It is unquestionable that the events of September 11, 2001 altered the mandate of law enforcement and intelligence gathering agencies in the name of national security throughout Western democracies. However, the real issue is how and why Bill C-36, also known as the Anti-Terrorism Act (ATA), was over-zealously drafted and implemented following these attacks on national security. The Falconer article precisely pinpoints this problem and connects how the post-9/11 climate of fear affected the drafting and implementation of the ATA. The environment of fear created by the 9/11 attacks shifted the focus of the RCMP from focusing solely on criminal prosecutions to a mandate concentrated on prevention and intelligence gathering. In his report in the Arar Commission, Justice O’Connor found that “post-9/11 the focus of all intelligence agencies became identifying the next wave of potential attacks” (Falconer, 6). The real questions here are: how extraordinary is this imminent threat, is the ATA managing the fear arising from this threat and what discriminatory impact is it having on those subject to its purposes?
The main areas of concern here seem to be whether the government is focusing too much attention on the threat of terrorism at the expense of other threats and how this perception affected the creation of the ATA and the reality of its implementation. In a publication by the Canada Institute on North American Issues, the topic of the public’s perception of threats and attitudes towards security in North America was explored. Here, it was argued that 9/11 had a “dramatic effect in reshaping the public’s outlook and governmental priorities” in Canada and the U.S. The paper also stated that it was the “perceptions of threat, rather than the true, statistical incidence of it, that drives public opinion” (Wilson). If the public debate is driven by mere public perception of threats than actual occurrences, what does this say about the legitimacy of the ATA and the wide-ranging powers it grants national security and law enforcement agencies?
The ‘climate of fear’ that was generated following the 9/11 attacks can clearly be understood as the driving force behind the explanations and justifications Canadian law enforcement and intelligence gathering agencies when it comes to issues of racial profiling. Not only did the Act’s preventative nature create clear problems in differentiating between RCMP and CSIS mandates but had a significantly negative impact on the protection of individual liberties, as seen in the Maher Arar case. In Justice O’Connor’s report on the events relating to Maher Arar, he clearly pinpoints the discriminatory effect of the 'climate of fear' and its justificatory abilities in the name of ‘national security.’ He states in the report that despite the heightened need for proper screening, some RCMP officers testified that “because of the imminent threat of another terrorist attack following 9/11, it had no longer been practical or desirable at the time to adhere to policies on screening information and using caveats for information shared with the United States” (Commission of Inquiry, 107-8). Can this climate of fear or threat of imminent attack continue to be the main justification for these improper actions?
Whether it was the climate of fear, the shift in focus of the ATA from one of criminal prosecution to preventative action or the inadequate training of the RCMP, one or all of these factors clearly impacted and created the justification for the severely discriminatory racial profiling that Maher Arar and his family ultimately experienced. In October 2001, a member of Project A-O Canada wrote to U.S. Customs asking that Mr. Arar and his wife be entered into American databases as “members of a group of Islamic Extremist individuals suspected of being linked to the Al-Qaeda terrorist movement” (Commission of Inquiry, 13). Justice O’Connor found no justification whatsoever for this label and believed that “inexperience in national security training likely lead to such an enormous blunder” (Falconer, 8). Yet, how can one even attempt to argue that inadequate and inexperienced training could have possibly explained the creation of such a label with no concrete justification to its name? A complete and outright lack of justification could lead one to argue that this had nothing to do with inadequate training and is a clear and overt instance of racial profiling whether consciously or unconsciously arising out of a legitimate fear of imminent threat to national security. It would seem that in the Arar case, this would be the answer given that the RCMP’s actions are explainable only on the basis that Mr. Arar and his wife are Muslims and that their labelling was “entirely based on racial stereotyping” (Falconer, 21).
This raises the further issue of whether or not the Arar example is an indication of a systemic or case-specific problem. On the one hand, the Arar case is a clear reflection of the difficulties inherent to every-day intelligence gathering practices when it comes to tracking terrorist activity. Here, one could argue that every-day activities of policing and intelligence gathering is a tough business in which ‘leads’ are followed on a whim and suspects enter in and out of the spectrum of interest. Perhaps the Arar case is a textbook example of ‘tunnel vision’ which is difficult to control and an unfortunate reality of the circumstances. As a result, one could argue that it may be impossible or very difficult to legitimately and adequately acquire national security intelligence without impacting individuals in discriminatory ways. On the other hand, one could also argue that the outright racial labelling lacking completely in legitimate justification is a true reflection of the discriminatory beliefs of individuals working within national security agencies who intend to use their authority for individual benefit or purpose.
