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

3.0 THE IMPACT OF THE ANTI-TERRORISM ACT (cont'd)


3.0 THE IMPACT OF THE ANTI-TERRORISM ACT (cont'd)

3.5 The Impact of the Act on Civil Liberties and Canadian Values

There was no consensus among the participants with regard to the impact of the Anti-Terrorism Act on civil liberties. On the one hand, Brynen asserts that “ I do not, to date, detect any substantial erosion of rights or liberties as a consequence of the Act. ” Farson adds that, “ There is little evidence that the Act itself has proven to be the 'demon' that critics feared. ”

Other participants were emphatic in their condemnation of the Act on the basis of its impact on personal liberties.

Sossin believes that Canada has betrayed its own values by sacrificing civil liberties in exchange for enhancing investigative and detention powers: “…the very fact that countries such as Canada showed such readiness to jettison fundamental civil liberties (e.g., the authorization of preventative detention) in the face of terrorist threats reflected an abnegation of the very values [that] stand so starkly opposed to the logic of terrorism (i.e., the rule of law, etc.). The Anti-Terrorism Act, in other words, represented an admission of defeat in the 'war against terrorism.'”

Stuart sees the Act as excessive in the post-9/11 world. More resources for intelligence and evidence gathering may be needed but not more laws.

“The new terrorism offences cynically cut across fundamental principles that there should be no State punishment without meaningful fault and act requirements…Extraordinary and un-Canadian powers of detention on suspicion and compelling testimony before judges were not needed or properly justified. Bill C-36 puts in place many unfettered Ministerial powers, such as the power to define terrorist groups, authorize electronic surveillance…These powers contravene fundamental hallmarks of our justice system such as the rule of law, the presumption of innocence and the need for [the] State to prove guilt beyond a reasonable doubt before an independent and impartial judge.”

Roach questions the value of a new investigative power that allows the police to compel an individual to answer questions about past or future terrorist activities. This provision has been used at least once in the Air India case and its constitutionality has been challenged in that case. The Supreme Court has yet to decide on this matter; however, even if constitutional, Roach takes the position that this power “represents an undesirable incursion on the adversarial traditions of criminal justice and one that could spread in an attempt to combat other serious crimes." Roach adds that authorities already have the power to offer those associated with terrorists reductions in potential charges and witness protection in return for cooperation. Stribopoulos adds that while Canadians fear terrorists, cases such as that of Maher Arar have led to an increasing fear of "our own law enforcement apparatus.”

Charters is somewhat more ambivalent, noting that the powers under the Act have been used sparingly and that the expanded investigative powers may have prevented terrorist acts. However, he is concerned that “the Maher Arar case suggests that those powers allowed security forces to cast their net too wide, leading to investigations and detentions of persons who were, in fact, innocent.”

Sossin also raises the possibility that some of the additional powers under the Act might even be counterproductive in combating terrorism. He argues that due process not only guarantees transparency but minimizes the risk of error: “If the subject of an investigation into terrorist activity has the opportunity to know the case against them, and [to] refute it in a meaningful way, the likelihood of action taken on poor intelligence, false identifications, or mistakes is reduced. There has yet to be a compelling argument put forward to justify the limiting of the review of ministerial certificates or curtailing the potential for parties subject to investigations to be given [a] meaningful opportunity to refute the evidence against them.”

3.6 The Impact of the Act on Specific Groups and Organizations

About half the participants discussed the possibility that the Act has a disproportionate impact upon particular groups and types of organizations within Canada. There was some agreement that Arab and Muslim Canadians were especially at risk of being targeted, as were some charitable organizations; in particular, those doing humanitarian work in the Middle East. Martyn notes that these organizations “…are actively ensuring due diligence to avoid any wrongful accusations of terrorist affiliation; even suspicion of such activity could harm their requisite public support.”

The listing of terrorist groups and individuals was considered by Whitaker as a highly partisan exercise, with lobbying campaigns waged for and against the addition of various groups (e.g., Hezbollah and Hamas). One consequence is the exacerbation of inter-ethnic and religious rivalries in Canada. There are consequences in terms of the ability of organizations such as Hezbollah to provide humanitarian assistance in places where they may be the only organization providing health, educational, and social services. The listing of terrorist entities tends to disproportionately affect communities such as the Canadian Arab and Muslim communities, creating the perception of bias on the part of the state toward the affected groups.

Stribopoulos adds that the Act says little about the criteria to be used in deciding who is to be targeted for investigation, leaving considerable discretion to law enforcement. This fact and the “war on terrorism” rhetoric sweeping North America, leads to an inevitable focus on Muslims and Arabs. The anecdotal evidence suggests that racial profiling is taking place. Farson notes that the Canadian government needs to be particularly careful listing groups as terrorists given the tenuous nature of the concept. Roach adds that as a result of the repercussions and the stigmatizing effect of being on a terrorist list, such designations should require a standard of proof beyond a reasonable doubt in a criminal trial.

3.7 Issues of Accountability and Oversight

Almost half of the participants expressed concerns relating to the oversight mechanisms under the Anti-Terrorism Act. They feel that law enforcement activities and certain executive powers (e.g., listing entities as terrorists) are not subject to sufficient review.

According to Whitaker, the most important shortcoming of the Act may be “the failure of the government to create an appropriately wide and comprehensive accountability, review, and oversight mechanism to cover all aspects and institutional manifestations of the national security policy function.” He adds that the scandal surrounding the Arar case points to the weakness of the present accountability structures and practices.

Wark, commenting on the Communications Security Establishment, points out that the powers of the Commissioner of the CSE are “too narrowly focused on reviewing the legality of CSE operations and do not approach the scope of the review body for CSIS, the Security Intelligence Review Committee.”

Furthermore, Stribopoulos adds that there is an absence of meaningful checks on police practices: “…an investigation (no matter how prolonged or intrusive it might happen to be) that does not culminate in a preventive arrest, an investigative hearing, or formal charges, is shielded from any meaningful review.”

In addition, Roach notes that the Act empowers the executive branch (i.e., the Cabinet) to designate groups and individuals as terrorists--thus far, over 30 groups have been so designated. While there is a form of ex post facto judicial review, Roach argues that such reviews are unlikely to overturn a group's designation as “terrorist”, as these reviews may be conducted in camera and in the absence of the applicants. Also, there may be limited disclosure to the applicant of information considered by the judge. Roach notes that while the designation of terrorist groups by the executive branch is a standard feature of anti-terrorism measures in other countries, the process leaves a limited role to the judiciary and to those being designated.

3.8 Other Comments

Two participants offered additional comments on the impact of the Anti-Terrorism Act and of other counter-terrorism measures.

One participant added that any assessment of the impact of Canada's counter-terrorism efforts must consider the operational effectiveness of law enforcement and security agencies. This being said, he asserts that, “I continue to find CSIS' analytical capabilities to be extremely weak on international terrorist movements and the political contexts within which they operate.”

Wark notes that Bill C-36 sparked a broad debate within Canadian society and the legal community regarding the issue of the appropriate balance between security and civil liberties. As a result, conferences were organized, media coverage has been extensive and, more concretely, a sunset provision of five years has been established for some aspects of the Act.

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