About the Anti-terrorism Act

Introduction

Adopted by Parliament following the attacks of September 11, 2001, the Anti-terrorism Act (ATA) amended the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and a number of other Acts. It also enacted the Charities Registration (Security Information) Act. It was not a stand-alone Act, but rather an amending statute. The ATA formed a key component of the Government's Anti-terrorism Plan, which had four objectives:

  • to prevent terrorists from getting into Canada and protect Canadians from terrorist acts;
  • to activate tools to identify, prosecute, convict and punish terrorists;
  • to keep the Canada-U.S. border secure and a contributor to economic security; and
  • to work with the international community to bring terrorists to justice and address the root causes of violence.

The ATA reflected a commitment to the safety of all Canadians and strengthened Canada's ability to meet its international obligations, while respecting Canadian values and the rights enshrined in the Canadian Charter of Rights and Freedoms (Charter). Canada's enactment of the ATA paralleled actions taken by its international partners. However, it was a made-in-Canada solution to address terrorism.

Background to Bill C-36

The response to terrorism from the international community following September 11, 2001 was swift. On September 28, 2001, the United Nations Security Council adopted Resolution 1373, which amongst other things required all UN member states to prevent and suppress the financing of terrorist acts; criminalize the wilful provision or collection of funds to be used to finance terrorist acts; suppress the recruitment of terrorist groups; and deny safe haven to those who finance, plan, support or commit terrorist acts. In October 2001, the Financial Action Task Force on Money Laundering (FATF) adopted Special Recommendations on Terrorism Financing.

These recommendations contain provisions relating to the ratification of relevant UN instruments, criminalizing terrorist-related offences, the freezing and confiscation of terrorist assets, reporting on suspicious transactions linked to terrorism, providing assistance to other countries in terrorist financing investigations, ensuring that non-profit organizations are not misused to finance terrorism, imposing anti-money laundering requirements on alternative remittance systems, and strengthening customer identification measures in international and domestic wire transfers.

Post 9/11, the government undertook an evaluation of existing federal legislation including the Criminal Code, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act. It was assessed that current legislation had to be amended in order to combat terrorism.

On October 15, 2001, ATA was introduced as Bill C-36, "An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities in order to combat terrorism.".

The preamble to the Bill observed that Canadians and people everywhere are entitled to live their lives in peace, but that terrorism constitutes a substantial threat to international peace and security as well as to Canada and Canadian institutions. It recognized that Canada must act in concert with other nations in combating the scourge of terrorism, but acknowledged that terrorism is also a matter of national concern. It emphasized a commitment to take comprehensive measures to protect Canadians against terrorist activity, while continuing to respect and promote the Charter and its values.

On November 20, 2001, the Government proposed extensive amendments to clarify and strengthen provisions of the Bill. These were ultimately approved by Parliament. Committees from both the House of Commons and the Senate heard from many witnesses during the course of their deliberations. The Senate took the unusual step of striking a Special Committee, which provided its recommendations before the House of Commons Committee undertook its clause-by-clause deliberations. Later, another Senate Committee examined the Bill, as amended, following its approval by the House of Commons. The Act received Royal Assent on December 18, 2001.

Legal Framework

The legal framework of the ATA concerned: Penal Law, Listing of Terrorist Entities, Terrorism Offences, Investigative hearings, Recognizance with conditions, Surveillance and Identification, Hate Crimes, Financing of Terrorism, Security of Information and Security Intelligence.

Penal Law

The ATA created measures to take enforcement action against those responsible for terrorist activities, provided new investigative tools and ensured that Canadian values of respect and fairness were preserved.

Part 1 of the ATA amended the Criminal Code to create a new chapter dealing specifically with terrorism. A core provision in this chapter is the definition of "terrorist activity", which has two components and applies to activities inside or outside Canada. Satisfying either component constitutes a "terrorist activity". The first component of the definition is defined in part as an act or omission committed in or outside Canada that would be an offence under the major international treaties that apply to terrorist activities, like hijacking and terrorist bombing. The second part defines "terrorist activity" as an act or omission undertaken, inside or outside Canada, for a political, religious or ideological purpose that is intended to intimidate the public with respect to its security, including its economic security, or to compel a person, government or organization (whether inside or outside Canada) from doing or refraining to do any act, and that intentionally causes one of a number of specified forms of serious harm.

