Canada’s Anti-Terrorism Act – Terrorism Protection and Fundamental Freedoms
On the morning of September 11, 2001, the Western World stood still. The death of thousands on American soil caused a ripple effect so wide the international community continues to experience the social, economic and political ramifications close to four years later. The ‘911’ attacks, led by a militant Islamist group (Al Qaeda), were the most lethal ever by a foreign force on United Sates soil.
1 Canadian parliament, certainly not immune from these effects, quickly enacted Bill C-36, the Anti-Terrorism Act (ATA).While Canadian society has long believed in fundamental legal safeguards, the terrorist calamity of ‘911’, introduced new and potentially dangerous legal concepts. 2 In the wake of September 11, many question whether it is terrorism alone that should be labeled as the sole concern, highlighted by the Western World’s fears of the threats of misunderstood and unknown societies. Or is it the political response to terrorism, in the form of anti-terrorism legislature, such as Canada’s Bill C-36, that should be highlighted as the real danger, with the attached possibility of undermining constitutional and democratic rights and values?Canada’s Anti-Terrorism Act (Bill C-36) is justified under pretences of ‘human security’; however, not only is it unnecessary, upon analysis, it infringes on Canadians’ fundamental freedoms through the poorly defined and flawed ‘terrorist activity’ provision and by offending many sections of the Canadian Charter of Rights and Freedoms.
The Canadian Anti-Terrorist Act has its’ roots in ‘human security’. Security concerns of the Western World traditionally had their foundation on the primacy of sovereignty, territorial security and the belief that military intervention and deterrence achieved security.This external focus on internal security proved during the Cold War and the height of communism to lack the creation of international peace and stability. As a result of pressure groups, NGOs and activists, the concept of security was transformed into a concern with human security, which entered Canada’s parliament in the 1990s with the Liberals. Despite post-September 11 alterations in the definition of ‘human security’, it remains a tenet of Canadian foreign policy.
This Canadian emphasis on human security resulted in the ratification of Bill C-36, despite how unnecessary and detrimental such an act has proven to be. The over-arching justification of human security has application to virtually all of the measures contained in the Anti-Terrorism Act. This foundational principle is not solely the underpinning of Bill C-36, it is also at the core of the unprecedented United Nations actions against counter-terrorism, which began the widespread adoption of anti-terrorism legislation across the democratic world. Read about antiterrorism awarenessActing under Section VII of the United Nations charter, the Security Council reaffirmed Resolution 1373 on September 12, 2001, stating that human security is at the heart of protecting international peace and security against trans-national terrorism.
4 According to this initial resolution, terrorism is an assault, and a threat to, the most fundamental rights of the inhabitants of a democratic polity – the rights to life, liberty and security of the person. Therefore, in this context, human security is defined as the protection of fundamental freedoms, which are threatened by the actions of terrorists.The fight against terrorism is meant to be seen as a struggle for the larger picture of international human rights. 5 That said, it is necessary to examine why the adoption of such legislation on an international level felt the demand to be duplicated at the state level of ‘free and democratic’ nations like Canada.
According to Stanley Cohen; “National security is arguably the most important justification that can be advanced in support of legislation, springing, as it does, from the necessity to safeguard and preserve the very existence of the state and its democratic institutions and ensure their command survival. 6 First off, since Canada’s parliament, under the Constitution Act of 1867 has the power to enact laws to ensure the “peace, order and good government”7 of the nation, Bill C-36, described under parameters of a human security clause, appears a probable protection of national interest and national defense.A second loophole within human security, highlighted by the enactment of Bill C-36, is that of Rule of Law. Within Legal Rights, under Section VII of the Canadian Charter of Rights and Freedoms, the collective rights of peace and security are extended to all inhabitants of Canada.
Therefore, Canada’s Anti-Terrorism Act, with its supposed foundation in the protection of human security appears justifiable. 9 The final justification of the Anti-Terrorism Act as a means of human security falls under a clause of non-absolute rights. International instruments, such as the International Covenant on Civil and Political Rights, recognize that rights are subject to limitations.Similarly, Section I of Canada’s Charter subjects rights to limitations on the basis of “public order” or “national security”. 1 The Charter aside, parliament has recognized the use of strong measure which limit our rights for the self-defense and protection against global-terrorism in a plethora of international legislations that are ratified by Canada. 12 Nonetheless, while scholars examine Canada’s written legal bodies in order to find loopholes to justify the ratification of Bill C-36 under clauses of ‘human security’, it becomes obvious that the Anti-Terrorism Act is unnecessary because these legislations have already put in place adequate legislative tools to combat terrorism.
