The Anti-terrorism Act

Backgrounder

The Government of Canada enacted the Anti-terrorism Act (ATA) in 2001 to combat terrorism and terrorist activities at home and abroad. Outlined below are the main provisions of the ATA.The ATA implements a number of Canada's international obligations in the fight against terrorism. In particular, it implemented our obligations under the following conventions :

• The Convention for the Suppression of Terrorist Financing relates to the freezing of terrorist property by prohibiting dealing in any property of a person engaged in terrorist activities and prohibiting making available funds and financial or other related services to terrorists. The ATA fulfilled Canada's obligations under this convention creating a number of Criminal Code offences against the financing of terrorism. As well, the Criminal Code allows a Federal Court judge to order the freezing, seizure and forfeiture of property used in or related to terrorist activity.
• The Convention for the Suppression of Terrorist Bombings contains provisions relating to the targeting of public places, government or infrastructure facilities or transportation systems with explosives or other lethal devices, including chemical or biological agents.

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Through the ATA, Canada implemented and was able to ratify the Convention on the Safety of United Nations and Associated Personnel, which relates to ensuring the safety of UN personnel, including peacekeepers, from attacks against their person, official premises, private accommodation and modes of transport.The ATA amended the Criminal Code to establish provisions aimed at disabling and dismantling the activities of terrorist groups and those who support them. These include:

• defining "terrorist activity" in the Criminal Code as an action that takes place either within or outside of Canada that:
  • is an offence under any one of ten listed UN counter-terrorism conventions and protocols; or
  • is taken for political, religious or ideological purposes and intimidates the public concerning its security, or compels a government to do something (or not do something), by intentionally killing, seriously harming or endangering a person, causing substantial property damage that is likely to seriously harm people or by seriously interfering with or disrupting an essential service, facility or system.
• clarifying that an expression of political, religious or ideological beliefs alone is not a "terrorist activity" unless it is part of larger conduct that meets the requirements of the definition of "terrorist activity" (i.e., conduct that is committed for a political, religious or ideological purpose, is intended to intimidate the public or compel a government to act or refrain from acting, and intentionally causes death or serious physical harm to people).
• permitting the listing of groups whose activities meet the definition of terrorist activity as "terrorist groups".*
• creating Criminal Code offences that make it a crime to:
  • knowingly participate in or contribute to an activity of a terrorist group;
  • knowingly facilitate a terrorist activity;
  • knowingly instruct anyone to carry out a terrorist activity (or a terrorist activity in connection with a terrorist group) (a "leadership" offence), and
  • knowingly harbour or conceal a terrorist.

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Information and Evidence-Gathering Tools

The ATA provided new investigative tools to ensure that the prosecution of terrorist offences can be efficiently and effectively undertaken.

• The ATA made it easier to use electronic surveillance tools against terrorist groups. This included eliminating the need to demonstrate that electronic surveillance is a last resort in the investigation of terrorists. The period of validity of a wiretap authorization was extended from 60 days to up to one year when police are investigating a terrorist group offence. A Superior Court judge still has to approve the use of electronic surveillance to ensure that these powers are used appropriately. Further, the requirement to notify a target after surveillance has taken place can be delayed for up to three years. These changes mirror those in the electronic surveillance regime applicable to criminal organizations.
• The Criminal Code was amended to allow a peace officer to apply to a court for an investigative hearing order requiring an individual with information relevant to an ongoing investigation of a terrorist crime to appear before a judge to provide that information. This measure is intended to increase the ability of law enforcement agencies to effectively investigate and obtain evidence about terrorist organizations, subject to legal safeguards to protect the witness against self-incrimination. Further, the use of an investigative hearing requires the consent of the Attorney General.
• The ATA includes a "recognizance with conditions" provision to impose conditions of release where appropriate on suspected terrorists. This provision allows for the arrest and short-term detention of a person where a peace officer believes on reasonable grounds that a terrorist activity will be carried out and suspects on reasonable grounds that the arrest of the person is necessary to prevent the terrorist activity.

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Other statutes amended by the ATA include:

