vol. 13, no. 5, september 2007 issn 0711-0677 ...€¦ · irpp choices, vol. 13, no. 5, september...
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choicesVol. 13, no. 5, September 2007 ISSN 0711-0677 www.irpp.org
Security and Democracy
IRPP
Kent Roach
Better Latethan Never?
The CanadianParliamentary Review ofthe Anti-terrorism Act
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To cite this document:
Roach, Kent. 2007. “Better Late than Never? TheCanadian Parliamentary Review of the Anti-terrorism Act.” IRPP Choices 13 (5).
The opinions expressed in this paper are those of the authors and do not necessarily reflect the views of IRPP or its Board of Directors.
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About the AuthorKent Roach is a professor of law at the University ofToronto, where he holds the Prichard-Wilson Chair inLaw and Public Policy. He has also been elected aFellow of the Royal Society of Canada. He has writteneight books, including September 11: Consequencesfor Canada (McGill Queens Press). He is the co-editorof Global Anti-Terrorism Law and Policy (CambridgeUniversity Press) and of The Security of Freedom:Essays on Canada’s Anti-Terrorism Bill (University ofToronto Press). His work on comparative anti-terrorism law has been published in Australia,Europe, Hong Kong, Singapore, South Africa and theUnited States, as well as in Canada. He assisted theArar and Air India inquiries and appeared before aworking group drafting anti-terrorism laws inIndonesia.
Security and Democracy / Sécurité et démocracyResearch Directors/ Directeurs de recherche
Mel Cappe and/et Wesley Wark
T his IRPP research program explores the com-plex challenges confronting Canada withregard to the post-9/11 security environment
and its impact on domestic and international poli-cies. The research addresses issues that are in manyways new to the country and to the formulation ofCanadian national security policy, above all thethreat posed by global, transnational terrorism. Theprogram examines the interrelationships betweennew security demands and democratic norms, focus-ing in particular on the building blocks of a sounddemocratic model for national security, namely,effective intelligence; capable law enforcement;appropriate, stable laws; good governance; accounta-bility; citizen engagement and public knowledge;emergency response capability; wise economicpolicy; and public-private sector partnerships.
C e programme de recherche s’intéresse auxdéfis de sécurité d’une grande complexitéque le Canada doit relever depuis le 11 sep-
tembre, de même qu’à leur incidence sur nos poli-tiques nationales et internationales. Il traitera d’en-jeux souvent inédits pour notre pays en matière desécurité nationale, notamment le terrorisme mondialet transnational. Le programme vise à analyser l’in-terrelation entre les nouvelles exigences de sécuritéet les normes démocratiques, de manière à définirles éléments de base suivants : un modèle de sécu-rité nationale pleinement démocratique, notammenten matière de renseignement ; l’efficacité du main-tien de l’ordre ; la stabilité et la légitimité des lois ;la gouvernance éclairée ; la responsabilisation ;l’engagement citoyen et l’information du public ;l’intervention d’urgence ; une politique économiqueavisée ; et les partenariats entre les secteurs publicet privé.
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Contents3 Introduction
4 The Anti-terrorism Act
8 The House of Commons Committee InterimReport on Preventive Arrests and InvestigativeHearings
9 The Parliamentary Debate over the Renewal ofPreventive Arrests and Investigative Hearings
11 The Process Adopted by the House of Commonsand Senate Committees
13 Twelve Issues Considered in the Review
25 A Report Card on the Three-Year ReviewConducted by the Committees
26 The Government Responds to the CommonsCommittee
28 Conclusion
31 Notes
33 References
Introduction
T his paper assesses the policy-making process behindthe Canadian Parliament’s mandated review of theAnti-terrorism Act (ATA) and the expiry of preven-
tive arrests and investigative hearings in the ATA. Assuch, it provides a preliminary glimpse into the complexi-ties of national security policy-making. Policy-makers inthis area must grapple with difficult issues that involveliberty, security, equality, privacy and Canada’s interna-tional relationships. In addition, they must also respond toa seemingly overwhelming array of policy drivers includ-ing United Nations edicts, varying assessments of thethreat environment, predictions about the restraints thatwill be imposed by courts under the Canadian Charter ofRights and Freedoms, recommendations by publicinquiries, rights watchdogs and parliamentary committees,the experience of other countries and input from interestgroups. The policy environment is dynamic and the issuesare multifaceted. There are no easy answers. At the sametime, there is a danger that the issues will be simplified,sensationalized and politicized in a partisan manner.