The Canadian parliament even recognizes that terrorist activities in Canada have always been treated as criminal, and are subject to prosecution under the Criminal Code. In addition, while some argue that existing criminal laws are only reactive, it is obvious that provisions of the Criminal Code, such as Offences Against the Person and Reputation, represented in Part XIII are broad enough to criminalize a wide range of activities, both within and outside Canada, in reprimanding terrorists both after an act of aggression or with the purpose of a preventative measure.Even the arguably unconstitutional measures of preventative arrest are enforced under section 495 of the Criminal Code. In addition, upon its submission to the House of Commons, the Canadian Bar Association identified an assortment of previously existing legislation that mimics the demands of Bill C-36.
14 Despite the fact that Bill C-36 was ratified in the wake of similar international legislation under the pretence of human security and the protection of international peace, and can claim legal justification through Criminal Code and Charter provisions, there was clearly no need for legislation as far reaching as the Anti-Terrorism Act.Every important provision (even those that spark constitutional debate) of the ATA has been previously represented within a body of Canadian legislature. Nonetheless, necessity and representation of the provisions of Bill C-36 within the legal framework of Canada aside, so long as the ATA is legally binding, it remains an infringement on Canadian inhabitants’ rights due a poor definition of ‘terrorist activity’ and Charter violations. Undebatably, the cornerstone of the Anti-Terrorism Act, the definition of ‘terrorist activity,’ is vague and imprecise, leaving the legislation fundamentally flawed.Under section 83.
01, a ‘terrorist activity’ was defined as an action that takes place either in or outside Canada, “committed in whole or in part for a political, religious or ideological purpose, objective or cause” and intended to intimidate the public “with regard to its security, including its economic security,” or compelling people, governments or domestic or international organizations “to do or to refrain from doing any act “whether those targets are in or outside of Canada. 5 The definition continues with certain provisions, equally as unclear in definition that must be included in order for an act to be constituted as one of terrorism. The most problematic aspect of the above definition is the concentration on motive.In Canada’s justice system, the essential elements are intent and act; motive has long been considered largely irrelevant. Not only does this inclusion of motive in the definition move away form Canada’s generally accepted principle of punishing criminal acts, as opposed to motives, in retaining the motive clause, there is obvious religious and political targeting.
6 “Moreover, the criminalization of motive runs the risk of politicizing the investigative and trial processes, while chilling the expression of ‘identifiable groups,’ and marks a departure from the general principles of criminal law in this regard. “17 A second problematic aspect of the above definition is the inclusion of ‘lawful,’ within the bill’s exemption of protest.While the realization of the bill’s attempt to exempt ‘lawful protest’ led to the reevaluation of such a provision, the remaining provision still defines certain protesting as terrorist activity, creating the potential risk that marginal or unpopular political views will be criminalized. 18 According to Mia, “history has borne out that effective civil disobedience, political and social activism sometimes require forms of advocacy that may involve violence, for example in the form of armed resistance to attack, occupation or oppression. “19This cornerstone of Canada’s Anti-Terrorism Act lacks a properly defined and terrorist-exclusive account of ‘terrorist activity’.
Until the provision is ratified under a new description, including a certain and understandably stated requirement of intentionality and motivation, it is impossible to define terrorism, and therefore, impossible to criminalize or penalize it. Moreover, the inclusion of motive and the criminalization of ‘lawful protest’ challenge the tenets of Canadian justice and democracy, and until they are properly revisited, the whole of Bill C-36 is fundamentally flawed.In addition to this unrepresentative and flawed provision, the ATA violates the Canadian Charter of Rights and Freedoms. Notwithstanding the government’s contention that Bill C-36 has been “charter-proofed”, without the ‘national security’ pretence, Canada’s Anti-Terrorism legislation would not likely pass muster under section 1 of the Canadian Charter of Rights and Freedoms.
An examination of the Legal and Equality rights guaranteed to Canadian inhabitants demonstrates the inconsistency of the Bill with Charter proportionality under section 1, demonstrating a slippery slope towards rights violations.Firstly, Bill C-36 violates rights upon arrest or detention. Under the Legal rights section of the Charter, upon detention of arrest, specific safeguards are provided including: the right not to be arbitrarily detained or imprisoned (sec. 9); the right to be informed promptly of the reasons for the arrest or detention (sec. 10a); the right to be informed or the specific offence (sec. 11a); and the right to have detention validated by way of habeas corpus (sec.
10c). 0 However, Bill C-36’s proposed “preventative arrest” measure (now sec 83. 3 of the Criminal Code) violates all of the previously mentioned subsections of the Charter. Previous legislation demanded reasonable grounds for arrest or detainment; however, the ATA allows these actions under the foresight that a person may commit an offense.
