Questions and Answers from Irwin Law’s Experts After the Ottawa Shootings

After the shootings in Ottawa’s downtown core, Craig Forcese, uOttawa and author of National Security Law, and Kent Roach, University of Toronto, and author of Criminal Law, responded to questions posed by Irwin Law on terrorism law issues.
 
These two individuals may have been on a “watch list” and at least one had his passport revoked. Is there any appeal process or Charter challenge available for those whose passports have been revoked?
 
Forcese: Before addressing your question, I need to do some preliminary “throat clearing.” First, a word about “watch lists.” There are lots of lists out there, some more formal than others. Presumably, different types of lists are shared between agencies and, in some form or another, with allies. But we shouldn’t assume that there is one, all-purpose, mother of all national security “watch lists.” Maybe there is — but I’m not aware of it.
 
The question you pose does, however, avert to the list of persons that the security services (and CSIS in particular) have described as being prospective or actual foreign fighters (to use the colloquial term). CSIS told parliamentarians in March that it was then tracking up to 80 Canadians it suspects of having returned to Canada, after travelling abroad for “terrorist purposes.” It also reported that an estimated 130 Canadians with suspected ties to armed groups or terrorists are still in Syria and other world hot spots, including Somalia, Yemen, and parts of north and east Africa. There, some reportedly study in “extremist Islamic schools,” others perform logistical or fundraising functions, and still others engage in paramilitary activities.
 
The RCMP, for its part, is part of a “High Risk Traveller Case Management” system, one that deploys a number of legal and other tools in an effort to minimize the peril believed to be associated with foreign fighters. They are apparently on the lookout for some 90 or so individuals.
 
The foreign fighter risk can be described in different ways, but maybe the most evocative description I’ve seen is of “bleed out”: “the current worries about foreign fighters seem to centre around the threat of a ‘bleed out’ as jihadi veterans, equipped with new knowledge of fighting, training, recruitment, media and technical skills in building bombs, take their skills elsewhere — potentially facilitating the initiation or escalation of terrorism in their home country or in other arenas, and enhancing the power of insurgencies and terrorist groups.” (Barak Mendelsohn, “Foreign Fighters: Recent Trends”in Michael P. Noonan, ed, The Foreign Fighters Problem, Recent Trends and Case Studies (Foreign Policy Research Institute, 2011) at 191).
 
Over the last year or more, much of the public discussion (and for considerably longer, much of the private conversation among security agencies) has been about preempting radicalized enthusiasts in Canada from journeying to Syria, Iraq, Somalia, and similar unstable regions and becoming foreign fighters. One tool, now receiving much attention, is passport revocation.
 
The government’s passport rules are found in the Canadian Passport Order, one of the rare expressions in Canadian law of Crown prerogative. That instrument provides that “any person who is a Canadian citizen under the [Citizenship] Act may be issued a passport,” and sets out the requirements to be met prior to the issuance of this document. A passport may be refused or revoked on a number of grounds, including “if the Minister [of foreign affairs] is of the opinion that such action is necessary for the national security of Canada or another country.” “National security” is not a defined term, and does not therefore depend on highly specific elements of the sort associated with the definition of “terrorist activity” in the Criminal Code. It could easily reach foreign fighting.
 
Moreover, it is an administrative device, and not dependent on criminal burdens and standards of proof. While passport revocation raises mobility right issues under the Charter, its application in national security matters has been saved by section 1: Kamel v. Canada (Attorney General), 2009 FCA 21.
 
It is, in other words, a reasonably pliable tool, allowing authorities to bar international travel where persuaded that a person is voyaging to become a foreign fighter. It remains, of course, that there must be proof of the latter objective. Proof of this nature may be collected as a collateral product of a police investigation into crimes, or (probably more likely) it could stem from an investigation by the Canadian Security Intelligence Service into a threat to the security of Canada.
 
Passport revocations are, therefore, potentially the most useful tool presently available in the government’s arsenal. Of course, it is true that a determined individual might attempt to travel on a false passport. But it is also true that that action would itself constitute a crime. In the result, the prospective foreign fighter could be prosecuted in a sort of “Al Capone” strategy — that is, not for the crime of foreign fighting per se, but for collateral activity. Since the penalty for knowingly using a forged passport is a possible term of 14 years, this is more than a token prospect.
 
