Section 2:
New Legislative Measures relevant to National Security and Human Rights, Especially the
Anti-Terrorism Act, Bill C-36
The most significant legislation introduced by Canada to meet the new security environment created by the September 11 attacks has been Bill C-36, the Anti-Terrorism Act.17 The Act was originally tabled in Parliament on October 15, 2001, and was passed into law, after significant Parliamentary debate and some major revisions, on December 24, 2001.
There have been two major initiatives to evaluate Canada’s anti-terrorism legislation. The first was a conference, organized by the University of Toronto’s Faculty of Law, which convened on November 9 and 10, 2001. The resulting conference volume, The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill, contains wide-ranging commentary on the Bill. Most of this is from legal scholars and is often critical of the Bill’s intent and content.18
Following adoption of the Anti-Terrorism Act, the Department of Justice commissioned a study, organized by Professor Thomas Gabor of the Department of Criminology of the University of Ottawa, which sought to ascertain the views of leading Canadian scholars on the impact of the Act. This study drew on individual papers prepared by Canadian scholars, some of whom were contributors to the University of Toronto conference of 2001. The impact study differed from the University of Toronto conference in that it focussed more on the policy implications of the Anti-Terrorism Act, while remaining concerned with its legal and human rights elements. The study did unearth significant differences of opinion on the Bill’s impact on civil liberties. According to the study’s editor, "Participants were deeply divided on the impact of the Act on civil liberties, ranging from those who felt that there was a minimal erosion of rights to those who regarded the Act as ‘un-Canadian’ and a betrayal of Canadian values."19
At the heart of the original debate over C-36 was a set of concerns that included: (1) the necessity for the Act; (2) the definition of terrorist activities which were to be subject to criminal law and legal sanctions; (3) its framing of security in a human rights context; (4) certain conditions perceived as "draconian;" and (5) the question of its status as legacy or temporary legislation. All of these issues remain pertinent and have been the subject of ongoing debate, stimulated by the mandatory Parliamentary review of the Anti-Terrorism Act that commenced in 2005.
(1)
The "necessity" of the
Anti-Terrorism Act. This issue has met with a variety of explicit responses, three of which will be highlighted here.
One argument supporting the necessity of C-36 is that Canada needs to fully support UN international law covenants on anti-terrorism. After the September 11 attacks, it was discovered that Canada had been slow to implement some key UN conventions on the domestic front. Canada had signed the International Convention for the Suppression of Terrorist Bombings (1997) and the International Convention for the Suppression of the Financing of Terrorism (1999), but both conventions required legislation in Canada to implement them. The Canadian government could have followed its established practice of implementing such UN conventions in a piecemeal fashion, but instead chose to introduce legislation as part of the omnibus Anti-Terrorism Act. By emphasizing the need to meet international law obligations the Canadian government was able to stress the threat posed by terrorism not just to domestic but also to international security and to argue that C-36 was an appropriate contribution to a broader international effort against terrorism. Patrick Maclem argued further that Bill C-36 was to be commended for "asserting universal jurisdiction to declare terrorism to be an international crime."20
The necessity of C-36 has also been argued on the grounds that existing criminal law, which does not specifically mention terrorism or take into account the nature of terrorist operations, would be inadequate to deal with the new security environment. This case is summarized in a Department of Justice report entitled The Anti-Terrorism Act in Perspective. The report stresses the fact that the Act was meant to give the government new preventive tools and to enable it to use criminal sanctions against terrorist plotting, whose dimensions, due to operational secrecy and the cell structure of terrorist groups, may be quite different from normal criminal conspiracies.21 The report also indicated that there were deficiencies in the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and the draft legislation to introduce a Charities Registration (Security Information) Act. It also called attention to the absence of enabling legislation for one of the key intelligence collection agencies in the Canadian government, the Communications Security Establishment.22 Of course, no definition of terrorism as a criminal offence existed in the Criminal Code prior to September 11.
This strand of the argument for necessity has generated criticism, most cogently from Professor Kent Roach. During the debate over C-36 in the fall of 2001, Roach argued:
The most charitable reading of Bill C-36 suggests that the new offences add little to the existing law and are more about making a strong symbolic statement against terrorism than providing police and prosecutors with genuinely new tools to combat terrorism.23
While C-36 was meant to be symbolic, what is unclear is whether or not the new powers it gave to government agencies and prosecutors were useful, Roach also seems unpersuaded by the argument that C-36 was meant to add new preventive powers.
