The Views of Canadian Scholars on the Impact of the Anti-Terrorism Act

5. KENT ROACH Faculty of Law, University of Toronto

5.1 What has been the impact of the Anti-Terrorism Act on Canada?

The Anti-terrorism act was built on the premise that the ordinary criminal law was inadequate to deal with the threat of terrorism after September 11, 2001. Both with respect to the murder of a cabinet minister during the 1970 October Crisis and with respect to the bombing of Air India, Canada had relied on the ordinary criminal law which prohibits participation in crimes such as murders and bombings, as well as conspiracies and attempts to commit such crimes. The ordinary criminal law functioned under the traditional principle that motive was not relevant to a crime and that a political or religious motive could not excuse the commission of the crime. In contrast, the new Anti-terrorism act requires proof that terrorist crimes were committed for religious or political motives. Although this was defended as a means to restrict the ambit of crimes of terrorism, it also requires police to investigate the religion and politics of terrorist suspects. In my view, the motive requirement should be repealed.

In the 2002 case of Suresh v. Canada, the Supreme Court implicitly rejected the broad definition of terrorism found in the ATA and defined terrorism for purpose of the immigration law as any “ act intended to cause death or serious injury to a civilian, or to any person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act by its nature or context is to intimidate a population or to compel a government or an international organization to do or abstain from doing any act ”. The Court described this definition of terrorism, taken in part from the 1999 International Convention on the Suppression of the Financing of Terrorism, as “ the essence of what the world understands by 'terrorism ' ”. It should also be noted that the Court adopted this definition of terrorism in the course of rejecting challenges that the law was unconstitutionally vague and unjustifiably restricted freedom of expression and freedom of association and it left open the possibility that Parliament might chose to alter its definition of terrorism. At the same time, concerns about over breadth in the definition of terrorism could be eased by adopting the Suresh definition of terrorism into the ATA. On the other hand, defining terrorism under the Immigration Act by virtue of the ATA would expand the definition of terrorism used under that act and result in special dangers given the absence of due process protections under immigration law.

The ATA also criminalized a broad array of activities in advance of the actual commission of a terrorist act. These include the provision of finances, property and other forms of assistance to terrorist groups and participation in the activities of a terrorist group, and instructing the carrying out of activities for a terrorist group. There is not always a requirement of a proximate nexus to any planned act of terrorism and the fault element for some of the offences such as s.83.19 has been unduly truncated. Thought should be given to the repeal of sections such as 83.19(2) and 83.18(3) and (4). In addition people can be prosecuted for inchoate forms of committing what are inchoate crimes well in advance of any act of terrorism and even for threats that they will commit terrorism. The criminalization of threats of terrorism should be reconsidered especially since expressions of political or religious views will be protected under s.83.01 (1.1) if they constitute threats of terrorism. At the same time, many of the financing provisions in the ATA are necessary to comply with the 1999 Convention on the financing of terrorism which Canada has signed.

Like the emergency regulations enacted during the October Crisis, a central feature of the new Anti-terrorism act is the ability of the executive- the cabinet of elected ministers known in law as the Governor in Council- to designate groups and even persons as terrorists. So far over 30 groups have been listed as terrorists in this fashion. Executive designation of a group as a terrorist is designed to be conclusive proof in a criminal trial that the group is in fact a terrorist group because of the definition of a terrorist group in s.83.01 includes “a listed entity”. This should be repealed to require proof beyond a reasonable doubt in a criminal trial that the group is in fact a terrorist group.