In recognition that it was quickly drafted legislationenacted on a permanent basis, Canada’s 2001 ATArequired parliamentary committees to conduct a compre-hensive three-year review of its provisions and operation,as stipulated in s. 145 of the Act.1 This three-year reviewwas to start at the end of 2004 and be completed by theend of 2005. Parliamentary reviews of innovative legisla-tion have the potential to provide sober second thought.They can lead to amendments to reflect the experienceunder the law and changed circumstances. At the sametime, past reviews of security legislation by parliamentarycommittees, for example the five-year review of theCanadian Security Intelligence Service (CSIS) Act, havefaced problems gaining access to secret information, alack of time to complete their work and governmentunwillingness to implement their recommendations(Commons 1990; Farson 1995). Unfortunately,Parliament’s review of the anti-terrorism legislation wasdelayed and the reviews were not completed until March
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Better Late thanNever? The Canadian ParliamentaryReview of the Anti-terrorism Act
Kent Roach
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islative text that, for the most part, had been quicklydrafted in the large and tragic shadow of 9/11.Although it was not enacted with the same rapidityas the USA Patriot Act — a speed that preventedmany American legislators from even reading thetext of that law — the debates about the ATA wererushed. The federal government took the position thatSecurity Council Resolution 1373, which required allnations to enact laws against terrorism and thefinancing of terrorism and to report to a new UnitedNations Counter-Terrorism Committee by the end of2001, required that Bill C-36 become law byDecember 18, 2001.2
Perhaps because the government felt secure withits majority position in Parliament and was commit-ted to legislating in response to 9/11, there was arobust debate about Bill C-36 in committees in theCommons and the Senate. The many critics of thelegislation obtained some significant changes in com-mittee, including the attachment of a five-year sunsetto new powers of preventive arrest and investigativehearings and some narrowing of the legislation’sbroad definition of terrorist activities. The publicdebate was also energetic. Books were written aboutthe Bill and the media produced extensive analyses ofits potential effects on civil liberties (Daniels,Macklem and Roach 2001; Daubney et al. 2002; Kelly2005, 246-7; Roach 2003: chap. 3). Groups represent-ing Aboriginal people, unions, charities, refugees andlawyers, as well as watchdog review agencies such asthe privacy and access to information commissionersand the Canadian Human Rights Commission, allvoiced their concerns about the Bill, as originallydrafted, to committees in the Commons and theSenate. These committees made some important rec-ommendations, many of which were later adopted bythe government. They addressed issues such as thedefinition of terrorist activities, and recommendedthat an exemption from the definition for strikes andprotests not be limited to lawful protests and strikes.The result has been described as “the most balancedexample of legislative activism to date” (Kelly 2005,246) and one that demonstrated the ability ofParliament to take rights considerations into account.The committees certainly made important contribu-tions to Bill C-36, but party discipline and closurewas imposed to end the parliamentary debate, leadingsome MPs such as Joe Clark to criticize the process as“a travesty of democracy” (Roach 2003, 67). As willbe seen, the courts have found some parts of Bill C-36 to be flawed under the Charter.
2007. This delay meant that Parliament decided not torenew preventive arrests and investigative hearings, twocontroversial new powers in the ATA that were subjectto a five-year renewable sunset, at the end of February2007 without the benefit of the full review of the ATA.
After a brief description of the ATA, enacted inDecember 2001, and subsequent court cases that haveapplied the ATA, this paper will explore the debate overthe expiry of investigative hearings and preventive arreststhat occurred in February 2007. Particular attention willbe paid to the lack of influence that an interim reportreleased by the Commons committee (Commons 2006)had on what was a highly partisan and fractious debate.It will then describe the processes used by both Commonsand Senate committees to complete their delayed three-year review of the ATA. This paper then identifies anddiscusses 12 major issues that arise from the final reportsof the Senate and Commons committees. My purpose isto assess the recommendations made by the committeesrather than to advocate particular ways to resolve theseimportant issues. I will also identify some intriguing andimportant differences between the approaches taken bythe Senate and the Commons committee and provide areport card of sorts on the work of the committees. Thegovernment’s response in June 2007 to the three-yearreview conducted by the Commons committee will alsobe assessed. The conclusion of this study will explorewhether Parliament is up to the task of building on thework of the committees in a rational and intelligent wayand completing the long-delayed three-year review of theATA through amendments.
The recent debate over investigative hearings andpreventive arrests, regardless of one’s views about theoutcome, does not justify optimism. It may be thatgood work by committees in the sensitive area of anti-terrorism law and policy may be better received incourts and unelected upper chambers than in the elect-ed Commons. This, at least, has been the experience inthe United Kingdom (Hiebert 2005). Such a conclusionwould not, however, bode well for the ability ofParliament or the Canadian public to deliberate aboutthe many difficult security issues that we face.
The Anti-terrorism ActThe Bill C-36 debate
B ill C-36, containing the Anti-terrorism Act,was introduced in Parliament on October 15,2001. It weighed in at over 170 pages of leg-
protests must be lawful, and provided that the expres-sion of religious, political or ideological thought oropinions would not normally be considered terrorism.
Lawyers for the first person charged under the ATA,Mohamed Momin Khawaja, however, successfully chal-lenged this definition of terrorist activities. The judgeheld that while the definitions of terrorism offenceswere not unconstitutionally vague or over-broad andhad constitutionally sufficient fault requirements, therequirement of proof of religious and political motivewas an unjustified violation of freedom of expression,religion and association and an invitation to religiousprofiling of suspected terrorists. The judge struck downthe political or religious motive requirement and sev-ered it from the rest of the definition.3 This decisionhad the effect of expanding the definition of terroristactivities, especially because the law applied toattempts to compel not only governments but any per-son to act. But the ruling also responded to real con-cerns in society about targeting people as potentialterrorists because of their religious beliefs (Roach2007a). The Supreme Court recently refused to hear anappeal of this decision. Nevertheless, the decisionremains controversial. Some argue that it is nonsensicalto define terrorism without regard to religious andpolitical motives (Plaxton 2007), while others point tomany examples of definitions of terrorism that do notuse motive as a basis for distinguishing it from ordi-nary crime (Roach 2007a). Regardless of one’s viewsabout the decision, however, it suggests that Parliamentshould consider revisiting its definition of terroristactivities, which was hurriedly crafted in the immediateaftermath of 9/11. The independent reviewer of Britishanti-terrorism laws recently completed just this taskand stated that, with some exceptions, the British defi-nition of terrorism — which, it should be noted, formsthe basis for the Canadian definition — was sound(Carlile 2007). That the Canadian Parliament would finditself confronting the definition of terrorism yet againshould not be surprising given the great difficulties thatthe international community has experienced in reach-ing an agreement about the proper definition of terror-ism. The question remains, however, whether theCanadian Parliament is up to the difficult task of defin-ing terrorism in a principled and workable manner.
