Summary Report: Public Consultation with Ethnocultural and Religious Communities on the Impact of the Anti-terrorism Act
November 29, 2004
This document is a summary of the views expressed by the participants and does not reflect the views of the Department of Justice or the Department of Public Safety and Emergency Preparedness Canada.
Facilitator Mark Berlin, National Executive Director of Outreach and Partnerships, Department of Justice, welcomed participants to the consultation and introduced the Honourable Irwin Cotler, Attorney General of Canada and Minister of Justice, Department of Justice Canada.
Minister Cotler presented the principles and perspectives that frame and underpin the discussion of the Anti-terrorism Act. Security and rights form a two-pronged approach to terrorism and human rights, anchored by six foundational principles.
The first two are the protection principle, i.e., that the Anti-terrorism Act must be seen as protecting the security of a democracy like Canada and the fundamental rights of its inhabitants from the transnational terrorist threat; and second, the restraint principle, namely, that the enforcement and application of anti-terrorism law must always comport with the rule of law; that individuals and groups must never be singled out for differential and discriminatory treatment; that torture must everywhere and always be condemned; and that we must not compromise our values in the protection of our security.
The third principle is based on the Charter of Rights and the "Constitutional Revolution", namely, that the ATA in its provisions and operations must always comport with the Charter.
The fourth, the minority rights principle, has been articulated and reaffirmed by Canadian courts as a pillar of the Constitution, not unrelated to a fundamental principle on the justice agenda, that the test of a just society is how it treats its most vulnerable persons: children, women, Aboriginal peoples, the sick, elderly, and minorities.
The fifth principle is contextual: it requires that we look at our criminal law in context, which includes the changed nature of the transnational threat environment and the emergence of an international criminal justice model. The Minister explained we are not looking just at criminal violence in a domestic setting but at crimes against humanity; not just at domestic criminals but at the enemies of human kind. He went on to say that it is important to recognize that a country such as Indonesia, which is both the largest Muslim country and the largest Muslim democracy in the world, has identified the struggle against terrorism as a priority
The Minister introduced a final principle, the oversight principle. He listed examples of review mechanisms, including Parliamentary review, ongoing Parliamentary oversight, judicial oversight, the Cross-Cultural Roundtable on Security, ongoing dialogue and consultations such as the current proceedings, and the role of civil rights groups and the media.
The sunset clauses in two important provisions in the Anti-terrorism Act (ATA) - the preventive arrest and investigative hearings - are another aspect of oversight, according to the Minister. He noted that his original proposal of a sunset clause for the entire Act was replaced by sunset clauses on two of its provisions. The Minister wrapped up his comments on the oversight principle by stating that he placed the greatest value on what he called the
"sunshine of a democracy" that is brought about when civil liberties groups, the media, Parliament, and individuals such as participants at this dialogue, all engage in the process of guaranteeing democratic accountability with respect to the ATA.
The Minister concluded by reiterating his commitment to protecting the security of Canada's democracy and the rights of its inhabitants, while respecting the enforcement applications of the law in a way that conforms to human rights and that ensures that no individuals or groups are singled out for discriminatory application of the law. There should be no contradiction between security and human rights.
"Either there will be both security and human rights, or there will be neither," he concluded.
Department of Justice: Overview of the Anti-terrorism Act
Mark Berlin introduced Michael Zigayer, Senior Counsel of the Criminal Law Policy Section, Department of Justice Canada, and Ian Blackie, Chief, National Security Policy, Department of Public Safety and Emergency Preparedness Canada.
Mr. Zigayer presented an overview of the ATA and distributed hard copies of his presentation. He noted that one of the guiding principles for the development of the Anti-terrorism Act was the responsibility to meet Canada's international obligations. By the time the terrorist attacks of September 11, 2001 took place, Canada had enacted most, but not all, of its anti-terrorism conventions. In the wake of September 11, 2001, serious work began on developing a legislative package that would address emerging issues, and permit Canada to implement the remaining two conventions, the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of Terrorist Financing.
Mr. Zigayer provided the Criminal Code definition of
"terrorist activity", which includes acts committed for a political, religious, or ideological purpose with the intention to intimidate the public or compel a government to do or refrain from doing any act, and that are intended to kill, seriously harm, or endanger people, or cause substantial damage to property or seriously disrupt an essential service, facility, or system. He said the definition is circumscribed to ensure that the serious disruption of essential services is not defined as a terrorist activity if it occurs during a protest or a work strike, and if there is no intention to cause serious bodily harm, endanger life or cause serious risk to public safety.
The intent of the legislation is to target direct participants in a terrorist activity, including individuals who conduct an offence for, or on behalf of, a terrorist organization. Two investigative tools were provided to law enforcement to help achieve this goal. One of the tools is the recognizance with conditions, which is essentially bringing someone suspected of terrorist activity before the court which can place conditions on that person.
The second tool is the investigative hearing whereby a peace officer may apply ex parte to a provincial or superior court judge to compel an individual to answer questions for the purpose of gathering information about terrorism offences. Oversight is provided in regards to these two tools in that provincial and federal Attorneys General and Ministers responsible for policing and the Solicitor General are responsible for providing a public report in Parliament about their use.
Mr. Zigayer concluded by saying that organizations interested in testifying as witnesses in the Parliamentary review of the Anti-terrorism Act could contact the clerk of the committee, once it is formed.
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