In sum, passport revocation is a potentially critical tool in dealing with foreign fighters. Why it is not a sufficient tool is a matter of speculation. The answer may be, simply, that passport revocation may make a “prison” of Canada, but that prison is not sufficiently confined to comfort security officials. Put another way, enough people may have slipped from Canada that revocation has proven ineffectual. A related possibility is that it depends on predicting the conduct of people who may not have triggered attention from the authorities — that is, it is not a perfect foil. Also, revocation presumably has little or no deterrent affect — there is no prospect of a sanction, above and beyond the impediment on international travel. And revocation is a gatekeeper tool, available only at the exit stage of the foreign fighter life cycle. It is not a means for stalling return, because of the constitutional right of all Canadians to re-enter the country. Nor is it a measure that means much to a foreign fighter who has taken up residence again in Canada, and whose attention is now focused on domestic pursuits. And stopping someone from travelling doesn’t mean that they will then abandon their interest in violence — those efforts could end up directed inwards, towards Canadian targets.
 
These are the sorts of dilemmas presumably faced by the security services.
 
Roach: I have always found it helpful to reflect on the origins of watchlists as an intelligence tool. The names of suspicious people were put on watchlists in order to give authorities a “heads up” about someone who could be dangerous. Intelligence was used for the traditional purposes of intelligence: providing early warnings. Starting with the pre-9/11 al Qaeda and Taliban listing regime, however, we started using intelligence as evidence to impose legal consequences on people. These legal consequences range from travel bans and asset freezes to no-fly lists and passport revocations.
 
Reasonable people disagree about the fairness of using intelligence for these purposes but another concern is how to transition from secret intelligence to public evidence. We had enough intelligence to suspend Martin Couture-Rouleau’s passport but apparently not enough evidence to prosecute him criminally for leaving Canada to participate in a terrorist group for terrorist purposes. Why?
 
The Air India Commission (disclosure: I was its Director of Research (Legal Studies)) warned that there was still trouble converting intelligence to evidence and we need to know more about whether these cases might reflect similar difficulties. For a discussion of these issues see vol 3 of the Air India report.

What other legal means are available in terms of detention, surveillance, monitoring, or restricting the movements within the country of the other individuals on “watch lists”?
 
Forcese: Again, it depends on your “watch list.” But if our focus remains on foreign fighters and/or persons with a radicalized agenda in Canada that may lead them to violence, here’s a basic distillation of the tools available (above and beyond surveillance, which I discuss below). Download the table here.

Of all the measures listed here, the ones that will likely now become fodder for discussion are the peace bond (recognizance with conditions) provisions: will they now be used as tools of deterrence/disruption? (They haven’t been to date as best as I know). Preventive detention is an enormously controversial issue — Canada’s provisions are comparatively mild. If we will be discussing ramping them up, I would urge consideration of the sort of criteria I have discussed in past articles and op-eds.
 
I haven’t listed “security certificates” — those are immigration measures that allow removal of non-Canadians (and detention pending removal) on national security grounds. They aren’t available in relation to citizens, and in any event have proven difficult to make work because of a secretive process that has fuelled regular constitutional challenges, and then the creation of expensive and time-consuming procedural fixes.
 
In terms of surveillance, I suppose it comes in four flavours. First, there is simple surveillance in public spaces, where a person has no reasonable expectation of privacy. There are no real legal issues there, although each agency will have internal targeting directives that are tied to ensuring this surveillance is within its mandate.
 
Second, there is covert criminal law wiretapping — something that may be authorized for law enforcement by a judge under Part VI of the Criminal Code.
 
Third, there is covert security intelligence wiretapping by CSIS, pursuant to a warrant issued by a Federal Court judge under the CSIS Act.
 
And fourth, there is foreign intelligence signals intelligence intercepts conducted by Communications Security Establishment Canada, pursuant to its powers under the National Defence Act. The latter type of intercepts has proven most contentious, post-Snowden.
 
For a discussion of these issues and a comparison of these surveillance powers, see my recent blog entry.
 
Roach: I do not see the definition of terrorist activities or the armed conflict exception as huge problems with criminal prosecutions. The definition is broad and the Supreme Court read the exemption narrowly in Khawaja. We should also remember that those charged with a terrorism offence face a reverse onus on bail. I discuss this issue and some recent Canadian terrorism prosecutions here.
 
The 2001 Anti-Terrorism Act made it easier to get Criminal Code wiretaps in terrorism cases. They may be valuable albeit expensive to maintain.
 