Investigative hearings and preventive arrestsAnother important feature of the ATA was its expan-sion of police powers. One provision provided for pre-ventive arrest when there are reasonable grounds tobelieve that a terrorist activity will be carried out and
The complex, omnibus nature of the ATA made itdifficult for interested persons and parliamentariansto assess all parts of the Act. Much of the Bill C-36debate revolved around the definition of terroristactivities, the introduction of investigative hearingsand preventive arrests, and the effects of the law oncharities. The implications of the more technical partsof the Act relating to signals intelligence, terroristfinancing and government secrecy received lessattention (Wark 2001). The important role that immi-gration law, and in particular security certificates,would play was also largely ignored (Macklin 2001),as were issues related to the review of national secu-rity activities.
The definition of terrorist activitiesUnited Nations Security Council Resolution 1373,enacted immediately after 9/11, called on all statesunder the mandatory provisions of chapter VII of theUnited Nations Charter to ensure that terrorism wastreated as a serious crime, but it did not attempt todefine terrorism. That difficult and controversial taskwas left to each domestic government.
The most discussed part of the ATA added a newsection on terrorism to the Criminal Code. It definedterrorist activities in the Criminal Code for the firsttime and enacted a broad range of new offencesrelating to the financing and facilitation of terrorismand participation in a terrorist group. The focus onfinancial support for terrorism reflected the substanceof Security Council Resolution 1373 and the UN’sfocus at the time. Subsequent developments, includ-ing the report of the 9/11 Commission, have raisedquestions about the effectiveness of the focus on thefinancing of terrorism in preventing actual, oftenlow-cost, acts of terrorism.
As first introduced, the ATA would have definedterrorist activities to include serious disruptions ofessential public or private services, so long as theywere politically or religiously motivated or designedto intimidate a segment of the public with regard toits security or to compel a government or any personto act. The only exemption from this sweeping prohi-bition when Bill C-36 was introduced was for “lawfuladvocacy, protest, dissent or stoppage of work”[emphasis added]. This broad definition of terrorisminspired widespread concern among civil societygroups that the Act would brand many illegal protestsand strikes as terrorism (Roach 2003, chap. 3). Thisconcern led to amendments before the Bill becamelaw that dropped the requirement that exempt
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favour of open courts applied to the conduct ofinvestigative hearings. Two judges dissented on thebasis that such a presumption would make the hear-ing ineffective as an investigative tool and couldharm the rights of third parties and intimidate wit-nesses. This dissent raises but does not resolve theconnection between investigative hearings and theability of Canadian officials to protect witnesses andrecruit informers.
Enhanced investigative powersThe ATA made it easier for police officers to obtainwarrants for electronic surveillance in terrorism inves-tigations. It also provided the first recognition ofCanada’s signals intelligence agency, theCommunications Security Establishment (CSE). TheCSE gathers foreign intelligence from global communi-cations networks, helps protect important informationinfrastructures in Canada and provides technical andoperational assistance to federal law enforcement andsecurity agencies. The ATA empowered the CSE tointercept private communications on a ministerial asopposed to a judicial authorization. Although this wasnot clearly spelled out in the legislation, the CSEamendment allows for interception of communica-tions, even if one side of the conversation was inCanada. Similar use of intercept powers by theNational Security Agency in the United States, untilrecently not specifically authorized by legislation, havecaused considerable controversy. In one of its fewrecognitions of the importance of reviewing nationalsecurity activities, the ATA also recognized the role ofthe arm’s-length commissioner of the CSE, generally aretired judge, who has a mandate to ensure that theCSE’s activities are in compliance with the law.
Enhanced secrecyThe ATA also updated the Official Secrets Act andrenamed it the Security of Information Act. The amend-ments expanded the previous act to include communi-cations with terrorist groups as well as foreign powers,if the communications are prejudicial to broadlydefined interests of the state. One section that was notamended was the offence targeting leaks or possessionof secret information, despite many criticisms and callsfor its reforms. In 2006, the section was declared to beunconstitutional and struck down in the Juliet O’Neillcase. The judge gave the old law a failing grade in allpossible respects. She found that the old offence wasunconstitutionally vague and over-broad, did notrequire fault and was a disproportionate limitation on
reasonable suspicion that detention or the impositionof conditions on a specific person is necessary to pre-vent its carrying-out. The period of preventive arrestunder Canadian law was limited to a maximum of 72hours and could see a judge release a person beforethis time. The maximum 72-hour period was shorterthan the 7 days then provided under British law, aperiod that has subsequently been extended to 28days, with calls for even longer periods.
At the same time, the effects of a Canadian pre-ventive arrest could last much longer than three days.A judge can require the suspect to enter into a recog-nizance or peace bond for up to a year, with a breachof the bond being punishable by up to two years’imprisonment and a refusal to agree to a peace bondpunishable by a year’s imprisonment. Governmentswere required to prepare reports on the use of pre-ventive arrests, but the reports that have been issuedreveal no use of this provision.
A second new investigative power was a power tocompel a person to answer questions relating to ter-rorist activities in either the past or the future.4 Thesubject could not refuse to answer on the grounds ofself-incrimination, but the statements and evidencederived from them could not be used in subsequentproceedings against the person so compelled. Therewas judicial supervision of the questions and a rightto counsel.
