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

6. MARTIN RUDNER Paterson School of International Affairs, Carleton University

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

The Anti-Terrorism Act, which came into force in December, 2001, provided a three pronged response to terrorist threats facing Canada: it enacted a legal definition of terrorism and of specific, terrorism-related activities as criminal offences; it provided for the public designation and outlawing of terrorist groups; and instituted measures designed to better equip intelligence and law enforcement agencies to identify, prosecute, convict and punish terrorist operatives and co-conspirators in Canada. These latter measures included extraordinary powers of preventive detention and to compel testimony in investigative hearings on terrorism. The Act also authorized electronic surveillance of the communications of Canadians suspected of being associated with terrorist groups, and implicitly the monitoring of financial transactions against terrorist financing and money laundering (which was to be made explicit in the Public Safety Act).

An assessment of the impact of the Anti-Terrorism Act should consider the two separate but related aspects of the legislation: its criminal law provisions and its intelligence enabling provisions. (A third aspect of the Act, its provisions regarding the disclosure of official and secret information, seems to have little if any direct relevance to the counter-terrorism effort, as such.) The statute also included provisions for the non-disclosure of sensitive evidence in judicial proceedings, thereby amending existing rules of evidence so as to meet the standards of the Stinchcombe decision of the Supreme Court of Canada.

The impact of the criminal law and enabling provisions of the Anti-Terrorism Act may be evaluated on two levels of impact analysis: the specific effects of the legislation on the detection, arrest, prosecution and punishment of terrorists; and its wider ranging repercussions for public safety and national security. To date there have been no actual prosecutions of terrorists under the Act, neither have there been any reported preventive detentions or elicitations of compulsory testimony. However, that does not imply that the criminal law provisions of the Anti-Terrorist Act have not been of value and effective as part of the legislative armoury deployed to combat terrorism in this country. Based on the experience of other jurisdictions, the availability of strong legal instruments gives investigators and prosecutors important leverage for persuading terrorist suspects to open up, enabling them to elicit information in return for more lenient treatment. The new array of measures available under the Anti-Terrorism Act furnishes the authorities with lawful means of leverage to penetrate the tightly knit, clandestine cells that are characteristic of contemporary Islamicist terrorist networks.

It is pertinent to note in this regard that the effectiveness of anti-terrorism legislation ought not to be measured solely by the incidence of prosecution and convictions. Canada's Anti-Terrorism Act is also designed and intended to enhance the lawful collection of intelligence on terrorist threats. The intelligence approach to counter-terrorism differs from that of law enforcement. Intelligence does not seek to directly achieve arrests, prosecutions and punishment. Its primary functions are to identify and provide warning of threats, and to garner information on those individuals and groups who threaten our national security and public safety. Intelligence is therefore predisposed towards the continued monitoring of suspected threats rather than the immediate arrest and prosecution of suspects, which is the remit of law enforcement agencies. Hence the impact of the Act in enabling an enhanced intelligence capability against terrorist threats has to be assessed in its own terms, in the lawful gathering of high value information about threats to public safety and national security, rather than merely by reference to the prosecutorial record.

The Anti-Terrorism Act has significantly enhanced the operational capacity of the intelligence services. In particular, its enabling provisions for the collection of communications intelligence on terrorist suspects and groups, and for the monitoring of financial transactions, have bolstered up intelligence capabilities to discern the intentions and operational plans of terrorist cells and networks. The interception of terrorist communications and the tracking of terrorist financing have reportedly yielded high value intelligence resulting in the disruption of terrorist activities and plans in this country and abroad.

