Frequently Asked Questions

THE ANTI-TERRORISM ACT

• 1. What is the Anti-terrorism Act?
• 2. Why is the Anti-terrorism Act necessary and why does it continue to be necessary?
• 3. What does the Anti-terrorism Act do?
• 4. Is the Anti-terrorism Act emergency legislation, responding only to a specific event?
• 5. Why weren't the existing tools in the Criminal Code adequate to deal with terrorist activity?
• 6. Are there any examples of how the Anti-terrorism Act has been used?
• 7. What are some of the safeguards built into the Anti-terrorism Act?
• 8. How does the Anti-terrorism Act address the problem of hate crimes?
• 9. What was the "recognizance with conditions" power as enacted by the Anti-terrorism Act? What does Bill S-3 propose?
• 10. What was the investigative hearing intended to do? What does Bill S-3 propose?

PARLIAMENTARY REVIEW OF THE ANTI-TERRORISM ACT

• 11. When did the Parliamentary review of the Anti-terrorism Act take place?
• 12. What is a sunset clause?
• 13. Why is the Anti-terrorism Act subject to a sunset clause?
• 14. Why did the Anti-terrorism Act include an amendment to the Canada Evidence Act creating an Attorney General certificate which would allow the government to protect certain information for national security reasons?
• 15. How does the Anti-terrorism Act compare to measures taken by other countries?

OTHER QUESTIONS ABOUT THE ANTI-TERRORISM ACT

• 16. Did law enforcement officials receive enhanced tools as a result of the Anti-terrorism Act?
• 17. Were security certificates part of the Anti-terrorism Act?

THE ANTI-TERRORISM ACT

1. What is the Anti-terrorism Act?

The Anti-terrorism Act (ATA) was carefully developed to combat terrorism, while ensuring that fundamental interests, such as privacy and other human rights, are respected. The ATA improves Canada's ability to investigate, detect and prevent terrorist activities at home and abroad. It enables us to take the necessary steps to deter and detect money laundering and to deny terrorists access to funding. It was also designed to allow Canada to work with the international community in the fight against terrorism. For example, it permitted Canada to implement two United Nations (UN) anti-terrorism conventions - the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism that existed at that time.

The ATA was an omnibus piece of legislation containing major enactments or amendments to a number of federal statutes, including the Criminal Code, the Security of Information Act (amending and renaming the Official Secrets Act), the Canada Evidence Act; the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Charities Registration (Security Information) Act, and the National Defence Act (setting out for the first time in statute the mandate of the Communications Security Establishment (CSE)). Additionally, there were numerous (but significant) amendments to other pieces of legislation.

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2. Why is the Anti-terrorism Act necessary and why does it continue to be necessary?

The ATA includes important preventive measures in the federal Government's overall anti-terrorism strategy.

After September 11, 2001, the Government believed that it was necessary to include specific terrorism offences in the Criminal Code, given the issue that once a terrorist event takes place, it is too late. In effect, the ATA created offences that criminalize activities such as "participation" in a terrorist group, that take place before a more dangerous terrorist event can occur.

Events since September 11, 2001 reinforce the importance of continued vigilance and maintaining appropriate measures to combat terrorism. The 2002 Bali bombing, the 2004 Madrid train stations bombing and the Beslan school tragedy, the 2005 London bus bombing, and the 2007 car bombing attempts in front of a London nightclub and at the Glasgow airport are vivid reminders of the dangers posed by terrorism. No country, including Canada, is immune. In 2006, Canadian police charged several suspects with terrorism related offences in the Toronto area.

The ATA allows Canada to meet its international counter-terrorism obligations through the ratification of two UN Conventions on terrorism, as well as UN Security Council Resolution 1373, which requires states to take measures against terrorist financing, amongst other things. (For more information on UN Security Council Resolution 1373, please visit the Security Council Resolutions - 2001 Website.)

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3. What does the Anti-terrorism Act do?