As the Falconer article indicates, the real problem in the Arar case was the over-zealous implementation of the ATA and the wide-ranging and often blurred lines of authority between the RCMP and CSIS. The Arar Commission recommended that the RCMP, CSIS and other national security agencies create policies against racial profiling and called for “sufficient monitoring, enforcing and training to ensure that racial profiling does not occur” (Roach, 15). Similarly, legal scholars such as Kent Roach and Sujit Choudhry have presented briefs to the Senate Special Committee calling for “an explicit ban on racial and religious profiling in the administration of Bill C-36 as well as for more robust reporting requirements which would ensure that relevant statistics are collected to determine whether such discriminatory profiling was occurring” (Falconer, 14). Would this recommendation be sufficient to combat the discriminatory effects of racial profiling? Who is to say a ban or independent review body will stop something like this from happening again? And what if this is not an isolated case? Perhaps many similar cases have occurred but Arar’s was fortunate enough to rise out of the shadows and into the light of media attention and governmental action.
Unfortunately, the fact of the matter remains that the issue over discriminatory profiling is not a new one and there already exists a significant amount of social science research proving its existence and implications. Much of the debate surrounding racial profiling within the criminal justice system has focused heavily on police powers and the existence of racial profiling in detaining individuals in motor vehicles (re: R. v. Brown). However, the most comprehensive report on this racial profiling was done in 1995 by the Commission on Systemic Racism in the Ontario Criminal Justice System and the findings in this report suggest that racial discrimination extends into the courts and is not exclusively a police phenomenon. Thus, the argument that racial profiling plagued our criminal justice system prior to 9/11 and thus must plague it since is, in my opinion, a justified conclusion to make (Falconer, 14). In addition, the Roach article makes a valid claim when stating the importance of taking racial profiling claims seriously given that “unattested assertions of profiling may feed into the disaffection of some members of minority groups and create false but dangerous impressions that the fight against terrorism is directed against Islam” (Roach, 15).
This may be a side issue but the real problem here is that racial profiling is such a difficult phenomenon to prove. It is “rarely proven by direct evidence [and is] more often proved by circumstantial evidence” (Falconer, 19). The problem seems to be that despite precedent legal decisions offering definitions of racial profiling, social science data to prove that the courts are taking note of the occurrence of the phenomenon and governmental inquiries outlawing the use of inappropriate police conduct through recommendations, there continues to exist a lack of appreciation for the unconscious nature of racial profiling that is further displaced by the tendency of courts to focus entirely on disbelieving instances of overt racial prejudice and profiling in the criminal justice system. Just as the Falconer article indicates, the labelling of Arar and his wife is a “classic example of racial profiling and that, with respect, the O’Connor Report falls short of the mark when it failed to apply the racial profiling analysis to the issue” (Falconer, 18).
Thus, the racial profiling phenomena is clearly experienced by members of minority groups in Canada, is well-documented in social science research, given some attention in the criminal justice system but is yet to be analyzed to the degree it deserves. Will accountability for this form of discrimination ever arise in a national security context? Perhaps, but from a standpoint where the literature has been reviewed, it seems as if the criminal justice system is either unwilling to analyze the issue, lacks the means to do so or only assesses the reality of the situation after the discrimination has been felt and comes to light.
Sources:
Falconer, Julian and Sunil S. Mathai. “The Anti-Terrorism Act and the Arar Findings: Democracy Protected or Democracy Eroded?” National Journal of Constitutional Law. 2006/7; Vol. 21; pp.49-75.
Roach, Kent. “Better Late than Never? The Canadian Parliamentary Review of the Anti-Terrorism Act.” Sept.2007; Vol.13; No.5; pp.1-38.
Commission on Systemic Racism in the Ontario Criminal Justice System. Final Report to the Commission on Systemic Racism in the Ontario Criminal Justice System. Toronto: Queen’s Printer for Ontario, 1995.
Woodrow Wilson International Center for Scholars. “Threat Perceptions in Canada and the United States.” 4th publication in the One Issue, Two Voices Series. November 10, 2005. www.wilsoncenter.org/index.cfm?fuseaction=events.print&event_id=150910&stoplayout=true
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. "Report of the Events Relating to Maher Arar: Analysis and Recommendations." pp. 1-364. www.ararcommission.ca/eng/AR_English.pdf
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