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

8. JAMES STRIBOPOULOS Faculty of Law, University of Alberta

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

In the fall of 2001, when Justice Minister Anne McLellan tabled Bill C-36 for second reading in the House of Commons, she took the opportunity to explain the Government's reasons for introducing this legislation. McLellan noted that the events of September 11 “ challenged Canadians' sense of safety and security and it is this that we must address as our first priority ” (Hansard, Oct. 16/01). From the outset, then, redressing Canadians collective sense of “ insecurity ” in the wake of September 11 was acknowledged as a fundamental objective behind the Anti-Terrorism Act.

In response to the question posed - what has been the impact of the Anti-Terrorism Act on Canada - I intend to briefly consider whether the Act has achieved the primary goal that provided its inspiration: namely, increasing Canadians collective sense of security. I focus on this discrete issue for a couple of reasons. First, although a number of entities have now been designated “terrorists groups”, to date (at least to my knowledge) there has not been a single prosecution with respect to any of the substantive offences created by the Act. Second, the most controversial investigative powers introduced by Bill C-36, investigative hearings (s. 83.28 & 83.29) and preventative arrests (s. 83.3), have not yet been used by law enforcement (See The Anti-Terrorism Act, Annual Report Concerning Investigative Hearings and Recognizance with Conditions). That said, the only case from 2003 that I am aware of involves the Air India prosecution and an order compelling a mystery witness in that case to testify at an investigative hearing. That witness has challenged the constitutionality of s. 83.28 before the Supreme Court of Canada, which has stayed the order pending its judgement (see In the Matter of an Application Under s. 83.28 of the Criminal Code, S.C.C. Bulletin, December 12, 2003).

I do not mean to suggest that simply because law enforcement has not formally relied upon the special investigative powers conferred, or the substantive offences created, by the Anti-Terrorism Act, that the Act has not had any impact. To the contrary, I think the Act has had a considerable effect upon both the approach taken by Canadian law enforcement towards their functions in the post 9-11 world, and on the perception of Canadians regarding their sense of security. My thesis, however, is that in both respects its impact has been less than positive. Let me begin by placing my concerns in context.

In the Fall of 2001, when the Government introduced Bill C-36 in the House of Commons, Anne McLellan indicated: “ Canadians can rest assured that we kept in mind the rights and freedoms guaranteed in the Charter when drafting our proposals ” (Hansard, id.). And, as respected legal scholars have acknowledged, McLellan's claim that the Anti-Terrorism Act accords with the Supreme Court's jurisprudence regarding the minimum standards prescribed by the Charter appears to be accurate (see Kent Roach, September 11: Consequences for Canada (McGill-Queen's Press: 2003)). As some commentators have noted, compared to the legislation enacted in other nations, the Anti-Terrorism Act represents a restrained response to the threat posed by terrorism (see Stanley A. Cohen, “ Safeguards in and Justifications for Canada's New Anti-Terrorism Act ” (2002) 14 Nat'l J. Const. L. 99; David Jenkins, “ In Support of Canada's Anti-Terrorism Act: A Comparison of Canadian, British, and American Anti-Terrorism Law ” (2003) 66 Sask. L. Rev. 419). Proponents of the Act have complained that the entire debate surrounding its legitimacy proceeds from a flawed premise. For example, Irwin Cotler has argued that the debate wrongly reduces down to a zero sum analysis that devolves into a misconceived contest between national security versus civil liberties. In his view, what the Act actually involves is “ human security legislation ” which is designed to fulfill the central promise of the global human rights movement, namely, safeguarding the right to life, liberty and security of the person for everyone (See Irwin Cotler, “ Terrorism, Security and Rights: The Dilemma of Democracies ” (2002) 14 Nat'l J. Const. L. 13).

The focus of those who support the Anti-Terrorism Act is throughout on its express terms. On the surface, the offences and powers it served to create are constitutional. Similarly, compared to the legislation passed in other countries, the Act does seem like a much more even-handed response to the terrorist threat. Finally, given that the Act confers upon law enforcement the tools that are claimed as necessary to apprehend and prosecute terrorists, individuals who are determined to destroy us, one is hard pressed to contest the claim that the Act enhances human security, and in the process our most fundamental of rights (the right to life and security in our persons). Putting these claims in proper perspective, however, requires looking beyond the express terms of the Anti-Terrorism Act and considering how it has influenced the behaviour of Canadian law enforcement and, in direct response, the perception of Canadians.

Make no mistake, the enactment of the Anti-Terrorism Act signalled the beginning of Canada's commitment to the “ war against terrorism ” (McLellan, Hansard, id.). The difficulty with the rhetoric of war, however, is that it is inevitably bottomed upon an “ us ” versus “ them ” view of threat posed by terrorism. As George Bush told the world shortly after September 11: in the war against terror, “ you are with us or you are with the terrorists ”. Professor Stephen Toope has noted the danger inherent in this sort of rhetoric:

If 'we' are cast as wholly good and our 'opponents' as wholly evil, various consequences flow, almost ineluctably. Most obviously, the enemy is dehumanized. Common humanity is always a casualty of war, but the absolutely evil enemy bears no consideration (Stephen J. Toope, (2002) 65 Sask. L. Rev. 281).

