The Views of Canadian Scholars on the Impact of the Anti-Terrorism Act

1. REX BRYNEN Department of Political Science, McGill University

1.1 What has been the impact of the Anti-Terrorism Act on Canada?

In assessing the impact of Bill C-36 (The Anti-Terrorism Act), it may be important to distinguish between two broad sets of effects: the contribution of the Anti-Terrorism Act to Canadian counter-terrorism efforts, and the impact of the Act on Canadian society (including its implications for civil liberties, multiculturalism, democratic values).

Regarding the impact of the Act on counter-terrorism efforts, it is both too early and too difficult to tell. It is too early, in the sense that the additional powers provided under the act have yet to make themselves (publicly) evident in any substantial investigatory breakthrough or prosecutorial success. Indeed, many of the special powers in the Anti-Terrorism Act (at least those requiring report to Parliament) have not yet been used.

It is too difficult to tell, in that outside observers have little sense of how frequently and to what effect these tools have been used. Answering these questions really requires investigation by the Security Intelligence Review Committee of particular dossiers, to see where and when the additional powers granted to CSIS (and, in some cases, the RCMP) made a difference, if at all.

It should be underlined, moreover, that the Anti-Terrorism Act only addresses two elements of counter-terrorism policy: investigatory tools, and legal reforms intended to (more clearly) criminalize actions taken in support of terrorism. It does not address actual counter-terrorism capacities, which have been buttressed by additional (post-9/11) funding to CSIS, IAS/PCO, the RCMP, DND, and other government agencies. In turn, the provision of funding does not automatically translate into more effective operations.

Regarding the question of civil liberties and democratic values, others far more expert than I have discussed these issues during consideration of C-36, and I doubt that I have much of value to add to those earlier debates. I do not, to date, detect any substantial erosion of rights or liberties as a consequence of the Act.

I do have some concerns over the definition of terrorism in C-36, however, and its implications. My own late grandfather, a Dutch resistance organizer during WWII, certainly engaged in actions “ serious interference with or serious disruption of an essential service, facility or system, whether public or private ” -actions defined in C-36 (s83.01) as constituting “ terrorist activity ”. My own father, as a boy, helped to smuggle diamonds from the soon-to-be occupied Netherlands, and hence may have violated s83.02 regarding the “ financing of terrorism ”. I, as a university student, raised funds for the anti-apartheid movement in South Africa, some of which undoubtedly were passed on to the (now-governing) African National Congress and its affiliates. Given the ANC's use of violence (including periodic attacks on civilian and governmental targets, and its efforts to disrupt essential services), the ANC (and Nelson Mandela, who supported armed action) would have fit the C-36 definition of terrorism, and anti-apartheid fund-raising in Canada would have violated s83.01.

The point here is that even actions that Canadians and Canada have supported in the past-resistance activities in occupied Europe, or the struggle against apartheid in South Africa-would have been criminalized under the Act. I'm not sure what the definitional solution to this issue is, but I remain uncomfortable about leaving the question wholly to judicial good sense.

Also, I would have liked to see some linkage in the legislation to issues of war crimes and violations of international humanitarian law. Mass casualty suicide bombings in the context of ongoing insurgent warfare would appear to fall across multiple categories.

A final, and unrelated observation concerns the extent to which the Act may have deleterious effects on civil liberties is a function not only of its legal content, but also of human resources issues: that is, the sensitivity shown by investigators and potential prosecutors for the concerns of Canadians (especially those within minority/diaspora communities, related to their connections to homelands-in-conflict).

1.2 What emerging trends in terrorism do you foresee and what threats do they pose to Canada? In discussing these trends and threats, please describe what you consider terrorism to be.

It is impossible to even begin to adequately address these questions in the space available. Still, some key trends can be identified:

  • The terrorist attacks of 9/11, as well as follow-on attacks from Bali to Istanbul, have clearly erased previous limits and set a new gold “ standard ” for terrorist action. There is little doubt that terrorism has substantial demonstration effects, with terrorist groups borrowing what worked “ best” for others. Consequently, there will be a long-term increase in the willingness of groups to use mass-casualty attacks on soft targets to make their point.
  • The scope of 9/11 may create a phenomenon or terrorist “kill-inflation,” with pressure within terrorist groups for larger and larger attacks.
  • Neutrality or non-involvement in conflicts may be less of a protection from terrorism than it was in the past, with attacks against UN and humanitarian personnel in Afghanistan and Iraq possibly ushering in an era where such assaults become more frequent, and even begin to spill across state borders.
  • The break-up of the more organized components of the al-Qa'ida network (and especially its loss of its Afghan sanctuary) have impaired its operational effectiveness, but have also created a more “virtual” organization, consisting of diffuse networks of intersecting individuals, techniques, and grievances. This poses a much more difficult counter-terrorist challenge.
  • Globalization-expanded travel, population migration, and new information and communication technologies-contributes to this, creating new ways of sustaining terrorist activity. Media globalization also amplifies the global political impact of local mass-casualty attacks.
  • In this context, the threat of quasi-WMD usage by terrorist groups becomes larger. In practice, such attacks are unlikely to really produce mass casualties (and may be much less deadly than “conventional” 9/11-attacks), but would generate both massive media coverage and considerable fear.
  • The Middle East will continue to generate or inspire a significant amount of global terrorism. The Arab-Israeli conflict will likely continue to fester without resolution for the next decade or so, and Israel's occupation of Palestinian territory will be a major source of grievance among radical Islamist groups. Conditions in Iraq may also deteriorate (although this is less certain), with similar effects.

1.3 How should our country respond to these trends and threats? Please feel free to include measures at any level, such as social, economic, political, or legal or a combination of these levels.

Again, this is an enormously complicated question that cannot be adequately addressed within a short response to questions. However, it is possible to suggest a number of key elements.

Effective counter-terrorism requires many things, including intelligence sharing within and between national jurisdictions; a broad spectrum of human and technical intelligence; appropriate legal frameworks that allow action to be taken against supporting infrastructures.

In addition, however, many of the chief tools of effective counter-terrorism and counterintelligence are remarkably similar to those of good community policing. Most (although not all) of the terrorist threats to Canada arise from overseas conflicts. Many Canadians have ethnic or other links to such conflict-affected areas. Such diaspora populations themselves are particularly well equipped to detect in their midst activities that are detrimental to Canadian security-but this information is useless if it remains locked inside a tight-lipped, suspicious, or fearful community. Consequently, the RCMP, CSIS, and other security-related agencies need to develop relations of trust and transparency with such groups within Canada. Consultation is important with community leaders. Recruitment into security and law enforcement agencies needs to reflect the ethnic diversity of the Canadian population, and agencies need to purposefully develop the linguistic and cultural skills necessary for a nuanced understanding of community politics. Moreover, personnel from non-majority backgrounds need to be empowered to speak out against the preconceptions, misperceptions, and biases they find within their own law enforcement organizations.

Conversely, seeing Canadian ethnic populations from conflict-afflicted regions solely through the lens of risk (as potential recruits to or supporters of terrorist groups) is highly counter-productive. Exclusionary or discriminatory security measures targeted against particular trans-national ethnic communities are at grave risk of failure, or even backfiring. Such measures threaten to alienate diaspora populations, aggravate the barriers between communities and local law enforcement officials, and heighten the sense of alienation upon which extremist groups may prey.

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