Thought should also be given to requiring some form of advance notice before a group or individual is listed and stigmatized as a terrorist. There is a limited form of ex post judicial review of whether the Cabinet's listing decision was reasonable, but it is unlikely that such reviews would be successful or remove the stigma of being officially listed as a terrorist. The procedure for judicial review is also open to criticism. Ample allowance has been made for in camera and ex parte hearings in order to protect information that if made public “ would injure national security or endanger the safety of any person ”. There are also provisions that allow a judge to use information obtained in confidence from another government or international organization without even disclosing a summary of the information to the applicant. Thought should be given to the repeal of this section, s.83.06. Executive designation of terrorist groups is a common feature of many international and national anti-terrorism schemes. Nevertheless, it can be criticized as a challenge to judicial powers to decide in a particular case who is a terrorist. Both the judiciary and the person being listed often have a limited role in executive determination of who is a terrorist. Listing decisions also present a risk that people will be penalized for associating with individuals and groups formally listed as terrorists. This can be seen as a form of informal and largely unregulated sanction as landlords, financial institutions and others are encouraged by the act not to deal with those who may be officially listed as terrorists. For example, s. 83.08(2) exempts from civil liability those who refuse to deal with property provided that they took “ all reasonable steps to satisfy themselves that the relevant property was owned or controlled by or on behalf of a terrorist group ”. Section 83.1 requires all Canadians to report information about a transaction with terrorist property and provides that “ criminal or civil proceedings lie against a person for [such] disclosure[s] made in good faith ”. In addition, over 300 groups and over 300 individuals have been listed as terrorists under regulations enacted under the United Nations Act. United Nations Suppression of Terrorism Regs SOR 2001-360 Oct 2. 2001. These lists are distributed to financial institutions and within government and there have been cases i.e. Liban Hussein of people being wrongly included on such lists.

Another important feature of the Anti-terrorism act was its expansion of police powers. One provision provides for preventive arrest when there are reasonable grounds to believe that a terrorist activity will be carried and there is reasonable suspicion to believe that the arrest or the imposition of conditions is necessary to prevent the carrying out of the terrorist activity. The period of preventive arrest under the Canadian law is shorter than in the United Kingdom and is limited to 72 hours. At the same time, the effects of a preventive arrest can last much longer as the suspect can be required by a judge to enter into a recognizance or peace bond for up to a year with breach of the bond being punishable by up to two years imprisonment and a refusal to agree to a peace bond punishable by a year's imprisonment. Governments are required to prepare reports on the use of the measure and in the first year of the act, no preventive arrests were made. This may represent restraint on the part of Canadian police, a preference for keeping terrorist suspects under surveillance or difficulties identifying terrorist suspects.

A second new investigative power is a power to compel a person to answer questions relating to terrorist activities either in the past or the future. The suspect cannot refuse to answer on the grounds of self-incrimination but the compelled statements and evidence derived from them cannot be used in subsequent proceedings against the person compelled. In addition, there is judicial supervision of the questions and a right to counsel. The investigative hearing provision has been used at least once in relation to the Air India investigation. The person compelled to testify has challenged the constitutionality of the procedure. It was upheld at the first instance, but an appeal has been heard but not yet decided by the Supreme Court of Canada. In my view, it is unlikely that the Court will strike the novel law down given that was carefully designed to comply with Canadian constitutional standards with respect to self-incrimination. At the same time, however, it is questionable whether this provision is necessary or will be effective. Even if constitutional, investigative hearings represent an undesirable incursion on the adversarial traditions of criminal justice and one that could spread in an attempt to combat other serious crimes.

Some might be willing to run this risk in order to facilitate a terrorist investigation. But this raises the question of whether investigative hearings will be an effective investigative tool. Authorities already have the power to offer people associated with terrorists' incentives to co-operate such as reductions of possible charges and witness protection. An uncooperative person, perhaps a terrorist, is not likely to co-operate simply because they are threatened with contempt of court or a prosecution for refusing to co-operate at an investigative hearing. This poses a dilemma that runs throughout anti-terrorism law. On the one hand they may be too tough should they be applied against those who attract the attention of the state because of their involvement in religions or politics that the authorities view as a threat or because of their associations with individuals or groups thought to be terrorists. On the other hand, they are likely not tough enough to deter or stop committed terrorists, who as we saw on 11 September, are sometimes prepared to die for their cause.

Although most of the post September 11 debate about anti-terrorism measures in Canada has focused on the ATA, it is in fact Canada's immigration laws that have been used with respect to suspected terrorists. To my knowledge no charges have been laid under Canada's ATA, no preventive arrests have been made and the investigative hearing provision has been used only once. In contrast, non-citizens suspected of involvement in terrorism have been detained and deported under Canada's immigration laws. The high profile arrest of 21 men under Operation Thread conducted pursuant to the immigration law seems not to have fulfilled its promise of intercepting a suspected al Qaeda cell. In some respects this follows patterns of reliance on immigration laws in both the United States and the United Kingdom, but in those countries, there have also been criminal prosecutions in relation to the provision of material support for terrorism and other terrorism crimes. In contrast, Canada has so far relied almost totally on immigration law. So far the utility of the ATA as an anti-terrorism device seems limited while its broad definition of terrorism and broad definition of crimes of terrorism remains troubling. At the same time, its powers have been rarely used.

