Canada's Anti-terrorism Act and Defining Terrorism

Canada’s Anti-terrorism Act: Protection or Erosion of Democracy?

Canada’s Anti-terrorism Act was quickly drafted in 2001 in the wake of the September 11 attacks. It is perhaps due to the hasty way in which Bill C-36 was made into law, which did not allow for careful analysis and scrutiny of the potential consequences of the Act, that many problems have arisen since its enactment. The passing of the Anti-terrorism Act into law was based upon the goal of protecting the democratic state, as well as the rights of its citizens. However, rather than protecting democracy, the Anti-terrorism Act seems to have the effect of further eroding democracy instead.

At the time of its original enactment, various provisions of the Anti-terrorism Act infringed upon some fundamental Constitutional rights and freedoms of citizens. In spite of this fact, Bill C-36 was still allowed to pass into law. Aside from the Act’s problematic definition of what constitutes terrorism, which will later be addressed, the expansive powers the Act gave to police officers further aggravated its original problems.

Through the Anti-terrorism Act and its preventative mandate, the police gained enhanced investigative and arrest powers. Coined as ‘preventative arrest,’ the police were granted the authority to arrest an individual under reasonable suspicion that he or she will carry out terrorist activity, deeming detention necessary (Roach 2007: 6). I would have to argue that this provision is in violation of Section 9 of the Canadian Charter of Rights and Freedoms, which protects citizens against arbitrary detention or imprisonment. The police power of preventative arrest granted by the Anti-terrorism Act in effect allows for the arbitrary detention of individuals. The subjective judgment call of whether reasonable suspicion exists lies not at the hands of an impartial court judge, but at the hands of police officers, who have a vested interested in carrying out such detentions by virtue of their expanded preventative mandate (Falconer & Mathai 2007: 60).

The enhanced investigative powers of the court is further proof of the ways in which the Anti-terrorism Act has further eroded, rather than protected democracy. The ATA granted the courts the power to carry out ‘investigative hearings,’ in which the courts have the authority to compel individuals to answer questions relating to past or future terrorist activities (Roach 2007: 6). Section 13 of the Canadian Charter of Rights and Freedoms protects individuals who give potentially self-incriminating witness testimony, from having it used against them except in perjury prosecutions. Although the Supreme Court upheld the investigative hearings procedure as being constitutional with respect to Section 13 of the Charter, it is still important to note the implications of the courts’ power to compel individuals to answer. Prior to the investigative hearings power being granted to the courts, individuals could not be forced to answer questions in court, especially in circumstances where it could result in self-incrimination. Although testimony given by individuals during investigative hearings cannot be used against them except in perjury trials, they are still left vulnerable to punishment should they choose not to answer, as a result of the courts’ expanded power.

As the previous examples demonstrate, the increased power granted by the Anti-terrorism Act to judicial institutions has had the effect of decreasing the rights of citizens. From the outset the vague and overbroad nature of the Anti-terrorism Act made it problematic. We must question whether the government ought to continue renewing this problematic legislation, which is in need of a major overhaul, or if they ought to start off with a blank slate and draft a completely new and better thought out legislation to address the issue of terrorism.

Defining Terrorism: Definitional Problems and Consequences

The Anti-terrorism Act defines a terrorist act as one committed “for a political, religious or ideological purpose, objective or cause” (CBC News 2007). This definition of terrorism is a key and very problematic aspect of the ATA due to the fact that it is too broad, and too open to interpretation, leaving the door open for racial profiling to occur under the guise of legitimate practice under the ATA. In essence, the motive clause in the definition of terrorism criminalizes political, religious or ideological beliefs that may be regarded by some authoritative institutions as suspicious or a threat to national security (Falconer & Mathai 2007: 63). In the Khawaja case, the motive aspect of the definition of terrorism was ruled to be an unjustified violation of Section 2 of the Charter of Rights and Freedoms: freedom of expression, religion and association. The court in Khawaja even went so far as to say that the motive requirement in the definition of terrorism was “an invitation to religious profiling of suspected suspects” (Roach 2007: 5). In fact, the Senate Committee’s review of the ATA called for the deletion of the political, religious and ideological motive requirement in the definition of terrorist activities (Roach 2007: 13).

The case of Maher Arar is the best example of the injustice that can, and in this case did occur, as a consequence of the ATA’s problematic definition of terrorist activity. Although Justice O’Connor held that the evidence did not demonstrate that racial profiling played a role in Mr. Arar’s case, we must call into question his conclusion (Falconer & Mathai 2007: 65). Falconer and Mathai argue that the there was no other basis for the RCMP’s characterization of Mr. Arar and his wife, Dr. Monia Mazigh, as “Islamic extremists with links to Al-Qaeda,” other than the fact that they were Muslims (Falconer & Mathai 2007: 69). I would have to agree that it seems quite likely that the unfortunate situation that Mr. Arar found himself in was the product of racial stereotyping.

So, the question remains, why, in spite of all the negative consequences that arose from the ‘political, religious and ideological’ motive clause, does it remain a part of the definition of a terrorist act in the ATA? Some argue that deletion of the political, religious and ideological motive requirement from the definition of terrorist activities would have the effect of expanding the definition of terrorism to include any and all deliberate acts of violence (Roach 2007: 13). However, there is still the option of adopting the Canadian Criminal Code’s narrower and less problematic definition of terrorist activity: “the intentional killing and maiming of civilians in order to intimidate a population or compel governments or international organizations to act” (Roach 2007: 14).



Works Cited

Canadian Charter of Rights and Freedoms. http://laws.justice.gc.ca/en/charter/

CBS News. “Anti-terrorism Act.” February 27, 2007. http://www.cbc.ca/news/background/cdnsecurity/

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

Kent Roach, "Better Late Than Never? The Canadian Parliamentary Review of the Anti-terrorism Act," Choices, September 2007Kent Roach, "Canada's New Terrorism Bills: Slow Down and Debate," Jurist, October 29, 2007.
http://jurist.law.pitt.edu/forumy/2007/10/canadas-new-terrorism-bills-slow-down.php

The Star. “A Better Security Law.” October 24, 2007. http://www.thestar.com/printArticle/269690