The first and only attempt to use investigativehearings was during the Air India trial. The applica-tion for the hearing was held in secret without noticeto the media or to the accused in the trial. The personcompelled to testify challenged the constitutionalityof the procedure. In Application under s. 83.28,5 theSupreme Court upheld the constitutionality of thisnovel procedure in a 6-to-3 decision. JusticesIacobucci and Arbour held for the majority that theprocedure did not violate s. 7 of the Charter, giventhat compelled evidence or evidence derived fromthat evidence could not be used against the personexcept in perjury prosecutions. Two judges dissentedon the basis that investigative hearings violated theinstitutional independence of the judiciary by requir-ing judges to preside over police investigations. They,along with a third judge, also dissented on the basisthat the use of an investigative hearing in the middleof the Air India trial constituted an abuse of processbecause it was an attempt by the prosecution to gainan unfair advantage.
In the companion case of Re Vancouver Sun,6 amajority of the Court held that the presumption in
viding for such remedies for non-disclosure (Roach2001a). Nevertheless, questions remain about whetherthe provisions are workable in requiring two courts, theFederal Court and the criminal trial court, to resolvethe difficult balance between the state’s interest insecrecy and the accused’s interest in disclosure in ter-rorism prosecutions.
The Khawaja prosecution, Canada’s first terrorismprosecution under the ATA, has become bogged downin pretrial litigation. There has been not only Charterlitigation over the ATA’s definition of terrorist activi-ties,11 but an unsuccessful Charter challenge to the newprovisions of the Canada Evidence Act12 and an appli-cation by the Crown requesting that about 1,500 pagesof the almost 99,000 pages of material that it holdsabout the case not be disclosed to the accused.13 TheAttorney General of Canada has appealed a decision todisclose and summarize some of this secret informationto the accused. The accused in turn has appealed thedecision to uphold the law under the Charter and not todisclose the remaining information. We are no closer tostarting a trial against Mr. Khawaja even though hewas first charged and denied bail in 2004. In contrast,the British were able to complete the trial of Mr.Khawaja’s alleged co-conspirators in London at the endof April 2007, despite the fact that the British trial tooka year to complete and the jury deliberated for almost amonth before convicting five of the seven men whowere charged.
All countries must grapple with reconciling the com-peting needs to keep secrets and to disclose relevantinformation to ensure that the accused is treated fairly.Canada, however, has a particularly difficult timeresolving such tensions because of its concerns aboutbeing a net importer of intelligence. The judge hearingthe Crown’s application for non-disclosure in Khawajaaccepted that Canada must rely on foreign intelligence,but nevertheless held that the government had gone toofar in making some of its claims of secrecy.14 Anotherfactor that complicates the Canadian approach to secre-cy is our awkward use of two courts, the Federal Courtand the criminal trial court, to resolve claims of nation-al security confidentiality. In Britain, the United Statesand Australia, the trial judge alone is able to determinewhat secret material must be disclosed to the accusedand what must not.
Summary: the ATA in contextThe ATA was important and sweeping legislation. At thesame time, it was only part of an intensification ofnational security activities. The Public Safety Act was
freedom of expression.7 As will be seen, the Commonsand Senate committees failed to deal adequately withthe implications of this ruling.
The ATA also amended the secrecy provisions ofthe Canada Evidence Act to require justice systemparticipants to notify the Attorney General of Canadaif they planned to disclose or call evidence about abroadly defined range of secrets. The law requiresthat disputes about the disclosure of such informa-tion, even when they arise in criminal trials, be liti-gated before a specially designated judge of theFederal Court. Provisions requiring that all parts ofsuch Federal Court hearings be conducted in privatehave recently been declared to be an unjustified vio-lation of freedom of expression by the Federal Court.8
This suggests that claims made by the Minister ofJustice in 2001 that the ATA was consistent with theCharter have not always been borne out by subse-quent experience with Charter litigation.
At the same time, however, other parts of theCanada Evidence Act amendments have survivedCharter challenge. The Federal Court recently held thatthe government’s ability to make arguments to thejudges about secret information without the other side’sbeing present did not violate the Charter.9 The Courtsuggested that in appropriate cases a security-clearedfriend of the court could be appointed to challenge thegovernment’s case for secrecy and non-disclosure.
Even if a judge orders that the public interest indisclosure outweighs the interest in non-disclosure,the Attorney General can, under the 2001 amend-ments, prevent disclosure by issuing a certificate. Thecertificate lasts 15 years but can be renewed. Inresponse to criticisms after Bill C-36 was introduced,it can be subject to a light form of judicial reviewthat only requires the judge to affirm that the infor-mation covered by the certificate relates to nationalsecurity or national defence or was received from aforeign entity.
The Canada Evidence Act also recognized that afailure to disclose relevant information to the accusedbecause of a concern about preserving secrets couldmake a fair trial impossible. It explicitly recognizedthe right of trial courts to order whatever remedy wasrequired to protect the accused’s right to a fair trial inlight of a non- or partial disclosure order from theFederal Court. This represented a concession to theCharter and the reality that at least one terrorismprosecution had been stayed because of a lack of fulldisclosure.10 The new Canada Evidence Act provisionsmay have been successfully Charter-proofed by pro-
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only be conducted when there was reason to believethat there was imminent peril that a terrorist offencewould be committed. This recommendation followedan argument made by the Canadian Civil LibertiesAssociation in its written brief to the committee. Thecommittee’s unanimous proposal would have pre-vented the use of investigative hearings to investigatepast acts of terrorism such as the 1985 bombing ofAir India Flight 182. The committee’s rationale forthis approach was sparse. It concluded:
The Canadian Civil Liberties Association(CCLA) in its brief has expressed concernabout the dual nature of investigative hear-ings. The CCLA accepted the necessity insome circumstances to compel testimony inan adjudicative hearing such as a criminaltrial where the issues are clearly circum-scribed. It stated that a distinction might bemade between misdeeds already committedand perils imminently expected—the powerto compel testimony should be limited to thelatter situation.