5.2 What emerging trends in terrorism do you foresee and what threats do they pose to Canada? In discussing these trends and threats, please describe what you consider terrorism to be.

Canada was not immune from the effects of terrorism before September 11. In response to kidnappings by two cells of terrorists associated with the Front de Liberation du Quebec in 1970 it invoked extraordinary emergency powers to declare that organization to be illegal and to detain suspected supporters and associates of that organization. It is also prosecuting under the regular criminal law two men accused of participating in the 1985 bombing of an Air India aircraft, an event that killed 329 people in one of the world's most deadly acts of terrorism before September 11. Although the multicultural nature of Canada is one of its greatest strengths, it also means that conflicts from throughout the world could be fought in part in Canada.

The war in Afghanistan has not eliminated al Qaeda and Canada's participation in it may make Canada a target. Some of the immediate risks include terrorist hijacking or destruction of airplanes and the targeting of critical infrastructure such as powerlines and pipelines. There is also the risk of chemical, biological or even nuclear terrorism. Events such as Walkerton and mad cow reveal vulnerabilities in the safety of water and food supplies. If these supplies are vulnerable to accidental poisoning without immediate detection, they are also vulnerable to deliberate poisoning by terrorists or others. The problems experienced during the black out in August of 2003 also suggest that various governments may have trouble responding to a variety of emergencies, including those caused by terrorism. Effective emergency response may be an important means to reduce the harms caused by terrorism once it has occurred.

5.3 How should our country respond to these trends and threats? Please feel free to include measures at any level, such as social, economic, political, or legal or a combination of these levels.

There are reasons to doubt the effectiveness of the criminal law as an instrument to deter acts of terrorism. Even before the enactment of the ATA most acts of terrorism were already punished as serious crimes such as murder, hijacking and the use of explosives. In addition, charges of conspiracy, counseling and attempts to commit such crimes could be laid. The ATA may increase the severity of punishment, particularly with respect to financing and other forms of preparation to commit terrorism but deterrence depends on both the severity and the certainty of punishment as well as assumptions that potential terrorists are rational actors. Even those who argue that terrorism can be deterred concede that terrorists will have goals other than avoiding punishment and that at time even harsh punishment may advance their political goals. The criminal law will probably be most useful when it is directed at third parties, such as financial institutions, that may provide services to terrorists. These entities may well be encouraged by criminal law reforms to change their behaviour especially if they are provided with official lists of terrorists. At the same time, there may be problems of over-deterrence and inflicting harms on the innocent if errors are made in determining who is a terrorist. In the United Kingdom, prosecutions of suspected IRA terrorists have been tainted with some high profile miscarriages of justice and the Department of Justice has chosen not to establish a Criminal Case Revision Commission as is now used to investigate claims of wrongful conviction. It is also problematic to rely on non-state actors effectively to punish and outlaw those suspected of involvement in terrorism, as is done with respect to many of the terrorism financing provisions.

Reliance on immigration law in an attempt to decrease the risk of terrorists can also be both over-inclusive and under-inclusive. Policies such as the safe third country agreement may turn away many more legitimate refugees than deflect those associated with terrorists. Similarly there is a cost in using broad based strategies like more restrictive visa policies which will restrict many more legitimate visitors than terrorists. The type of long term and preventive detention that is allowed under Canadian immigration law may be successful in incapacitating terrorists. Nevertheless, many of those detained will eventually be deported from Canada and given the international nature of terrorism and the ability to plan acts of terrorism from foreign lands, it is not clear that deflection or deportation of suspected terrorists to other countries will actually increase security. It may simply displace the problem.

