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

7. LORNE SOSSIN, Faculty of Law, University of Toronto

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

In my view, the impact of this Act has not been significant in terms of enforcement. Recourse to the Act has been marginal. This cuts both ways. Critics who said it was unnecessary largely have been vindicated by this fact, but so have supporters who said it would not be abused or applied in inappropriate settings. If the impact is not to be found in enforcement, where is it to be found? The answer, I believe, is in the debate surrounding the passage of the Act.

This debate revealed at least three important insights which, taken together, I suggest constitute the real impact of the Anti-Terrorism Act.

First, the debate established that there is no consensus on the meaning of terrorism. The Supreme Court adopted a consensus position drawn from international law sources in its definition of the term in Suresh v. Canada (2002) (in deciding that the reference to “ terrorist ” in s.19 of the Immigration Act was not unconstitutionally vague), but this was a very different definition than that adopted under the Anti-Terrorism Act. Some scholars see terrorism as fundamentally non-state based violence deployed against civilian populations to further political causes. The image of rogue organizations hijacking planes in the 1970s, the Israeli's killed in the Munich Olympics, the suicide bombers in Israel, Afghanistan and Iraq and most of all the perpetrators of the attacks on September 11, 2001 epitomize this image. For others, however, state sponsored terror is the archetype, and the role of Libya, Iran and Iraq in funding and organizing terrorist campaigns is emphasized. Finally, to many sovereign states, internal organizations seeking autonomy or secession by violent means are labelled as terrorists, and examples of this range from the violence in Chechnya to Sri Lanka. The point is that the terms “ terrorist ” and “ terrorism ” have no objective or clinical meaning. Distinguishing between Nelson Mandela the freedom fighter and Nelson Mandela the terrorist is a matter of perspective and conviction, not statutory interpretation. Infusing these terms with meaning is more a matter of political preference and social/historical context than legal criteria.

Second, the Act posited that providing less due process in investigations involving suspected terrorists would lead to more effective means to combat terrorism (leaving aside the concern noted above about the scope of these terms). The debate surrounding the Act reflected fundamental scepticism regarding this claim. Procedure not only guarantees a measure of transparency and accountability for the exercise of state authority, which leads to fewer arbitrary or discriminatory acts, it also minimizes the risk of error. If the subject of an investigation into terrorist activity has an opportunity to know the case against them, and refute it in a meaningful way, the likelihood to action taken on poor intelligence, false identifications or mistakes is reduced. There has yet to be a compelling argument put forward to justify the limiting of the review of ministerial certificates or curtailing the potential for parties subject to investigations to be given meaningful opportunity to refute the evidence against them.

Third, the Act posited that the threat of terrorism justified curtailing civil liberties. The government's justification of its trade-off between enhanced investigative and detention powers and the loss of civil liberties and privacy rights focused on its Charter-proofing” of the Act. However, the debate surrounding the Act made clear that whether or not it would survive a Charter was beside the point. To a significant majority of observers (at least by my count), the very fact that countries such as Canada showed such readiness to jettison fundamental civil liberties (e.g. the authorization of preventative detention) in the face of terrorist threats reflected an abnegation of the very values stand so starkly opposed to the logic of terrorism (i.e., The rule of law, etc). The Anti-Terrorism Act, in other words, represented an admission of defeat in the “war against terrorism”.

7.2 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.

In light of the comments above relating to the contested nature of the terms “ terrorist ” and “ terrorism”, I adopt a working definition of terrorism which is admittedly subjective and proceeds by way of analogy to concrete settings rather than by way of abstract categories. I take terrorism to indicate violence by state or non-state parties, directed more or less indiscriminately at particular populations, intended to achieve particular political goals (e.g., the decision to grant autonomy or sovereignty to a region, or to remove troops or settlements from a region, or to change a secular system of government to a religious system, etc.).

The emerging trend, from my vantage, is an emphasis on less organized and more diffuse forms of terrorist activity in the wake of the disruption of terrorist networks during the past two years. Canada's liberal immigration and refugee policies, its geography, its cultural, ethnic, linguistic and religious make-up and its multicultural urban area all may contribute to making our country vulnerable to potential infiltration by terrorist groups. However, I see no particular, increased threat to Canada as a result of the current trend (with the exception of the increased, direct threat to Canadian troops serving abroad in conflict regions such as Afghanistan).

7.3 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.

I believe the threat of terrorism to be complex and therefore to call for multi-faceted responses. This is not a one-dimensional problem. Below I identify a range of strategies, which I believe reflect appropriate responses to this problem:

  1. The view that poverty and despair breed terrorism is not always true (consider the oft-cited fact that the 9/11 hijackers were mostly middle-class), but it is true enough to indicate that any anti-terrorist strategy must confront root causes. This means giving careful thought to our policy of foreign aid and its goals. While Canada, with its limited resources, cannot make a difference everywhere, it can make a significant difference in targeted areas with focused programs.

  2. Anti-terrorism measures at border-crossings, airports, etc., reflected a crude profiling of potential threat indicators. Some people were taken off planes because they wore a turban and had brown skin, other officials singled out either Muslims or Arabs or both for heightened scrutiny. Profiling is not necessarily undesirable when the criteria are objective and reasonably transparent. For example, to single out people for scrutiny who travel on one-way tickets for which they paid cash is not odious but to single out all Arabs or foreign nationals from particular countries is. Training, the transmission of guidelines, effective supervision and legal safeguards, etc., are areas where coherence in profiling can be enhanced and the risk of unfair or arbitrary mistreatment minimized.

  3. Cooperation with foreign governments at all levels of law enforcement and national security intelligence is a key facet of combating terrorism. This already has been a priority in government policy both before and after 9/11, but the Arar incident reveals significant uncertainty as to how this actually plays out both between different branches of the Canadian government and between Canadian and foreign governments. The public inquiry into this incident is a step in the right direction, but of course inquiries have no power to change or make more accountable how the sharing of national security information with other governments takes place. There will need to be a political, diplomatic and possibly a legal response in addition to receiving the recommendations contained in the report following the inquiry.

  4. Rather than send the message contained in the Anti-Terrorism Act which is that procedural fairness, civil liberties and privacy rights are “expendable” in the interest of national security, law reform should pursue precisely the opposite terrain. The question ought to be: how best can the exercise of executive authority in the interests of national security be monitored, constrained and supervised to ensure it is carried out according to the rule of law and in a fashion consistent with the fundamental values of Canadian society? The track record of unbridled executive authority in Canada is not a happy one. Some of the darkest stains on Canada's record (e.g., the internment of Japanese Canadians, etc.) resulted from excessive responses to perceived external threats to national security. Measures such as the Anti-Terrorism Act should be viewed as cautionary tales.