Listing of Terrorist Entities

Under the ATA, "terrorist group" is defined as an entity that has as one of its purposes or activities the facilitating or carrying out of terrorist activity or that is an entity set out in a list established by regulation. For listed entities, the fact of being listed establishes them as terrorist groups. Being on the list does not itself constitute a criminal offence, although it can lead to criminal consequences. The list supports the application of other provisions in the Act.

Terrorism Offences

Comprehensive terrorism offences created in the Criminal Code include:

  • knowingly participating in, or contributing to, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity;
  • knowingly facilitating a terrorist activity;
  • commission of a serious (i.e. indictable) offence for the benefit of, at the direction of or in association with a terrorist group;
  • knowingly instructing anyone to carry out a terrorist activity for a terrorist group; knowingly harbouring or concealing any person who has carried out or is likely to carry out a terrorist activity for the purpose of enabling the person to facilitate or carry out any terrorist activity; and
  • collecting, providing or making available, using or possessing property for certain activities/purposes (terrorist financing).

The ATA was founded primarily on the principle of the prevention of terrorist acts. Offences such as knowingly instructing the carrying out of any activity for a terrorist group or knowingly facilitating a terrorist group are specifically defined to be offences, regardless of whether the ultimate terrorist activity is carried out and regardless of whether the accused knows the specific nature of the terrorist activity being contemplated. By creating such offences, the law takes into account both the manner in which terrorist groups actually operate and the fundamental need for prevention. Moreover, unlike the general concept of accessory after the fact, the harbouring or concealing can occur either before or after the commission of any terrorist activity.

Safeguards were built into these offences. The required proof includes specific intent or knowledge in relation to the prohibited conduct. The scope of the offences was clearly defined to target terrorist activity and terrorist groups. As well, no proceedings in respect of a terrorism offence are to be commenced without the consent of the Attorney General of Canada or of the province.

Investigative hearing

The ATA provided for investigative hearings under the Criminal Code to facilitate the gathering of information for the purpose of investigating a terrorism offence.

Recognizance with conditions

The ATA provided for a recognizance with conditions, which was a measure that was intended to assist law enforcement officers to disrupt terrorist attacks.

Surveillance and Identification

Terrorism offences are included in the Criminal Code electronic surveillance scheme. The changes removed the last-resort requirement for the use of electronic surveillance in the investigation of terrorism offences, and extended the duration of a wiretap authorization (from 60 days to a maximum of one year) and permitted delays of up to three years as a requirement to notify a target after a surveillance has been completed in relation to a terrorism offence. The DNA warrant scheme and Data Bank were extended to include terrorism offences to the list of "primary designated offences", thus permitting the use of forensic DNA technology in the investigation and prosecution of these offences. Also, it is possible for courts to issue DNA warrants and to order the inclusion of DNA profiles of persons convicted of these offences in the National DNA Data Bank.

Hate Crimes

Section 430(4.1) of the Criminal Code is the offence of mischief motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin, committed in relation to property that is a place of religious worship or an object associated with religious worship located in or on the grounds of such a building or structure, including cemeteries. Mischief directed against religious property has an impact beyond physical damage or destruction - it also serves to convey hate messaging.

Section 320.1 of the Criminal Code, pursuant to an ATA amendment, allows the courts to order the deletion of publicly available on-line hate propaganda from computer systems when it is stored on a server that is within the jurisdiction of the court. The provision applies to hate propaganda located on Canadian computer systems, regardless of where the owner of the material is located, or whether he or she can be identified. Individuals who post the material have an opportunity to be heard before the judge decides to order the deletion of the material.

The Canadian Human Rights Act prohibits the spreading of hate messages that would expose a person or group to hatred or contempt because of that individual's identification with a prohibited ground of discrimination. The ATA amended the Canadian Human Rights Act to clarify that communication of hate messages using new technologies, such as the Internet, is a discriminatory practice.

Financing of Terrorism

The ATA amended the Proceeds of Crime (Money Laundering) Act (PCMLA) to expand the mandate of FINTRAC (Financial Transactions and Reports Analysis Centre of Canada), Canada's financial intelligence unit, to include the detection and deterrence of terrorist financing. The ATA provided FINTRAC with the legislative framework to permit it to assist in combating and detecting terrorist financing and to enable Canada to comply broadly with the FATF Special Recommendations on Terrorist Financing. In addition, amendments provided law enforcement authorities and the Canadian Security Intelligence Service (CSIS) with information about suspected terrorist financing activities. To reflect these changes, the PCMLA was re-named as the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

FINTRAC was given authority to receive information in respect of terrorist financing provided voluntarily by law enforcement agencies, foreign financial intelligence units, and the general public. Under the statute, FINTRAC is empowered to enter into agreements to access databases maintained by federal or provincial governments for purposes related to law enforcement and national security. On June 12, 2002, regulations were brought into force to require financial institutions and other financial intermediaries to report suspicions of terrorist financing and terrorist property.

