United States president-elect Donald Trump’s Islamophobia-fuelled ascendancy is a chilling reminder for Canadian lawyers to review our own government’s assumptions about terror, especially in relation to Bill C-51.
Bill C-51 became the Anti-terrorism Act 2015 last year. First proposed by the Conservatives in 2014, Liberal support ensured the bill’s enactment, defying vocal public opposition.
Among other fatal flaws, the ATA creates a new Criminal Code provision (s. 83.221) that criminalizes speech that “advocates or promotes the commission of terrorism offences in general” when aware someone else “may” commit such an offence.
The new provision is stringent — it lacks any exemptions for private conversations or legal defences. And it’s gratuitous — s. 83.01(1) of the Criminal Code already defines terrorism offences so broadly as to include a wide array of non-violent acts.
The fallout? The ATA makes what is vague even vaguer, and it leaves lawyers with no clear sense of how courts will apply these new provisions.
And, as many have wryly observed, the ATA’s free speech chill undermines the government’s own antiterrorism efforts, including RCMP counter-violent extremism programs. But critique of the ATA cannot rest with simply noting this absurdity. We need to examine the substance of CVE programs — and they are disastrous.
CVE programs tear at the very fabric of social life. Just as they have already been exposed as junk science in the United Kingdom and the United States, they need to be denounced here. When critique of the ATA fails to also explicitly criticize the programs themselves, we risk perpetuating the programs’ core racist myths.
CVE programs — targeted predominantly at Muslim and especially Somali communities — expand counterterrorism efforts beyond law enforcement to involve civil society, including teachers, social workers and clergy. In the ways they surveil, stigmatize and harm marginalized communities, CVE programs mirror the community policing programs inflicted on broader black communities.
Both models of surveillance exemplify racial profiling. They involve embedding police forces in civilian space, normalizing the state militarization of civil society. Community housing, neighbourhood centres and even playgrounds have become sites of fear for racialized civilians. Imagine being afraid to send your child to school because teachers are referring youth to police. Imagine avoiding medical appointments because health professionals are working with the police to watch for threats that don’t exist — and the deadly irony meanwhile that people with disabilities are disproportionately vulnerable to police violence.
And rather than providing solace, the deep infiltration of mosques by spies and informants has become a blasé inside joke among Muslims. But underneath the gallows humour ripples the real fear that those who refuse to engage CVE programs will be classified as terrorists.
While the ATA’s definitions of terrorism may be vague, the social contract underpinning CVE programs is clear: Terrorism is violence by Muslims and terror the fear of Muslims.
Terrorism, according to this implied definition, does not include the systematized torture, killer drones or chemical warfare that has so characterized the War on Terror. And unless it’s committed by Muslims, it doesn’t even include premeditated attacks on the general public.
Last year, Justice Minister Peter MacKay described Randall Steven Shepherd, Lindsay Kantha Souvannarath and James Gamble — who attempted to attack a busy Halifax mall — simply as “misfits.”
This week, when asked why Thomas Mair — who last year assassinated British Labour MP Jo Cox in the name of white power — hadn’t been charged under UK’s terrorism laws, West Yorkshire Police responded that Mair had received a life sentence, “so what would that [a terrorism charge] add?”
Apparently nothing — and yet here we are spending millions of tax dollars on a new federal Office of the Community Outreach and Counter-radicalization Coordinator.
As Hitler salutes begin to proliferate in the mainstream, let’s recall that CSIS has long known about the dangers of neo-Nazis: between 2000 and 2015, 59 per cent of so-called “lone wolf attacks” were ideologically motivated by the white supremacist movement. In contrast, CVE programs have spawned a lucrative and highly ideological industry of so-called security experts whose theories about political violence committed by Muslims are ahistorical and homogenizing.
The normalization of distrust, fear and paranoia within and of Muslim communities is unbearable. As the stakes for racialized communities in post-Trump North America grow ever starker, to be silent on this point is to deepen the injury — needless and traumatic — done by CVE programs.
We also have to break free of the racialized coding of counterterrorism rhetoric to better see how the ATA’s over-breadth could be applied to curtail activism.
Prime Minister Justin Trudeau’s recent approval of controversial new pipelines promises a resurgence in indigenous and environmental resistance. But news broke last month of the mass RCMP surveillance of 313 indigenous activists, 89 of whom were placed on an RCMP watch list. As the national security consultations draw to a close, we cannot accept the Liberal premise that the ATA can be reformed into legitimacy. Legal experts have already noted that the only constitutional response to the ATA can be its repeal.
And as Trump’s election heralds an era of newly heightened fear, we must resist the seductiveness of a national security rhetoric that leaves far too many of us living in a state of terror.
Fathima Cader is a civil and human rights litigator in Toronto. She can be reached at http://caderlaw.ca.