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

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6. CONCLUSIONS

The principal aim of this project was to ascertain the major effects of Bill C-36, the Anti-Terrorism Act, an omnibus bill introduced by the Government of Canada to combat terrorism in the aftermath of the events of September 11, 2001. To achieve this aim, the Department of Justice identified a number of academic experts on terrorism and asked them to provide written responses to questions on the impact of the Act, the threats faced by Canada, and on the measures this country ought to consider in responding to these threats.

The participating scholars formed a diverse group geographically, as well as in terms of their academic backgrounds. They were drawn from law schools, international studies, conflict studies, programs in governance, and history departments. As the original pool of experts was not selected randomly, the participants cannot be taken to be a representative sample of all Canadian scholars with expertise in the area of terrorism.

6.1 The Impact of the Anti-Terrorism Act

Many of the participating scholars indicated that it was too early to assess the impact of the Act as many of the most contentious powers under it have not been used. It was also pointed out that the Act's ability to deter terrorist attacks is difficult to determine, as the absence of such incidents can indicate that the measures taken have been successful or simply that the objective threat has been minimal.

Highlights:

• Participants were divided in terms of the extent to which the Act provided enhanced deterrence and facilitated the disclosure of information by terrorist suspects fearing prosecution;
• Some participants argued that intelligence of high value has been obtained from intercepted communications and the tracking of terrorist financing;
• Several participants noted that the Act promotes Canadian sovereignty, intelligence sharing, and the economic interests of Canada by reassuring allies, especially the United States, that Canada takes the terrorism threat seriously;
• It was pointed out that the Act supports international initiatives by inducing Canada to sign two major United Nations conventions relating to terrorism;
• Many participants expressed a concern with any statutory definition of terrorism, given the lack of consensus on a definition;
• There was a difference of opinion among a small number of participants about the “breadth” of the definition of terrorism under the Act (i.e., whether it was desirable to create offences only remotely related to a terrorist act);
• There was some concern that including political, religious, and ideological motives within the Act's definition of terrorism may serve as an impediment to conviction;
• Participants were deeply divided on the impact of the Act on civil liberties, ranging from those who felt that there was a minimal erosion of rights to those who regarded the Act as “un-Canadian” and as a betrayal of Canadian values;
• Participants agreed that Arab and Muslim Canadians, as well as organizations doing humanitarian work in the Middle East, would likely be disproportionately affected as a result of the new legislation;
• Several participants felt that the listing of terrorist entities was a highly partisan and arbitrary exercise and that this practice would stigmatize those listed as well as exacerbate inter-ethnic and religious tensions in Canada; and,
• Many participants believed that the oversight mechanisms under the Act were inadequate (e.g., in monitoring various law enforcement activities and the exercise of executive powers).

6.2 Emerging Trends in Terrorism and Threats Faced by Canada

Many of the participants alluded to the transformation of terrorism in the post-September 11^th era. Specifically, they spoke of the abandonment of restraints in terrorist attacks, the pursuit of mass casualties, and the danger of an attack involving weapons of mass destruction.

Highlights:

• Participants noted that state sponsorship of terrorism has declined and has been replaced by religious extremism funded by criminal activities and fundraising in uninvolved countries;
• There was agreement that the greatest threat was posed by Islamic extremist groups motivated by the Arab-Israeli conflict, as well as by an opposition to western-style democracy, secularism, and liberal values;
• The Al-Qaeda network was seen as decentralized, global in its scope, and as making use of modern technologies to communicate and transfer funds;
• While participants were divided on the issue of whether the risk of a terrorist attack in Canada is increasing, there was some consensus that Canada was not a primary target;
• There was also some agreement that recent attacks on “soft” targets and the detention or arrest of Canadians with connections to Al-Qaeda suggest that this country is not immune to a major terrorist attack;
• Factors mentioned by participants as contributing to Canada's vulnerability include Canada's multi-cultural character, its involvement in military operations in Afghanistan, and its proximity to and economic integration with the United States; and, The type of threats to Canada identified included direct attacks on:
  • Canadian targets at home or abroad;
  • American, British, Israeli, or Jewish interests within Canada;
  • critical infrastructure shared with the United States;
  • the United States launched from Canada;
  • and Canada or bordering states involving WMDs.

6.3 Canada's Response to Terrorism

Overall, participants stressed that a multidimensional response was required in dealing with terrorism, including effective legislation, intelligence, and police work, as well as critical infrastructure protection and government policies designed to promote the values and interests of Canadians. Several participants supported a comprehensive approach to dealing with all threats faced by Canada-including terrorism-and the prioritization of these threats. Such an approach can be pursued only with the cooperation of public and private agencies that have responsibilities in addressing these threats. Participants also discussed the importance of establishing a central threat assessment capacity and a review of risk assessment methodologies toward the end of identifying the capabilities and intentions of terrorists, as well as the vulnerability of various targets.

Several participants mentioned the need for a measured response that is sustainable financially, respects civil liberties, and does not alienate various communities, so they do not become a more fertile ground for recruitment by extremist groups. Notwithstanding the admonitions to avoid over-reacting to the terrorist threat, it was pointed out that preserving the safety of Canadians is a fundamental moral and legal obligation of the government.

Highlights:

• Several participants stressed the importance of investing in Canada's intelligence capability, as well as sharing intelligence among relevant public and private sector agencies;
• It was stressed that an improved intelligence capability abroad and the sharing of same with allies results in the receipt of more valuable intelligence in exchange;
• One participant stressed the need to monitor financial flows, personnel movements, terrorist recruitment, and incitement, so as to protect the integrity of Arab and Muslim religious, educational, and communal institutions;
• It was also suggested that Canadian laboratories require monitoring, to prevent terrorist recruitment and training;
• Some participants stressed the need to consult with and empower ethnic groups from troubled areas to prevent their alienation and expressed concern about profiling at border crossings on the basis of ethnicity or nationality alone;
• Two participants questioned the utility of the criminal law in combating terrorism, expressed concerns about civil liberties, and argued that the tools available prior to the enactment of the Anti-Terrorism Act were sufficient in dealing with major crimes;
• While some participants expressed reservations, several argued that Canadian foreign policy should aim to alleviate the “root causes” of terrorism through such measures as strategically directed foreign aid and peacekeeping operations;
• While several participants called for increased investments in Canada's military toward the end of an enhanced peacekeeping role and in combating insurgents in Afghanistan, others expressed the reservation that military force merely disperses terrorism and is costly in terms of human life and personal liberties;
• One participant noted that Canada must skillfully navigate a sovereign course in foreign policy while cooperating with the United States in areas of agreement;
• Several participants stressed the importance of enhancing critical infrastructure protection, crisis management, and emergency response capabilities, as well as tighter controls over hazardous materials;
• Participants asserted that there was a need for improvements in accountability structures, oversight, and review of law enforcement and other activities undertaken pursuant to the new powers conferred under the Anti-Terrorism Act;
• Several participants stressed the importance of obtaining the public's buy-in (e.g., by raising awareness about the terrorist threat) with regard to counter-terrorism measures in order to achieve public cooperation in security measures and a sustainable national security strategy;
• Participants indicated that security at the Canadian border and throughout the perimeter of North America was essential in protecting Canada and in maintaining the flow of goods within North America; and,
• Participants asserted that Canada stands to surrender its sovereignty and compromise its national security if it is overly dependent on its allies and ineffective in its counter-terrorism efforts.

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