The ATA is designed to:

• deter and disable terrorist organizations;
• provide investigative tools to law enforcement and national security agencies;
• support effective prosecution of terrorist crimes;
• meet Canada's international legal obligations to combat terrorism; and
• ensure that Canadian values of respect and fairness are preserved through stronger laws against hate crimes and propaganda.

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4. Is the ATA an emergency legislation responding only to a specific event?

The ATA is not an emergency legislation.

Before September 11, 2001, Canada had in place an extensive and sophisticated security apparatus. Law enforcement relied upon the normal processes of investigation, prosecution and conviction under the Criminal Code to address terrorism.

The Government of Canada has a responsibility to protect Canada and the safety of Canadians at home and abroad, to ensure that Canada is not a base for threats to other countries, and to contribute to international security. The measures contained in the ATA assist the Government in advancing these three core national security interests.

Canada's enactment of the ATA thus paralleled actions taken by our international partners. However, it was a made-in-Canada solution to address terrorism. As long as the threat of international terrorism exists, Canada will have laws in place to deal with it.

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5. Why weren't the existing tools in the Criminal Code adequate to deal with terrorist activity?

Before the enactment of the ATA in 2001, the Criminal Code did not adequately address the unique challenges posed by international terrorism. Mass murder by suicide bombers or hijackers may not be an entirely new phenomenon, but it is one being further developed and increasingly used by terrorist groups. Using the Criminal Code to prosecute such crimes after the fact was inadequate to ensure Canadians' security. We needed better investigative tools and other mechanisms to detect terrorist plots and prevent attacks from taking place. We also needed an approach that would allow us to pursue those who, by indirect means, facilitated terrorist crimes.

Prevention and deterrence have always been central goals of our criminal justice system. The ATA allowed us to pursue a comprehensive strategy of preventing terror attacks and disrupting terror networks in ways that were not possible before 2001.

Two of the enforcement tools enacted by the ATA, the "investigative hearing" and the "recognizance with conditions", were subject to a sunset clause that provided that they would expire in early 2007 unless a resolution to extend them was passed by both Houses of Parliament. 

The two Parliamentary Committees, which comprehensively reviewed the Anti-terrorism Act (as mandated by s. 145 of the ATA) both recommended extending the sunsetted provisions.  The House Subcommittee recommended an extension to December 31, 2011 and further Parliamentary review before any additional extension.  The Subcommittee also suggested that the investigative hearing provision be amended to make it available only when a peace officer has reason to believe there is imminent peril that a terrorist offence will be committed. The Special Senate Committee for the Review of the Anti-terrorism Act also recommended extending the provisions without modification for a further three years.

In February 2007, a government resolution to extend the investigative hearing and recognizance with conditions provisions for another three years was defeated in the House of Commons, by a vote of 159 to 124. This led to their expiration on March 1, 2007. 

On October 23, 2007, the Government introduced Bill S-3, An Act to amend the Criminal Code (investigative hearing and recognizance with conditions) in the Senate. The Bill:

• proposes amendments to the Criminal Code that would reinstate the investigative hearing and recognizance with conditions provisions in a form substantially similar to the original 2001 provisions;
• contains a 5-year sunset clause;
• requires that the Attorney General and the Minister of Public Safety and Emergency Preparedness report annually on their opinion together with reasons, as to whether these provisions should be maintained; and
• incorporates other technical amendments. 

Bill S-3 was passed by the Senate. It was in the House of Commons at Second Reading when the House of Commons recessed on June 20, 2008. The House of Commons is adjourned until September 15, 2008.

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6. Are there any examples of how the Anti-terrorism Act has been used?

Law enforcement agencies are guided by the ATA when investigating terrorism offences. These investigations are often complex, and may require several years of work before criminal charges are laid.