Investigative hearings (which allow authorities to compel responses to questions posed in the presence of a judge) were only used once, during the Air India trial, and without much success. Even if the open court presumption that applies to them is rebuttable, CSIS and the RCMP may prefer to collect intelligence from human sources less publicly and coercively and without the broad use and derivative use immunity that investigative hearings create.
 
I agree with Craig that preventive arrests and recognizances will be where the action is. One was used after Mohamed Dirie’s sentence in connection with the Toronto 18 prosecution expired but it failed to prevent him leaving for Syria where he was killed.
 
We could, however, under the existing law, use electronic monitoring as part of a recognizance and this may be worth considering. Craig is right that Canada’s 3-day period is comparatively restrained, but I hope we do not embark on a symbolic battle to increase the maximum period of preventive arrest from 3 days. Increasing that period to 7 or 14 days is only a temporary solution: the conditions of release seem to me to be more important.
 
What about the changes on surveillance to the CSIS Act that the government has announced (but has yet to table)?
 
Forcese: We await the details, but these changes seem directed at a recent Federal Court ruling that condemned CSIS for overreaching in its understanding of the legal rules governing covert electronic surveillance of Canadians travelling overseas. Cutting to the chase, the changes will likely make it clear that CSIS can monitor Canadians overseas, and work in partnership with its allies in doing so (and also share intelligence with those allied agencies).  Much will turn, in my view, on whether there are safeguards that will, for instance, forestall this information exchange from producing another Arar scenario (or worse). I will blog more on this once we know more.
 
It is important to note that this proposal is in reaction to developments that are years old now — this is not a reaction (or response or seemingly even relevant) to events this week.
 
Roach: I agree we need to see the text of the bill but I also have concerns that codifying CSIS informer privilege (one of the other anticipated changes) could make it more difficult to convert intelligence into evidence. The privilege could encourage CSIS to continue past practices of promising sources anonymity and this could make it more difficult to compel sources to testify in criminal trials. A new class privilege for CSIS sources would likely be challenged and be something of a litigation magnate in terrorism prosecutions which are already long and complex. I have blogged about this here.
 
What about criminalizing terrorism glorification?
 
Forcese: This is something the UK has done. For more on this, see my blog. I am not sure it would add much in Canada, and it would certainly raise constitutional free speech issues. For one thing, hate speech is already a crime in Canada. And the Criminal Code makes it an offence to knowingly instruct, “directly or indirectly, any person to carry out a terrorist activity, whether or not (a) the terrorist activity is actually carried out; (b) the accused instructs a particular person to carry out the terrorist activity; (c) the accused knows the identity of the person whom the accused instructs to carry out the terrorist activity; or (d) the person whom the accused instructs to carry out the terrorist activity knows that it is a terrorist activity.” Instructing is so broad it is basically an incitement offence. Bad guys recruiting or communicating terrorist badness can be prosecuted.
 
So a more sweeping, speech criminalizing provision wouldn’t add much, but may produce blowback: if the government starts targeting the fellow with a flag associated with a terrorist group or an obnoxious banner, entire communities that might sympathize with entities the government labels terrorist groups but which community groups see as freedom fighters will be alienated. Hurting feelings may not itself be enough to suggest glorification offences are a bad idea. But when you alienate communities, intelligence and policing sources dry up. More than that, ideas don't go away. They go underground, with a new martyred status. And martyred ideas have a street credibility and cool chic. And so you attack statements, you fuel resentment, close off relationships with the authorities, create grievances and make it cool to resist. 
 
At any rate, our constitutional tradition is one in which bad ideas are to be defeated by exposing them, not by martyring them. As summarized by Fredrick Siebert one justification of free speech is this: “let all with something to say be free to express themselves. The true and sound will survive. The false and unsound will be vanquished.” (Four Theories of the Press (1963))
 
So be careful what new crimes you hope for.
 
Roach: I agree with Craig and would add that it is a crime to incite any crime in the Criminal Code including a terrorism offence. As long as a person is aware of a substantial risk that someone could commit a crime, he may be guilty. The existing offences should be tried before we conclude that it is necessary to legislate new crimes. This is especially so if the new crime would limit freedom of expression and could arguably be counter-productive by appearing to criminalize speech that expresses sympathy with real and imagined grievances that many may have.
 