It also seems clear that the Anti-Terrorism Act has had a powerful deterrent effect on individuals and groups in this country that may otherwise have identified with the now-banned terrorist organizations. The Act outlawed incitement, recruitment, fund-raising, money laundering, and participation in terrorist activities. While clandestine actions doubtless continue in Canada, as elsewhere, being illegal may have weakened the propensity of people in the relevant communities from supporting and encouraging these organizations and behaviours. As a result, the resonance of the terrorist cause in the Canadian communities may have diminished. Likewise, those elements in the affected communities who share the view that terrorism constitutes a threat to the moderate mainstream of Islam may derive support and encouragement for their own resistance to extremist subversion of communal institutions.

The dichotomy between the functions of intelligence and law enforcement can sometimes impede the coordinated, coherent counter-terrorism effort envisaged in the legislation. As we have noted, intelligence is traditionally, even obsessively, guarded about protecting its sources and methods. Intelligence services are usually reluctant to prosecute suspects, for fear of compromising their sources and methods in open court. Indeed, they have traditionally preferred to allow suspects to avoid trial and punishment rather than disclose sensitive evidence. Knowing this, terrorism suspects can sometimes be cagey about talking. Law enforcement, for its part, seeks to bring offenders to trial, and must always comply with the rules of evidence and judicial procedures. There can be friction between these two distinct missions, and the resultant tensions between the differing functions of Intelligence and Law Enforcement can impede cooperation and create chinks in the national security armour. The price of failure can be high: an intelligence failure may allow a perilous threat to materialize; anything that jeopardizes the gathering of admissible evidence can compromise the prosecution of terrorists under law, while any deficiency in law enforcement could culminate in a security failure to prevent devastating terrorist acts.

6.2 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.

Terrorism denotes militant acts of violence on the part of state and non-state organizations directed at individuals and institutions, violence calculated to cause death, mass fear and public demoralization. Terrorist violence is conducted by militant civilian cadres, as distinct from organized military forces, who are not subject to the conventional laws of war. Unlike criminal violence, the aim of terrorism is to advance a radical political or ideological agenda.

A distinction exists between the global and domestic dimensions of terrorism. Global terrorism, like that manifested by al-Qaeda and its affiliated network, is international in its reach and targets institutions and individuals of many nationalities in pursuit of transcendental ideological or religious objectives. Domestic terrorism, by way of contrast, targets institutions and people of a particular nationality. It seeks to force changes of government policy, or of a regime, or even of the state itself. The presence in Canada of elements belonging to terrorist organizations like the Liberation Tigers of Tamil Eelam (LTTE), Hamas, or the Armed Islamic Group (GIA) represent overseas arms of domestic terrorism in those other countries, Sri Lanka, Israel/Palestine and Algeria, respectively. The analysis that follows will relate primarily to contemporary global terrorism, as manifest in Sunni Islamic militant networks identified with al-Qaeda, whose network of cells is widely dispersed across Canada and the world. Indeed, Al-Qaeda publicly declared war on crusaders (i.e. Western Christian' societies) and Jews, and specifically listed Canada among its targeted countries.

Al-Qaeda's public letter to America of November, 2002, defined the ultimate objective of its terror explicitly as the forced Islamization of the United States of America, which would in turn bring all other countries, Western as well as Muslim, under the sacralized dominion of a globalized, triumphant, militant Islam. The declared targets of its militant Jihad encompass, specifically, political democracy, secular values, liberal social principles, the State of Israel, and other perceived enemies of Islam in the Balkans, Chechnya, Kashmir, Southeast Asia and elsewhere. Al-Qaeda's major operational assets consist of a widely-dispersed network of loosely structured affiliates and tightly knit cells embedded in local Muslim communities in many countries across Europe, Asia, Africa, Australia and New Zealand, and the Americas. These affiliates and cells are capable of recruiting and deploying thousands of trained, committed operatives almost anywhere in the world, including Canada.

