Public Safety and Anti-terrorism (PSAT) Initiative,
Summative Evaluation

2. Policy context and legislative framework

Policy context.

Domestic concerns, as well as international calls for action after the September 11th terrorist attacks, created a need for a rapid government response. On September 28, 2001, the United Nations Security Council unanimously adopted resolution 1373, which called upon Member States to ensure that their domestic legislation includes provisions to make it illegal to finance, plan, prepare or perpetrate terrorist acts. Member States were also to take steps to facilitate cooperation with other countries' criminal investigations related to terrorism, and to adopt border control measures to prevent the movement of terrorists. The level of urgency is seen in the requirement that Member States were to report on actions taken within 90 days from the date of the resolution's adoption.

The Canadian government responded through legislative and policy actions. In late September 2001, the Prime Minister created the Ad Hoc Cabinet Committee on Public Security and Anti-Terrorism to coordinate Canada's response. This committee, which included a representative from Justice, reviewed proposals submitted by 17 relevant departments for activities to support the Initiative's five main objectives:

Based on the work of the Committee, the government announced the federal plan for “Enhancing Security for Canadians” in its December 10, 2001 budget speech, and allocated $7.7 billion (over 5 years) to increase the government's capacity in the areas of public safety and anti-terrorism, which became known as the PSAT Initiative.[3]

Legislative framework.

In addition to this policy response, the government began work immediately on domestic legislation to strengthen Canada's laws on terrorist activities and public safety. The result was the ATA and the PSA.

The Department of Justice drafted legislation that amended numerous statutes, implemented international conventions, and created new criminal offences. The government introduced the ATA on October 15, 2001, and it received Royal Assent on December 18, 2001, within the 90 days called for in UN resolution 1373. CLPS led the development of this legislation. The first version of the PSA received a first reading in November 2001, but the government re-introduced the Bill three more times before the PSA received Royal Assent on May 6, 2004. The development of this legislation was led by the Department of Transport Canada, including its Legal Services Unit.

This legislation changed Canadian law by enhancing the powers of investigative authorities, particularly by allowing for preventative arrests, preventative detentions and investigative hearings, focusing on combating terrorism before it happens. The PSA provides increased powers to Ministers in cases of emergency. Key provisions in each of the Acts are listed below.

Key legislative provisions

Anti-Terrorism Act

New measures to identify, prosecute, convict and punish terrorists
New definitions:
The ATA introduced into the Criminal Code definitions of terrorist activity and terrorist group.

New offences:
The ATA created several new terrorist offences, including participating in, contributing to, or facilitating any activity of a terrorist group; instructing anyone to carry out a terrorist activity; and knowingly harbouring or concealing a terrorist. The ATA also created a number of new terrorist financing offences.

Increased sentences:
The ATA set the maximum sentence of any indictable offence, if it was committed for the benefit of, at the direction of, or in association with a terrorist group, to life imprisonment.

Implemented international conventions:
Canada had signed all 12 UN conventions related to terrorism, but had not ratified two of them. The ATA ratified and implemented Canada's obligations under the remaining two conventions, and also implemented the Convention on the Safety of UN and Associated Personnel.

New investigative tools
Recognizance with conditions, or preventative arrest powers:
Peace officers can apply to a judge to have the judge cause a person to attend before him or her in order to determine if a recognizance with conditions should be imposed on a person in order to prevent the carrying out of a terrorist activity, provided certain conditions are met. Peace officers have the power to arrest persons without a warrant and generally hold them for 24 hours. This power ceased to exist on March 1, 2007.

Investigative hearings:
Peace officers can apply for a court order to compel individuals believed to have information on a terrorism offence to attend a hearing and answer questions, provided certain conditions have been met. This power also ceased to exist on March 1, 2007.

Use of electronic surveillance:
The Act extend the provisions applying to the use of electronic surveillance against criminal organizations to include terrorist groups.

Protection of sensitive information
Disclosure in legal proceedings:
Section 38 of the Canada Evidence Act was amended to include new procedures protecting the disclosure of sensitive or potentially injurious information during legal proceedings when that disclosure could affect international relations, national defence, or national security.

Public Safety Act 2002

Emergency powers:
Federal Ministers have new powers in emergency situations (in areas such as health, safety, and the environment).

New offence:
The PSA created a new offence of terrorist hoax, making it a crime to convey false information that a terrorist activity is likely to occur or to commit an act that causes a reasonable but false apprehension that a terrorist activity is likely to occur.

Increased data sharing:
Advanced Passenger information can be shared with Transport Canada, the RCMP and CSIS.

Increased airport security:
This is accomplished particularly in screening passengers and in declaring certain areas of aircraft and airports to be restricted.

Because of the sweeping new authority provided in the ATA, and to respond to concerns expressed by the Canadian Bar Association among others, Parliament amended the ATA to provide provisions that strengthen oversight of its use. The ATA requires annual reports to Parliament on the use of the recognizance with conditions and investigative hearing provisions. Sunset clauses were added to these provisions and in addition, three years after receiving Royal Assent, the ATA has been required to undergo a comprehensive parliamentary review.[4]