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

11. REG WHITAKER Department of Political Science, University of Victoria

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

To answer this question, it is first necessary to specify the objectives of the Anti-Terrorism Act (C-36).

Introduced as an emergency response to the 9/11 terrorist threat, C-36 has been taken at face value by many observers as a purely anti-terrorist instrument. While this is part of its purpose, it is only part. C-36 is also an omnibus act that addresses a series of security issues, some not directly related to the terrorist threat, as such. C-36 is actually a proto-National Security Act, which taken together with certain other statutes such as the CSIS and Security Offences Acts (1984), the Immigration and Refugee Protection Act and the amended Foreign Missions & International Organizations Act (2001), the Proceeds of Crime (Money laundering) Act, and the as yet to be enacted Public Safety Act, C-36 forms the statutory basis for the various elements of the national security state. Entire sections of C-36, most notably, the replacement of the old Official Secrets Act by a new Security of Information Act (invoked against the media in the Arar case to high controversy); a statutory foundation for the Communications Security Establishment (CSE); restrictions on the Access to Information, Privacy, and Personal Information Protection and Electronic Documents acts relating to public disclosure of national security information; and the provisions regarding non-disclosure of national security evidence in court, may be seen as cleaning up loose ends and unfinished reform agendas already in place prior to 9/11. While these measures may well facilitate the anti-terrorist actions of the Canadian state, they may best be seen as background conditions rather than as specific anti-terrorist measures in themselves. Further, their wider ambit and longer term implications preclude any early and quick assessment of their impact.

Some parts of C-36 specifically amend or modify existing powers to facilitate anti-terrorist actions. These include the provision permitting the CSE to monitor some communications in Canada and between Canadians, and the addition of terrorism to organized crime as targets for FinTrac, the money-laundering agency. These powers strengthen the capacity of existing agencies to monitor terrorist activity and organization. The actual effect of extended CSE monitoring is unknown. As yet there appears to be little return from tracking terrorist money laundering, for although FinTrac has reported a couple of dozen cases, to this date no criminal prosecutions appear to been undertaken.

Expanded powers of electronic surveillance (one of the central parts of the USA PATRIOT Act) were promised, but the Lawful Access process continues without having reached legislative form. The Public Safety Act, dealing mainly with questions of airplane safety and toxic and biological threats, first introduced as a companion piece to C-36 in the fall of 2001, is still somewhere in the legislative process.

The heart of C-36, as it relates exclusively to the anti-terrorist agenda, may be broken down into the following elements:

The legal definition of terrorism has been the cause of considerable controversy; former CSIS Director Reid Morden has suggested that it could be misused by local authorities against non-terrorist protestors, but to date no such misuse has occurred, and is unlikely in light of the requirement for federal authorization. While any definition is inherently controversial, the Canadian definition has been most criticized for the inclusion of motive (“a political, religious or ideological purpose, objective, or cause”). This criminalization of motive is perhaps unnecessary and inherently risky, and may prove in future to be vulnerable to judicial challenge.

The new offences of facilitating, etc. set off many alarm bells for civil libertarians and strongly suggest proceeding on the basis of 'guilt by association'. These can also be seen as reasonable tools for government to control activities and track networks designed to be fluid, decentralized, and resistant to investigation. Much will depend on the skill and restraint with which security intelligence and law enforcement use these new tools. So far as I am aware they have not yet been invoked in criminal prosecutions. Some of the alleged revelations from RCMP surveillance documents on Maher Arar do not inspire confidence that guilt by association is not indeed being employed. On the other hand, no criminal prosecution was undertaken, or apparently contemplated, against Arar in Canada. Whether reluctance to use facilitation, etc. offences, stems from lack of sufficient evidence, or restraint, is unclear.

The listing of terrorist entities has been a major public preoccupation of government since C-36's enactment. First established with 7 entities in July 2002, the list has been augmented five more times, and now encompasses 34 entities. Listing has grave consequences for the entities and for their Canadian supporters, and the process has turned out to be highly partisan, with extensive lobbying campaigns for and against the addition of certain groups, the most controversial cases being Hezbollah and some Palestinian groups such as Hamas, and the Popular Front for the Liberation of Palestine. Lobbying for the extension to these groups was publicly advanced by pro-Israeli organizations and spokespersons, and extension was strongly opposed by many Muslim and Arab groups in Canada. In the case of Hezbollah, there was controversy in the media over the validity of evidence used to support the case for listing. One unfortunate consequence: the list has become a focus for interethnic and religious rivalries in Canada. There are also consequences for social and humanitarian assistance from both private and government sources to certain areas, such as the Shia community in south Lebanon and Gaza and the West Bank when dual-purpose organizations like Hezbollah and Hamas are no longer able to act as the appropriate conduits for Canadian humanitarian assistance in places where they are the main, if not only organizations maintaining institutions such as hospitals, schools, and other social services. Given a widespread perception (not unjustified by evidence) that policing terrorism involves a considerable degree of ethnic and/or religious profiling, and the invidious targeting of Canadian Muslim and Arab communities as especially suspect, the controversies surrounding the listing of terrorist entities only adds to the perception on the part of some communities of bias on the part of a state that is dedicated officially to promoting multiculturalism.

The impact of the powers of investigative hearing and preventive arrest is remarkably limited, despite the controversy that attended their enactment, symbolized in the extraordinary addition of sunset clauses. To date there has been no use of the preventive arrest power, and the sole instance of the investigative hearing has been in relation to the investigation into the two decades old Air India case

In summary, it is unclear that C-36 has enabled the government of Canada to step up significantly the domestic war on terrorism. Some of the more contentious clauses (preventive arrest and investigative hearing) appear to have been enacted more for symbolic than substantive reasons. Much of C-36 is only indirectly related to anti-terrorism. By closing some possible loopholes and replacing antiquated and ineffective national security-related statutes with modernized instruments, the federal government has potentially strengthened its hand, but to date the actual use of new powers in terms of public prosecutions or known investigations has hardly been dramatic. The legislation has stirred considerable controversy, particularly in targeted ethnic communities, but also among civil libertarians and in Parliament, where concern about the potential for misuse of enhanced powers has been growing.

Perhaps the single most important shortcoming of C-36 was the failure of the government to create an appropriately wide and comprehensive accountability, review, and oversight mechanism to cover all aspects and institutional manifestations of the national security policy function. The scandal that has grown around the case of Maher Arar, forcing a special public inquiry points to the weakness of the present fragmented, discontinuous, 'jerry-built' accountability structures and practices.

11.2 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.

I would define terrorism as political violence perpetrated by organized non-state actors, directed mainly against non-combatants, for the purpose of influencing or intimidating targeted governments and publics. The question of state sponsorship or support of terrorist activities is secondary to the distinguishing characteristic that terrorists are non-state actors who organize their actions across national boundaries and outside direct state jurisdiction.

The question of the political objectives of terrorist actions is an important one that leads to a major distinction that may be drawn between [a] terrorist actions that form part of a broader political program that is negotiable within acceptable international norms; and [b] terrorist actions that are either ends in themselves or are part of a broader program that is non-negotiable within existing structures and norms.

In the former category are political struggles that have involved at some times and circumstances terrorist methods but have ultimately resulted, or may result, in negotiated settlements or ongoing peace processes that will, if successful, ultimately eliminate terrorist activities. Examples are the IRA in Northern Ireland, the ongoing Israeli-Palestinian conflict, and the Tamil Tigers in Sri Lanka.

Examples of the latter category would include millennial groups like Aum Shinrikyo in Japan, and Al Qaida, responsible for the 9/11 attacks, and other jihadist and extreme Islamist networks. Although the latter may declare certain political objectives (a Palestinian state, removal of 'infidels' from Saudi Arabia, etc.), the broader aim appears to be a non-negotiable holy war without end against the West, and against what they consider traitor regimes in the Muslim world. With the 9/11 attacks, it would appear that these latter groups have abandoned all prudential constraint about the magnitude of civilian casualties, limited only by the technical capacity at their command. Since their aims are non-negotiable and not amenable to political settlement, the threat posed by such groups is exponentially greater than that posed by terrorist organizations in the former category, where a variety of political and diplomatic tools are appropriate, along with prudent but measured anti-terrorist security measures.

