ATA Characteristics: Is the Act appropriate for Canadian law?

ATA Characteristics: Is the Act appropriate for Canadian law?

The Act is focused upon preventative measures, which are based upon policing and judgment of the surveillance prior to the commitment of the deeds. The additional powers of the ATA are preventative arrest and binding investigative powers. These powers, newly granted to the RCMP and rescinded from the CSIS, are the topics I will focus upon. How much can they potentially infringe on one’s individual right to life, liberty and security of the person, freedoms intrinsic to every person? Does the ‘imminent’ threat of terrorism mean this must be tolerated? The Act is based upon the premise that the threat is real and time-sensitive, and policing forces have to focus upon preventing them prior to suspects committing them. Previous law demanded that suspects be convicted only upon the committal of crimes, which allows authorities to identify and apprehend them. The ATA allows those who assisted, directed and partook in the terrorist act to be punished accordingly, whether or not they have successfully achieved them.

In the parliamentary review the consensus was to have the investigative power that is binding (Falconer 21), and the individual is required to answer all questions, however it stipulates that this is to proceed in an open court, with the focus being primarily upon increasing transparency of the entire process, rather than evidence gathered from private hearings, increasing objectivity of the judgment. In this way, the respect of the person's security was considered above the right of liberty, and to some degree, their liberty is respected as the open court was to prevent abuse of the entire process.

One example of the law’s mistreatment of citizens and abuse of the system through religious profiling and stereotyping was Maher Arar’s case. It was not classed as a criminal investigation, to start. A line was crossed, whereby the RCMP was in a position of intelligence gathering in addition to law enforcement. Now, the distinction had been well placed in the act, for the express purpose of objectivity and clarity in seeking viable evidence of imminent threat. A separate agency investigates whilst a separate agency acts upon the findings as necessary. Not only was this objectivity lost, but the RCMP was not trained for national security investigations. The investigation was consequently and unsurprisingly mismanaged.

This example brings up real concerns for racial profiling and religious persecution. In defining terrorism as ideologically and religiously motivated there is a fear that individuals would be unfairly judged and stereotyped (Falconer 15). The concern is raised from a sense that people will no longer feel at ease to express freely their opinions on religious and topically divisive issues, particularly if their opinion upon the matter was radically different from that of the standard. There is a subtle but effective shift towards a dictatorship of opinion if people are to be negatively viewed for having a different perspective, and images of a society akin to Orwell's Animal Farm come up alarmingly fast.

This does pose futher questions regarding freedom of expression: how can minority groups raise socially conscious points of contention if they fear being seen in the light of a terrorist? This thought control is dangerous in a society of liberal democracy, one that values plurality of opinion and perspective. Such variety cannot thrive in a society that fears opposition and differences, seeing them as potential threats rather than potential societal development. Toleration of religious and ideological opinion is entirely different from toleration of violence based upon religious view and ideology, however, the line must not be crossed to causing people to censor their opinions for fear of judgement.

The authorities err through categorizing as terrorists people whose beliefs, rather than past actions, have shown them to be threatening to the country. One can have dangerous thoughts but not act upon them, it is by virtue of being human that we do not act upon the ideas that do harm! The balance between state good and individual liberty is blurred and misplaced here, where the state infringes upon one’s right to free thought and expression. The entire process is based upon a judgment of character that was formed through stereotypes and prejudices of a general population.

In the Arar case, it was relied upon the stereotyped Arar that he was seen a threat to the country, and based on this belief he was scheduled for removal to Syria. There was too much dependence upon the individual judgment of the policing agent, as the reliance on the judgement of the RCMP was what the officers justified their arrest of Arar upon (Falconer 18). This blanket trust upon the RCMP is perhaps unjustified due to the fact that they were able to label someone a threat without substantive evidence presented along with the label. The findings were determined after examination showed there was no reasonable evidence that Arar was justified in being seen as a threat to the state. The process of deduction was the only tangible way to prove existence of racial profiling. The danger of racial profiling that is unjustified does not seem, in my mind, worthy of the protection against this generalised 'imminent threat' caused by the public's fear in the post-9/11 culture. Furthermore, the parliamentary review of the Anti-Terrorism act shows that Bill C-36 was rushed, and biased. The problems with racial profiling and religious prejudices were not considered prior to the instigation of these new powers to the enforcing agents (RCMP). The RCMP was simply not trained previously in using these means to investigate, and the powers were consequently misused.

While in theory the powers granted to the RCMP may improve effectiveness of the operations, in practice it seems that these powers should clearly be based upon findings from a separate party, such as the CSIS in the interest of objectivity and neutrality in judgement. There needs to be a tiered system here, of investigation and then enforcement of law, filtered through with argument and supported with evidence. Otherwise it can indeed be arbitrary and uncalled for, with ultimately drastic and terrible consequences. Understandably it will take more time, but it may ensure that cases such as that of Arar would occur much less frequently, with the requirement of substantive evidence to support such labels as extremist. Distinction between threats and differences of opinion can and should be made, but it should be reached at with substantive evidence and a consensus of opinion between bodies that investigate, regulate and enforce law.

A final point, if terrorism is known as the “weapon of the weak”, I am unsure about what is that saying about our society. That people have had to resort to this means in order to bring their issues to the attention of the public, of the politicians and the media? Perhaps this is actually what should be focused on: methods of integrating individual views with that of the public sphere. Perhaps there are systematic faults at hand here that need to be solved. Instead of allowing and then attempting to prevent terrorists in the act, there should be action taken additionally to ensure these minority groups with stronger views and perspectives are properly heard as well. Just a thought.



Sources:
Kent Roach, "Better Late Than Never? The Canadian Parliamentary Review of the Anti-terrorism Act," Choices, September 2007

Julian N Falconer and Sunil S Mathai,"The Anti-Terrorism Act and the Arar Findings: Democracy Protected or Democracy Eroded?" National Journal of Constitutional Law, vol. 21 (2006/2007): 49-75