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

10. WESLEY K. WARK Department of History/International Studies, University of Toronto

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

In the immediate aftermath of September 11, the Canadian government attempted to bolster its national security capabilities through two major undertakings. One was the omnibus anti-terrorism legislation of Bill C-36. The other was the December 2001 security budget introduced by then Finance Minister Paul Martin. Bill C-36 must thus be seen and judged as one of the early and most significant pillars of the Canadian response to the new security environment ushered in by the Al Qaeda attacks.

Bill C-36's impact can be assessed in five major areas. These are:

  1. the extension of government powers to act against perceived terrorist threats;
  2. the creation of new operational entities and mandates to assist the government in counter-terrorism work;
  3. the generation of a significant (if unresolved) public debate on the nature of the terrorist threat to Canada and the appropriate balance to be sought between protection of civil liberties and the pursuit of national security in an altered threat environment;
  4. international perceptions of Canadian approaches to anti-terrorism; and
  5. the reality, or illusion, of deterrence.

In addition, Bill C-36 provided an opportunity for the government to take action on some aggravating issues that had long been in limbo and which were only loosely linked to anti-terrorism concerns. I would include in this category amendments to the official secrets act and alterations to the provisions of the Access to Information Act. These parts of Bill C-36 were inevitably overshadowed by other, more dramatic issues, and garnered little critical attention at the time.

I'll briefly address each of the five major impacts in turn.

1. Extension of Government powers

Bill C-36 gave the government new, and controversial, legal tools to combat terrorism. These tools included the power to list proscribed terrorist groups and criminalize forms of association with such groups; the power to hold investigative hearings and to compel testimony; preventative detention (recognizance with conditions); and restrictions on disclosure rules under the Canada Evidence Act. In addition, Bill C-36 gave the government new mechanisms to act against charities that might serve as fronts for terrorist financing.

In truth the direct impact of this package of new powers is difficult to measure at this stage (January 2004) owing to two factors. One is that the government moved slowly and with great caution (critics would argue too great caution) after December 2001 in creating a list of proscribed terrorist entities. Whether this was the intent of such a process, controversy was largely forestalled, with the exception of the eventual decision to place Hezbollah on the list. The other factor is that many of the most controversial elements of Bill C-36 have not been used, or tested in court. One exception is the retrospective and surprising effort to use the investigative hearings provision in connection with the Air India trial. The other is the issuance of search warrants in January 2004 against Ottawa Citizen reporter Juliet O'Neill under the provisions of the Security of Information Act component of Bill C-36 (I will return to this matter later).

Some of the most controversial legal powers provided for in Bill C-36 need to be seen as measures to confront a national security emergency, even if the government of the day shied away from describing them in such a light, presumably for fear of drawing too many parallels with the old War Measures Act and its history. Perceived as emergency powers, for use in extraordinary circumstances, Bill C-36 gave the government, in my view, necessary tools to combat terrorism. The level of safeguards built in to the Bill and the acquiescence of the Bill's drafters to the demand for a sunset clause (of five years) for parts of the Bill (preventative detention and investigative hearings) were appropriate. The greatest test of Bill C-36's legal provisions will come when and if the emergency for which they were intended arises-only then will we see whether the combination of laws and good judgement exist to safeguard Canadians' security and liberty. Until that unlooked-for day, Bill C-36' impact can only be measured indirectly.

2. New operational entities and mandates

Bill C-36 did not provide for any sweeping reform or reorganization of the Canadian security and intelligence community, although there were many public calls for such measures. In a more modest fashion, the Bill instead provided for (long overdue) enabling legislation for the Communications Security Establishment (CSE) and an extension of the mandate of the recently created Financial Transactions and Reports Analysis Centre of Canada (FINTRAC). Both measures escaped much public commentary at the time, partly owing to the secrecy and obscurity that surrounds the two government agencies. But these measures in fact made CSE and FINTRAC crucial, front-line agencies in the government's anti-terrorism operations, CSE as an intelligence gatherer and FINTRAC as an investigative body charged with monitoring the flows of terrorist financing. Issues of counter-terrorism capabilities on the part of both CSE and FINTRAC, of mandates and jurisdictional overlaps with other parts of the security and intelligence community (especially the Canadian Security Intelligence Service--CSIS), and of accountability for new powers were not satisfactorily addressed by the Bill and remain, in my view, problems. These are complex matters beyond the remit of this brief paper, but to take one issue, the powers of the Commissioner for CSE are too narrowly focused on reviewing the legality of CSE operations and do not approach the scope of the review body for CSIS, the Security Intelligence Review Committee.

3. Public debate

Probably the most significant impact of Bill C-36 was the debate that it generated within Canadian society. This debate focussed only on some aspects of the Bill, particularly on the issue of the definition of terrorism, and on some of the more draconian powers provided for by the Bill (especially investigative hearings and preventative detention). The debate was shaped by media coverage and was provided focus by the hearings into the Bill held by both House and Senate justice committees in the late Fall of 2001. The legal community of Canada, especially legal scholars, were particularly active in fostering the debate and in calling attention to the issue of the search for balance between security and civil liberties. The Law Faculty of the University of Toronto sponsored a major conference on Bill C-36 in November 2001 and rapidly published the proceedings[5]. A second major conference was held in Montreal early in 2002, following the adoption of the Bill. Its proceedings are shortly to be aired by the CBC flagship radio programme, Ideas.

