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

5. Evaluation findings (cont'd)

5. Evaluation findings (cont'd)

5.2. Success in meeting objectives

This section considers the success of the Department in meeting each of its main objectives for the PSAT Initiative.

5.2.1. Engaging with others in relevant public safety and anti-terrorism activities

Because the Initiative is government-wide, involving a substantial number of federal departments and agencies that are a cross-section of the government, it has had the positive result of more consultation and coordination among government organizations in the area of national security. Interviews revealed a broad network of engagement among departmental sections and other government departments/agencies.

For issues that affect several departments, the Department of Justice or another department may form an Interdepartmental Working Group (IWG); for example, there are IWGs for the ATA parliamentary review, on aspects of the Air India inquiry, and on marine security. From what the evaluation could determine, the decision on whether to establish an IWG appears to be made on a case-by-case basis.

Within the Department a number of sections have a role in engaging others on PSAT-related matters. The CLPS coordinates work around legislative and policy development. The NSG is responsible for the breadth of the security and intelligence sector in support of the Minister and Deputy Minister as well as operational responsibilities in relation to section 38 CEA. The LSUs provide advice to clients on PSAT-related matters. Regional offices represent the Attorney General of Canada (AG) before the courts. When the Department of Justice is not the lead department, for example, in matters involving the PSA, its role is to respond to requests from other departments. Generally, coordination was described as being driven more by events or by specific initiatives rather than as part of a larger national security strategy.

There is also a significant informal process of engaging with others, where the level of coordination, and its success, depends on the individuals involved. However, an approach that seemed to be effective, and also less dependent on individual initiative, was in the drafting of the ATA and the ATA review. In this endeavour, there were regular, formal consultations, as these files required concentrated attention. Those involved generally said that they found the process effective, and some suggested using this approach more often. Several key Justice contacts believe that more coordination and collaboration would improve information-sharing; would ensure that cooperation filters down from the managerial to operational level; and would build a greater understanding of the different cultures around security issues (particularly between prosecutors and the intelligence community). Communication among sections in HQ generally appears to work well, but between HQ and the regions and/or LSUs, it is somewhat less smooth. The regions and LSUs would benefit from receiving more information about the Department's work within the Initiative as well as having more input into its PSAT activities.

5.2.2. Assisting in the development of more effective laws, regulations, and policies

ATA and PSA.

Both the formative and summative evaluations found that the Department's PSAT work on the ATA and the PSA was valued by the other government departments involved with these pieces of legislation. The IWG for the ATA led by the CLPS was considered highly effective in coordinating all of the involved departments and ensuring that the various interests were considered and addressed in the development of the legislation and the support of government efforts with respect to the Parliamentary Review of the ATA. However, because terrorist-related investigations and prosecutions are complicated and protracted, no prosecutions have been completed more than five years after the ATA was enacted. Therefore, one measure of effectiveness – convictions – has yet to be achieved.

Since the enactment of the ATA and the PSA, the Department's role in the PSAT Initiative focuses largely on monitoring and supporting the existing legislation rather than on drafting new anti-terrorism and public safety legislation. New policy and legislative developments have been deferred until the review is complete. Also, because the ATA is an omnibus piece of legislation that responded to broad international and national imperatives, the government did not expect that major additional legislation would be required in the near future. Rather, it was anticipated that some time would be necessary for determining how well the legislation was working, and the parliamentary review scheduled within the ATA set the time frame for any large-scale reassessment.

Drafting legislation since 2001.

Various sections of the Department are involved in the drafting of legislation. For example, the CLPS develops criminal legislation in the areas of anti-terrorism and national security, and the LSUs draft legislation when their respective department is the lead. Other sections provide advice within their subject areas: IAG on extradition matters; the PLG's Human Rights Section on Charter issues; and NSG on security of sensitive information. CLPS also provides legal advice, and helps to coordinate departmental legal advice, on various national security matters.

Legal advice is provided on a variety of legislative proposals, some of which deal directly with public safety or anti-terrorism, but many of which have an indirect effect on national security. Not all of these legislative proposals become law, but they nevertheless require the attention of legal counsel. Again, it is difficult to talk about “outcomes” when it comes to the provision of legal advice or the drafting of legislation. The activity itself is, in a sense, the outcome. The fact that proposed legislation may not become law cannot be considered a reflection on the work done, as the legislative process is much too complex to attribute cause and effect on that basis alone. Indeed, satisfaction among their client departments and agencies may be the best measure. In this regard, clients generally believe that they have received high quality and timely legal advice from the Department, and that this advice is critical to their ability to develop and effectively pursue a legislative agenda. At the same time, the evaluation found that inadequate resources sometimes prevented staff from being able to fully meet the PSAT-related needs of clients' departments. Examples of this included lawyers being unable to attend meetings because of insufficient staff; legal advice being delayed; and an already heavily burdened department hesitant to agree to new international commitments.