Some concrete examples of how the ATA has been used include:

• 41 entities have been listed under section 83.05(1) of the Criminal Code.
• On March 29, 2004, one individual was arrested in Ottawa and charged with participating in the activity of a terrorist group (section 83.18 of the Criminal Code) and facilitating a terrorist activity (s. 83.19 of the Criminal Code); use of explosives (s. 81(1)); the commission of offences for a terrorist group (s. 83.2); providing property for terrorist purposes (s. 83.03); and instructing another person to carry out an activity for the benefit of a terrorist group (s. 83.21).
• In the summer of 2006, several suspects were charged with various terrorism related offences in the Toronto area.

The Attorney General of Canada published six Annual Reports (2002-2007) concerning the use of investigative hearings and the recognizance with conditions provisions of the ATA. These tools were not used by federal prosecutors or by the RCMP during the reporting periods.

The Minister of Public Safety published six Annual Reports (2002-2007) the Use of Arrests Without Warrant pursuant to the ATA.

The Minister of Public Safety also published three Annual Reports (2004-2006) on the Use of Electronic Surveillance.

Before the investigative hearing provisions sunsetted, section 83.28 (investigative hearing) of the Criminal Code was engaged once by a Provincial Attorney General. (See Application under section 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248 and Vancouver Sun (Re), [2004] 2 S.C.R. 332) but the investigative hearing actually never took place.

As a result of monitoring and investigation of terrorist entities, financial assets have been frozen in Canada pursuant to the Regulations Establishing a List of Entities made under subsection 83.05(1) of the Criminal Code, and/or the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism (RIUNRST) and/or United Nations Al-Qaida and Taliban Regulations (UNAQTR).

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7. What are some of the safeguards built into the Anti-terrorism Act?

The ATA, like all Canadian laws, was crafted with due regard to the rule of law and the Canadian Charter of Rights and Freedoms. The ATA includes a number of safeguards that balance the need to protect individuals from the threat of terrorist acts while ensuring their rights and freedoms are respected. Some of the safeguards in the ATA include:

• the definition of "terrorist activity" requires that intent and purpose elements be satisfied. The definition expressly excludes "advocacy, protest, dissent or stoppage of work" (where these are not intended to result in serious forms of specified harm);
• judicial review, appeals, and judicial oversight mechanisms are incorporated into provisions like the listing process and seizure, restraint and forfeiture of property;
• section 145 of the ATA required a committee or committees of Parliament to conduct a "comprehensive review of the provisions and operation of the Act," within three years from the date that the Act received Royal Assent, which was December 18, 2001. This review has now been completed. (See FAQs 12 to 19 below.)

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8. How does the ATA address the problem of hate crimes?

The ATA included additional measures to better protect from hatred those who are vulnerable because they belong to a group distinguished by factors such as religion, race, or ethnic origin.

The ATA amended the Criminal Code to criminalize mischief against property used for religious worship, such as a church, synagogue, mosque, or a cemetery. Now to obtain a conviction, it must be shown that the mischief was motivated by bias, prejudice or hatred based on race, religion, colour or national or ethnic origin.

The ATA also amended the Criminal Code hate propaganda provisions to authorize a judge to order that publicly available hate propaganda be deleted from a computer system within the jurisdiction of the court. This provision makes it possible to eliminate hate propaganda from the Internet even in cases where the person who posted the material is unknown or outside Canadian jurisdiction. Where the identity of the person who posted the material is known, that person will have an opportunity to be heard before the judge decides to order the deletion of the material.

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9. What was the "recognizance with conditions" power as enacted by the ATA? What does Bill S-3 propose?

Much of the existing criminal law is designed to find and punish those responsible for acts that have already occurred. This approach is often inadequate for terrorist crimes, where the goal is to create fear and instability by targeting the general population and where the perpetrator often commits suicide when carrying out the attack.  The ATA thus provided for a recognizance with conditions provision, a measure intended to assist law enforcement officers to disrupt terrorist attacks. 

If a police officer believed, on reasonable grounds, that a terrorist activity was going be carried out and suspected on reasonable grounds that the imposition of a recognizance with conditions on a particular person was necessary to prevent it, then that person could be issued a summons or arrested to be brought before a judge.

