Interrupt: Disruption When All Else Fails
| Author | Craig Forcese; Kent Roach |
| Pages | 225-270 |
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CHAPTER EIGHT
Interrupt: Disruption When All Else Fails
I. INTRODUCTION
Urgency in the Fog of Uncertainty
Imagine the following scenario: rough an exercise of the “share” tool, a
reliable foreign intelligence agency warns Canadian security agencies of a
potential attack by a terrorist organiz ation at an unspecied time in the nea r
future on an unknown C anadian landmark. e foreign ally ngers a n in-
dividual in Canad a, who is the only known sympathi zer in Canada of that
terrorist group.
e only connection between the individual a nd the attack is the per-
son’s sympathy with the suspected terrorist group. In other words, the state
() has reason to believe that an imminent terrorist attack will occur; () has
reason to believe that a particular group is behind the plot and that a person
in Canada may be working w ith that group; but () has no other information
connecting that particular individual to the plot.
Under these circumstances, there a re no reasonable and probable grounds
for a criminal arrest — mere sy mpathy with a terrorist organization is not itself
a crime, even if it could be proved beyond a reasonable doubt in open court.
“Watch” surveillance tools are ava ilable — and certainly, the govern-
ment would be foolish not to monitor the person. Surveillance might pro-
duce evidence that leads the authorities to the perpetrator(s) of the planned
terrorist attack, or that incriminates t he surveillance t arget with other acts
that are oences under Canad ian law.
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Surveillance is, however, fallible, especia lly if it must strive to be covert.
Faced with an imminent danger from a group with which the individual is
associated, the security agencies may reason that neutraliz ation is to be pre-
ferred to surveillance, despite the investigative cost of alerting the person to
the state’s interest.
But the more assertive threat esca lator tools are unhelpful. “Interdict,”
in the form of no-y rules or passport revocation, is entirely irreleva nt in this
scenario. “Restraint” in the form of a peace bond might be useful, but as we
have suggested in Chapter , such a device may be underwhelming when the
state is confronted with a real peril. It does not detain t he person, although
the police may be able to obtain a warrant for arrest pending adjudication of
the peace bond.
As a consequence, we are running out of tools: surveillance is imperfect,
interdict irrelevant, restraint underwhelming, and prosecution at this point
unavailable. What is lef t?
When the Wheels Fall Off . . .
We have intentionally painted the sort of scenario that drives discussions of
what we shall cal l “interrupt” options — proactive tools designed to forestall
a feared terrorist event, available when the wheels fal l o more conventional
devices.
e fact that our scenario is ct itious should give our readers pause: the
other tools described throughout this book are potent, and circumstances
where we need to reach beyond them should be very rare, and perhaps more
theoretical than real. ere is a reason why Canada’s chief interrupt tool —
“preventive arrest” or “preventive detention” — has never been used, either in
its expired, original to form or following its revival in .
We should also be very wary of interrupt tools that are used out of con-
venience rather than true necessity. ese are devices that run the hig hest
risk of abusive and counterproductive overreach. ey may result in “false
positives,” resulting in the arrest and detention of people, perhaps with great
publicity, who, as it turns out, are not terrorists.
Furthermore, preventive arrests may scuttle ongoing investigations that,
if allowed to play out, could provide evidence to support actual terrorism
prosecutions — forceful, exacting , and fair instruments examined in Chapter .
But with proper safeguards, we believe preventive arrest and detention
do have a place in Canada’s anti-terror arsenal. In this chapter, we rst look at
legal tools falling into the interrupt category and explore their structure and
scope. We then examine the now infamous Bill C- developments in this
area, and especially the controversial new CSIS “threat reduction measures.”
Chapter Eight: Interrupt
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We view these new CSIS powers as poorly situated in our threat esca lator
model and potentially acting at cross-purpose s to it. We also address how, by
failing to think through exact ly how a CSIS “disruption” role should work,
the government legislated provisions that stumble into an unnecessar y and
deeply damaging constitutional adventure.
II. LAW ENFORCEMENT INTERRUPT
Of all our tool categories, “interrupt” is the most unconventional, and thus
most dicult to dene. In colloquial usage, the word means “break ing con-
tinuity” or “stopping the seamless progress of something.” Many tools, used
singly or in combination, could serve this purpose in relation to a terrorist
plot — stopping someone from boarding a plane or imposing a peace bond
may be forms of interrupt. A border stop, of the sort at issue in the Ressam
case discussed in Chapter , might have the same eect. Convening an in-
vestigative hearing under the Criminal Code’s anti-terrorism rules could (in-
directly) interrupt: it could shake up a plot, place a stick in the spoke of a
conspiracy, or jam the gears of a feared lone wolf, at least in theory. It has not
yet worked out that way: As discussed in Chapter , the only attempt to use
an investigative hearing occurred with respect to one of the many reluctant
witnesses in the Air India trial. at is, it was a reactive tool, not a pre-
emptive one, and even then it did not work. But in principle, investigative
hearings may be used pre-emptively in the future.
Here, though, we dene “interrupt” more narrowly, to distinguish it
from other tools discussed in this book. Interrupt tools are those used where
exigency or unavoidable operational impediments make other tools unavail-
able or ineective. Interrupt is, moreover, a temporary strategy — it is not a
permanent solution, but rather a way for authorities to divert a threat, or at
least press the pause bottom in order to get on top of it. As we will argue, one
problem with Bill C- is the extent to which it departs from these kinds of
criteria by giving CSIS broad powers to engage in undened forms of “threat
reduction” — what the government calls “disruption.”
Obviously, deciding when to deploy “interrupt” is a matter of close
judgment, exercised in the inevitable fog of a real or anticipated emergency.
Ensuring its proper application will require clear rules, close oversight, and
careful retrospec tive review, matters discussed in Chapters a nd .
In this section, we focus on three law-enforcement-related “interrupt”
powers, which we label investigative interruption, pretextual enforcement,
and preventive detention.
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