One of my concerns with the glorification approach and the focus in UN Security Council Resolution 2178 on extremism and radicalization is that it may be counter-productive and can inadvertently promote a false and dangerous “clash of civilizations” narrative pitting the West against the Islamic world.
 
What is “disruption” by police or security intelligence agencies?
 
Forcese: “Disruption” is not a legal term of art, although there are discussions in the UK about formalizing such techniques. But basically, it means making life more difficult for potential plotters. So it could include any or all of the tools listed above. Or more. In some jurisdictions, especially the US, the post-9/11 practice was often to engage in preemptive prosecution for minor offences. So if you couldn’t pursue on terrorism charges, but had a good immigration or tax or minor infraction case, prosecute on that basis. I like calling it the “Al Capone” strategy — Al Capone was convicted on tax charges and never for being a mobster.
 
Disruption can be as simple as making your surveillance overt, or openly visiting places of worship or employment or schools where this suspect is a student.
 
It can, however, be controversial and possibly counterproductive. Disruption can alienate communities that perceive their members are being harassed — and community support is essential in counter-radicalization efforts. Moreover, there is always the risk that being a “bad guy” in the eyes of authorities enhances the “street cred” of the people you are trying to deter.
 
All of this is to say, that, yes, sorry but there is a sociology to counter-terrorism. It’s not just law and law enforcement.
 
Roach: CSIS and the RCMP do engage in disruption and in some cases this may be justified. The problem, however, is that the oversight of both agencies does not promote public confidence that disruption will be used in a proportionate manner that accords with our proud values as a free and democratic nation. The problems encountered by the Security Intelligence Review Committee that reviews CSIS are notorious. The body that reviews the RCMP does not have the powers or the ability to share secret information that was recommended by the Arar Commission in its systemic report.
 
What are the legal issues if they are suspected of plotting terrorist activities at home?
 
Forcese: Ultimately, as the table above suggests it boils down to: can they be prosecuted in criminal law? If not (for evidentiary reasons or otherwise), can they be subjected to a peace bond? If not, are administrative measures useful (no-fly, passport revocation, etc.)?
 
Overarching these “legal” considerations are operational dilemmas, not least do you want to invoke a legal response or simply resort to covert surveillance (either through wiretaps or otherwise). Once you bring a legal measure, you have now alerted the subject, whose behaviour (and the prospect of unraveling a conspiracy) now changes. Maybe you want to alert the suspect in the hope of disrupting, but I would assume that is usually a second-best alternative to pursing an investigation covertly.
 
Roach: Another part of the intelligence evidence relationship is how long you allow an investigation to play out. The breadth of our terrorism offences allows for earlier intervention. The RCMP spokesperson who said you can’t arrest people for ideas is correct, but Canadian criminal law allows arrests when a person takes even preliminary steps in converting violent ideas into action.
 
What would the legal issues be if their names were released to the public?
 
Forcese: Well, setting aside injury in the event of false positives (that is, wrongly naming innocents), the risk of mistaken identity, concerns about vigilantism, political fallout, and potential legal exposure for getting it wrong (see, e.g., the Arar case), I suspect there would be important privacy law issues stemming from naming persons as tied to terrorism in circumstances where no legal proceeding is in process.  See above, also, about the perils of “outing” an investigation and alerting a suspect to its existence.
 
Roach: Courts might order temporary publication bans with respect to preventive arrests and investigative hearings.
 
If individuals are suspected of involvement in terrorist activities abroad, instead of revoking their passports, would it be an option to let them travel outside the country and then charge them criminally if/when they return to Canada?
 
Forcese: Yes, in fact this has been a possibility since 2001 — anti-terrorism law (which criminalizes such things as contributing to the activities of a terrorist group) has always been extra-territorial, reaching overseas conduct. (And there has been one conviction of this sort).
 
Now, in a sort of “belt and suspenders” effort to make it even easier to penalize, Parliament has also enacted separate “terrorism travel” offences. These offences criminalize leaving or attempting to leave Canada for the purpose of facilitating terrorism, participating in the activity of a terrorist group, committing an offence for a terrorist group or committing an offence that is a terrorist activity. In July 2014, the RCMP laid charges against a B.C. man accused of leaving the country to commit murder “in association with a terrorist group.” In this case, the RCMP alleged that the accused “is known to have travelled to Syria to join Islamist fighters.” While the accused is not presently in Canada, and will not face trial unless he returns (or is extradited) to the country, the charges were the first brought under the new terrorism travel offences. Of course, conviction would depend on proof beyond a reasonable doubt of each of the rather complex elements of the terrorism offence provision. Getting that proof from a war zone may prove next to impossible.
 