The third argument for the necessity of the Anti-Terrorism Act invokes the political and comparative roots of the Bill. Its premise is that the Canadian public demanded strong legal measures after September 11. Then ministers McLellan and Cotler expressed this view in their statement to the Parliamentary review committees when they said, based on selective polling data: "The Canadian public supports specific measures that preserve our security. As the Government we have a responsibility to respond and the ATA is part of that response."24 The comparative argument consisted in looking at Canadian legislation alongside that of other allies, especially the United Kingdom and Australia, thus putting Canadian legal responses in an international context, dispelling any hint of a unique or unnatural Canadian response, and leaving room for suggestions that Canadian legislation is, comparatively, relatively mild.25
The problem with the argument based on public demand and international comparison rests in the context of the times. C-36 was drafted, debated and tabled in an emergency. It was an unavoidable product of a "rush" to legislate, a rush shared by other allied states. The collective rush to legislate, backed by public demand, does not necessarily lead to wise laws, and comparisons between political and legal systems caught up in the same emergency may not be as reassuring as they might seem. While public acceptance of national security legislation is especially vital, this is not the same as saying that good laws are laws drafted in accord with public demand. International comparisons can be extremely helpful not only in providing reassurance but also as a check against both the softer and the harder elements of Canadian legislation.
The most important lesson to be drawn from the third strand of the argument for the necessity of the Anti-Terrorism Act is that the public will and international legal developments among counterpart allies need to be closely monitored. In the human rights context we need the capacity to monitor evolving public attitudes towards the treatment of human rights in national security legislation.26 We would also benefit from the close monitoring of legislative efforts elsewhere to see how other countries continue to treat human rights concerns. Above all, we may have the chance to learn lessons from other countries’ misfortunes, especially in the aftermath of terrorist attacks or apprehended operations, and thus avoid the pitfalls of over-exaggeration or neglect.
(2)
The definition of terrorism.
In a focus group study of public attitudes towards the Anti-Terrorism Act, the participants surveyed were asked about the definition of terrorist activity contained in the legislation. According to the study report,
The definition of terrorist activity was well received, with participants appreciating the fact that it was broad and, therefore, would not exclude any potential terrorist group. However, some expressed concern that the broadness of the definition might lead to non-terrorist groups (such as environmentalists, labour union activists and anti-globalization protestors) being unjustly defined as terrorists.27
In many respects this summary captures the debates that have surrounded the issue of the definition of terrorism since the Anti-Terrorism Act was first introduced in Parliament. Concerns about the definition of terrorism have focussed on the breadth of the definition, the inclusion of motive, and some issues relating to criminal intent associated with the concept of facilitation as defined by the Act.
The Anti-Terrorism Act, in its final version, defines terrorism in a multi-layered way. The definition includes reference to an act committed for a political, religious or ideological purpose that is intended to intimidate or compel and that involves violence against individuals, or the public. Substantial property damage and serious interference with public services can be considered a component of terrorist acts if they meet the criteria of violence outlined by the Act. In the process of revision that led to the final version of the definition, efforts were made to clarify the intent of the Act by throwing a protective cordon around expressions of religious belief and political opinion and by distinguishing between protests or strikes and terrorist activity.
In their joint appearance before the Parliamentary review committees in November 2005, the Public Safety and Justice ministers mounted a spirited defence of the definition of terrorism provided in C-36. They argued that the motive requirement fits the unique nature of terrorist activities and that the definition, despite the worries of critics, was designed to limit the scope of the law rather than to encourage broad sanctions. The limitation means prosecutors have to prove political, religious or ideological purpose. It is further designed to avoid stigmatizing belief systems. The Act also strived to distinguish between forms of protest and terrorist activities.
As scholars of terrorism will readily admit, no definition of terrorism is perfect or universally accepted.28 The definition of terrorism in the Canadian Act will remain abstract until it is tested in the courts. In some respect the Act’s definition has already met one preliminary test. The rarity of criminal charges laid under the terrorist provisions of the Act provides some reassurance that the definition has not lent itself to an egregious extension of state power or an egregious offensive against various forms of dissent. Critics of the definition, in that sense, are left with its abusive potential, rather than reality.