Areas of legislative and regulatory development in which the Department has been involved include the following examples.[19]

Developing new policies or initiatives.

Since the ATA, several protocols have been developed to assist with anti-terrorism work at the operational level.

Monitoring and reporting.

Certain monitoring and reporting activities are essential to the implementation of Canada's anti-terrorism laws.

The situation at home and abroad is monitored to assess whether changes should occur in the present legal framework, or what the response should be to new developments.

Other government departments and agencies do not monitor national and international legal developments, and they rely on the Department to advise them on other countries' legislation or any international instruments that might affect them, as well as potential impacts of domestic inquiries and litigation.

Parliamentary review.

Under section 145 of the ATA, three years after receiving Royal Assent, the legislation must undergo a comprehensive parliamentary review. In December 2004, both the House of Commons and the Senate authorized the review to begin. For the House of Commons, the Subcommittee on Public Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness conducted the review. The Senate established a Special Committee for its review of the legislation.[20] Hearings began in February 2005, and the House Subcommittee expanded the scope of its review to include both section 4 of the Security of Information Act and the security certificate provisions of the Immigration and Refugee Protection Act.[21] The Senate Committee has also expanded its mandate beyond the ATA to cover national security issues more broadly.

The ATA parliamentary review has required substantial efforts. CLPS resources were supplemented through the PSAT fund by the establishment of the ATA Review Team. Preparation for the ATA included research and development of materials for use in the parliamentary review, including briefing materials; background documents to explain the ATAand its use/impacts; compilations of other countries' legislative frameworks; analysis of academic research; and communications materials. Advice was provided to other participating government departments, and departmental representatives attended the committees' hearings in order to stay apprised of the proceedings.

The IWG for the ATA review is chaired by the Team Leader of the ATA Review Team. This IWG includes about 60 members from a variety of departments and agencies, including CBSA, CIC, FINTRAC, DFAIT, Finance, Revenue Canada, DND, RCMP, CSIS, Transport, PSEPC, and PCO. Representatives of member departments' LSUs sit on this IWG. The IWG started meeting in early 2004, in preparation for the review. Other sections, such as NSG and the Human Rights Law Section, also assisted with the ATA review by providing briefing materials and advice. The CLPS, through the IWG, keeps other government departments and agencies informed about the parliamentary review. Clients have found this useful because it keeps them abreast of the proceedings.

In 2006, the House of Commons Subcommittee on the Review of the Anti-terrorism Act issued an interim report with recommendations dealing with the investigative hearing and recognizance with conditions. It did not request a Government response to these recommendations. These provisions ceased to exist on March 1, 2007 following debate in the House of Commons. The Subcommittee completed its study of the ATA and related matters on February 20, 2007 and issued its final report with recommendations in March 2007. For this part, the Senate Special Committee on the Anti-terrorism Act issued its recommendations in February 2007 and provided a supplementary report in March 2007. It has not requested a Government response. At the present time, therefore, the Government is obliged to respond to the February 2007 House of Commons Subcommittee report.

The CLPS will coordinate and draft a response to this report with input from other sections. If the government's response to the ATA review ultimately requires new legislation, the work on implementing the recommendations from this review and other possible law reform could continue for another two to three years and require substantial resources.

The remainder of this section addresses, more generally, both the challenges and effectiveness of the development of legislation and policies relating to the Initiative.

Balancing security concerns with fundamental human rights.

It is the role of the Department to ensure that both fundamental human rights and national security are protected and that this responsibility extends to other departments involved in the PSAT Initiative. Striking this balance between security concerns and fundamental human rights is sometimes challenging. Since the ATA became law, the constitutionality of certain provisions has been the subject of three court decisions. In the first case, In the Matter of an Application under section 83.28 of the Criminal Code, the person named in an application for an investigative hearing order (as part of the Air India case) challenged the application on the grounds that the investigative hearing provision violated the Canadian Charter of Rights and Freedoms by infringing on a person's right to silence and protection against self-incrimination. First, the British Columbia Supreme Court, and then the Supreme Court of Canada, held that the investigative hearing provision was constitutional.[22]

