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

9. DON STUART Faculty of Law, Queen's University

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

I stand by views I expressed in several speeches and to Parliamentary committees trying to stop the freight train as Bill C-36 was rushed through Parliament after the horrors of the 9-11 attack. My thoughts coalesced into a paper published as “The Anti-Terrorism Bill C-36: An Unnecessary Law and Order Quick Fix that Permanently Stains the Canadian Criminal Justice System”, (2002) 14.1 National Journal of Constitutional Law 153.

As a criminal law teacher and scholar in Canada since 1970, I see the massive new criminal law powers placed into our permanent criminal laws by Bill C-36 as not necessary to respond to the outrage of September 11. More resources for intelligence and investigation and evidence may have been needed but not new laws. The definition of terrorist acts and the process for listing terrorist groups is, as many argued in vain, far too wide. The new terrorism offences cynically cut across fundamental principles that there should be no State punishment without meaningful fault and act requirements. Dragnet police and C.S.I.S. powers, including extraordinary and un-Canadian powers of detention on suspicion and compelling testimony before judges were not needed or properly justified. Bill C-36 puts in place many unfettered Ministerial powers, such as the power to define terrorist groups, authorize electronic surveillance and file fiats against use of sensitive material (not just that relating to national security). These powers contravene fundamental hallmarks of our justice system such as the rule of law, the presumption of innocence and the need for State proof guilt beyond a reasonable doubt in a trial before an independent and impartial judge.

Bill C-36 endangers freedoms of vulnerable minorities and protesters. Arab and Muslim Canadians voiced their concerns with dignity but were walked over in the quick passage of the bill. The history of repressive regimes such as apartheid South Africa, where I spent my first 21 years, vividly points to the dangers that these powers may be abused and extended.

The quick passage of this Bill, hastily drafted without external consultation, is a consequence of a broader systemic problem of law and order quick fix politics. This is evidenced in anti-gang legislation that has been counterproductive and not narrowly targeted.

So as far as we have been told, and nobody other than state officials really know, the Bill has not been used, except for one instance of compelled testimony before a judge. Concerns very similar to mine have, however, been expressed by a person in a much better position to know than me: Reid Morden, former Director of CSIS, as reported in The Globe and Mail, November 27, 2003.

So it is time to take stock and seriously review the wisdom of this legislation free of far-fetched political bromides as the “global war on terrorism”. Canada is not at war in the sense that it was in World War Two.

9.2 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.

There can be little doubt that various disparate and some loosely associated groups and individuals will continue to pursue sporadic acts of violence. Often but not always these will be for religious and political purposes. There may be repeats of monumental attacks such as those of 9-11. A likely target will very likely continue to be the United States.

A workable definition of a terrorist is one who intentionally attempts or uses force to overthrow or destabilize a government. Under President Bush the United States has repeatedly shown utter disrespect for the United Nations, international norms such as the Geneva Convention and for any nation, which takes a different view on war and world politics. When the United States sets out to destabilize or bomb a country in the name of freedom citizens of that country could rightfully characterize those United States actions as themselves those of terrorists. Was Nelson Mandela a terrorist or a freedom fighter? Violence begets violence.

Our proximity to the United States makes Canada vulnerable to terrorist attacks but thus far the threat has not materialised. In the meantime thousands of Canadian have lost their lives through such causes as cancer, suicides, vehicle accidents and domestic violence. There the risks are proven and very real. An international law and order agenda should not deflect us from our truly major challenges.

9.3 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 may be a case for more resources for security intelligence services. Intelligence appears to have largely failed us so far and have, furthermore, resulted in well-known cases of wrongful targeting. It would appear that most of the targeting has been under pre-existing immigration and refugee laws which, stunningly, do not even bother to define terrorism. The case of Mr. Arar and the belated setting up of a Judicial Inquiry points to little concern for the protection of racially targeted Canadians.

A recent public opinion poll says that 37% of Canadians say that Ottawa's security response to terrorism has not gone far enough (The Globe and Mail, January 29, 2004). Opinion polls as to the invocation of the War Measures Act in 1970 were strongly in favour. Yet 18 years later Parliament recognised that it had been an oppressive overreaction and replaced it with the carefully drafted Emergencies Act of 1988, with remedies for those wrongfully targeted. Hopefully Parliament will not wait for 18 years before deciding that Bill C-36 is a dangerous and unnecessary blight on our justice system. The Act ought to be repealed in its entirety.