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Bill C-51 Is Right to Criminalize the Advocacy of Terrorism

05/10/2015 11:08 EDT | Updated 05/10/2016 05:59 EDT

As noted recently by terror expert Wesley Wark, Bill C-51 has sparked a robust conversation in Canada regarding security and individual rights. One of the most cherished of those rights is freedom of expression. And critics have charged that C-51 will chill that freedom by criminalizing the advocacy or promotion of terrorism in "general" terms. Detractors also claim that the existing anti-terrorism statutes relating "to inciting and threatening" are already "enormously expansive" and that these new provisions in C-51 are therefore "overboard" and "unnecessary".

This position reflects a misunderstanding of the dynamics of terrorism, which has characterized so much of the critique of C-51. Terrorism is not simply a more pernicious form of crime and the speech that promotes it is not just a darker shade of hateful discourse. The intent, method and impact of terrorism set it apart as a distinct category of threat. And the promotional fuel that feeds it has unique properties. These critics therefore are mistaken in suggesting that existing statutes, which permit all but the "direct" incitement of terrorism, are sufficient to interdict its promotion. The current statutes are ineffective and will continue to be so, because they do not address the distinctive role of generalized and indirect incitement in terrorist recruitment.

This type of incitement is an active ingredient of terrorist outreach. As noted by Dr. Posanna Guadagno, a social psychologist with an expertise in computer-mediated communication: "The typical extremist website designed for online recruitment downplays its overt description of violent activities. Instead it takes the "social identity of the group salient" and uses it as a recruitment tool.

As further explained in a paper by The Hague's International Centre for Counterterrorism, the crafting of messaging in generalized terms is a promotional asset for terrorists and not an impediment: "The weight exerted by the inciters in the incitees lies not in the issuance of direct orders, but in sowing and nurturing in their audience the ideological foundation from which the willingness to act then emerges." Incitement of this sort is the "sine qua non for the realization of the terrorist act," activated not by direct calls for action in the early stages, but through "persistent, pervasive vilification and disparagement of the target." The impact of such messaging is further magnified by what the report described as marketing "tailored to exploit vulnerable populations such as youth..." that are particularly susceptible to this type of promotional formulation.

The vilification of the target in broad terms then, is not incidental. And the "indirect" exhortation to violence against that target is hardly abstruse. Hence in many cases it is not even necessary or desirable for the purveyors of terrorism to directly incite violence to achieve their goals. After all, why run afoul of the law when other lethal options are both available and permissible.

The insidiousness of terror advocacy therefore cannot be defined as critics wish, only by incitement which is direct. In the case of terrorism technically "indirect" speech can be reasonably be expected to have more than an "indirect" effect. And consequently Canada's hate speech prohibitions are neither adequate nor appropriate for addressing this problem. The current hate speech provisions only apply to direct incitement of hatred towards an "identifiable group." Threats in more "general terms" utilized in terrorist recruitment may not in fact be proscribed under the existing statutes.

Furthermore generalized hate speech has been deemed remote enough as a cause of potential violence to render it tolerable by society. Hence the argument that such speech is more effectively dissipated by public debate rather than by legal sanction. But generalized incitement to terror is less susceptible to such filtration. It reaches its audience with greater velocity and less hindrance, creating a far closer proximity between the spoken cause and its particularly horrific effect. The advocacy of terrorism therefore cannot be separated out neatly from the violence it generates. It is not an ancillary factor causally removed from its devastating result, but an inextricable feature of the recruitment methodology employed by terror-supporting states, terrorist organizations and their supporters.

So while terror advocacy may be truly hateful in its content, it is not hate speech in the ordinary sense. Its gravity lies less in the sensibilities of targeted groups or the social impact of abhorrent views, than in its propensity for triggering attacks against unspecified but predictable targets; the potential magnitude of the incited acts; and the intended exploitation of particularly vulnerable audiences that are difficult to identify, deter and interdict.

But the hate speech statutes do serve as a precedent. They are sparingly used provisions that limit speech by measuring it against the harm it promotes and the constituency it seeks to activate. In a similar vein C-51's provisions, which measure terrorist incitement against prospective damage and perpetrators, are also unlikely to fill our dockets. But when needed, they can provide authorities with a critical vehicle to disrupt the most egregious of crimes.

No. The dynamics of hatred are not monolithic and our legal codes need to reflect that diversity. Terrorism has been defined by our courts as a "crime unto itself" and the speech that promotes it exceeds the reach of the more generic "hate" of hate speech. As such it has rightly earned its spot as a distinct legal category in C-51.

These provisions therefore deserve our support. Because we will not prevail against terrorism by repackaging it, either linguistically or legally, as something that it isn't, and we must face the battle against terrorism for what it is. In the words of UN Secretary General Ban Ki-moon, defeating terrorism is the historical "challenge" of our generation, and impeding its insidious promotion as defined in C-51, is a necessary component in meeting that daunting challenge.

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