The other two court decisions came in October 2006 and both found that sections of the ATA violated the Charter. One case involved Juliet O'Neill, the Ottawa Citizen reporter whose home and office were searched and items seized as part of an RCMP investigation of unauthorized “leaks” of “secret official” government information.[23] The Ontario Superior Court held that certain provisions in section 4 of the Security of Information Act are unconstitutionally vague and violate the freedom of the press. While the law at issue is part of the ATA, it existed prior to the ATA and was incorporated into the new legislation.[24] The most recent case, also decided in October 2006 by the Ontario Superior Court, struck down the motive clause in the definition of terrorist activities, which required that the crime be motivated by politics, religion, or ideology. The court's ruling held that this provision violates the Charter's guarantees of freedom of religion, and of association.[25]

The need to strike a balance between protecting national security and human rights in the context of the heightened political and public concern about these issues, means that activities under the PSAT Initiative are subject to intense scrutiny by political leaders, ethnocultural communities and the general public.

Expertise in drafting policies and legislation pertaining to terrorism.

The Department has a strong reputation in drafting policies and legislation pertaining to terrorism and security issues. The evaluation found that other departments view Justice as the most suitable department to coordinate the government's national security policy, as it is aware of the legislation and regulations of all government departments and can ensure a consistent approach and message on national security issues. In addition, other countries look to Canada for advice and assistance in drafting their own anti-terrorism laws, and the ATA is considered by many international colleagues to be a model, particularly in the balance it strikes between national security and individual rights. In particular, the provisions in the ATA that other countries have shown interest in are the procedures for protecting sensitive information under section 38 of the Canada Evidence Act, and the due process protections for investigative hearings.

5.2.3. Increasing knowledge and understanding of laws and regulations related to public safety and anti-terrorism


The Department provided several training sessions on the ATA shortly after it was enacted to prosecutors, law enforcement officers (including the RCMP, the Ontario Provincial Police, and la Sûreté du Quebec), and LSU personnel, among others. The formative evaluation found that these training sessions and materials were well received. More recent training opportunities with PSAT-related content were described by some key contacts.

Many key Justice contacts indicated a desire for more training or educational opportunities related to anti-terrorism and national security. International conferences were mentioned as particularly beneficial as they offer a comparative law perspective, updates on international law developments, and information on best practices. These conferences are also considered an important opportunity to network with international counterparts, which will provide contacts to facilitate future work in the areas of international cooperation and assistance. Refresher training on the ATA could also be useful, but some key contacts noted that, while a legislative overview is useful for increasing basic awareness, there would still be a substantial learning curve if they were to become involved in an ATA case.

Additional suggestions included:

Outreach and education.

The Department has not engaged in substantial outreach or education to ethnocultural communities, and this is an area where there is potential for helping to increase an understanding of the legislative framework, how it operates, and the human rights protections it includes. Participants in focus groups conducted by the Department expressed concern with the potential for unequal or inappropriate application of the legislation.[26] In particular, participants from ethnic and visible minority communities worried about the potential for misinterpreting the definition of terrorism and the terrorist-financing provisions, as well as the possibility of ethnic stereotyping. While some key Justice contacts would like to conduct more outreach to explain Canada's legislation and remove misconceptions, they also reported that they currently do not have the resources to do so.

5.2.4. Improving the litigation and/or prosecution of terrorism-related cases

Use of legislative framework

The following section focuses on the ATA provisions with which the Department is involved.

Contribution to improving Canada's response to national security issues.

The evaluation explored the Department's contribution in a number of areas:

Complexity of PSAT-related work.

There are various factors that make handling civil and criminal anti-terrorism cases particularly complex, in particular, the number and novelty of the legal issues involved. Anti-terrorism cases typically involve activities that cross jurisdictional boundaries, including national boundaries; involve many areas of law; and require sophisticated investigation methods, all of which multiply the number of legal issues in a case. The ATA also breaks new legal ground, which means that there are few legal precedents on which to rely. This means that it is difficult to predict the correct legal course in all situations, and that it therefore requires counsel to be innovative in their arguments as they are making new law. Moreover, anti-terrorism cases involve many different departments that have their own mandates. This makes coordination challenging, and at the same time, vitally important, as failure to effectively collaborate may have legal consequences.

5.2.5. Improving international efforts in the fight against terrorism

The ATA responded to the U.N. Security Council Resolution 1373 that called upon Member States to ensure that their domestic legislation includes provisions to make it illegal to finance, plan, prepare or perpetrate terrorist acts. In addition, the ATA enabledCanada to ratify and implement several international obligations, including the International Convention for the Suppression of Terrorist Bombings, the International Convention for the Suppression of the Financing of Terrorism, and the Convention on the Safety of United Nations and Associated Personnel. Since the ATA was enacted, the Department has been engaged in activities that support Canada's role as an international partner in anti-terrorism efforts.

