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



5.1 Adopting a Multi-Faceted and Measured Response

Several participants asserted that terrorism is a complex phenomenon requiring a multi-faceted response. According to Rudner, “ …[Canada] must deploy all the instruments of an asymmetric warfare effort, including an effectual legislative armoury, proactive intelligence collection, vigilant law enforcement, critical infrastructure protection, and government policies designed to promote the values and interests of [Canadians]… ”

A number of participants supported a comprehensive approach to the diverse threats faced by Canada, including terrorism. Roach notes that monitoring public health concerns (e.g., food and water safety) provides protection “ not only against the risk of terrorism but also the risk of diseases and accidental contamination of food and water. ” He adds that such monitoring, along with improved emergency preparedness, will enhance public safety in relation to a variety of threats, while avoiding the Anti-Terrorism Act's potential to abuse human rights.

Martyn underscores the importance of cooperation among justice and intelligence agencies, health, supporting international development, and financial bodies. Farson adds that Canada should prioritize all threats-natural and man-made-“ so that governments across the country can respond in an appropriate and cost-effective manner on a regional basis. ” He notes that review of risk assessment methodologies is important as more emphasis is needed on the strategies, capacities and intentions of terrorists rather than merely on the vulnerability of certain targets. Wark adds that Canada needs a national security strategy for dealing with transnational terrorism, involving inter-departmental coordination on security and intelligence matters.

Whitaker observes that the creation by the Martin government of a new super-ministry of Public Safety and Emergency Preparedness, with its all-threats emphasis, is a step in the right direction. “ Particularly important here is the development of a central threat assessment capacity to evaluate and prioritize potential threats, whether terrorist or non-terrorist, for the purpose of rationally allocating resources. ”

Several participants stressed the need for a measured response by Canada. Martyn argues that an over-reaction to threats will be financially draining, undermine civil liberties, and alienate various communities that will then be a more favourable recruitment ground for extremist groups. Stuart questions the authenticity of the terrorist threat and believes that Canada should focus on what he refers to as proven and real threats (e.g., cancer, suicide, vehicular accidents, and domestic violence).

While Charters agrees with the need for a response that is commensurate with the estimated threat level, he points out that Canada should sustain existing security measures. He reminds us that preserving the safety of Canadians is a fundamental responsibility of government. Canada, he says, also has a moral and legal obligation not to serve as a sanctuary for terrorists. This is also in our own interest as a successful attack on the US launched from Canada would not only “ have devastating consequences for the Canadian economy, but also for Canadian sovereignty. The border could be closed to trade and travel and the US could impose its own security measures on the continent as a whole. ” Canada should send a strong message that activities in support of terrorism will not be tolerated.

Wark adds that Canada needs a sustainable capacity to know, pre-empt and respond to terrorist threats taking into account public opinion, our democratic values, and fiscal considerations.

5.2 Intelligence and Intelligence Sharing

Charters and Wark characterize intelligence as our first line of defence against terrorism. As such, Canada should deploy additional resources in counter-intelligence. Wark adds that, “ Measures are required to further raise the profile of intelligence in the federal government, to increase the centralization and coordination of intelligence work and to enhance capability, including the formation of a foreign intelligence service.” Farson adds that the private sector must be included in intelligence sharing as it owns 80 percent of the critical infrastructure in Canada. Brynen notes that, apart from the coordination of human and technical intelligence work within and between jurisdictions, appropriate legal frameworks are required.

Sossin emphasizes the need for cooperation with foreign governments among law enforcement and intelligence agencies. He states that the Arar case reveals significant uncertainty with regard to the interaction between different branches of the Canadian government and between Canadian and foreign governments. Whitaker adds that by enhancing its foreign intelligence capacity, Canada would also improve the quality of intelligence received from its allies in exchange.

Rudner observes that Canada's Arab and Muslim communities are especially vulnerable to Islamicist terrorist groups that embed themselves in their communities, promote terrorist activities, and radicalize community institutions. Charitable organizations based primarily in Saudi Arabia and Pakistan provide clergy, teachers, and teaching materials to Arab and Muslim communities around the globe, often promoting extremist and militant Islamic perspectives. Canadian authorities should monitor financial flows, personnel movements, and incitement, so as to protect the integrity of Arab and Muslim religious, educational, and communal institutions in this country. Rudner adds that terrorist recruitment among Muslim Canadians should also be monitored and human intelligence sources should be cultivated within the tightly knit Islamic terrorist cells.

Rudner adds that given the attempts by global networks to widen recruitment and acquire WMDs, Canada and its laboratories need to become less vulnerable to terrorist recruitment and trainees. Tighter border controls have been circumvented by enrollment in fraudulent educational institutions and no security procedures currently exist in Canada to monitor transfers to other institutions. Unlike in the United Kingdom, Canada's intelligence agencies have no mechanism to alert universities and laboratories about applicants who may pose a threat.

5.3 Working With Communities At Risk and Profiling

Brynen asserts that it is counterproductive to view ethnic groups from troubled areas as posing a high risk, as this will alienate these groups from law enforcement and make them more susceptible to recruitment by extremist groups. He adds that community leaders need to be consulted and minority groups need to be empowered to speak out against misperceptions and biases held by police. Furthermore, security and law enforcement agencies need to reflect the ethnic diversity of the Canadian population. These agencies need to develop linguistic and cultural skills “ for a nuanced understanding of community politics.”

While troubled by the profiling of airline passengers or of individuals at border crossings on the basis of race or nationality, some participants conceded that some profiling was unavoidable. On the downside, Roach notes that profiling of airline passengers may be both under and over inclusive and may alienate communities that might be helpful to authorities in identifying terrorists.

Sossin, while opposed to profiling on the basis of race or nationality, does support profiling on the basis of criteria that are objective, such as passengers traveling with one-way tickets, so long as proper training is done and various safeguards (legal, effective supervision) are in place to prevent “arbitrary mistreatment.” Whitaker adds that ethnic profiling is to some degree impossible to avoid in dealing with terrorism that has certain national, ethnic and religious roots.

5.4 The Role of the Criminal Law in Combating Terrorism

Roach notes that the criminal law will be of limited use in combating terrorism. Even prior to the enactment of the Anti-Terrorism Act, the tools were available to prosecute individuals for crimes such as murder, hijacking, and the use of explosives, as well as for conspiracy, counseling, and attempts to commit such crimes. While the Act increases the severity of punishment, Roach points out that deterrence also depends on the certainty of punishment and assumes that terrorists are rational actors. According to Roach, criminal law will be most useful when directed at third parties (e.g., financial institutions) providing various services to terrorists. Responses to terrorism through criminal law reforms may also result in harms inflicted on innocent citizens.

Roach argues that a reliance on immigration law may lead to the rejection of many more legitimate refugees than those associated with terrorism. He says that the long-term preventive detention allowed under Canadian immigration law may incapacitate terrorists, but their eventual deportation may simply displace the problem.

Stuart sees few redeeming features in the Act. He takes the position that it is “a dangerous and unnecessary blight on our justice system” that should be repealed in its entirety.

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