The Subcommittee agrees with the posi-tion taken by the CCLA on this issue. Thereare already a number of investigative powersand techniques available to law enforcementagencies pursuing the perpetrators of crimi-nal activity, which includes terrorismoffences. Traditionally, Canadian criminallaw has not accepted that testimony be com-pelled for investigative purposes, in contrastwith adjudicative processes.
The Subcommittee believes that inves-tigative hearings should only be available inrelation to situations where testimony has tobe compelled to prevent activities wherethere is imminent peril of serious damagebeing caused as a consequence of their beingsuccessfully carried out in whole or in part.This recommendation can be implemented byamending section 83.28(4) of the CriminalCode so as to delete paragraph (a) from it.(Commons 2006, 6-7)
The CCLA had originally proposed this approach in2001 as a “compromise” (Borovoy 2006, 97), presumablyon the basis that the social interest in preventing terror-ism was greater than that in prosecuting terrorism. Theissue was not even discussed when the CCLA appearedbefore the committee. The rationale for the CCLA’sapproach and that recommended by the Commons com-mittee in its interim report is essentially that investiga-tive hearings like preventive arrests, should be limited toemergency situations where extraordinary action is nec-essary to prevent acts of terrorism.
Neither Parliament nor the Supreme Court, howev-er, drew any distinction between past and future actsof terrorism. Investigative hearings as included in the2001 legislation specifically applied to both future andpast acts of terrorism. In 2004, a majority of the
introduced shortly after the ATA was enacted and itcontained many provisions providing for increasedinformation sharing within and between governmentsas well as measures relating to aviation security, thecontrol of toxins and dangerous materials, and emer-gency measures. Unlike the ATA, it was not subject toa three-year review. In addition to these legislativeresponses to 9/11, there was increased spending onsecurity matters, a Smart Border agreement with theUnited States, including an eventual safe-third-countryagreement restricting refugee applications from eachcountry, and the deployment of Canadian Forces inAfghanistan,15 but not Iraq. In 2004, Canada releasedits first national security policy, designed to deal notonly with the threat of terrorism but also other risks tohuman security such as natural disasters and pan-demics including SARS (Roach 2003, chap. 7; Wark2006; Whitaker 2005). The Solicitor General’sDepartment was reorganized as the new and expandedDepartment of Public Safety and EmergencyPreparedness, and new agencies were created withresponsibility for aviation safety and border protection.
Although the comprehensive review of the ATAwas itself a daunting task, it was still far from acomprehensive review of all the post-9/11 changesto Canadian security policy. Indeed, it might beimpossible for any one committee of Parliament toconduct a truly comprehensive review of the manypost-9/11 changes to Canada’s national security pol-icy, precisely because they have affected so manyaspects of governance. As will be seen, the com-plexity of the review of just the ATA and relatedlegislation was almost overwhelming for theCommons and Senate committees that conducted it.
The House of CommonsCommittee Interim Report onPreventive Arrests andInvestigative Hearings
T he dissolution of Parliament in November 2005and the subsequent 2006 election made itimpossible for the Commons committee to com-
plete its comprehensive report as scheduled by theend of 2005. In late October 2006, an interim reportwas issued. All members of the Commons subcom-mittee16 unanimously agreed that investigative hear-ings should be extended until December 31, 2011, butsubject to the recommendation that such hearings
tive arrests, but not peace bonds, give the judge discre-tion to allow a person to be detained and perhaps ques-tioned for a maximum of 72 hours after arrest. Peacebonds to respond to reasonable fears of terrorismremain in force, despite the expiry of preventivearrests. Indeed, they were used when charges wererecently stayed against two youths arrested andcharged with various terrorism offences in Toronto.
The committee’s interim report was not an impres-sive or particularly well-thought-out document. It didnot examine why Canadian officials had not usedinvestigative hearings or preventive arrests, or whythey believed such powers had to be retained. It did notexamine comparative experience with similar powers. Itdid not articulate the rationale for why investigativehearings should only be used to investigate imminentas opposed to past acts of terrorism. It did not explorethe Supreme Court’s jurisprudence on investigativehearings, including the implications of the Court’s deci-sion that investigative hearings could be used to inves-tigate past acts of terrorism and that they should besubject to the presumption that the hearing would beheld in public. The interim report did not examine thecase for reforming preventive arrests by placing restric-tions on how a person is treated during the period ofdetention, as was recommended at the time that theATA was drafted (Trotter 2001), and as has been includ-ed in Australia’s comparable legislation (Roach 2007c).In any event, the Commons committee need not havebothered issuing its interim report. As will be seen, itsinterim recommendations played a negligible role inwhat was to become a highly partisan and emotivedebate over renewal.
The Parliamentary Debate over theRenewal of Preventive Arrests andInvestigative Hearings
E ven before 9/11, Parliament has traditionallynot been an effective forum to discuss complexand sensitive security issues. Professor Franks
found that “most of the discussion of security mattersin the House has been stimulated by scandal-huntingand suggestions of impropriety” (1979, 15). In hisjudgment, “the record shows that parliamentary dis-cussion is spotty and partial, with some issues beingflogged to death, while others have been ignored.Debate, questions and committee consideration haveusually concentrated on a few, and often unimportant
Supreme Court held that, as procedural legislation,investigative hearings could be applied to past acts ofterrorism without violating the rule against retroactiveoffences. Justices Iacobucci and Arbour concludedthat “[w]hile the prevention of future acts of terrorismwas undoubtedly a primary legislative purpose in theenactment of the provision, as discussed earlier, itdoes not follow that Parliament intended for proce-dural bifurcation respecting past acts of terrorism vis-à-vis anticipated or future acts. The provision itselfprovides for judicial investigative hearings to be heldboth before and after the commission of a terrorismoffence ….”17 The dissenting judges concluded thatusing an investigative hearing against a Crown wit-ness during an ongoing trial was an abuse of theprosecution’s powers, but did not indicate that inves-tigative hearings should not be available with respectto past acts of terrorism. The fact that Parliament andthe Supreme Court had no problem with the use ofinvestigative hearings for past acts of terrorism doesnot necessarily mean that the position taken by theCCLA and the Commons review committee waswrong. It does, however, suggest that the Commonscommittee should have provided a more elaborate andsustained justification for its conclusions.
The committee was divided about the renewal ofpreventive arrests. The majority recommended thatthey should be extended subject to minor housekeep-ing amendments, but Joe Comartin of the NDP andSerge Ménard of the Bloc Québecois dissented. Theystressed that the provisions could be used to label aperson as a terrorist on the basis of reasonable suspi-cion. They referred to both the Maher Arar case andthe October 1970 detentions as examples of the dan-gers of harming the innocent, but they distinguishedpreventive arrests from peace bond provisions in theCriminal Code. Ordinary peace bond provisions wereexpanded in 2001 by the ATA and, unlike the preven-tive arrests, were not subject to either reporting orsunset requirements. They allow year-long conditionsto be imposed on a person, on pain of the criminalsanction, on the basis of a reasonable fear that theperson will commit a terrorism offence.18 Peace bondsand preventive arrests both allow preventive res-traints, or what the British call control orders, to beplaced on terrorist suspects. The main differencebetween the two procedures is that preventive arrestsallow for arrest without warrant in emergency situa-tions when detention is necessary to prevent a terror-ist activity, whereas under a peace bond a person canonly be arrested with a warrant. In addition, preven-
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investigative hearings had been upheld by theSupreme Court and preventive arrests entailed aminor invasion of rights that could save lives.22 TheLiberals indicated that, in the absence of legislationimplementing the Commons committee’s interim rec-ommendations or an overall review of the ATA, theywould allow the provisions to sunset.23 Representa-tives of the NDP and the Bloc also indicated that theywould oppose the renewal motion.24 The Conservativechair of the committee supported the proposedrenewal, arguing that during the three-year periodthe government could consider the committee’s rec-ommendations that investigative hearings only beused with respect to imminent and not past terroristattacks, as well as the delayed full three-year com-mittee reviews.25 The argument suggested that moretime was required to digest all the reports. However,time was running out, as every sitting day ofParliament brought the five-year sunset for investiga-tive hearings and preventive arrests closer.
In the days that followed, the Conservatives citedthe support for investigative hearings by victims ofterrorism and by former Liberal cabinet ministers tocriticize the Liberals’ refusal to renew the provisions.26
On February 21, 2007, the Prime Minister, in responseto a question about judicial appointments, brought upa newspaper story that alleged that the RCMP wasintending to use investigative hearings in its continu-ing Air India investigation, and that the father-in-lawof a Liberal member of Parliament had been named asa possible target of an investigative hearing.27 Theissue dominated question period and the media in theensuing days, with the Conservatives alleging that theLiberals’ position would threaten the Air India investi-gation and the Liberals alleging that the PrimeMinister had impugned the integrity of a member ofParliament and the Liberal Party’s decision-makingprocess. The Leader of the Opposition demanded anapology from the Prime Minister for his remarks, andthe Prime Minister demanded an apology from theLiberals for not renewing the provision.28 Neitherapology was made, and each party raised questions ofprivilege against the other.29 What quickly got lost inthe debate was any discussion of the merits of inves-tigative hearings and preventive arrests or the interimreport of the Commons committee.
The special Senate committee’s comprehensivereport was released on February 22, 2007, too late tohave any real effect on a debate that had alreadybeen overtaken by bitter partisan wrangling in theHouse. The Senate committee noted that, given that
aspects of the problem” (65). As will be seen, theparliamentary debate on the sunset provisions didnot improve Parliament’s less than stellar record onsecurity issues.
On February 9, 2007, the government introduced amotion to extend investigative hearings and preven-tive arrests for a three-year period.19 The governmentargued that the renewal was necessary to prevent ter-rorism, and stressed that the Supreme Court had heldin 2004 that investigative hearings were consistentwith the Charter. The Conservatives, like the Liberalsbefore them, relied on the argument that security leg-islation had been “Charter-proofed.” Although sucharguments reflect the important role of the Charter inpolicy formation (Kelly 2005), they focus on the min-imum standards of the Charter and avoid the questionof whether the policy in question is wise or effective(Roach 2001a).
The parliamentary secretary for the Minister ofJustice argued that the House most simply vote onwhether to renew investigative hearings as they stoodin the original ATA. He was aware that the Commonscommittee had proposed additional recommendationsin its interim report, including the controversial pro-posal that investigative hearings only be available toinvestigate imminent and not past acts of terrorism,but he argued that such reforms would have to waituntil the committees had completed their delayed com-prehensive reviews. He stressed that the renewalmotion was limited to whether the provisions wouldsunset or not.20 There was support for this up or downposition in the text of the expiry provisions in theATA,21 but the ATA had also contemplated that thethree-year review by the parliamentary committeeswould be completed a year before preventive arrestsand investigative hearings would be subject to thesunset provisions. The timing originally contemplatedin the ATA would have allowed the government toamend the Act in response to the review before thesunset. The government’s approach in insisting thatthe provisions be renewed or allowed to lapse withoutamendment probably also represented a strategic deci-sion by a minority government to maximize the likeli-hood of quickly obtaining an extension from a dividedCommons. As will be seen, however, the government’sminimalist approach backfired, as the opposition par-ties argued that they should not renew investigativehearings and preventive hearings while waiting forfurther reforms to the ATA that might never come.
