The Anti-terrorism Act

HUMAN RIGHTS SAFEGUARDS IN THE ANTI-TERRORISM ACT

Canadians have expressed concerns about their security and support strong laws that deal effectively with terrorism. At the same time, Canadians also want assurances that safeguards are in place to protect their rights and freedoms. In developing the Anti-terrorism Act (ATA), all of the provisions were analyzed to ensure that the legislation is consistent with the Canadian Charter of Rights and Freedoms.

The preamble to the ATA recognizes that terrorism is a matter of national concern and that this concern must be addressed "while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms".

To ensure that Charter rights are protected, the provisions in the ATA contain a number of safeguards. These safeguards have been inserted in the legislation in an endeavour to balance the need for security with the requirement that freedom be respected through the promotion of and respect for individual rights and liberties.

Some of the Charter safeguards in the ATA include :

• the provisions are focused almost exclusively on the threat to national security posed by terrorism rather than generally expanding law enforcement tools;
• the new terrorism offences require a high degree of mental culpability;
• the consent of the Attorney General is required in many instances; e.g., to prosecute
  terrorism offences;
• the definition of the core concept of "terrorist activity" requires that a number of intention and purpose elements be satisfied, and protects democratic action by expressly excluding from its coverage "advocacy, protest, dissent or stoppage of work" (where these are not intended to result in serious forms of specified harm);
• judicial review, appeals, and Parliamentary review mechanisms are incorporated into numerous provisions; e.g., annual reports, the listing process, a mandatory Parliamentary review of the Act,  and seizure, restraint and forfeiture of property;
• A sunset clause resulted in the expiry of the investigative hearing and recognizance with conditions provisions, which were created in 2001.  These provisions were themselves subject to numerous safeguards.   Bill S-3 proposes to reinstated these provisions with the additional safeguards.
• the Minister of Public Safety is required to review the list of terrorist entities every 2 years, review any applications for removal from the list, and issue certificates to address cases of mistaken identity.  Two reviews of the list of terrorist entities have taken place to date.
• the seizure, restraint and forfeiture of property provisions incorporate numerous procedural safeguards (e.g., the "reasonable grounds to believe" standard for the seizure and restraint of the property; the protection of the interests of family members in a principal residence which is the subject of a forfeiture application; the notice to third parties and an order declaring the nature and extent of their interest in property for which forfeiture is sought; and the access to the property or part of it in order to meet reasonable living, business and legal expenses);
• the Security of Information Act provisions promote certainty by clarifying the notion of harm to the national interest by introducing a detailed description of what is meant by "a purpose prejudicial to the safety or interests of the State." They also include a limited public interest defence for offences involving the unauthorized communication of special operational information;
• the Canada Evidence Act provisions give the judge the ability to make any order that he or she considers appropriate to protect the right of an accused person to a fair trial;
• interceptions of private communications by the Communications Security Establishment (CSE) are to be accomplished pursuant to a Ministerial authorization and the criteria underlying the Minister's decision are clearly outlined. Other safeguards include measures to restrict the use and retention of private communications only where they are essential to international affairs, defence or security or, in the case of computer network protection, where they are essential to identify, isolate or prevent harm to the network in question.
• changes to the Proceeds of Crime (Money Laundering) Act are consistent with the mandatory suspicious transaction-reporting scheme originally constructed. Only limited designated information may be disclosed without warrant and released on a reasonable suspicion standard. Other information, such as the more complete analytical dossier can only be obtained by CSIS pursuant to a judicially-authorized production order.

Throughout the ATA, as these safeguards illustrate, careful attention has been paid to the requirements and guarantees of the Canadian Charter of Rights and Freedoms. 

Updated to April 1, 2008.