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

1. INTRODUCTION

Following the events of September 11, 2001, the Government of Canada introduced Bill C-36, the Anti-Terrorism Act, an omnibus bill designed to combat terrorism at various levels. The Act provides for:

  • Amendments to the Criminal Code designed to disable terrorist groups and their supporters, by defining “terrorist activity”; by creating a process for listing an entity that, on listing, becomes defined as a terrorist group; by creating new powers - the use of investigative hearings and of a recognizance with conditions - in order to prevent acts of terrorism; and by creating new terrorism offences that include collecting property for the purpose of carrying out a terrorist activity, facilitating a terrorist activity, instructing someone to carry out a terrorist activity, and harbouring or concealing a person known to have carried out or who is likely to carry out a terrorist activity;
  • Stronger laws against hate crimes and propaganda;
  • New investigative tools available to security and law enforcement agencies by expanding the use of electronic surveillance and permitting the interception of communications of foreign targets abroad;
  • Amendments to the Official Secrets Act (now the Security of Information Act) to counter intelligence-gathering activities by foreign powers and terrorist groups, to address the intimidation or coercion of communities in Canada, as well as to prohibit the unauthorized disclosure of special operational information by individuals bound to secrecy; and,
  • Amendments to the Proceeds of Crime (Money Laundering) Act to authorize the Financial Transactions and Reports Analysis Centre (FINTRAC) to detect financial transactions that may constitute threats to Canada's security and to notify the Canadian Security Intelligence Service.

There is a mandated Parliamentary review of the Anti-Terrorism Act to be undertaken within three years of its receiving Royal Assent on December 18, 2001. Generally, the report resulting from the review must be completed within a year after the review is undertaken. The present project is intended to assist the Department of Justice to prepare for the review.

The principal substantive aim of this project was to ascertain the major effects of the Anti-Terrorism Act. Toward this end, a number of academic experts in terrorism have been identified by Department of Justice personnel and have been asked to offer their assessments of the impact of the Act. The experts were also asked to provide their views on trends in terrorism and the threats faced by Canada. Furthermore, they were asked to offer advice regarding the manner in which this country ought to respond to these threats.

Two inter-connected events unfolding during this project ought to be noted as their high profile in the media are likely to have shaped public opinion and to have influenced the views of at least some of the participating experts. First, there is the case of Mr. Maher Arar, a Syrian-born Canadian citizen who was deported by the United States to Syria in October of 2002 due to the belief that he was affiliated with the Al-Qaeda terrorist network. In Syria, he was imprisoned and allegedly tortured and brutalized for more than ten months. Since his return to Canada last year, Mr. Arar has repeatedly denied any terrorist connections or activities and has initiated legal actions, including ones against the Attorney-General of the United States and Canadian officials. [1]

The second event, occurring during the week of January 19, 2004, involved the raid by the RCMP of the home and office of Juliet O'Neill, an Ottawa Citizen reporter who had suggested, in a story published in November of 2003, that Canadian officials were complicit in Mr. Arar's deportation to Syria. Ms. O'Neill's source for the story was a leaked RCMP report making the case against Mr. Arar and her disclosure of the contents of this classified report served as the basis for the search of Ms. O'Neill's residence and office. The RCMP seized documents pursuant to their investigation of whether section 4 of the Security of Information Act was breached when this leak occurred. Section 4 of that Act prohibits the wrongful communication, use, reception, retention, and failure to take reasonable care of, certain government information. It was formerly part of the old Official Secrets Act and was left largely untouched when the Anti-terrorism Act renamed and amended other sections of the Official Secrets Act so that it became the Security of Information Act.

The search was vigorously denounced by the media on all sides of the political spectrum and was portrayed as particularly invasive, as her underclothing and other personal effects were not spared in the search. Prime Minister Martin expressed indignation about the raid and appeared quite sympathetic toward the reporter. The President of the Canadian Newspaper Association referred to the O'Neill case as “an egregious affront to press freedom.” [2] Some newspapers called for a reduction of the powers conferred upon law enforcement and intelligence agencies by the Anti-Terrorism Act. A Globe and Mail editorial, for example, called for a “thorough review” of the Security of Information Act, the law enabling the search of Ms. O'Neill's home and office[3].

On January 28, 2004, the federal government announced that it would initiate an independent public inquiry into the Arar case. As well, it also announced that the Minister of Justice would be asking a Parliamentary committee to review section 4 of the Security of Information Act. As the general deadline established in the present project for the experts' submissions was January 30, 2004, it was likely that all participants were exposed to these stories and the often critical assessments of the Anti-Terrorism Act and of the role of the RCMP in the case. Thus, the views of the experts consulted in this project need to be viewed against this backdrop.

Furthermore, it is important to note that the individual submissions attached to this report did not take into account events and developments following the end of January 2004. For example, on April 27, 2004, the Minister of Justice and the Minister of Public Safety and Emergency Preparedness announced a National Security Policy for Canada. In addition, the Public Safety Act, 2002, formerly Bill C-7, received Royal Assent on May 6, 2004. Certain provisions of this Act came into force on May 11, 2004[4].


  • [1] Although the Mahar Arar case raises important human rights concerns, it should be noted that the Mahar Arar case did not involve the use of any part of the Anti-terrorism Act. None of the special preventive powers created by the Act were used against him; nor was he charged with any terrorism offence.
  • [2] Jeff Sallot, “Mounties hit 3 locations before raid on journalist.” Globe and Mail (January 24), A6.
  • [3] Editorial, “An anti-terrorism bill stretched out of shape.” Globe and Mail (January 24), A16.
  • [4] See Canada Gazette Part II, Vol. 138, No. 11, SI/2004-51, 2 June, 2004.
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