• The Security of Information Act amendments address national security concerns including threats of espionage and the intimidation or coercion of ethno-cultural communities in Canada. New offences were created to improve and modernize the protection of national security information, taking into account new realities, including new players and new threats. These offences focus upon those situations in which it is appropriate for Canada to protect information that it has taken measures to safeguard, as well as information that provinces have taken measures to safeguard, including special operational information. They bolster Canada's ability to protect its institutions and citizenry from information-related conduct that is harmful or likely to be harmful to Canada.
• The Security of Information Act includes specific offences dealing with unauthorized communication, or purported communication, of special operational information (for example, the identity of confidential sources, covert agents or targets of Canadian Security Intelligence Service (CSIS)) by persons permanently bound to secrecy.
  • The Canada Evidence Act amendments address the judicial balancing of interests when the disclosure of information in judicial or other proceedings would encroach upon a specified public interest or be injurious to international relations or national defence or national security. Elements that were added included:
  • the requirement to provide notice to the Attorney General of Canada in circumstances where it is foreseeable that the disclosure of information in the course of, or in connection with, proceedings could be injurious to international relations or national defence or national security;
  • expressly contemplating various options for judges to promote the public interest in disclosure and in protecting such information;
  • providing for the possibility of the Attorney General of Canada personally issuing a certificate to prohibit the disclosure of information to protect information obtained in confidence from or in relation to a foreign entity or to protect international relations or national defence or national security; and
  • the power of the Attorney General of Canada to issue a fiat to establish exclusive authority in the Attorney General of Canada with respect to the conduct of a prosecution where national security information may be disclosed.
• The National Defence Act was amended to provide a statutory basis for the mandate of the Communications Security Establishment (CSE). Where specific requirements are met, CSE may:
  • use and acquire foreign intelligence from the intercepted communications of foreign targets;
  • provide advice, guidance and services to ensure the protection of electronic infrastructures of importance to the Government of Canada and, where necessary to protect those systems from mischief, unauthorized use or interference, intercept private communications directed to Government of Canada computer networks and systems; and
  • provide technical and operational assistance to federal law enforcement and security agencies to the extent permitted under the lawful authorities available to those agencies.
• The Proceeds of Crime (Money Laundering) Act, now called the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, was amended to authorize the Financial Transactions and Reports and Analysis Centre (FINTRAC) to detect financial transactions that may relate to the financing of terrorist activities and to threats to the security of Canada, and to disclose information to the appropriate police force if it would be relevant to investigating or prosecuting a terrorist activity financing offence and CSIS if it would be relevant to threats to the security of Canada.
• The DNA warrant scheme and data bank in the Criminal Code were extended to include terrorism offences in the list of "primary designated offences" for which DNA samples can be taken and stored.
• The Charities Registration (Security Information) Act was created to demonstrate Canada's commitment to participating in concerted international efforts to deny support to those who engage in terrorist activities, to protect the integrity of the registration system for charities under the Income Tax Act and to maintain the confidence of Canadian taxpayers that the benefits of charitable registration are made available only to organizations that operate exclusively for charitable purposes.

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Stronger Laws against Hate Crimes and Propaganda

The ATA contains measures that address hatred and propaganda, reaffirm Canadian values and ensure that Canada's respect for justice and diversity is reinforced. These include:

• Criminal Code provisions that allow the courts to order the deletion of publicly available hate propaganda from computer systems such as an Internet site. Individuals who post the material have an opportunity to convince the court that the material is not hate propaganda. The provision applies to hate propaganda that is located on Canadian computer systems, regardless of where the owner of the material is located or whether he or she can be identified.
• Criminal Code provisions that create a new offence of mischief motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin, committed against a place of religious worship or associated religious property, including cemeteries. This offence carries a maximum penalty of 10 years when prosecuted on indictment, or to a maximum penalty of eighteen months on summary conviction.
• Canadian Human Rights Act provisions to clarify that the prohibition against spreading repeated hate messages by telephonic communications includes all telecommunications technologies.

Amendments to the Anti-terrorism Act in 2001

During the course of Bill C-36 becoming law, the Government of Canada responded to the concerns of Canadians and made amendments designed to strike the right balance between ensuring the safety and security of Canadians and protecting our values and civil liberties. The following key amendments were incorporated into the ATA:

• Sunset Clauses - In addition to the three-year Parliamentary review of the ATA required by the legislation, sunset clauses were added to the recognizance with conditions and investigative hearing provisions, so that these provisions will expire five years after the Bill received Royal Assent. Either or both of these provisions may be continued for up to five more years subject to a resolution being passed by both the House of Commons and the Senate before the expiration of the fifteenth sitting day of both Houses of Parliament after December 31, 2006.
• Annual Reports To Parliament - The Bill was amended to require the Attorney General and the Minister of Public Safety to table Annual Reports to Parliament on the use of the recognizance with conditions and the investigative hearing. Provincial Attorneys General and Ministers responsible for policing must also make public the use of these measures annually.
• Definition Of Terrorist Activity - The definition of terrorist activity related to disruption of essential services was changed to delete the word "lawful". This ensured that protest activity, whether lawful or unlawful, would not be considered a terrorist activity unless it was intended to cause death, serious bodily harm, endangerment of life, or serious risk to the health or safety of the public.
• Review Mechanism For Attorney General Certificates - A number of amendments were made concerning Attorney General certificates. The certificate could no longer be issued at any time, but only after an order or decision for disclosure, for example by a Federal Court judge, in a proceeding. The life of the certificate is set at fifteen years, unless re-issued. The certificate must be published in the Canada Gazette. The certificate is subject to review by a judge of the Federal Court of Appeal. The pre-existing provisions and process for the collection, use, disclosure and retention of personal information were preserved under the Privacy Act and the Personal Information Protection and Electronic Documents Act.
• Facilitation Definition - The provisions of the facilitation offences were reordered to clearly indicate that, in order to be guilty of an offence, an individual must know or intend that his or her act would help a terrorist activity to occur, even if the details of the activity are not known by the individual.
• Technical Amendments - Amendments also included a number of minor technical provisions to improve and clarify the intent of the Bill. 

* Please note that the terms "terrorist group" and "listed entity" are incorporated into a number of ATA provisions. See, for example, sections 83.03 (making property available for the benefit or use of a terrorist group) and 83. 18 (participation and contribution to a terrorist group)

Updated to April 1, 2008.