Ontario, that some interests may be abusing their access to courts by commencing lawsuits aimed at chilling the speech of defendants, and sending a deterrent signal to the broader population. Targets of such proceedings, including media, know that even responsible discussion of certain individuals and organizations could lead to expensive litigation. Even if a defendant were to prevail in court, it would be unlikely that full costs sustained would be regained by that party. The message would be conveyed: some people or organizations, no matter how compelling the evidence against them, would be off limits for the purposes of responsible public examination of their possible extremist connections. Other witnesses such as Mr. Dosanjh and Justice Major noted the threat of such lawsuits being used to silence public comments to the determent of Canadian freedom of speech and the principle of responsible comments on issues of national or regional importance. The committee commends the recent review on the subject by Ontario Government and notes positively the provincial Attorney General’s legislation to address this important issue. The committee recommends that: Recommendation 22 – The Government should encourage provincial governments to implement legislation that protect Canadians who are participating in the public discourse from vexatious litigation.
9) There is also no discussion on how the media's coverage of terrorism may contribute to the problem. The constant media coverage of certain terrorist incidents and the constant showing of the pictures of certain terrorists on TV distorts the publics' perception of the danger and encourages some people to commit terrorist acts. The media needs to stop being a conduit for exactly what the terrorists want. Also political parties probably should not be using footage taken by a terrorist propaganda machine in their political advertisements to try to scare Canadians!
Do you require legal advice with respect to Canadian or Ontario non-profits or charities?
Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.