The Minister of Public Safety spoke at lengthabout the need for the provisions, stressing that
be renewed, because they were consistent with theCharter and had not been abused, and that Parliamentshould defer to those with “top secret” information whothought they should be renewed.35 Some Conservativesargued that the three-year renewal was necessary togive Parliament time to absorb the results of the com-prehensive review just finished by the Senate commit-tee and still pending from the Commons committee.36
Time for debate about the sunsetting provisions,however, ran out. On February 27, 2007, the govern-ment’s motion to renew the provisions for three yearswas defeated by a vote of 159 to 124.37 The sunset issuewas decided before Parliament was in a position toknow all of the results of the comprehensive three-yearreview. The tendency of the Commons debate to focuson partisan issues, as well as the delays in the three-year review, had combined to allow the powers of pre-ventive arrests and investigative hearings to expirewithout a sustained debate about either the merits orthe dangers of those provisions. The media in large partmimicked the partisan tenor of the debate in theCommons, except for its fixation with the drama of thecourt’s decision in Charkaoui. Whereas both theCommons and the media had reflected on a number ofsubstantive issues during the Bill C-36 debate, such asthe proper definition of terrorism and the dangers ofinvestigative hearings and preventive arrests, the debateabout the expiry of those provisions was largely devoidof substance. It was a strange turn of events, but onethat reflected the perils of reviewing or renewing com-plex legislation in a minority government setting.
The Process Adopted by the Houseof Commons and SenateCommittees
A lthough it is often correctly observed thatCanadian parliamentary committees do not havethe resources available to legislative committees
in the United States and the United Kingdom (Franks1979; Hiebert 2002), the process used by both theCommons and Senate committees was fairly impressive.Both committees heard from a broad range of witnessesfrom government, independent review agencies, civilsociety and academe, and they eventually issued exten-sive and in the main well-reasoned reports.
The Standing Committee on Justice, Human Rights,Public Safety and Emergency Preparedness established aseven-member subcommittee in December 2004, which
there had been no reports of the use of either inves-tigative hearings or preventive arrests, “it is difficultfor the Committee to make a definitive judgment asto the need for them” (Senate 2007, 70). Nevertheless,it recommended a three-year extension of the provi-sions as well as enhanced and more timely reportingon why they were used or not used.
The very next day, the focus of attention shifted againas the Supreme Court released its long-awaited decisionin the Charkaoui case.30 The case involved a successfulCharter challenge by three men detained under securitycertificates issued not under the ATA but under immigra-tion law. The Supreme Court unanimously concludedthat the present procedure, which allowed the govern-ment to present secret intelligence to the judge withoutdetainees’ or their lawyers’ being present to know andchallenge the government’s case, unnecessarily violateddetainees’ Charter rights. The parties traded allegations ofblame for not reforming the immigration law securitycertificate process sooner.31 Unfortunately, the larger andmore complex issues underlying the treatment of secretinformation were not discussed, even though they hadbeen thoroughly and comprehensively discussed in theSenate report released the previous day. The media alsoreflected the obsession with the Charkaoui case, as it fea-tured multi-page spreads on the case and reactions to itwhile almost totally ignoring the Senate’s report. Theonly reference to the comprehensive review process inthe Commons that day was its unanimous approval of afourth extension for the Commons committee to com-plete its review of the ATA.32
Much of the next few days in the House was takenup with debate about the renewals of investigativehearings and preventive arrests. The NDP and theBloc affirmed their opposition to renewal, stressingcivil liberties concerns, as reflected in the Arar case,even though Mr. Arar had not been subject to eitherof the procedures. The Liberals argued that they hadnever been “soft on terror” and that the governmenthad not responded to either the recommendations ofthe interim report or the Senate committee’s report ofthe need for “comprehensive revision” of the entireanti-terrorism law.33 Former Liberal justice ministerIrwin Cotler stressed the need for a comprehensivereview, and bemoaned what he saw as a politicizationand reduction of a debate on which reasonable peo-ple can disagree “into one of bumper sticker slogansand smears.” He concluded that his only choice was a“principled abstention” from the debate.34 SomeLiberal members broke party ranks and argued thatinvestigative hearings and preventive arrests should
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reduced to writing. Assistance to the committee wasprovided by three officials from the Library ofParliament.
The two committees decided not to limit them-selves to the strict terms of s. 145 of the ATA, whichrequired them to conduct a review of the provisionsand operation of the Act. Both committees reviewedthe operation of other security legislation, mostnotably security certificates issued under immigrationlaw, as well as questions of review of national securi-ty activities. The decisions of the committees in thisrespect recognized the public controversy over secu-rity certificates. They also recognized the interest inthe creation of a parliamentary committee to reviewnational security matters and the review recommen-dations of the Commission of Inquiry into the Actionsof Canadian Officials in Relation to Maher Arar. Atthe same time, the committees did not attempt toconduct a comprehensive review of the many facetsof Canada’s evolving security policy and they did notreview the Public Safety Act.
The Commons committee made 60 recommenda-tions and issued a 137-page report. It also featured adissenting report issued by Serge Ménard of the BlocQuébecois and Joe Comartin of the NDP. The Senatecommittee made 40 recommendations and issued aunanimous 139-page report. These reports will not beexamined in detail here; rather, their recommendationswill be analyzed and compared in the following dis-cussion of the major issues emerging from the review.