Islamic terrorist groups have successfully lured well-educated professionals, including medical doctors, engineers, lecturers and other middle-class professionals into militant Jihadist circles. These professionals provided intellectual depth and leadership to terrorist cells and networks. Although some of these individuals studied at prestigious universities in the West, they seem to have put their expertise at the disposal of terrorist organizations to enhance the destructiveness of planned attacks. Recently, there is evidence that al-Qaeda is seeking to recruit disaffected individuals of European and North American (non-Arab, non-Muslim) origin, including females, blacks, married people, homeowners, in a bid to avoid stereotypical profiles and thus evade detection. Al-Qaeda has demonstrated considerable resourcefulness in creating a fresh cadre, such as Canadians, who could more readily enter and sojourn in the United States or other targeted countries.

International terrorist organizations like al-Qaeda and its affiliates maintain a presence in Canada. This Canadian presence gives them local facilities for incitement and propaganda for their cause, and resident cells for recruiting operatives and fighters, raising and transferring funds, fabricating false identities and document forgery, procuring weaponry and material, establishing safe houses and sleeper cells for future operations, and supporting infiltration across the border to the United States or operations overseas. Al-Qaeda has recruited young Canadians from Muslim communities for combat with the Taliban in Afghanistan and for terrorist operations in South and Southeast Asia, Arab countries, Israel, the United States, and elsewhere. Local cells have resorted to criminal activities, fraud and people smuggling in support of their parent terrorist networks. Nor has Canada itself been exempt from terrorist targeting: terrorist cells affiliated with al-Qaeda have plotted attacks in Canada and against Canadian individuals, groups and institutions. Their ostensible aim was to intimidate, wreak vengeance, or gain public attention for their cause.

The counter-terrorism coalition led by the United States has captured or eliminated most of the top echelon al-Qaeda leadership, arrested some 3,000 operatives in more than 100 countries, frozen some US$120 million in its financial accounts, and closed 50 training camps in Afghanistan. Nevertheless, the militant terrorist network remains intact and operational across the world. Indeed, Al-Qaeda is known to adapt and rework its global terror Jihad so as to gainsay its successes and rebound from its defeats. As countries facing terrorist threats adopted preventive and pre-emptive measures to harden themselves against attack, al-Qaeda began to shift the vector of its onslaught to soft targets in places like Indonesia, Kenya, Morocco, Pakistan, the Philippines, Saudi Arabia, Thailand, and Turkey. With hitherto complacent governments becoming all the more vigilant, al-Qaeda is likely to redirect its attacks towards other, even softer and vulnerable targets. At the same time, al-Qaeda's tactics seem to have accentuated economic targets. As well as causing horrendous casualties, al-Qaeda's terrorist onslaught has wrought a terrible financial toll onto its target countries in terms of physical destruction, capital losses, market upheaval, business disruption, and the high recurrent cost of protection. Infrastructure, civil aviation and trade have been particularly targeted, and the resulting economic damage has been massively costly and long lasting.

Both these trends in global terrorism, towards the targeting of softer jurisdictions and economic interests, suggest that Canada may become increasingly vulnerable and at risk. Given its openness and relative complacency, its proximity to the United States, and its close economic integration into a North American market, especially in high-value energy and transportation infrastructure, Canada looms as an assailable target in al-Qaeda sights.

One of the more alarming aspects of the global terrorist onslaught is the evidence of al-Qaeda attempts to deploy radiological, chemical and biological weapons of mass destruction (WMD). Terrorist plotters affiliated with al-Qaeda and suspected of conspiring to launch biological, chemical or radiological attacks have been caught in the US, UK, and Italy. There is cause for concern that Canada may be vulnerable both as locale for illicit terrorist access to radiological, chemical or biological technologies and as a possible target for WMD attack. A Canadian charitable front for al-Qaeda, the now-closed Benevolence International Fund, was suspected of having been linked to attempts to procure nuclear and chemical weaponry. There is a danger that terrorists seeking WMD capability may dispatch students or researchers to enroll in universities or join research institutions in countries like Canada in order to gain access to dual-use chemical, biological, radiological or nuclear technologies and weapons-related expertise. This could cost Canadians dearly.

Date modified: