Honourable senators, I rise today to speak to Bill C-59, which proposes broad changes to our national security legislation.
Late last year, I spoke to this legislation at second reading. Among the many components of this bill that caught my attention at that time were provisions that proposed to eliminate the offence of advocating or promoting terrorism and instead replace it with the offence of counselling to commit a terrorism offence. The government rationalized this step by claiming that since there had been no prosecution of the offence of advocating or promoting terrorism in the past three years, the offence should simply be eliminated.
Minister Goodale claimed that creating a more specific offence of counselling to commit would lead to more charges that could be defended in court. However, this argument was disputed by witnesses who appeared before the House of Commons committee that examined Bill C-59.
When the Senate Standing Committee on National Security and Defence examined this legislation, several witnesses raised similar concerns with these clauses.
Mr. Shimon Fogel, CEO of the Centre for Israel and Jewish Affairs, stated:
. . . we are deeply concerned by one key aspect of the bill: the amendment to the Criminal Code provision outlining what is now known as advocacy and promotion of terrorism.
Bill C-59 will redefine this offence as “counselling terrorism.”
Mr. Fogel further stated:
As currently worded, the new offence would apply to “every person who counsels another person to commit a terrorism offence.” This wording suggests that the offence exclusively pertains to one who counsels another specific individual.
Consistent with what witnesses said in the House of Commons committee, Mr. Fogel cautioned that this gap could create a potential loophole in the law. There was a risk the defendant could counsel social media followers to commit acts of terrorism and then argue that they did not directly counsel a specific person.
To address this gap, Mr. Fogle proposed a very useful amendment to ensure that terrorism counselling would explicitly apply whether one counselled a specific individual or whether one counselled broader audiences to commit acts of terrorism. He correctly referred to this as “a modest clarifying amendment.”
The sponsor of the bill, Senator Gold, opposed that amendment in committee. He argued the amendment was unnecessary because, he said, counselling does not require an accused to know the identity of those he counsels.
I know that Senator Gold is an expert on constitutional matters, and I accept his expertise on this matter. However, it also seems that this interpretation is not universally accepted among his legal peers. In this regard, in my second reading speech on this bill, I quoted former Crown attorney Scott Newark, who stated in the House of Commons committee:
I guarantee you, sir, that if that wording is used, there will be occasions when defence counsel will come to court when somebody is charged, and ask, “Who was it that he was counselling to commit the offence?” If you don’t have another person involved —
— if the advocacy of terrorism is just general in nature —
— you aren’t able to prove the offence.
On behalf of his organization, Mr. Fogel argued that the intent of the law must be clear. That intent, with this amendment, is that those who counsel broader audiences to commit acts of terrorism must be held criminally accountable. I would hope that we would all agree with that.
However, Senator Gold also stated that the proposed amendment risked confusing the current law in that the Criminal Code will potentially have more than one definition of “counselling to commit an offence.” Again, I do not dispute that this is a possibility. However, I will note that neither Mr. Newark nor Mr. Fogel expressed similar concerns.
I will say that if such a risk does exist, why would the government not amend potentially conflictual sections of the code to ensure the definitions are either broader or at least sufficiently consistent in the context of the specific offences to which they apply?
Unfortunately, what I noticed is that the government and its supporters made considerable effort to find reasons not to tighten the law to address security and public safety risks. If there is a potential problem, as Senator Gold has asserted, between broader and narrow Criminal Code definitions of “advocacy of terrorism” or “counselling to commit,” why does the government instinctively opt for sustaining the narrower definition? Why does it focus on real or imagined constitutional risks instead of prioritizing the need to address potential security risks? I do not believe there is any doubt that the security risks are serious ones.
The promotion of terrorist propaganda is, unfortunately, part of the times in which we live. Canadians who have participated in radical Islamist terrorism in recent years, whether in Canada or overseas, have often done so after consuming jihadist content online. Online jihadist propaganda was a factor in the radicalization of both Martin Couture-Rouleau and Michael Zehaf-Bibeau, the individuals who carried out the October 2014 terrorist attacks in Saint-Jean-sur-Richelieu and Ottawa.
Online hate and terrorist advocacy have also contributed to acts of violence recently perpetrated by white supremacists against synagogues in Pittsburgh and San Diego.
In relation to the terrible attack on mosques in Christchurch, New Zealand, online propaganda and advocacy again played a major and very disturbing role.
Mr. Fogel correctly stated that “The ability of police to intercept those who counsel others in their virtual network to commit terrorism must not be impeded by ambiguity in the law itself.” I would further argue that this is a fundamental problem on which the government must focus.
I noted, in my remarks last year, that journalist Stewart Bell stated the following with respect to extremist radicalization:
. . . what governments can do is challenge the world view of extremists and step in when radicalization crosses the line, when it becomes a recruiting mechanism that materially supports terrorism.
Radical preachers must be isolated, and prosecuted if they violate hate crimes or incitement laws.
The government has claimed that it is seized with this issue. Foreign Affairs Minister Freeland stated at the United Nations, just a few weeks ago:
Today, hatred is increasingly spread through the internet; in online forums and on social media. We must be aware of this and work to stop it.
The question I would ask the minister, then, is whether her government will now support this amendment to Bill C-59. This issue should, in all frankness, have been tackled when the government introduced its original bill. But it was not. Instead, it became incumbent upon Senator McIntyre, after hearing witness testimony, to introduce this amendment at committee.
If the government accepts this amendment, I will, of course, be relieved. Should it fail to, then we will have to question the sincerity of the minister’s rhetorical claim that we must work to stop the spread of online hatred.
In conclusion, I would like to quote what Mr. Michael Mostyn, the CEO of B’nai Brith Canada, said at the committee in the other place:
We accept that the right to freedom of expression is an important consideration, but the right of potential victims to be free from terrorism and the threat of terrorism must be a greater priority.
I completely agree with that statement. I now hope that the government will, even if belatedly, agree to accept that principle as well. Thank you.