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 unspecied time in the nea r

future on an unknown Canadian landmark. e foreign ally ngers an in-

dividual in Canada, who is the only known sympathizer in Canada of that

terrorist group.

e only connection between the individual and 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 available — 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 the surveillance target with other acts

that are oences under Canadian law.

FALSE SECURITY

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Surveillance is, however, fallible, especially 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 neutralization 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 escalator 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 the 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 left?

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 fall o more conventional

devices.

e fact that our scenario is ctitious 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 highest

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 exactly how a CSIS “disruption” role should work,

the government legislated provisions that stumble into an unnecessary and

deeply damaging constitutional adventure.

II. LAW ENFORCEMENT INTERRUPT

Of all our tool categories, “interrupt” is the most unconventional, and thus

most dicult to dene. In colloquial usage, the word means “breaking 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 eect. 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 dene “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 ineective. 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 undened 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 retrospective 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.