The object of bringing the person before the court was for the court itself to consider whether it was desirable to impose conditions on the person. The court could impose such conditions or could release the person without conditions. The burden was on the government to show why conditions should be imposed. If the person refused to accept conditions, the court could commit that person to prison for up to 12 months.

A recognizance with conditions in this context, was not a new concept in the Criminal Code.  Other peace bonds already existed.These permit a judge to impose conditions upon a person where reasonable grounds exist to believe that that person will cause personal injury to, or damage the property of another person, or will injure the spouse or child of another person. 

The use of the recognizance with conditions was only available under strictly defined conditions and was subject to numerous procedural safeguards. Except for emergency or exigent circumstances, the consent of the Attorney General was required beforehand. Even in emergency situations, this consent was required after the fact in accordance with the delay prescribed by the ATA. In all cases, an initial judicial hearing had to be held within 24 hours, or, if a judge was not available, as soon as possible thereafter. The maximum period a person could be detained after the initial judicial hearing was 48 hours. The purpose and effect of the provision was not to allow for indefinite detention, but to permit a judge to impose reasonable conditions considered necessary, for example, to prevent a terrorist activity from being carried out (e.g. a recognizance to keep the peace and be of good behaviour). As with the investigative hearing provision, the recognizance with conditions provision was subject to annual reporting requirements to Parliament by the Attorney General and the Minster of Public Safety and Emergency Preparedness. 

Bill S-3, introduced in the Senate on October 23, 2007, proposes to amend the Criminal Code to reinstate the recognizance with conditions provisions, along with the investigative hearing provision. The Bill also:

• contains a 5-year sunset clause;
• requires that the Attorney General and the Minister of Public Safety and Emergency Preparedness report annually on their opinion, together with reasons, as to whether these provisions should be maintained; and
• incorporates other technical amendments.

Bill S-3 was passed by the Senate. It was in the House of Commons at Second Reading when the House of Commons recessed on June 20, 2008. The House of Commons is adjourned until September 15, 2008.

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10.What was the investigative hearing intended to do and what does Bill S-3 propose?

As originally envisaged, investigative hearings gave the police the ability to compel someone with information about a terrorist activity to appear before a judge and answer questions.  The purpose of the investigative hearing was to gather information relevant to the investigation of terrorist offences, not to charge or convict an individual with a Criminal Code offence. The tool was limited to cases of terrorist activity. The information provided by a person could not be used against them in any criminal or similar proceedings.

The use of an investigative hearing required the consent of the Attorney General.  Police or peace officers needed to apply to a provincial court judge for an order for the gathering of evidence. The person compelled to appear would have had the ability to retain and instruct counsel at any stage of the proceedings. Other safeguards existed as well.

Before it sunsetted, s. 83.28 (investigative hearing) of the Criminal Code was engaged once by a provincial Attorney General, in the context of the Air India investigation. The Supreme Court of Canada upheld the constitutionality of the investigative hearing in 2004 in a judgment entitled Application under section 83.28 of the Criminal Code (Re), though the investigative hearing was never actually convened. 

Bill S-3 proposes to reinstate the investigative hearing power in much the same form as it previously existed, with the following changes:

• When applying for an order for an investigative hearing relating to a past terrorism offence, the peace officer must satisfy the judge that reasonable attempts have been made to obtain the information by other means. This requirement for investigative hearings related to future terrorism offences under the ATA, but would also apply to past terrorism offences.
• The Bill clarifies that section 707 of the Criminal Code, which sets out the maximum period of time that a witness may be detained, also applies tothe investigative hearing process. This amendment responds, in part, to concerns expressed by the House of Commons Subcommittee.
• A new five year sunset clause is included as well as enhanced reporting requirements. The Attorney General of Canada would have to provide an opinion, supported by reasons, as to whether the investigative hearing power should be maintained. The Bill also provides for the possibility of further parliamentary review. Finally, it incorporates some technical amendments which reflect recommendations made by the House Subcommittee that reviewed the ATA.

Bill S-3 was passed by the Senate. It was in the House of Commons at Second Reading when the House of Commons recessed on June 20, 2008. The House of Commons is adjourned until September 15, 2008.

