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

3. THE IMPACT OF THE ANTI-TERRORISM ACT

3.1 Impediments to Assessing the Act's Impact

Many of the participants indicated that it was too early to gauge the impact of the Anti-Terrorism Act as many of the most contentious powers created by it have not yet been used. There have been no substantial investigative or prosecutorial successes and no use of the preventive arrest power. The investigative hearing provision has been used only once (in the Air India case) and the witness in that case has challenged the requirement to provide compelled testimony.

Some of the participants added that outside observers have little knowledge of how frequently and to what effect the Act's investigative tools have been used. For example, Whitaker notes that the effect of permitting the Communications Security Establishment to monitor some communications in Canada and between Canadians is unknown. Brynen points out that this information would require a study of dossiers by the Security Intelligence Review Committee. He adds that the Act just addresses investigative tools and legal reforms, and not the additional funding to law enforcement, security, and other agencies. He notes, however, that additional resources offer no guarantee of more effective operations.

Another unknown is the possible deterrent effect of the Act. Deterrence is notoriously difficult to measure as one never knows whether the absence of a terrorist incident is attributable to a particular intervention (in this case the legislation) or the mere absence of an objective threat. As Wark succinctly notes: “Nor can deterrence really be measured except through its failure.” Overall, Sossin asserts that both opponents and proponents have been vindicated as “Critics who said it [the Act] was unnecessary largely have been vindicated by this fact [its infrequent use], but so have supporters who said it would not be abused or applied in inappropriate settings.”

3.2 Deterrent Effects, Enhanced Intelligence, and Added Leverage in Prosecutions

Notwithstanding the lack of successful prosecutions under the Act, Rudner notes that the Act has had a powerful deterrent effect on those who may have otherwise supported now-banned organizations. By outlawing incitement, recruitment, fund-raising, money laundering, and participation in terrorist activities, those in the relevant communities may have desisted from these activities. Also, according to Rudner, these prohibitions may have encouraged the more moderate elements within the Muslim community to resist the “extremist subversion of communal institutions.”

Wark points out that CSIS has claimed that it has forced terrorist groups and individuals to alter their behaviour in Canada, though the truth of this claim cannot be substantiated. Rudner adds that the Act has significantly enhanced the intelligence function. “The interception of terrorist communications and the tracking of terrorist financing has reportedly yielded high value intelligence resulting in the disruption of terrorist activities and plans in this country and abroad.”

By contrast, Martyn notes that the Act fails to provide added security to Canadians because any legislation in this area must be part of “an overarching, coordinated national security policy, which Canada presently lacks…”

Stribopoulos adds that while the Act's primary goal is to increase their collective sense of security, Canadians continue to fear terrorism and have increasingly come to fear their own government due to the abuses associated with the Act.

Rudner asserts that the lack of prosecutions under the Act, preventive detentions or elicitations of compulsory testimony do not preclude the effectiveness of the criminal law provisions as “the availability of strong legal instruments gives investigators and prosecutors important leverage for persuading terrorist suspects to open up, enabling them to elicit information in return for more lenient treatment.”

Roach, on the other hand, argues that additional levers to induce cooperation, such as the threat of being held in contempt of court or prosecution for non-cooperation, are not likely to be effective in the case of a determined terrorist. Therein lies the dilemma with regard to anti-terrorism law. Roach asserts that measures, such as those adopted in Canada, may be too tough in dealing with religious or political extremists viewed by authorities as threats or in dealing with those associating with persons or groups thought to be terrorists. However, such measures may be inadequate in deterring hardcore terrorists who may be prepared to die for their cause.

Roach further asserts that the preventive arrest power provided for under the Act was not used in the first year, indicating either that law enforcement agencies prefer to keep terrorist suspects under surveillance or that these agencies are encountering difficulties in identifying terrorist suspects. He adds that Canada has relied almost exclusively on immigration law in countering terrorism. So far the utility of the Act as an anti-terrorism device seems limited.

Wark notes that the government has moved slowly in creating a list of terrorist entities. “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 when the combination of laws and good judgement exist to safeguard Canadians' security and liberty.”

Whitaker adds that there appears to be little return, as yet, from monitoring money laundering undertaken in the interests of terrorism. Although FINTRAC has reported two dozen cases, no criminal prosecutions appear to have been undertaken to this point. In addition, extended powers of electronic surveillance were promised but have not reached legislative form.

3.3 Symbolic Benefits of the Act

Several of the participants asserted that the Act produced some symbolic benefits to Canada and the international community in its efforts against terrorism. The mere enactment of the Act, they say, reassures the United States that Canada is taking the terrorism threat seriously. Such signals to the Americans protect Canadian sovereignty, promote intelligence sharing, and maintain the flow of commerce between the two countries. Farson points out that there is a sense among senior intelligence officials that if Canada does not protect US interests in Canada, the US will step in and do so.

Also, Martyn points out that the Act supports international initiatives by inducing Canada to sign two major United Nations conventions dealing with terrorism: the Suppression of Terrorist Financing and Suppression of Terrorist Bombing Conventions. Furthermore, Wark asserts that the Act “may have altered the threat environment” by sending the message that Canada is not a safe haven to those contemplating terrorist attacks or supporting activities in this country.

3.4 Issues Relating to the Definition of Terrorism and the Scope of the Act

Many participants expressed a concern about any statutory definition of terrorism, due to the lack of consensus on a definition by scholars and the suggestion by a number of participants that terrorism was a relative concept.

Whitaker indicates that the Canadian definition of terrorism has been criticized for including motive (“ a political, religious or ideological, objective, or cause ”). “ This criminalization of motive is perhaps unnecessary and inherently risky, and may prove in future to be vulnerable to judicial challenge. ”

Roach points out that proving that terrorist acts have been committed for religious or political motives requires the police to investigate the religious and political beliefs of terrorist suspects. He indicates that while this aspect of the Act was intended to “restrict the ambit of crimes of terrorism” he suggests that it may be counterproductive, making conviction more difficult. He notes that previous acts of terrorism in Canada (e.g., the Air India case) has been dealt with under ordinary criminal law.

Roach adds that in the case of Suresh v. Canada, the Supreme Court implicitly rejected the broad definition of terrorism contained in the Act and defined terrorism for the purpose of immigration law as an “ …act intended to cause death or serious injury to a civilian, or to any person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act by its nature or context is to intimidate a population or to compel a government or an international organization to do or abstain from doing any act.” Roach notes that adopting the Suresh definition into the Act could ease concerns about “ overbreadth in the definition of terrorism. ” However, he is concerned that defining terrorism under the Immigration Act by virtue of the Act “ would expand the definition of terrorism used under that act and result in special dangers given the absence of due process protections under immigration law. ”

Roach is also concerned about the criminalization of a broad range of activities preceding the commission of a terrorist act (e.g., provision of finances and assistance to terrorist groups), due to a lack of “proximate nexus” to any planned terrorist act. He does acknowledge, however, that many of the financing provisions must be retained to comply with the 1999 international convention on terrorism financing to which Canada was a signatory. He further notes that people can even be prosecuted for terrorism threats. He argues that the criminalization of such threats ought to be reconsidered since expressions of political and religious views are protected under the Charter of Rights and Freedoms.

Whitaker, on the other hand, notes that the new offences of facilitating terrorism “are reasonable tools for government to control activities and track networks designed to be fluid, decentralized, and resistant to investigation.”