In the post 9/11 environment, the most difficult aspect of anticipating potential terrorist threats lies in the open-ended nature of the new terrorism. If the terrorists are indifferent to the negative reactions to their actions, if they display no interest in gaining sympathy from the targeted populations for their cause, if inflicting maximum death and suffering is their primary objective, then developing worst-case threat scenarios must be an intrinsic part of anti-terrorist planning. The 9/11 model, in which commercial airliners were employed as bombs is probably understood well enough now that security measures are sufficient, presuming these are effective and consistently applied. But scenarios in which weapons of mass destruction (nuclear, chemical, biological) are deployed by terrorists in new and unanticipated ways must be taken very seriously.

There are limitations on the potential use of WMDs. A key variable is the matter of the delivery and effective diffusion of WMDs, even assuming that terrorists have any reasonable chance of acquiring usable capability (in the case of nuclear technology, this is still at present only a remote possibility). Dispersing biological or chemical agents to maximize casualties is no simple task, as the anthrax episode in the US would indicate. Even communicable diseases like smallpox are not readily convertible into mass epidemics. The threat of so-called 'dirty' nuclear or radiological bombs is serious, given the relative ease with which such devices might be assembled, but the direct destructive locus is not large, although the economic damage might be considerable. However small the threat, however, the consequences of WMD terrorism are sufficiently grave that extreme precautions are required.

Another major threat category is critical infrastructures, and the extensive economic and public health damage that could result from aggressive disruption of essential service infrastructures. In certain cases, particularly nuclear power facilities, there exists a serious risk of double jeopardy: immediate disruption to supply, but as well the potential for a Chernobyl-type fallout catastrophe.

The WMD and critical infrastructure threats must be seen in the context of recent serious public safety and health threats that are non-terrorist in origin: the SARS epidemic, the BSE scare, the great Eastern North American power blackout, and the British Columbia forest fires. These and other potential threats pose similar problems to those posed by terrorist WMD/critical infrastructure threats, and could conceivably be experienced in conjunction with opportunistic terrorist attacks. All should be viewed along a spectrum of public safety concerns, among which terrorism is only one, and does not necessarily hold a privileged place.

Canada is not likely to be a prime target for international terrorist networks, which will continue to focus on American (and perhaps British) targets for maximum political effect. However, the recent displacement of Al Qaida-related attacks onto relatively 'soft' targets in Muslim countries like Bali, Morocco, Saudi Arabia, and Turkey (likely under autonomous control of local terrorist groups only loosely linked to or associated with Al Qaida) following the hardening of US homeland security, does suggest a warning to Canada. Opportunistic attacks on what are perceived to be soft targets could threaten Canada, if appropriate security measures are not enacted. In addition, critical infrastructures on Canadian soil are in many cases integrated into American systems and thus could attract terrorist attention mainly focused on the potential damage to the US.

Finally, of course, the Canadian economic stake in an open border with the US requires that Canada establish whatever levels of security are necessary to reassure Americans that their northern border is not a security risk. The Smart Border agreements are a good first step in this direction, but the idea of a 'North American security perimeter' must not be understood in a limited geographical sense. In today's integrated global context, an effective security perimeter is everywhere where goods or people originate that are destined for entry to the North American continent. Eventual worldwide pre-clearance of container traffic is one example of effective perimeter security. More generally, global anti-terrorist intelligence is the most advanced defence. Canada, without a central foreign intelligence agency of its own, makes only modest contributions to the counter-terrorist intelligence networks, and is highly dependent upon the cooperation of the US in particular. This makes Canada vulnerable to the limits and weaknesses of American intelligence (especially noticeable in human intelligence sources on Islamist terrorism) and to the interpretation placed upon intelligence by American foreign policy and American perception of their own national interest.