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PARLIAMENTARY REVIEW OF THE ANTI-TERRORISM ACT

11. When did the Parliamentary Review of the Anti-terrorism Act take place?

Section 145 of the ATA required a committee or committees of Parliament to conduct a "comprehensive review of the provisions and operation of the Act", within three years from the date that the Act received Royal Assent (December 18, 2001). A motion of the House of Commons on December 9, 2004, authorized the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to review the ATA. Its Subcommittee on Public Safety and National Security began its review in February 2005. The Senate adopted a similar motion on December 13, 2004, establishing a Special Committee to undertake a separate review.

The House of Commons Subcommittee on Public Safety and National Security and the Senate Special Committee on the Anti-terrorism Act conducted hearings during the 38th Parliament. Transcripts of these hearings can be accessed on the Parliamentary Site at the following URLs:

• The Subcommittee of the House of Commons Committee on Public Safety and National Security
• The Senate Special Committee on the Anti-terrorism Act.

The dissolution of the 38th Parliament on November 30, 2005, ended the work of the Parliamentary review committees. The 39th Parliament saw the resumption of one committee and the establishment of a new committee to continue the review of the ATA. Transcripts of the Committees from the 39th Parliament can be accessed at the following URLs:

• The House of Commons Subcommittee on the Review of the Anti-terrorism Act
• The Senate Special Committee on the Anti-terrorism Act

On October 23, 2006, the House of Commons Subcommittee on the Review of the Anti-terrorism Act (“House Subcommittee”) released its Review of the Anti-terrorism Act Investigative Hearings and Recognizance with Conditions Program interim report.

The final report of the House Subcommittee – entitled Rights, Limits, Security:  A Comprehensive Review of the Anti-terrorism Act And Related Issues – was released on March 27, 2007. The Government filed its response to the Subcommittee’s recommendations on July 18, 2008.

In February 2007, the Special Senate Committee on the Anti-terrorism Act released its main report (Third Report) entitled, Fundamental Justice in Extraordinary Times. This report – which was tabled in the Senate on February 22, 2007 – contains numerous comments, observations and recommendations for change respecting the ATA and Canada’s national security and anti-terrorism framework. 

On March 28, 2007, the Special Senate Committee issued a supplementary report (Fourth Report) which provided further commentary on certain issues addressed in its Third Report. The supplementary report notably commented on the Charkaoui decision and the security certificate process. 

Note that Bill C-3, An Act to Amend the Immigration and Refugee Protection Act (Certificate and Special Advocate) and to Make a Consequential Amendment to Another Act, was introduced in the House of Commons on October 22, 2007. The Bill amended the Immigration and Refugee Protection Act (IRPA) to provide a new procedure relating to immigration security certificates and, in particular, to provide for the appointment of a special advocate to represent the interests of a person named in a security certificate.  The Bill was introduced after the Supreme Court of Canada ruled in February 2007 that IRPA’s procedure for judicial approval of security certificates infringed the Canadian Charter of Rights and Freedoms and was therefore of no force or effect.  The Court suspended its declaration for one year to provide time for Parliament to amend the procedure. Bill C-3 received Royal Assent on February 14, 2008 and was proclaimed into force on February 22, 2008.

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12. What is a sunset clause?

A sunset clause is a provision within a piece of legislation providing that some provision(s), or all of the legislation, no longer has effect as of a specified date. It causes that law to "sunset" or, in effect, repeal itself automatically, unless it is extended by law.

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13. Why is the Anti-terrorism Act as a whole not subject to a sunset clause?

The Anti-terrorism Act was not made subject to a general sunset clause. International terrorism has been a major threat for some time and will continue to be one for the foreseeable future. It requires measures that will continue to enable our law enforcement and national security agencies to anticipate and respond effectively to the threat. It would have been irresponsible and dangerous to suspend the whole Act, thereby running the risk of not having effective laws in place for extended periods of time.