Reliance on military force such as Canada's participation in the war against the Taliban regime in Afghanistan may also not decrease the risk of terrorism. To be sure, the disposition of state sponsors of terrorism may disrupt terrorist networks such as Al Qaeda but it may also disperse them and send them deeper underground. The use of the military will also result in loss of innocent lives and may have costs in terms of human rights. Canadian troops in Afghanistan participated in the transfer of some prisoners to Guantanamo Bay were they have been kept in what a respected British judge has criticized as a “legal black hole” without access to habeas corpus, treatment as prisoners of war, and facing possible trial by military tribunals. A Canadian citizen, Omar Khadr, is detained at Guantanamo Bay and alleged to have killed an American medic in combat on the Afghanistan/Pakistan border. Should he be charged with that killing he may face the death penalty even though he was 16 years of age at the time of the alleged offence.

What then ought Canada and other countries do to respond to the very real risk of terrorism? Clearly doing nothing is not an option because an act of biological, chemical or nuclear terrorism or the poisoning of food or water supplies in the United States would very soon affect Canada. In my view, Canada ought to have placed greater emphasis on administrative and environment controls that would help secure sites and substances that can be used to commit acts of terrorism. Some of these controls, including increased protection and surveillance of critical infrastructure such as pipelines and increased control over dangerous chemical materials are included in the Public Safety Act which has been introduced three times in Parliament but still has not yet been enacted. It is unfortunate in my view that the ATA that defines as crimes of terrorism much that was already illegal before September 11 was a priority while administrative measures to reduce the damage that could be caused by terrorists were not. At the same time, the criminal law approach taken in ATA as well as the immigration law approach was partially encouraged by the terms of United Nations Security Council Resolution 1373 which specifically called for criminalization of financing and other forms of participation in terrorism and better border controls.

A more administrative and environmental approach designed to prevent terrorists from gaining access to substances whether they be airplanes, explosives, and chemical or nuclear materials might have a number of benefits. In some ways these are softer strategies that do not rely upon punishment and detention to the same extent as criminal and immigration law. They also may work a fail-safe should it prove impossible to deter or identify or incapacitate all of the terrorists. Measures such as more effective screening of all passengers and baggage on aircraft through technology may also limit the damage to values such as liberty, privacy and equality. It is better to screen all passengers with technology designed to respect privacy than to profile only a few passengers because they are perceived to be of the same race, religion or national or ethnic origins as some terrorists. Profiling is a strategy that is both over and under inclusive and alienates communities that may assist authorities in identifying terrorists. The Criminal Code should be amended to prevent profiling on prohibited grounds of discrimination while making clear that a known suspect can still be identified on such grounds.

It is also prudent to rely on environmental and all hazards measures such as better airline security and securer cockpits than to rely on increased punishment for crimes committed while hijacking a plane, as the ATA does. Some measures such as better monitoring of public health and the safety of food and water could also provide protections not only against the risks of terrorism but also the risk of diseases and accidental contamination of food and water. Better emergency preparedness may also serve a similar all risk functions as it better prepares society to deal with the effects of not only acts of catastrophic terrorism but a wide range of natural and man-made disasters such as earthquakes and black outs. As the prestigious American National Research Council concluded in a post 9/11 report, we should invest in strategies that will make us safer not only from terrorist attacks, but from disaster, disease and accidents. Such strategies also present less of a risk, both for the targets and for society, of targeting the wrong people.

The Canadian government is recently taken steps towards such a comprehensive all risks approach to public safety. Motivated not only by the risks of terrorism revealed on September 11 but also the SARs crisis, black outs and contamination of food and water, a new government has created a new Ministry of Public Safety and Emergency Preparedness with this new Minister being responsible for chairing a new Cabinet committee on Security, Public Health and Emergencies. This new administrative has the potential to develop a more comprehensive and rational approach to the various risks that Canadians face to their well-being. It could allow for cost effective distribution of limited resources with a premium placed on strategies that protect Canadians not only from terrorism but other harms. At the same time, the new Ministry has traditional responsibilities for policing, security intelligence and new responsibilities for the border and for security aspects of immigration that may allow it to follow the pattern established after September 11 of relying on immigration law to respond to the risks of terrorism. This would allow the detention and deportation of suspected terrorists through procedures that offer less due process protections than even the enhanced criminal law provided by the ATA.