The Anti-terrorism Act

THE ATA IN PERSPECTIVE

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VIII. Charities Registration (Security Information) Act

The ATA enacted the Charities Registration (Security Information) Act (CRSIA) to suppress and prevent support for terrorism and to protect the integrity of the registration system for charities under the Income Tax Act.

The CRSIA makes possible the use of classified information in determining whether organizations can register as charities under the Income Tax Act or whether, previously having been registered, they can retain this status. It allows the Minister of Public Safety and the Minister of National Revenue to issue a certificate stating that, based on the security or criminal intelligence information before them, it is their opinion that there are reasonable grounds to believe that an organization has made, is making or will make its resources, directly or indirectly, available to a terrorist group. Once signed, the certificate is automatically subject to judicial review before the Federal Court, with the affected organization being given a summary issued by that Court of the information available and the right to defend itself in a hearing before the Federal Court.

Checks and balances were built into the legislation, including the requirement for two Ministers to reach the same conclusion that a certificate is justified and the role played by the Federal Court in reviewing the reasonableness of the certificate. To date, no charities have been de-registered under the CRSIA.

The legislation sent a strong message that Canada will not tolerate the abuse of its charitable sector and assists Canada in responding, for example, to Special Recommendation VIII of the Financial Action Task Force (FATF), which deals with preventing non-profit organizations from being used to finance terrorism.

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IX. The Anti-terrorism Act and Human Rights

Careful attention was paid to human rights protections in the development and implementation of the ATA. The provisions of the ATA were tailored to protect national security and prevent terrorism, while respecting Canadian values, such as the Canadian Charter of Rights and Freedoms, as well as our international obligations. In short, the Act was designed to protect both national security and civil liberties.

The preamble to the ATA recognized that terrorism is a matter of national concern and that this concern must be addressed "while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms". To ensure that Charter rights are protected, the provisions of the ATA contained a number of safeguards, including the following examples:

• the Government did not invoke the notwithstanding clause, and thus Canadian courts are able to review the legislation for consistency with the Charter;
• the provisions were focused almost exclusively on the threat to national security posed by terrorism rather than generally expanding law enforcement tools;
• numerous provisions in the ATA implemented international conventions and other international obligations and commitments;
• other free and democratic societies adopted similar or more robust legislation;
• judicial review, appeals and Parliamentary review mechanisms were incorporated into numerous provisions (e.g. sunset clauses, Parliamentary review, annual reports, the listing process, investigative hearing, and seizure, restraint and forfeiture of property);
• the consent of the Attorney General is required in relevant instances (e.g. to prosecute the terrorism offences).
• on June 23, 2004, the Supreme Court of Canada upheld the investigative hearing process, finding it to be constitutional and consistent with the guarantees contained in the Charter, though this power sunsetted, effective March 1, 2007.
• the definition of the core concept of "terrorist activity" requires that a number of intention and purpose elements be satisfied and the definition protects democratic action by expressly excluding from its coverage "advocacy, protest, dissent or stoppage of work" (where these are not intended to result in serious forms of specified harm);
• the Minister of Public Safety is required to review the list of terrorist entities every two years, any applications for removal from the list, and issue certificates to address cases of mistaken identity.  Two reviews of the list of terrorist entities have taken place to date;
• the Security of Information Act provisions promote certainty by clarifying the notion of harm to the national interest by introducing a detailed description of what is meant by "a purpose prejudicial to the safety or interests of the State". They also include a limited public interest defence for offences involving the unauthorized disclosure of special operational information;
• the Canada Evidence Act provisions give the judge the ability to make any order that he or she considers appropriate to protect the right of an accused person to a fair trial; and
• under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, only limited designated information may be disclosed without warrant and released on a reasonable suspicion standard. Other information, such as the more complete analytical dossier, can only be obtained by CSIS pursuant to a judicially-authorized production order.

In an effort to ensure that the legislation is applied in an appropriate and limited manner, training was provided to police, prosecutors and other law enforcement officials to explain the provisions of the ATA, including its safeguards.

The Department of Justice also undertook research as part of its efforts to monitor the overall use and impact of the legislation, particularly on ethno-cultural communities in Canada. For example, among other research, focus group discussions were conducted to gauge any impact that the legislation may have had on these communities (see Minority Views on the Canadian Anti-terrorism Act (formerly Bill C-36)).

Ongoing consultation with ethno-cultural communities is a very important process. The Cross-Cultural Roundtable on Security has a mandate to engage Canadians and the Government of Canada in an ongoing dialogue on national security in a diverse and pluralistic society like Canada's. The Roundtable is a key component of the Government of Canada's outreach to ethnocultural communities on security measures and a vehicle for dialogue with them on the appropriate balance between security and human rights.

X. International Dimension

Public international organizations such as the United Nations (including the Security Council), the G8, the Organization of American States, the Asia-Pacific Economic Cooperation Forum, the Organization for Cooperation and Security in Europe, the Financial Action Task Force, the International Civil Aviation Organization, and the International Maritime Organization all contribute to the international efforts in the fight against terrorism. Canada continues to be an active participant in international anti-terrorism initiatives.