In addition, a sunset clause for the entire ATA would have put Canada in violation of our international obligations under United Nations international conventions for the suppression of terrorist bombings and terrorist financing, as well as the UN Security Council resolutions dealing with terrorist financing.

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14. Why did  the Anti-terrorism Act include an amendment to the Canada Evidence Act creating an Attorney General certificate which would allow the government to protect certain information for national security reasons?

The fight against terrorism depends largely on our ability to gather sensitive intelligence relating to terrorist activities. Protecting the substance and sources of our intelligence is critical. The Attorney General certificate process in the Canada Evidence Act was developed to ensure that very sensitive information, including that received from foreign services, can and will be protected.

However, Attorney General certificates are to be used only in the rarest of circumstances. A certificate can only be issued where there has been an order or decision demanding disclosure of sensitive information that could, in the opinion of the Attorney General, compromise Canada's international relations, national defence or security. This tool has not yet been used.

In order to ensure the integrity of this prohibition against disclosing sensitive information under the Canada Evidence Act, it was also necessary to amend other laws under which information could potentially be disclosed. Thus, in the Anti-terrorism Act, the certificates also cover matters falling under the Access to Information Act, the Privacy Act, the Personal Information Protection and Electronic Documents Act and the Canadian Human Rights Act. It would make no sense to protect this information under the Canada Evidence Act while leaving it open to potential access or disclosure under another Act of Parliament.

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15. How does the Anti-terrorism Act compare to measures taken by other countries?

The global community needs to work together to defeat terrorism. Canada's actions parallelled those taken by other countries but we adopted an approach based on Canadian values and the Canadian Charter of Rights and Freedoms. Other countries, such as the United States, the United Kingdom, Australia and New Zealand passed legislation consistent with the objectives of the ATA. 

The threat posed by terrorism required a strong and immediate global response following September 11, 2001. That requirement still exists today. The ATA was the legislative vehicle to implement two UN instruments dealing with terrorist bombing and terrorist financing measures and a UN convention protecting UN and associated personnel. As well, the ATA facilitated the implementation of UN Security Council Resolution 1373, and enabled compliance with the Special Recommendations on Terrorist Financing of the Financial Action Task Force on Money Laundering.

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OTHER QUESTIONS ABOUT THE ANTI-TERRORISM ACT

16. Did law enforcement officials receive enhanced tools as a result of the Anti-terrorism Act?

The majority of the law enforcement tools used to investigate crime and security threats in Canada have existed for some time and were not amended or expanded by the ATA. However, the ATA added new terrorism offences to the Criminal Code. In addition, as noted previously, the powers of the investigative hearing and the recognizance with conditions were created to help combat terrorism.  These powers have since sunsetted.  However, the Government introduced Bill S-3, an Act to Amend the Criminal Code (Investigative Hearings and Recognizance with Conditions) on October 23, 2007 to reinstate these provisions.

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17. Were security certificates part of the Anti-terrorism Act?

No. Security certificates are used pursuant to the Immigration and Refugee Protection Act (IRPA), not the ATA. However, the Parliamentary Committees that reviewed the ATA examined the immigration security certificate process and made recommendations relating to it.

On October 22, 2007, Bill C-3, An Act to Amend the Immigration and Refugee Protection Act (Certificate and Special Advocate) and to Make a Consequential Amendment to Another Act, was introduced in the House of Commons.  The Bill amends the Immigration and Refugee Protection Act (IRPA) to provide a new procedure relating to immigration security certificates and, in particular, to provide for the appointment of a special advocate to represent the interests of a person named in a security certificate. The Bill was introduced after the Supreme Court of Canada ruled in February 2007 that IRPA’s procedure for judicial approval of security certificates infringed the Canadian Charter of Rights and Freedoms and was therefore of no force or effect.  The Court suspended its declaration for one year to provide time for Parliament to amend the procedure.  Bill C-3 received Royal Assent on February 14, 2008.

For more information on security certificates, please visit the Public Safety Canada Official Website.

Updated to June 20, 2008.