The most concrete achievement of the debate was to introduce a sunset provision of five years for some aspects of Bill C-36 (83.28, 83.29 and 83.3). More broadly, the debate allowed Canadians to reflect on the threat posed by terrorism, on government powers, and on the appropriate balance between national security concerns and civil liberties. Inevitably, the debate was unresolved by the time Bill C-36 was passed into law in December 2001 and much of its force was spent with the passage of time and the enactment of Bill C-36. Unfortunately, in my view, the government of the day chose not to try to structure or inform the public debate by providing any kind of national security strategy white paper or document, or by engaging in significant reform of the security and intelligence sector. Such measures are now promised by the new Martin government, two years after the passing of Bill C-36, in a series of pronouncements made in late December 2003.

Arguably, the failure of the then government to show strategic thinking about the new security environment helped to sustain currents of opinion in Canadian society that suggested that Bill C-36 was an unwarranted assault on civil liberties and was targeted against ethnic minorities, especially the Muslim community of Canada.

The debate over Bill C-36 was healthy, necessary and wise, but suffered from a lack of public knowledge about government intentions, capabilities and power. The mandated Parliamentary review of Bill C-36 should, with the passage of time, allow for a more wide-scoped reflection on Canadian anti-terrorism.

4. International perceptions

Globalization means that states and societies live in a global fish bowl. Canadian measures under Bill C-36 are bound to attract attention of two kinds: one pondering the kind of democratic and multicultural society that Canada is; the other wondering about Canadian capabilities in a global war on terror. The net effect of this attention is difficult to measure. Exactly how much attention has been paid by the global community to Bill C-36 is something that, so far as I am aware, has not been studied in a public fashion. But it is important and should be something to be studied by the Canadian government itself. Canada prides itself on a positive international image and counts the intangible benefits that flow from this in fields such as immigration, trade and tourism. If Bill C-36 has negative connotations for Canada's image abroad this is something we should know. This could be measured by studies of the foreign media, by post-mortems and research reports drawing on official exchanges and diplomatic and consular reporting, even by monitoring changes to patterns of immigration, trade and tourism.

International perceptions of Canadian counter-terrorist capabilities are important for deterring terrorism and for maintaining Canada's place in major alliance groupings, not least the alliance web that links key partners in the fields of security and intelligence. Canada must expect to face on-going questions about its national security capabilities and about its ally-worthiness. Such questions will only partly be answered by international perceptions of the effectiveness of Bill C-36, but the Bill is certainly a contributing factor. The Canadian government needs to be alert and sensitive to foreign perceptions of its capabilities, especially on the part of traditional allies such as the United States and the U.K.

5. Deterrence

One of the classic functions of good laws is deterrence. Has Bill C-36 contributed to the deterrence of terrorist activities in Canada or against Canadian interests? There have been some suggestions from CSIS that it has forced terrorist groups and individuals to alter their behaviour within Canada and helped encourage greater public mindedness about security threats. The truth of this claim is impossible to know. Nor can deterrence really be measured except through its failure.

Certainly Bill C-36 reflected a government intention to increase its powers to combat terrorism and the attention that flowed from this may, more than anything else, have contributed to an altered threat environment in Canada. No country wishes to be thought of as a terrorist “ safe haven ”. Bill C-36 suggested a government policy of getting tough with the terrorist threat, which at least stood in marked contrast to pre-September 11 policy. Irwin Cotler, while still a backbench MP, called in writing for a new “ zero tolerance ” policy towards trans-national terrorism. [6] A government lead in this direction would help clarify the public confusion surrounding the distinction between terrorists and freedom fighters, a distinction that continues to bedevil discussions of terrorism and counter-terrorism policy.

Bill C-36 may have contributed only marginally to deterrence of terrorist threats. But its absence would have lessened the deterrent capabilities of the Canadian government.

10.2 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.

No one has a crystal ball when it comes to terrorism. Emerging trends will be seen clearly, alas, only in retrospect. But this sobering thought aside, there are a number of general observations or predictions which can still usefully be made. One is that global terrorism will be the number one security threat for the foreseeable future. A second is that terrorism will continue to proliferate globally, irrespective of the fortunes of Al Qaeda. A third is that no prediction is safe about the weapons and scale of violence to be employed by terrorist groups. WMD use or “super-terrorism” cannot be ruled out, while more traditional methods of the gun and the bomb will continue to be employed. A fourth observation is that terrorism will continue to target both military and civilian entities and will, in the aftermath of September 11, also be attracted to highly symbolic targets. A fifth observation is that even without state sponsorship, trans-national terrorist groups will have the capacity to engage in sophisticated financial, propaganda, recruitment and operational activities and will show variable, but sometimes high, levels of operational security.

It is impossible to predict whether Canada itself will be a target for terrorist attacks. Prudence suggests it might. That prudence is a reflection of three facts: one is that Canada is a multicultural society with a considerable immigration inflow. It is inevitable that some forms of homeland violence and extremism will follow the immigration flow. A second fact is that Canada has, in the aftermath of September 11, visibly and rhetorically joined the war on terrorism. Our words and deeds, above all our military presence in Afghanistan, make us a target, whether abroad or at home, for terrorists. The third fact is that CSIS, in public statements over the years, has asserted that there is a significant terrorist presence in Canada. That presence does not necessarily signify active operations. Terrorist entities are no doubt involved in fund-raising, propaganda, recruitment, transit activities and so forth, not directly targeting Canada. But it would be imprudent to say the least to assume that terrorist organizations and individuals do not, or would not, plan for direct attacks on Canadian targets. Nor could Canada afford to allow a terrorist attack to be mounted from Canada against the United States or any other country. Even prior to September 11, the Ahmed Ressam case should have reminded us of this.

As state sponsorship of terrorism declines or is restricted, and as terrorism continues to proliferate globally, the chances of Canada being draw into the orbit of terrorist operations only increases as trans-national groups seek new venues, bases, and targets.

Canada may not be a first tier target for major terrorist operations now or in the future. But that distinction is not comforting and provides no basis for policy, strategy, laws or capabilities.