We must be concerned about the potential abuses of power allowed by Canadian laws. But the overwhelming preoccupation with the definition of terrorism has served to obscure some other, secondary, definitional issues in the Anti-Terrorism Act that are of concern. An example is provided by the sections of the Act that criminalize "participating, facilitating, instructing and harbouring" terrorist offences.29 Criminal sanctions for all these offences are severe and thus bring forward a requirement of criminal intent. Where criminal intent becomes a significant issue is in the definition of facilitation (83.19). According to the Act, "a terrorist activity is facilitated whether or not a) the facilitator knows that a particular terrorist activity is facilitated; b) any particular terrorist activity was foreseen or planned at the time it was facilitated; and c) any terrorist activity was actually carried out." Whether or not this phrasing clarifies the issue of criminal intent remains at issue.
Only when a case of terrorism comes before the Canadian courts will we have a full opportunity to judge the validity of the law.
(3)
With regard to framing security in a human rights context, the government of the day insisted strenuously that C-36 would be "Charter-proof"—in other words, that it would meet the challenge of being tested against the provisions of the Canadian Charter of Human Rights. The Prologue to C-36 makes the point about protection of human rights explicitly. It states:
The Parliament of Canada, recognizing that terrorism is a matter of national concern that affects the security of the nation, is committed to taking comprehensive measures to protect Canada against terrorist activity while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms.30
The then Minister of Justice, the Honourable Anne McLellan, was explicit, when presenting the bill to Parliament:
Canadians can rest assured that we kept in mind the rights and freedoms guaranteed in the Charter when drafting our proposals.31
Some critics, especially from the community of legal scholars, expressed doubts when the Bill was first presented.32 The most prominent sceptic was Professor Kent Roach of the University of Toronto’s Faculty of Law. Roach argued that charter-proofing of legislation was routine, that courts tend to be deferential when faced with matters of national security, that Charter rights were not, in any case, absolute, and that charter-proofing may override more traditional approaches to restraint in the criminal law.33
The issue remains open, as C-36 powers have been used sparingly. Only one "investigative hearing" order has been issued since C-36 became law in December 2001. This power was used in the unexpected context of the Air India investigation.34 It was challenged and the Supreme Court determined that the process was constitutional.
There may be further challenges on the horizon, stemming from the arrest of Mohammad Momin Khawaja on March 29, 2004. Mr. Khawaja was charged under sections 83.18 and 83.19 of the Criminal Code, provisions introduced with the Anti-Terrorism Act. His case represents the first time that charges have been laid under the Act.35
When looking at the charter-proofing claims, legal scholars such as Roach consider the extent of the protections they might offer to established Canadian rights. What this approach misses is the more political intent that underlay the government’s insistence on the charter-proof nature of the Anti-Terrorism Act. This more political intent involved reassuring Canadian citizens that Bill C-36 did not fundamentally alter the fabric of Canadian democracy. Such reassurance could be construed as a reflection of anxiety about public attitudes to the Bill; it could equally be construed as a reflection of the extent to which Charter rights, two decades after the passing of the Charter, have become embedded in Canadian democratic practice.
(4)
"Draconian" provisions of C-36. During the original debate over C-36, in the fall of 2001, controversy surrounded two particular sections of the Bill: investigative hearings and recognizance with conditions.
The intent behind both provisions was to give the government preventive powers. Investigative hearings (under 83.28 and 83.29) were designed to provide a legal forum in which a person suspected of either committing or being about to commit a terrorist offence could be compelled to testify or provide evidence about such activities. Protections were built into the law to prevent self-incrimination.
"Recognizance with conditions" (83.3) is more commonly referred to as preventive arrest. It may be imposed if a law enforcement official believes "on reasonable grounds" that a terrorist offence will be committed and that preventive arrest is necessary to prevent the occurrence of such an offence. A terrorist suspect in these circumstances can be held under arrest for a brief period of time, not exceeding 60 hours. A judge can order a further period of "recognizance"—in essence, a form of control order — of up to 12 months.