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 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.

Security of Information

Part 2 of the ATA substantially amended the Official Secrets Act, which became the Security of Information Act (SOIA). The SOIA focuses on conduct, such as espionage, that is harmful to, or likely to harm, Canada. The concept of "harm to Canadian interests" (also known as a purpose "prejudicial to the safety or interests of the State") was defined to address a wide array of potential harms, including terrorist activity, interference with critical infrastructure, and the development of weapons of mass destruction in contravention of international law. The SOIA is designed to prevent harmful disclosures of information.

The ATA made changes to sections 37 and 38 of the Canada Evidence Act (CEA) to address the judicial balancing of interests when the disclosure of information in proceedings would encroach on a specified public interest and, in particular, would be injurious to international relations, national defence or national security. The amendments to section 38 of the CEA were intended to improve the scheme by 1) introducing greater flexibility into the system, 2) offering the opportunity for evidentiary issues to be resolved early on in the proceedings and 3) safeguarding the federal government's ability to protect the confidentiality of national security information in proceedings in a manner consistent with the fair trial rights of parties.

The ATA also amended the Access to Information Act, the Personal Information Protection and Electronic Documents Act and the Privacy Act to ensure that requests for access to information and personal information pursuant to these Acts do not lead to disclosure of information in respect of which the Attorney General of Canada had personally issued a certificate under section 38 of the CEA. To be effective, the certificate must be able to be applied in such proceedings in the face of an order or decision that would result in the disclosure of this very sensitive information.

Security Intelligence

The ATA amended the National Defence Act by adding provisions continuing the existence of the Communications Security Establishment (CSE) in legislation. The amendments formally authorize CSE to engage in three broad areas of activity:

  • to acquire and provide foreign intelligence in accordance with the Government of Canada's intelligence priorities;
  • to provide advice, guidance and services to help ensure the protection of electronic information and infrastructures of importance to the Government of Canada; and
  • to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties.

A change was made, through the ATA, to the definition of "threats to the security of Canada", found in the Canadian Security Intelligence Service Act (CSIS Act), having regard to the definition of "terrorist activity" in the Criminal Code (which refers to a political, religious or ideological objective) in an effort to avoid the possibility of an unintended narrowing of the CSIS Act definition.

Subsequent Reviews of the ATA and Related Reports

2004-2005

After the ATA received Royal Assent, the work of the Parliament was not done. Section 145 of the ATA required a committee or committees of Parliament to conduct a "comprehensive review of the provisions and operation of the Act" within three years from the date of Royal Assent. The ATA provisions - investigative hearing and recognizance with conditions - were subject to a sunset clause: without an extension agreed on by both Houses of Parliament, the provisions would expire at the end of the 15th sitting day of Parliament following December 31, 2006. A motion of the House of Commons on December 9, 2004, authorized the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to review the ATA. The Subcommittee on Public Safety and National Security began its review in February 2005. The Senate adopted a similar motion on December 13, 2004, establishing a Special Committee to undertake a separate review.

In February 2005, the House of Commons Subcommittee on Public Safety and National Security and the Special Senate Committee on the Anti-terrorism Act conducted hearings during the 38th Parliament. Transcripts of these hearings can be accessed on the Parliament of Canada website:

The dissolution of the 38th Parliament on November 30, 2005, ended the work of the Parliamentary review committees.

2006-2007

After the election, Parliament resumed its work in early 2006. The Special Senate Committee continued its review, and a new House of Commons Subcommittee, the Subcommittee on the Review of the Anti-terrorism Act of the Standing Committee on Public Safety and National Security, was set up. Transcripts of these hearings can be accessed on the Parliament of Canada website:

On October 23, 2006, the House of Commons Subcommittee on the Review of the Anti-terrorism Act ("House Subcommittee") released its Review of the Anti-terrorism Act Investigative Hearings and Recognizance with Conditions Program: Interim Report of the Standing Committee on Public Safety and National Security. The report approved of the investigative hearing and recognizance with conditions powers, and recommended extending them for five years with amendments, subject to further review. However, the Government was still awaiting the report of the Senate. The Senate report, released on February 22, 2007, proposed a three-year extension to the investigative hearing and recognizance with conditions provisions.