It would be naive to think that those charged with the responsibility of enforcing the Anti-Terrorism Act are somehow immune from the rhetoric of war that swept over North America in the aftermath of September 11. The Anti-Terrorism Act, like most criminal laws, says very little about what criteria are to be applied in deciding who to target for investigation. Instead, law enforcement has considerable discretion in this regard. Simply because no one has yet been charged with any of the terrorism offences created by Bill C-36, and none of the special investigative powers created by the Act have yet been used, does not mean that law enforcement has not been actively engaged in the investigation of suspected terrorists. It is important to acknowledge that in this war the “ them ” are invariably Muslim, and predominately Arab. The definition of “ terrorism ”, which requires a consideration of the “ political, religious, or ideological ” (s. 83.01(1)(b)(i)(A)) motivation of a suspect individual or group not only serves to encourage, but also serves to legitimize, the somewhat inevitable focus on Muslims and Arabs. As a result, the risk that members of these groups will be unfairly targeted for investigation is great. To deny this reality regarding the larger impact of the Anti-Terrorism Act is to delude ourselves about the truth of the war on terrorism that we are presently waging.

A number of commentators have warned about the potential for racial profiling that has been created by the Anti-Terrorism Act (see, for example: Sujit Choudhry & Kent Roach, “ Racial and Ethnic Profiling: Statutory Discretion, Constitutional Remedies and Democratic Accountability ” (2003) 41 Osgoode Hall L. J. 1; Reem Bahdi, “ No Exit: Racial Profiling and Canada's War Against Terrorism ” (2003) 41 Osgoode Hall L. J. 293). Of course, proponents of the Act can take comfort in the absence of any empirical evidence to support such claims. It is important to remember, however, that this is always the refuge of those who deny the existence of profiling practices, whether in conventional criminal law enforcement or in the anti-terrorism context. But the anecdotal evidence is there; if we care to look, and it suggests that the cost of waiting for solid empirical grounds to be concerned may be just too great. As Professor Toope noted in his article:

…I am told by eminently reliable sources that the two immigration detention centres in Montreal, which are normally half-occupied, are full to bursting with people, most of whom fit specific ethnic and religious profiles. One of my own students, a Sikh, has twice been singled out for full body searches at Canadian airports, when no 'white' passengers were searched….. the federally appointed watchdog supervising CSIS recently warned that the 'rights and liberties of Canadians' could be trampled upon in the war on terrorism.

In response, proponents of the Anti-Terrorism Act can point out that nothing in the express (and seemingly constitutional) terms of the Act licenses racial profiling practices. At the same time, however, critics will note that there is also nothing in the Act to specifically prohibit such tactics (See Choudhry & Roach, supra). More generally, the Act also fails to provide any meaningful checks on police practices ostensibly undertaken under its authority. Under the terms of the Act, an investigation (no matter how prolonged and intrusive it might happen to be) that does not culminate in a preventative arrest, an investigative hearing, or formal charges, is shielded from any meaningful review. In effect, in most cases, there will be no opportunity to assess either the targets chosen, or the tactics employed, by law enforcement. Shirley Heafey, Chair of the RCMP Public Complaints Commission, recently complained that under the authority of the Anti-Terrorism Act the RCMP derived newfound authority to engage in national-security investigations, while her body was not granted the powers it requires to provide an effective check on such practices (see Carly Weeks, "RCMP Complaints Body Powerless, Chair Says, Globe and Mail, January 27, 2004, Pg. A9). Not surprisingly, however, in this new era in which the RCMP is playing a central role in waging the war against terrorism, that organization is “ digging in its heels ” in opposition to increased civilian oversight (see Jeff Sallott, “ Closer Scrutiny of RCMP by Independent Body Urged ”, Globe and Mail, February 11, 2004, A9). In taking this position the RCMP has noted that increased oversight is unnecessary because “ the courts get a chance to review police procedures when criminal cases come to trial ” (Id.). However, in the context of anti-terrorism investigations, as we have seen over the last two years, these cases rarely culminate in criminal charges and a public prosecution before the courts. As a result, absent effective external oversight, violations of civil liberties by Canadian law enforcement officials engaged in fighting terrorism will continue to go largely unchecked.