Roach: The new leaving Canada to commit terrorism offences mean we do not have to wait until people go abroad provided we can prove their intent before they get on a plane. Such prosecutions, however, will require both advance intelligence to identify foreign terrorist fighters before they leave Canada and a willingness and an ability to convert that secret intelligence into public evidence that can establish an intent to engage in terrorism abroad.
 
I assume there is no way to revoke their passports once they leave so they could not re-enter Canada? If there were, what appeal process would be available?
 
Forcese: The Passport Order allows revocation at any time. However, marooning overseas Canadians who wish to return home is probably not a sustainable legal strategy, given Charter mobility rights. See, in particular, the controversy generated by the government’s efforts to deny Abousfian Abdelrazik re-entry to Canada, and the constitutional ruling against the government: Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580.
 
An “appeal” of any passport decision is conducted by way of judicial review in the Federal Court of Canada.
 
Roach: Craig is right to remind us of Mr. Abdelrazik. We unconstitutionally kept him out of the country. Now we will try to keep terrorist suspects in the country. Such measures do not really get to the heart of the problem. Western countries are just starting to grapple with programs to combat radicalization and there will be a need to work closely with Muslim communities to ensure that we get it right, or at least, not do more harm than good.
 
What are all the other countries that are in the same boat doing about people suspected of wanting to travel abroad to fight?
 
Forcese: Many Western states struggle with the foreign fighter phenomenon, especially in relation to Syria. It would appear that no state has developed a perfect solution to this problem. A number of states (including Canada) deploy various “soft” measures designed to discourage persons from becoming foreign fighters, and reintegrating those who return. These tools recruit “first line practitioners” working with groups at risk to detect and respond to radicalization, promote engagement between communities and authorities to build trust, and establish various de-radicalization strategies. Academic research that I have seen suggests that, long term, these sorts of civil society–oriented approaches are the most fruitful strategies, at least compared to the more legalistic approaches.
 
That said, legalistic tools designed to penalize foreign fighting do exist. Several states have relied on their anti-terrorism law, either by turning to generic terrorism prohibitions, invoking recruiting and training crimes, or extending the reach of terrorism crimes to transnational travel for the purpose of engaging in overseas terrorism. To date, these terrorism law strategies have, however, proven imperfect. As French prosecutorial authorities note, merely participating in a war is not per se a crime in that country, and qualifying the activities of French citizens or residents in places like Syria as terrorism may be very complicated. Similar evidentiary concerns have reportedly deterred or presented challenges to terrorism-related prosecutions in Germany, Belgium, Denmark, Spain, and the United Kingdom, especially (but not just exclusively) when used to preempt departure.
 
One solution has been to criminalize behaviour that, technically speaking, is merely preparatory to feared terrorist conduct and which is proved entirely by domestic evidence. For instance, a British man was convicted in May 2014 in the first UK-related trial for a Syria-related terror offence. The jury convicted the accused after a trial in which exchanges on social media, Skype and text messages were presented by the Crown as evidence that the accused intended to join a terror-training camp in Syria. No evidence was presented at trial as to the accused’s actual conduct in Syria. Also in 2014, two women were detained at a UK airport en route to Turkey in possession of substantial funds. They were charged with attempting to provide funds to another, for the purposes of terrorism. Similarly, courts in the Netherlands convicted two individuals on the basis of conventional criminal provisions relating to preparation to commit murder or arson, tied to behaviour done in preparation for departure. The United States, for its part, has relied heavily on “material support” to foreign terrorism organization offences to prosecute recruiting activities in the United States.
 
In addition (or instead), some states have resorted to more administrative solutions. Germany in particular appears to rely heavily on passport revocations, impeding travel by those suspected of intending to travel to Syria, and intensifying surveillance of those who do manage to reach and return from Syria. Where German authorities are unable to seize passports of foreign nationals, authorities issue an order not to leave the country. Australia has also reportedly used passport revocation.
 
Still other states have modified their citizenship laws to create another legal tool. For instance, Dutch law permits citizenship revocation for dual nationals convicted of a terrorism offence. It also permits revocation following conviction for unauthorized recruiting of a person to serve in a foreign armed conflict. In a similar spirit, the UK Parliament recently enhanced legislation allowing the government to strip terrorism suspects of their citizenship now even if it renders them stateless.
 