On February 22, 2007, the Special Senate Committee on the Anti-terrorism Act released its main report (Third Report) entitled Fundamental Justice in Extraordinary Times.

The vote on whether to extend the investigative hearing and recognizance with conditions provisions took place on February 27, 2007, five days after the release of the Senate Committee report and prior to the final report of the House of Commons Subcommittee. By law, the resolution to extend the provisions could not be amended and the passage of a new bill containing amended provisions was not feasible within the short time frame available. By a vote of 159 to 124, the House of Commons chose not to extend the powers. The provisions expired on March 1, 2007.

The House Subcommittee released its final report on the ATA - Rights, Limits, Security: A Comprehensive Review of the Anti-terrorism Act and Related Issues - on March 27, 2007.

On March 28, 2007, the Special Senate Committee issued a supplementary report (Fourth Report) to comment on a Supreme Court of Canada decision in relation to the immigration security certificate process.

On July 18, 2007, the Government filed its response to the Subcommittee's recommendations: Government Response to the Seventh Report of the Standing Committee on Public Safety and National Security.

On October 23, 2007, the Government introduced Bill S-3 to seek to re-enact investigative hearing and recognizance with conditions. Bill S-3 died on the Order Paper.

2009-present

Bill C-19 was introduced on March 12, 2009. It was intended to re-enact the investigative hearing and recognizance with conditions. It died on the Order Paper, to be followed by Bill C-17 (introduced in the House of Commons on April 23, 2010) and, subsequently by Bill S-7 (introduced on February 15, 2012).

Bill S-7 (Combating Terrorism Act) proposes Criminal Code amendments to re-enact the investigative hearings and recognizance with conditions measures and create new offences of leaving or attempting to leave Canada to commit a terrorism offence, as well as amendments to the Security of Information Act and the Canada Evidence Act. The Bill also responds to recommendations made by the Parliamentary Committees that reviewed the Anti-terrorism Act in 2007. The Bill was given Royal Assent on April 25, 2013.

Bill S-9 (Nuclear Terrorism Act) - the implementing legislation proposed in this bill calls for amendments to the Criminal Code to create four new offences related to nuclear terrorism. The enactment of these proposed amendments would permit Canada to ratify the 2005 Amendment to the Convention on the Physical Protection of Nuclear Material and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism. On June 19, 2013, the Bill received Royal Assent.

Prosecutions

So far, a verdict has been reached on a terrorism charge in the following cases:

R. v Namouh

Saïd Namouh, 37, was sentenced on February 17, 2010 in the Court of Quebec to life in jail for conspiring to deliver, discharge or detonate an explosive or lethal device in a public place contrary to s. 431.2 of the Criminal Code. In addition, he was sentenced to eight years in jail for extortion of a foreign government for the benefit, at the direction and in association with a terrorist group contrary to s. 83.2 of the Criminal Code, eight years for facilitating terrorist activity contrary to s. 83.19 and four years for his participation in a terrorist group contrary to s. 83.18.

R. v Khawaja

On October 29, 2008, Justice Rutherford of the Ontario Superior Court of Justice found Momin Khawaja guilty of offences under the Criminal Code: intending to detonate an explosive, making / possessing an explosive with intent to enable another person to endanger life or cause serious damage to property, enhancing the ability of a terrorist group to facilitate or carry out terrorist activity, instructing to carry out activity for a terrorist group, providing property and financial services for terrorist purposes, participating in an activity of a terrorist group and facilitating terrorist activity.

Project Osage (Toronto 18)

Several accused were found guilty in Ontario Superior Court of participation in a terrorist group contrary to section 83.18(1) of the Criminal Code, which carries a maximum penalty of 10 years in prison. One of the accused was guilty of one count of counselling to commit fraud over $5000 for the benefit of a terrorist group contrary to section 83.2 of the Criminal Code, which carries a maximum sentence of life in prison.

R. v Thambithurai

Prapaharan Thambithurai was sentenced on May 14, 2010 in the Supreme Court of British Columbia to 6 months in prison for a terrorism related-offence.

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