On a related point, in response to Professor Toope's concerns, supporters of the Act might note that observations about its immigration implications are misplaced. It is indeed true that the Anti-Terrorism Act does not authorize the round up and deportation of illegal immigrants. But again, this ignores that the war on terrorism - and the Anti-Terrorism Act, which is the centrepiece of that war in Canada - provides the larger backdrop against which immigration officials are acting in exercising their authority under Bill C-11, the Immigration and Refugee Protection Act. That Act, introduced in the Spring of 2001, but passed into law in the wake of September 11, “ casts a wide-net over non-citizens rendered inadmissible on security grounds, expands the detention power over designated security risks, and reduces access to independent review over Ministerial security decisions ” (Audrey Macklin, “ Borderline Security ” in R. Daniels et al. (eds.), The Security of Freedom: Essays on Canada's Anti-Terrorism Bill (Toronto: U of T Press, 2001) 383). It is impossible to disentangle the activities of immigration officials under the Immigration and Refugee Protection Act from the activities of law enforcement officials under Anti-Terrorism Act, and the importance of both pieces of legislation to the ongoing war against terrorism. Quite simply, when investigative efforts undertaken in the name of enforcing the Anti-Terrorism Act come up short of furnishing the necessary evidence for a full blown criminal prosecution, those who are considered “ suspect ”, but who are non-citizens, will invariably be dealt with under the Immigration and Refugee Protection Act. Under that Act, the Government can deport suspected terrorists, and thereby conveniently avoid the onerous procedural and evidentiary requirements of a domestic criminal trial.

Although the concerns outlined above may seem alarmist, they are shared by a majority of the population. Canadians have followed the events of the last two years closely, and what they have seen troubles them greatly. Rather than witnessing the use of the Anti-Terrorism Act to ferret out and prosecute terrorists, they have instead watched in horror the ordeal of Maher Arar and his family. The idea that a Canadian citizen could be deported from the United States to face torture in Syria based on “ intelligence ” supplied by Canadian law enforcement, is something that Canadians find deeply troubling. Although Mr. Arar's case is the most extreme example, Canadians do not view it as an isolated occurrence. The round up last summer, pursuant to immigration security certificates, of nineteen non-citizens who were initially portrayed as a potential “ sleeper cell for Al-Qaeda” (a claim that was subsequently admitted to be unjustified) also comes to mind (see Marina Jimenez, “ Case of Nineteen Terrorists Unravelling ”, Globe And Mail, August 20, 2003). There can be little doubt that these events have served to transform Canadians' perceptions about the war against terrorism. Although in the immediate aftermath of September 11 a majority of Canadians polled supported law enforcement officials giving special attention to “ individuals of Arabic origins” (Ekos Research Associates, “ Security, Sovereignty, and Continentalism: Canadian Perspectives on September 11”, September 27, 2001). Since then, public attitudes appear to have shifted considerably. According to a recent Ipsos-Reid poll, 52 per cent of Canadians agree that Arab-Canadians are being unfairly targeted because of their race (see Colin Freeze, “ Majority Says Arar Treated Unjustly, Poll Finds ” Globe and Mail, February 7, 2004, A4).

Canadians are becoming increasingly concerned that the war on terrorism has resulted in the unfair treatment of ethnic and religious minorities. At the same time, there would appear to be a growing distrust of law enforcement more generally in the wake of a number of other scandals involving Canadian police (see Clifford Krauss, “ Misconduct Charges Sully Image of Canadian Police ”, The New York Times, February 1, 2004). For example, in a poll conducted in January of this year, 38 per cent of Globe and Mail readers responded negatively when asked if they trust their local police force. Events in the anti-terrorism context have undoubtedly contributed to this growing fear of official power. For example, the RCMP's recent reliance on the Security of Information Act to secure a warrant to search a journalist's home, to further an investigation into a document leaked by a “ security source ” relevant to the Arar case, was widely perceived as an abuse of power and provoked a public outcry (see Graham Fraser, “ RCMP Raid Sparks Outrage” Toronto Star, January 22, 2004).

An argument could of course be made that an increased fear of law enforcement is a small price to pay for an increased sense of security from terrorism. But polling also reveals that Canadians continue to be quite fearful of terrorists. In that same recent Ipsos-Reid poll in which respondents were questioned about their concerns regarding police profiling practices, 62 per cent of Canadians also responded that they believe terrorists are operating within Canada (see “ Majority Says Arar Treated Unjustly, Poll Finds ”, supra). This returns us to where we began, and the question of whether the Anti-Terrorism Act has achieved its goal of restoring Canadians collective sense of security in the wake of September 11. The answer, in light of recent polling, would appear to be no. Canadians are still quite fearful of terrorism and terrorists. So, in that sense, we are arguably no further along than we were in the immediate aftermath of the terrorists' attacks of 2001. At the same time, given growing concerns about abuses by law enforcement engaged in the war against terrorism, Canadians are arguably feeling even more insecure than they were two years ago. Today, not only do we fear the terrorists, we also increasingly fear our own law enforcement apparatus. In effect, fears about terrorism from below have been transplanted to equally compelling concerns about institutionalized terror from above (See Oren Gross, “ Cutting Down Trees: Law-Making Under The Shadow of Great Calamities ” in R. Daniels et al. (eds.), The Security of Freedom: Essays on Canada's Anti-Terrorism Bill C-36 (Toronto: U of T Press, 2001) 39).