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When Canadian Police Can't Charge People for Terrorism, They Use Peace Bonds

Omar Elabi, whose brother says he fought with both Jabhat al-Nusra and the Islamic State, was arrested after a bomb scare last week, but not charged. Police applied their legal weapon: the peace bond.
Police respond to Omar Elabi's residence in Pierrefonds-Roxboro after Elabi uploaded a Facebook video reportedly featuring explosives. Photo via the Canadian Press/Graham Hughes

This week, a major police operation unfurled in a Montreal borough, forcing the evacuation of about 200 residents, and momentary panic as fear spread that it could be terrorist-related.

It was a video uploaded to Facebook, allegedly showing someone handling explosives, which drew law enforcement to the IP address at a Pierrefonds-Roxboro home, and resulted in the arrest of Omar Elabi, whose brother reportedly left Canada to join Jabhat Al-Nusra in 2013. But neither explosives, nor any other evidence of wrongdoing were found.


So instead of charges, police turned to another increasingly prominent tool being used to monitor people they suspect may commit acts of terrorism, but who can't be charged due to a lack of evidence — the peace bond.

Twenty-year-old Omar was released on Thursday on a peace bond, expected to abide by a set of strict conditions that include not using the internet unless it's for homework, not using encryption software to hide his IP address, living with his parents, requiring the court's permission to move around, and not being in possession of bomb-making materials and instructions. The conditions, experts point out, effectively limit how he can contact his notorious older brother, Sami Elabi.

'[Omar] Elabi does not admit the facts in this case — he wants to be presumed innocent.'

"[Omar] Elabi does not admit the facts in this case — he wants to be presumed innocent," his lawyer Alexandre Goyette told reporters this week. "He had no criminal intent. He's a young student … These are severe conditions and he intends to respect them."

According to the Public Prosecution Service of Canada, law enforcement has applied for 16 peace bonds since 2006. Ten of those have come in since January 2014, and two were filed in the months after a controversial piece of anti-terrorism legislation, known as Bill C-51, which loosened requirements for obtaining peace bonds, came into effect in June.

National security experts say the peace bond is a necessary tool in light of how difficult it is to bring terrorism charges forward in court. It allows them them to keep an eye on someone, and manage their activities, without incarcerating them, or laying formal charges. Others go as far as to say peace bonds don't do enough in preventing a potential attack and even play down concerns raised by critics around the dangers of making it normal to interfere with civil liberties.


Peace bonds in terrorism cases have been available as a tool in Canada since 2001. But thanks to the former Conservative government's Bill C-51 police seeking a peace bond are no longer required to prove in court that their suspect "will commit" a terrorist act — proving that that "may commit" one is enough. The penalty for breaching conditions is now up to four years in jail, while refusing to agree to a peace bond can land one in prison for up to a year.

'Whenever standards of evidence are this relaxed, the chance of false positives increases.'

To justify the changes, the government cited the case of Martin Couture-Rouleau, who ran down two Canadian soldiers with a car in October 2014 after police failed to obtain a peace bond for him just weeks before the attack. Proponents of the bill argued the legal bar for monitoring and detaining suspects was too high.

Amarnath Amarasingam, an Ontario-based researcher on foreign fighters, said the RCMP's peace bond on Omar "kind of makes sense," especially since his brother Sami is thought to be overseas, fighting on behalf of a terrorist organization.

Sami claims to have fought with both Jabhat Al-Nusra, the Syrian branch of Al Qaeda, and ISIS, according to Amarasingam. Although they haven't been in touch in a while — Sami now refuses to speak with researchers and seems to have deactivated his Twitter account — Amarasingam believes he's fighting independently, with a smaller brigade, or has left Syria altogether. In January, Sami told a Quebec news agency he had defected from ISIS, calling it a "fake caliphate" and vowing to continue to fight the Assad regime on his own.


But while most national security experts agree that Bill C-51 has made it easier for the RCMP to obtain peace bond, there are differing views on what's driving the spike in the applications.

Amarasingam said that police are seeing more instances of youth with jihadist sympathies being interested in travelling to Syria, and the RCMP have been using the peace bond as a way to address that.

Former CSIS analyst Phil Gurski points to a general rise in anxiety around terrorism, citing the terrorist attacks in Paris and Brussels.

"Law enforcement is being told, 'You will stop it, you will not allow terrorism to happen,'" said Gurski, who now runs Borealis Threat and Risk Consulting. "So if police forces are not in a position, in that they have not gathered enough evidence by the time something happens, to lay charges, the peace bond is a tool they can use to say, 'We've done something, we've used this tool and we're going to keep doing our investigation until we can lay charges,'" he said.

'You don't come back from [a terrorism charge].'

That's exactly what happened with 23-year-old Kevin Mohammed, who was taken into custody last week under the "fear of terrorism" clause of the Criminal Code and charged with two weapons-related offenses. Mohammed was expecting to be released on a peace bond, but by the time he got to court, the RCMP had charged him with participating in terrorist activity.

But the Canadian Civil Liberties Association, which has been highly critical of Bill C-51 since its inception, maintains that limiting one's civil liberties using a peace bond is the wrong way to go about terrorism investigations.


"It's better to charge a person or to release them," said Sukanya Pillay of the CCLA. "The problem with having peace bonds with terrorism is you can limit an individual's liberty on a very low threshold."

The progressively "weakening" standards "take us down a problematic road," Pillay added, referencing the more stringent legal requirements for peace bonds that existed prior to Bill C-51. "Our concern is that we shouldn't weaken the standard so that it becomes normal to interfere with someone's liberties."

On his blog, Craig Forcese, who teaches national security law at the University of Ottawa, agrees we need to be "clear-eyed" on the risks.

"Whenever standards of evidence are this relaxed, the chance of false positives increases," he writes. "Therefore, peace bonds are vulnerable to overreach. In that respect, they may prove too strong, wrapping the wrong people into their stifling embrace."

Related: 'Don't Join ISIS:' Canadian Islamic State Star Disses the Caliphate as He Strikes Out on Own

Forcese also discusses how easy it could be to breach the "onerous" conditions of a peace bond, which could mean going to jail for behavior that wouldn't be considered criminal in any other context. Simply walking into a room with a computer when one is not supposed to be in a room with computers, for example, would be considered a breach, he writes.

But while there is a danger in peace bonds being overused, police do have to get the consent of the attorney general and a judge in order to obtain one.


Wesley Wark, a visiting professor at the University of Ottawa and an expert on national security, says judges have moved beyond deference to the Crown prosecution and government knowledge — a common problem "back in the old days."

"There's much more willingness on the part of the courts to really weigh the evidence independently," he said. "That's an important measure of control and it provides some assurance that they won't be misused."

A peace bond, unless someone chooses to breach it, also keeps terrorism suspects out of the legal system while allowing the police to continue their investigation. Entering into one doesn't mean admitting any wrongdoing, and it won't show up on a criminal record check.

"You don't come back from [a terrorism charge,]" said Amarasingam. "Your life doesn't continue after that, so a peace bond might be useful in keeping the legal side away for the time being, especially if it's done privately."

However, as Wark points out, the peace bond process is public. "A person who has a peace bond imposed on them becomes, for a time at least, a public figure of notoriety."

Follow Tamara Khandaker on Twitter: @Anima_tk