Since this lacks urgency, preventative arrest increases the threshold of arrest without a warrant and erodes citizen protection against the abuse of police powers.In addition, unlike the demand of prompt provision of the reason for arrest or charge itself, which are guaranteed under sections 10a and 11a, the preventative arrest measure allows for arbitrary detention, endangering the protections afforded by habeas corpus. Despite the disguise of an early warning measure, the power of preventative arrest exercises a slide from our free and democratic society, to a nation of police paranoia. 21 Other portions of the legal rights section are violated with the creation of new outlines for due process and full answer and defense.The ATA gives the Solicitor General power to produce, through secret evidence, a list of possible terrorists or terrorist groups. Not only is the list established under questionable terms, lacking substantial enough judicial review, the consequences of being ‘black-listed’ can be detrimental; including invasions of privacy, investigation and severe criminal sanctions.
Since the applicant and their counsel are absent when an addition is made to the list, the process offends the principles of fairness and justice. 2 This newly introduced listing process violates the Charter’s provision guaranteeing “life, liberty and security” (sec. 7).23 In addition, due to “the secretive nature of the listing process and its evidentiary derivatives,”24 the use of this list in charging or convicting a possible terrorist offends section 11d of the Charter; “to be presumed innocent until proven guilty,” as well as the provision guaranteeing an “impartial tribunal.The use of secret evidence and its associated secret processes neutralize the effectiveness of the right to retain and instruct counsel, leading to negative ramifications for the tenet of justice within our democratic society.
The final section of legal rights which is influenced by Bill C-36’s new impositions is that of cruel and unusual punishment. The Anti-Terrorist Act’s provisions for consecutive sentences (now housed under Criminal Code sec. 83. 6) and life sentences for indictable offences under the pretences of terrorist activity (Criminal Code sec.
83. 27) offend long-standing principles of sentencing. These consecutive sentences and availability of life sentences violate section 12 of the Charter, which prohibits against “any cruel and unusual treatment or punishment,”26 and are contrary to traditional Canadian practices of sentencing.27 In addition to legal rights, equality rights guaranteed under the Charter are violated by the Anti-Terrorist Act.Section 15 of the Charter contends: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
“28 However, due to a prevailing political climate resulting from religious or ideological stereotypes, Muslim-Canadians, and others already marginalized through racist, sexist and class-based relations, are concerned with attracting a disproportionate share of attention. 9 More importantly, linking the definition of ‘terrorist activity’ with a specific group, may result in the disappearance altogether of that party’s equality rights. The ATA’s infringement on equality rights results in a compounded discrimination of specific targeted groups, decreasing Canadian freedoms.Like any infringement of rights and freedoms, it is necessary to finish with a question of proportionality, since section 1 of the charter subjugates our rights “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.31 The Oakes test is used under section 1 to determine the following: whether there is a rational connection between the legislation and the objective; whether character rights are minimally impaired; and whether the effects are proportionate to the objectives.32 It has been found that due to how vague parliament’s terminology and objectives are when defined in the context of the ATA, it is impossible to determine a rational connection, in addition to making it next to impossible to guarantee minimal impairment.
The evidence against proportionality comes in the form of similarity to other legislation. The argument being, if there is other legislation with similar demands as the ATA, then the bill is too vague, and therefore must be somewhat disproportionate to the ends sought. If terrorism is the target, that Bill C-36 should be more carefully crafted to deal only with terrorism, and the likewise for the similar legislation. 33After an examination of the wide range of charter violations (noticeable within both our legal and equality rights) and the lack of justification for the limitations put on our fundamental freedoms, one can only conclude that the provisions resulting from the ATA infringe on the rights of Canadians. “These loose definitions, wide ranging powers of investigation, and the use of questionable secret evidence may lead to the investigation, arrest, prosecution and incarceration of many innocent people while netting few, if any, terrorists.
34 The international spread of fear that resulted from the September 11 attacks led to the ratification of anti-terrorist legislature, including Canada’s Bill C-36. Canadian parliament used ‘human security’ as a justification for the ratification of the Anti-terrorism Act; however, upon closer examination the provisions of the act are questionable as to whether or not they infringe upon the rights of Canadians.Despite defendants’ claims that the ATA is a constitutionally viable means of eradicating terrorism and improving international peace and stability, the legislation carries detrimental effects for the inhabitants of Canada. The fearfully vague description of ‘terrorist activity’ at the cornerstone of the Bill goes against Canada’s historical political culture through the demand for motive and the newly proposed illegality of protest. However, the disgrace of the ATA does not end there.
Such provision as preventative arrest, terrorist listing, consecutive and life sentencing and the emphasis of minorities all infringe upon the rights of inhabitants protected by the Charter of Rights and Freedoms, proportionate to section 1. Not only is the Anti-Terrorism Act unnecessary because all of its’ clauses are found elsewhere in Canadian legal bodies, but it has, and will continue to have, adverse effects on the tenets of freedom and democracy that Canada has laid its foundation in.
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