Participation in international or multi-lateral bodies.

Departmental representatives, particularly CLPS and IAG, have participated in a variety of international fora. The activities involve attending and participating in discussions at international meetings, supporting other Canadian departments at international meetings, and responding to requests made by international bodies for information on Canadian law and policies dealing with terrorism and national security.

Because terrorism is now discussed at most international meetings, this area of work has expanded considerably. By participating in international organizations and/or supporting other departments' work in international organizations, the Department of Justice ensures that Canada's legal system and anti-terrorism and public safety laws are understood, and the Department also gains a better understanding of other countries' systems. As one interviewee phrased it, “There are many differences among legal systems around the world, and a good understanding of these differences is key to effective international cooperation.” The Department's assistance in explaining the Canadian legal system is fundamental to Canada's ability to work with other countries. For example, the Department provides the necessary legal context for the international reporting that is required of Canada, so that bodies like the U.N. will understand that Canada is complying with its international commitments while remaining within the standards set by Canadian law. Client contacts who were interviewed considered the Department's advice to be of a high quality.

The following list provides examples of the Department's international activities associated with anti-terrorism and public safety:

Advice and assistance with international agreements.

As with domestic laws, various sections provide legal advice and technical assistance on negotiations of new international agreements. While DFAIT is often the lead, Department of Justice sections, such as CLPS, NSG, IAG, and the Human Rights Section, give advice within their areas of expertise. By participating in the negotiations or by providing this legal advice and assistance to other federal government officials involved in negotiating international agreements, the Department has helped to establish an international legal framework for anti-terrorism efforts. In particular, the Department ensures that international obligations and domestic laws do not conflict and that international agreements comply with the Charter and also meet international human rights standards.

CLPS participated in the negotiations of various international instruments, including the following:

The following are additional examples of recent international agreements that contain provisions related to anti-terrorism and public safety, and for which legal advice was provided:

Mutual legal assistance and extraditions.

The Department assists international efforts to detect and suppress terrorism through participating in international extradition and mutual legal assistance agreements. Canada is currently party to approximately 140 such agreements. Extradition agreements address the surrender of individuals to a requesting state or entity for the purposes of prosecution, imposition of sentence or enforcement of a sentence. Mutual legal assistance agreements address the gathering of evidence at the request of a foreign state or entity. These requests can encompass several matters, such as requests for obtaining documentary evidence, compelling witness testimony, or transferring a detained person to the custody of another country to assist an investigation.

The Minister of Justice is the central authority under the Extradition Act and the Mutual Legal Assistance in Criminal Matters Act. These acts implement Canada's responsibilities under various extradition and mutual legal assistance treaties (MLAT). The acts and treaties do not include provisions specifically directed to terrorism, but govern all extradition and MLAT requests. As the Minister's designate, the IAG handles all incoming (from foreign countries) and outgoing from Canada MLAT and extradition requests.

As part of its responsibilities, the IAG provides guidance and assistance to foreign authorities who make a request to ensure that they meet Canada's standards. Likewise, the IAG assists Canadian law enforcement and prosecutors with making requests of foreign countries. Most of this assistance is provided through HQ; however, the IAG has two counsel posted in Europe (Brussels and Paris) to assist European authorities with making requests. The decision to place these counsel in Europe predated the PSAT Initiative, and their work goes beyond PSAT-related matters; however, they have worked on terrorism-related requests and criminal investigations. Their presence is seen as a major benefit, as it ensures an immediate in-person response to any terrorism-related matters with a Canadian connection. The IAG liaison counsel in Brussels and Paris help build an understanding of the Canadian system in Europe, particularly in the area of MLAT and extradition requests, and this improves cooperation. Their presence also shows a Canadian commitment to providing prompt and undivided attention to terrorism issues when they arise.

The IAG handles all MLAT and extradition requests, so the portion of its work that comes under the PSAT Initiative are requests that have a terrorism or national security component. Since the Initiative began, the IAG has handled 56 terrorism-related MLAT requests (41 incoming and 15 outgoing) and 15 terrorism-related extradition requests (all incoming). For completed MLAT requests (not ongoing), 80% of those made by a foreign country and 75% of those made by Canada were executed. Among completed extradition requests (not ongoing), 66% (6 of 9) people were extradited to the requesting country. Table 7 provides the number of requests by fiscal year and an overall assessment of the results. The number of MLAT requests does not capture all of the IAG's MLAT work. In situations where another department of the Canadian government holds the evidence sought, the IAG will work to determine what information can be supplied voluntarily, as that is more expeditious than the formal request process.