For its part, Australia has proposed use of its “control order” system of restrained liberties to limit the freedom of action of returned foreign fighters.
 
The obvious (and striking) omission in this list of measures is a tool directly impeding participation in foreign conflicts. It is usually not a crime to plan travel to a conflict area, unless evidence exists of intent to join a terrorist organization or commit other extraterritorial crimes. In 2013, Belgium considered amending its law implementing the international anti-mercenary convention to criminalize travel to Syria. The proposal was ultimately abandoned for several reasons. In fact, only one Western state for which comparative data are available seems to have specifically sought to outlaw foreign fighting per se, at least on a regional basis. Australia has used its unilateral sanctions law to bar support for the Syrian regime. These provisions are broad enough to capture fighting for the Syrian government. Moreover, Australia has also relied on its Crimes (Incursions and Recruitment) Act to penalize foreign fighting with insurgencies in Syria.
 
Roach: I think Canada was ahead of the curve with our new leaving Canada to participate in terrorism offences. They seem better than the UK approach of citizenship revocation which is primarily symbolic or the use of control orders or recognizances which will be both temporary and controversial. Jailing international terrorist suspects seems to be better than trying to keep them out of the country or revoking their passports to keep them in.
 
Should the security forces protecting the Parliament buildings, provincial legislatures, etc. be armed?
 
Forcese: That is a policy choice — not a legal one. I have no views on this issue, and defer to those with operational security expertise.
 
Roach: Target hardening is important. It is shocking that someone can walk into our Parliament with a long gun. Emergency measures are also important. Many thousands more would have died in the twin towers had evacuation procedures not been improved after the 1993 attacks.
 
Can the public be legally barred from entering Parliament buildings, provincial legislatures, etc., and if so, under what circumstances. What would be the effect of s. 1 of the Charter?
 
Forcese: There is no constitutional right to enter buildings, and indeed the parliamentary precinct is covered by parliamentary privilege. Cutting to the chase, that basically means that Parliament has a constitutionalized right to control access to the precinct by “strangers” — that is, anyone but parliamentarians.
 
But if we assume Parliament has no intent to create Fortress Centre Block, the larger issue is one of search and seizure: can you be searched upon entry? Yes. Screening searches may be authorized by statute at public facilities, such as courthouses. These searches are indiscriminate in the sense that they are not based on suspicions of any one individual, but they may still be constitutional if they are reasonable both as measured by the need for the practice and the manner in which the searches are conducted. See, e.g., R. v. Campanella (2005), 75 OR (3d) 342 (CA).
 
Roach: I agree that the courts would likely accept screening searches like the ones at airports. Part of the justification of such searches is that they should apply to all. Profiling raises normative concerns about equality and discrimination and efficacy concerns about missing those who do not fit the profile.
 
People remember the use of the War Measures Act during the October crisis. Its replacement is the Emergencies Act. Could it be invoked if there was reason to think that more attacks were forthcoming? What would that entail?
 
Forcese: Possibly, although it would take a crisis of considerable magnitude to make the Act relevant. The Emergencies Act is available for a “national emergency”; that is, “an urgent and critical situation of a temporary nature that . . . seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or . . . seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada” and that cannot be dealt with effectively under any other law of Canada.
 
The Act lists different sorts of emergency. The most relevant for our discussion would be a “public order emergency” — an emergency that arises from threats to the security of Canada that are so serious as to be a national emergency. If the Governor in Council declares this sort of emergency, it has the power to do a number of things by regulation, including regulation or prohibition of (i) any public assembly that may reasonably be expected to lead to a breach of the peace, (ii) travel to, from or within any specified area, or (iii) the use of specified property.”
 
But there are also lots of checks and balances. For one thing, although the statute was passed to replace the War Measures Act, it is arguable whether the new lawcould ever be employed the way the War Measures Act was in October 1970, to abridge fundamental civil rights. A post-Charter instrument, the Emergencies Act rebalances the separation of powers between Parliament and the executive in times of emergency, subject to a series of important safeguards, but leaves intact Charter and Canadian Bill of Rights provisions and, implicitly, the judicial review authority of the courts.
 
Roach: I agree that the Emergencies Act has checks and balances and improves on the War Measures Act. Alas, this is not an emergency: unfortunately it is our new normal.