The ATA allowed Canada to fulfil its many international obligations to implement counter-terrorism measures and to demonstrate leadership with respect to UN requirements. For example, the ATA has served to implement most of Canada's international obligations stemming from United Nations Security Council Resolution (UNSCR) 1373 and enabled Canada to implement and ratify the International Convention for the Suppression of Terrorist Bombings, the International Convention for the Suppression of the Financing of Terrorism and the Convention on the Safety of United Nations and Associated Personnel.

XI. The Threat Environment

Terrorism remains a serious and ongoing threat and the ATA measures continue to be relevant and necessary. According to the 2006-2007 Public Report of CSIS:

The threat of terrorism from extremists posed the most immediate danger to Canada and Canadians in 2006-07. ... In 2006-07 the focus of the Canadian Security Intelligence Service (CSIS) remained preventing harm to Canadians and Canadian interests from threats to national security, particularly the threat of terrorism inspired by the ideology of al-Qaeda.

Terrorism is not new to Canada.  The 1985 bombing of Air India Flight 182 was the single most lethal terrorist act in Canadian history.  However, the current terrorist threat should not be underestimated. Because Canada plays a military role in Afghanistan, it is a terrorist target and has been specifically named as such by Osama Bin Laden.  And while Canada has not yet been directly attacked, terrorist acts have claimed the lives of Canadians: 24 in the 9/11 attacks and 2 as a result if the 2002 bombings in Bali.  

Other factors contribute to the seriousness of the threat:

• Persons trained in terrorist training camps as well as veterans of campaigns in Afghanistan, Bosnia, Chechnya and elsewhere are known to reside in Canada.
• Canadians who have travelled to Iraq to fight in the insurgency may return home with new skills and new motivations.
• A relatively large number of terrorist groups are known to be operating in Canada, engaged in fundraising, procuring materials, spreading propaganda, recruiting followers and conducting other activities.
• Terrorist groups continue to intimidate and exploit Canada’s immigrant and expatriate communities, sometimes through front organizations.
• Canadian residents and citizens are known to have planned operations against foreign targets, and to have personally participated in them.
• Terrorists in Canada have conducted preliminary reconnaissance against potential Canadian targets.”

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In its 2004-2005 Public Report, the Canadian Security Intelligence Service noted some disturbing trends regarding terrorism:

Transnational terrorist groups today are increasingly sophisticated. Many of their members are well-educated and multilingual. A growing number are skilled in modern technology and use it to communicate with each other via encrypted messages, to transfer funds electronically, and to mount cyberattacks against private sector and government targets.

In 2004-2005, terrorists continued to:

• display a willingness to die for their cause(s);
• augment their ranks, largely as a result of the conflict in Iraq;
• launch attacks globally, including in countries not previously targeted;
• target “soft” (i.e. non-military) targets, with the aim of killing as many people
  as possible;
• demonstrate outstanding operational security, highly effective planning skills and the ability to run operations in several countries simultaneously;
• exploit and intimidate immigrant communities;
• attempt to acquire more lethal weapons, including chemical, biological, radiological and nuclear devices;
• further refine their use of the Internet, particularly Internet news media, as a propaganda and recruitment tool;
• equip themselves with sophisticated devices and weaponry, including rockets and missiles; and
• recruit a growing number of young, second-generation immigrants with little or no previous link to terrorism.

Terrorism remains a significant threat to Canada. As Canada continues to be an active player in the international struggle against terrorism, it faces ongoing threats from transnational terrorist organizations. Globally, there is clearly a willingness by groups, individuals and states to use violence in support of political, religious, ideological and territorial agendas. Terrorist capabilities, modus operandi, and technology continue to evolve, creating increasing demands upon governments and security forces to ensure unrelenting vigilance, thorough threat analysis, and creative, cooperative responses. Safeguarding against the possibility of a terrorist attack occurring in, or originating from, Canada is the highest national security priority.

In the past, it would have been understandable for Canadians to take the view that terrorism was something that happened to other people far away or to Canadians only in context of their traveling to dangerous places elsewhere in the world. Canadians can no longer take refuge in that sort of thinking.

The attacks of September 11th, 2001 highlighted the reality that international terrorism can strike North America. In a taped message released on November 12, 2002, Osama bin Laden identified Canada as a target for attack. Events have shown that virtually no part of the world is immune from the threat of extremism, whether in Morocco, Turkey, Saudi Arabia and Indonesia or London, Madrid, Sharm el Sheik, Beslan and Glasgow.

The Government of Canada has a responsibility to protect Canada and the safety of Canadians at home and abroad, to ensure that Canada is not a base for threats to other countries, and to contribute to international security. The measures contained in the ATA assist the Government in advancing these three core national security interests.

Updated to April 1, 2008.

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