Bill C-36 provided for an annual reporting mechanism to Parliament on the use of either investigative hearings or preventive arrests. In the most recent available annual report (for 2003-2004), the Department of Justice noted:
The fact that these provisions were not used by the RCMP or federal prosecutors in the first three years of their existence illustrates that officials are proceeding cautiously in using these powers. 36
The Department also noted:
The Government of Canada continues to support the investigative hearing and recognizance provisions as necessary preventive measures.37
After considerable debate in Parliament, these two measures were subject to a five-year "sunset" provision, which means that they will expire at the end of December 2006 unless renewed by Parliament.
The "draconian" nature of these powers was recognized in that the government understood the need to provide safeguards governing their application, as well as the need to proceed cautiously with their possible use. They represent the most emergency-oriented provisions of the Bill. The extent to which these powers can be tolerated in a human rights context depends on two different scenarios. They can, arguably, be tolerated when not used. They will, arguably, be tolerated if properly used in the circumstances imagined by the law—to prevent a terrorist attack.
The challenge with regard to such powers may come in the aftermath of real or threatened terrorist attacks, when governments reach for stronger preventive tools. This is borne out by the circumstances surrounding the enactment of revised Australian legislation in November 2005 and by the current debate in the UK over revisions to anti-terrorism law in the wake of the July 2005 London transport bombings. The tendency to over-reaction may be held in check by existing "emergency" provisions, if such provisions are deemed adequate and lawful and meet public demands.
(5)
The status of C-36 as legacy or temporary legislation.
One of the revisions introduced to the Act, allied with the application of a five-year sunset clause to investigative hearings and recognizance with conditions, was a mandatory review by Parliament after three years. This review was launched in the spring of 2005 and interrupted by the prorogation of Parliament in December 2005. The new Conservative government promised, in its Throne Speech on April 4, 2006, to resume the review of the Anti-Terrorism Act. The details of this resumption have not been announced at the time of writing.
The Parliamentary review in 2005 was conducted by both houses of Parliament through the House of Commons Subcommittee on Public Safety and National Security and the Senate Special Committee on the Anti-Terrorism Act.38 In a joint statement by ministers McClellan and Cotler to the Parliamentary review committees on November 14, 2005, the previous Liberal government made it clear that, while it supported the review process, it was adamant about the need for the legislation. The ministers said that: "The Government of Canada does not intend to repeal the ATA."39 Their concluding remarks stressed the need to prevent Canada from becoming a "haven for terrorists."40
While still a backbench MP, Irwin Cotler expressed the case in a different way:
Bill C-36 is legacy legislation. It is likely to be with us for a long time. We should try to get it right—or as right as possible.41
Bill C-36’s status as good legacy legislation—legislation that gets it right—will meet its first test in the change of government in Canada from Liberal to Conservative and the responses a new government makes to the eventual report of Parliamentary review committees.
A second major piece of national security legislation introduced in the fall of 2001 had an entirely different history from that of C-36. This supposedly complementary Bill, the Public Safety Act (originally designated C-17, subsequently C-42), was first introduced in November 2001. It immediately attracted criticism, largely on account of the powers given to the Minister of Defence to designate military security zones. The potential for abuse of such powers was deemed great, especially with regard to their use to block protest. In addition, the Bloc Québécois argued that the Minister might use such powers in a unilateral fashion to send the army into Quebec.42
Ultimately the government withdrew these provisions from the Bill during the course of its revisions and reintroduction in 2002. The Bill was finally passed in May 2004.43 As it evolved it became a form of house-cleaning legislation, designed to amend a large number of existing statutes. Many of these amendments have potential implications for the protection of human rights, but because of the Pubic Safety Act’s checkered history and fall from public attention, its provisions are relatively little known or studied.44
Additional legislation with a bearing on national security was contemplated by the previous Liberal government of Paul Martin and tabled but not passed prior to the election of 2005-2006. These legislative measures include a bill to establish a Committee of Parliamentarians on National Security and the Modernization of Investigative Techniques Act (MITA), which is designed to update the legal environment in which law enforcement and intelligence services can intercept electronic communications in Canada. It remains to be seen whether these pieces of legislation will be reintroduced in Parliament in the original or in modified form.
Key recommendation:
The CHRC should keep a watching brief on the Parliamentary Review of the
Anti-Terrorism Act
and should be ready to provide an assessment of the Parliamentary committees’ reports as soon as these are issued (by December 2006, unless an extension is granted by Parliament)