Terrorist listings in Canada – take two

Even if the terrorist listing process in Canada is still largely political that does not mean that it does not have its good uses

As you are undoubtedly aware if you have been following me of late, you know that I have pushed back against the necessity of the so-called ‘terrorist listing process’ in Canada, particularly in light of the decision yesterday (February 3) to list the Proud Boys as well as twelve other entities as ‘terrorist groups’ in Canada.

I stated that I saw this as a largely political move and added that it had next to no utility for those agencies which actually do counterterrorism (CT) in our land, beyond perhaps assisting in terrorism financing matters. As I have noted, CT work at CSIS (the Canadian Security Intelligence Service) and the RCMP (the Royal Canadian Mounted Police) had been carried out without this tool for decades – ergo we did not need them to justify CT investigations.

It turns out I missed something. Following a long chat with a good friend who, like me, spent 32 years in intelligence with the RCMP and CSIS, albeit as an investigator (I was an analyst who worked alongside investigators), I was told about what listings, as part of a legal counter terrorism framework, enabled us to do.

Let me explain.

In general terms, prior to Canada enacting Counter Terrorism legislation which includes the ability to categorise an organisation as, in effect, a terrorist movement, there was no law to deal with organisations that constituted a threat to Canada. In the absence of such legislation we had therefore to effectively deal with its members as foot soldiers. While an agency such as CSIS could internally look at a group from an intelligence perspective, enforcement investigations primarily focused on individuals. Moreover, there was no Canada-wide designation that all implicated agencies could reference and rely on under their mandates. Each agency had to build its own case and each such case focused on individuals. The result was that threats both domestic and foreign could align themselves to threaten Canada while we had to defend ourselves in a piecemeal fashion. 

In Canada, people have a right of free speech; even speech that is seen by most of us as repugnant has legal protection. Since the Charter of Rights and Freedoms was enshrined in law in 1982 Canada has wrestled with what constitutes hate speech and what to do about it.  The rule of thumb on what constitutes hate is simple (?): if it advocates harm towards specific categories of people. The concept of politically motivated violence – using violence to achieve a political, religious, or ideological objective – is terrorism, as laid out in Section 83.01 of the Canadian Criminal Code.   

With listing legislation one could justify the extraordinary powers granted to an agency like CSIS, the RCMP, CBSA (Canada Border Services Agency) or CRA (Canada Revenue Agency) in a coordinated and more effective way. It allows, for example, our immigration system to be alert to and stop those individuals associated with foreign terrorist groups that may not yet have reached our shores and which we don’t want to see establish a foothold in our country. It also makes short work of anyone who needs a security clearance such as members of the military.   

Debate Ensues

There can be and there usually is vigorous debate about which organisation becomes “listed” as a terrorist entity. One man’s terrorist is another man’s freedom fighter…or so they say.  There was debate over Al Qaeda and decades of debate over Hezbollah and the Liberation Tigers of Tamil Eelam (LTTE) – the latter was complicated over winning the Tamil vote in the GTA (Greater Toronto Area).  There is still a vigorous debate on whether the Proud Boys truly meets this threshold.

The very nature of politically-motivated violence implies that there will be politics involved.  The test to list an organisation is high and is not done lightly: it only occurs when there is a threat to our democracy and to the rights and freedoms of Canadians as a whole. Listing provides the legal foundation to investigate such threats, not as individual cases with no obvious linkages among them but as a coordinated, like-minded group of individuals under whatever particular banner they wave.

Given the high standards needed to acquire those powers – and in a democracy we want the bar to be high – and the time required, having a mechanism that says that anyone associated with, for example, AQ, or ISIS or the Babbar Khalsa International or the AtomWaffen Division or Blood and Honour or now the Proud Boys, meets the criteria for investigation and enforcement. This is helpful compared to where we were without it. It not only saves money and effort by expediting a response to these threats, it allows Canada to better protect Canadians. Any time you can get down to the important job of actually collecting intelligence/evidence to stop things from going bang in the night (or day) that is indeed a good thing.

Questions Remain

So, I accept that as an analyst I did not know this: I am better informed thanks to my friend’s explanation and I am thankful for that knowledge. I still maintain that the process can be highly political – when was the last time the Canadian Parliament voted to list a group?? – and that the Liberals are playing this card for two reasons (among perhaps more): they wanted to build on the concerns over the Proud Boys in the wake of the January 6 riot at the Capitol in Washington and they did not want to be upstaged by Jagmeet Singh and the NDP (New Democratic Party).

There are still outstanding challenges, however. What constitutes ‘membership’? There are critieria but they are not well understood outside the security bureaucracy. What happens if any of the 13 groups (or the other 60 or so already on the list) simply change their name, as Al Mujahiroun did several times in the UK? Is there any real ‘terrorist financing’ to worry about with this new crew? Where does this list end? Why was the Islamic State Central African Province, which has been behind beheadings in Mozambique, not added? And so on and so on.

My passion to have these types of discussions with all of you perhaps made me comment in haste without a full grasp of all the context. I cannot promise I will not do so again but I do promise that when I miss the mark I will proclaim my mea culpa, fix it and keep moving forward. That is what a good intelligence analyst does, and even if I am ‘retired’ I’d like to think I still have something to contribute to the general debate on terrorism, both in Canada and abroad.

Related Content from Borealis:

RELATED: Borealis’ original discussion on the listing process which led to this new understanding

By Phil Gurski

Phil Gurski is the President and CEO of Borealis Threat and Risk Consulting Ltd. Phil is a 32-year veteran of CSE and CSIS and the author of six books on terrorism.

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