Table 7: Terrorism-related extradition and mutual legal assistance treaty (MLAT) requests

Terrorism-related MLAT and extradition requests are labour-intensive as they involve many legal issues, many different national and international parties, the laws of more than one country, and sensitive information that triggers Section 38 procedures. Since the PSAT Initiative began, the number of hours spent by IAG counsel and paralegals on MLAT and extradition matters by fiscal year has fluctuated: 1,197 hours for 2002-03; 2,055 hours for 2003-04; 1,192 hours for 2004-05; 1,865 hours for 2005-06; and 1,160 for 2006-07 (as of November 6, 2006). Given the complexity and high profile of the terrorism-related requests, senior counsel are heavily involved in this work.

Capacity building.

Departmental representatives (mainly from the IAG and CLPS) engage in capacity building by providing advice and assistance to foreign countries on how to develop and implement their own anti-terrorism legislation. These efforts are conducted as part of international teams of experts organized by multilateral organizations, such as the Organization for Security and Cooperation in Europe (OSCE), the U.N. Office of Drugs and Crime, and Asia-Pacific Economic Cooperation (APEC). The Department of Justice was represented in trips to several former Soviet republics to help these countries develop laws on terrorist financing and money-laundering. The Department was also represented at workshops on anti-money laundering legislation in Central Asia to assist countries with developing laws, and the CLPS has assisted Asian countries with drafting legislation on cyber crime.

Capacity-building activities are an important part of the national and international response to the terrorist threat. By assisting other countries with developing their own anti-terrorism laws and fulfilling international agreements, Canada is promoting international cooperation and contributing to international efforts to fight terrorism. Key Justice contacts said that other countries view Canada's anti-terrorism and public safety legislation as a moderate approach that balances national security concerns and individual rights. For that reason, many countries want Canadian representatives to attend the meetings and workshops that are organized to assist them with developing their own laws. As a further example, the Commonwealth has drafted model provisions of anti-terrorism laws, many of which rely on Canada's legislation. However, key Justice contacts were clear that the Department does not have sufficient resources for capacity-building activities and has therefore had to decline opportunities to participate.

While the Department is assisting in Canada's international efforts, key Justice contacts offered suggestions for how the Department could do more. Some mentioned the expansion of liaison counsel, citing the French example. Currently, France has placed counsel in major capitals including Ottawa, and, according to key Justice contacts, this has improved working relationships, demonstrated a commitment to partnership, and created the ability to respond quickly to emergencies. The U.S. is beginning to follow the French lead, and key justice contacts believe that Canada should as well, in major national capitals where it receives the most MLAT and extradition requests. Another area of improvement was that of providing more resources for the Department to engage in capacity-building and attending international conferences. These activities are seen as helping the Department build a network with its international counterparts, and they generally improve international cooperation.

5.2.6. Providing legal aid to economically-disadvantaged accused affected by public safety and anti-terrorism initiatives

Under the PSAT Initiative, the Legal Aid Directorate receives funding to reimburse legal aid plans for their costs in providing legal counsel for individuals who are affected by public safety and anti-terrorism initiatives. Initially, it was expected that the demand for legal aid would primarily come from the immigration and refugee area, due to the enhanced border security measures post-September 11th. However, the context changed by 2003 when Legal Aid's terms and conditions with the TB were approved. The need for legal aid assistance is not focused on issues related to border control, but primarily involves prosecutions arising from terrorism and other public security offences established through the ATA and the PSA, as well as proceedings under the Extradition Act where the requesting state is alleging terrorist activities.

Terrorism-related investigations are very complex, involving sophisticated investigative methods and the need to gather evidence on activities that cross jurisdictional boundaries. Because developing a case takes time, few individuals have been charged under the ATA and almost all of these prosecutions are in their very early stages. In the past two years, since the approval of their terms and conditions, the Legal Aid Directorate has entered into a total of 25 contribution agreements (nineteen in 2005-06 and six in 2004-05). The amount of money spent was $300,000 for each of these two fiscal years. Defending individuals charged under the ATA will likely be very costly, given the complexity of the issues and evidence involved, and the expenditures of legal aid will continue to grow as the prosecutions progress. Given the high cost of mounting a defence, the provision of legal aid is vital to ensuring access to justice for the accused. To date, there is no known instance of an unrepresented defendant in a terrorism-related case, although key Justice contacts were uncertain whether all defendants have had representation at their initial appearances.