PAJ Issue 3 NA


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Page 44 of 49

O ne of the most alarming aspects of the recent and growing terrorism attacks within domestic Western societies is their Islamist ideological motivation and the assurances from the bad guys that there will be more to come. The people who lead these death cults have also figured out that they can advance their perceived cause by inspiring and instructing susceptible people in those same Western countries not simply to travel abroad to join them but rather to commit their horrific crimes in their own neighbourhoods so as to generate maximum fear value. Those same bad guys also realize that exploiting the freedoms of Western society is a tactic they can use and they actually hope that their atrocities will lead to the alienation of Muslims in Western societies who they then hope to draw into the Islamist 'us against the world' mindset. In short, it's an incredibly complex situation which must be addressed. These events and the continuing malevolent determination behind them have rightly led to a review of how we as a society are prepared and enabled to effectively detect and interdict these home-grown threats while respecting and preserving the very Western values that make us who we are. This effort now includes C-51 which is the anti terror legislation introduced by the Government of Canada. Unlike the traditional criminal justice sector, in counter terrorism operations, success is measured in prevention rather than just prosecution. This is especially so when it comes to preventing radicalization and detecting and interdicting those intent on causing us harm. This greater proactive focus legitimately raise concerns to ensure that the nature of the threat does not needlessly result in undermining cherished aspects of Western society, such as privacy and freedom from government intrusion. There is clearly no single solution and this effort will necessarily involve a balancing of interests to maximize targeted operational effectiveness while minimizing the potential for both mission creep and unnecessary violation of individual privacy rights. One of the best ways to achieve this difficult task is through specially crafted, purpose-based independent authorizations of operational activity with checks and balances that include ongoing operational oversight and after the fact mandated review with appropriate accountability mechanisms. Contrary to some of the criticisms levelled against it, C-51 does contain a number of internal checks and balances which are intended to prevent this kind of abuse by government. These measures exist throughout the various parts of C-51 and they include defined criteria for action, mandated judicial oversight with defined criteria, applicability of existing measures and increased after-the-fact review for new powers created. In Part 1, a new Security of Canada Information Sharing Act confirms authorization for federal government entities to share and receive infor- mation related to protecting Canada against activities that undermine the security of this country, which is itself specifically defined. Section 5 of the Act makes the information sharing discretionary and further restricts the requesting authority to 17 defined departments and agencies (in Schedule 3 to the Act). It further adds the qualification that the information sharing should be restricted to circumstances where "…the information is relevant to the recipient institution's jurisdiction or responsibilities under an Act of Parliament or another lawful authority in respect of activities that undermine the security of Canada, including in respect of their detection, identification, analysis, prevention, investigation or disruption." This deliberate inclusion is a clear reinforcement of the principle of the rule of law and critics of the section would do well to remember that no matter how important or noble they may think their particular cause is, they are not above the law. Further, the existing authority of government institutions to share personal information in security and law enforcement matters pursuant to section 8 of the Privacy Act already permit much of what some critics complain about as being created in C-51. The existing powers of complaint based and self initiated investigation by the Privacy Commissioner under the Privacy Act, including multi agency examination, are also left intact which serves as a further check on what is in C-51. Part 2 creates The Secure Air Travel Act and the most significant change in this new Act appears to be an appropriate upgrade of the criteria for entry on the no-fly list through s. 8 to go beyond immediate threats to aviation security and to include specified terrorism offences as well as indictable offences that also constitute the broader terrorist activity. Section 8 contains a glaring defect, however, in that it omits photographs from information that can be included to assist in identifying persons on the list. This is no trivial matter because, like other countries, Canada is in the process of field testing and hopefully deploying face recognition biometrics technology at Class 1 airports to detect and interdict people using false documents who are inadmissible to Canada. 41 w w w . p o l i c e a d v o c a t e s j o u r n a l . c o m AN ANALYSIS WITHOUT THE HYPE OR HYSTERIA BY SCOTT NEWARK

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