While Conservatives may have inadvertently violated the propaganda provisions in their own controversial anti-terror legislation, Bill C-51, by posting ISIS photos and playing the group’s anthem to the backdrop of an election-style ad blasting Justin Trudeau, they’re probably safe from defending it in court.

Legally, the Conservatives might have an airtight defence: themselves. A few paragraphs below the new laws criminalizing the advocating, promoting or commissioning of terrorism content is a piece on consent: “No proceeding under this section shall be instituted without the Attorney General’s consent.”

Somehow, it seems unlikely Peter MacKay would prosecute.

But he’s not the only one the section means by the Attorney General, despite being the only title-bearer. Craig Forcese, a national security law expert with the University of Ottawa and one of the leading critics of C-51, says the section also refers to provincial attorneys general and the Director of Public Prosecutions (DPP), who is delegated federal criminal law functions under the DPP Act.

“But I don’t think anyone can say definitively [if it applies] because these new freedom of speech provisions have yet to be tested,” said Forcese.

“The more interesting question for me is whether you could go to a court and ask for this to just be taken down. The terrorist propaganda provision in the C-51 architecture doesn’t require the same as the actual speech crime itself; it’s the pictures themselves and the substance rather than what you intend to do with it,” he explained, saying that, under C-51, there’s no longer a need to prove intent.

But having said that, he isn’t sure how it would work outside of theory “because we haven’t seen these provisions tested yet in court”.

The 46-second ad features ISIS imagery of captured men being beheaded with explosives around their necks and others being drowned in cages to the backdrop of the ISIS anthem.

Conservative campaign spokesman Kory Teneycke defended the clip in an interview with Global’s Tom Clark, saying it’s “part of the debate as to what is it that we’re going to do about that issue [ISIS]”, justifying it as being “very similar to what [is] on the news every day”.

The second half of the ad is a small portion of a CBC Power and Politics interview Trudeau did with guest host Terry Milewski, stating firmly that they would end the bombing mission in Iraq and Syria, opting for different measures to contribute to the international effort.

CBC is challenging the video for copyright infringement to Youtube and Facebook for the portion involving the Milewski interview but according to digital privacy and copyright expert Michael Geist, that argument has little to no weight.

“The CBC has again raised the issue of re-use of news coverage in political advertising, claiming that it is determined to limit re-use since ‘our integrity as providers of serious, independent coverage of political parties and governments rests on this’… The CBC is simply wrong,” wrote Geist on his website, poking holes into the argument for copyright infringement.

“Indeed, even if it falls short of violating Bill C-51, the ad is in terrible taste, treating images of victims as mere props for political gain.”

@Claire_Wahlen

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