There are, however, some themes that runthroughout and distinguish the two reports. Perhapsrepresenting its nature as an unelected institutionthat is supposed to be responsive to the concerns ofminorities, the Senate committee devoted more atten-tion and concern to the effects of anti-terrorismefforts on Muslim communities than the Commonscommittee. For example, the Senate committeeapproved of the deletion of the religious and politicalmotive requirement, addressed the role of the Cross-Cultural Roundtable on Security, raised the issue ofdiscriminatory profiling, and recommended anenhanced review of the national security activities ofthe RCMP and other officials, as well as the abolitionof the possibility that non-citizens suspected ofinvolvement in terrorism could be deported to coun-tries where they might be tortured. In contrast, theCommons committee disapproved of the deletion ofthe religious and political motive requirements, rec-ommended a new offence that would apply to theglorification of terrorism and dealt with review of
heard from 82 witnesses in 22 meetings lasting for atotal of 47 hours. The subcommittee was chaired byLiberal member of Parliament Paul Zed. The subcom-mittee also considered 44 briefs before Parliament wasdissolved in November 2005. Some witnesses from theUnited Kingdom, including Lord Carlile, the independ-ent reviewer of British anti-terrorism laws, were heardby way of video link. A new subcommittee of sevenmembers with four hold-over members, but a newchair, Conservative member of Parliament GordBrown, was established in May 2006. It heard from 5witnesses, received six briefs and held 22 meetingsover 36 hours. This time commitment included thepreparation of its interim and final reports. Of the 87witnesses heard by the Commons committee, themajority were either government officials or ministers,followed by individuals representing interest groups,review agencies such as the Privacy Commissionerand finally individuals, mostly academics but includ-ing some individual victims of terrorism.38 Assistanceto the committee was provided by two officials fromthe Library of Parliament.
The Senate committee was a special Senate com-mittee of nine members whose composition was ofcourse not affected by elections. It was originallychaired by Liberal Senator Joyce Fairbairn, but thechair was eventually taken over by Liberal SenatorDavid Smith. A majority of the members of theSenate committee were also part of the special Senatecommittee that considered Bill C-36 in 2001, includ-ing Senators Andreychuk, Fairbairn, Fraser, Jafferand Joyal. The Senate committee thus came to thetask with extensive knowledge of the ATA. TheSenate committee heard from 140 witnesses over 22sitting days. A number of witnesses testified from theUnited Kingdom, Norway and Singapore by videolink. Fourteen interest groups appeared before bothcommittees,39 as did many of the same ministers andgovernment and review agency officials. As with theCommons committee, the most frequent appearancesbefore the committee were by government officials orministers, followed by representatives of interestgroups, officials from review agencies and individu-als, usually academics.40 The Senate committee alsoconducted study visits to London and Washington tolearn about British and American responses to terror-ism, and heard from a United Nations official inVienna.41 Although it is easy to criticize parliamen-tarians for study trips, they can play a valuable rolein the security field, where much knowledge of stan-dard operating procedures and new challenges is not
normative end in themselves, there is also an instru-mental case that respect for civil liberties and equalityrights can help combat a world view that seeks to por-tray the war against terrorism as a war against Islam.
Twelve Issues Considered in theReview
I n what follows, I will identify 12 major issues thatemerge from a close reading of the Commons andSenate committee reports. I will not attempt to
advocate any particular resolution of these issues butrather compare, contrast and assess the approach ofeach committee and identify other factors that shouldinform the decision-making process. As will be seen,the issues are complex and often interrelated. Thepolicy drivers in each area come from multiple direc-tions, including international instruments, comparativeexperience, the courts and civil society concerns.
Political and religious motives and thedefinition of terrorist activities The Senate committee called for the deletion of thepolitical, religious and ideological motive require-ments not only with respect to the definition of ter-rorist activities in the Criminal Code (Senate 2007,13), but also with respect to the definition of CSIS’smandate to investigate threats to the security ofCanada (Senate 2007, 20) and the definition of a pur-pose prejudicial to the interest of the state under theSecurity of Information Act (Senate 2007, 99). Thecommittee’s approach demonstrates Parliament’s abili-ty to look beyond the specific issue that commandedattention from the court in Khawaja. Parliamentretains the ability to engage in more comprehensivereforms than the courts.
In this vein, it is important to note that, at least inrelation to the CSIS Act, the Senate committee recognizedthat simply striking down the political and religiousmotive requirement could create problems of over-breadth by targeting virtually all serious violence againstpersons or property as terrorism. The Senate committeerecommended that the CSIS Act be amended to includeonly violence designed to influence governments to actor to intimidate the public (Senate 2007, 19). There is adanger, apparently not considered by the judge inKhawaja, that simply removing the political or religiousmotive requirement will expand the definition of terror-ism to encompass all intentional violence (Roach 2007a).
national security activities only as it affectedParliament and not various police, immigration, for-eign affairs or customs officials. It also did notaddress the issue of deporting non-citizens to torture.My finding that the Senate committee was muchmore responsive to the concerns of Muslim commu-nities is consistent with findings that the unelectedHouse of Lords in the United Kingdom has demon-strated more interest in the Human Rights Act, 1998than the elected Commons (Hiebert 2005, 22; Nicol2004, 472-3).
That said, it would be wrong to suggest that theCommons committee was not concerned with allrights claims. It was particularly sensitive to the con-cerns of lawyers with respect to terrorist financing,and it recommended that due diligence defences bemade available for charities and those charged withthe financing of terrorism. Indeed, the Commonscommittee was more concerned about possible over-breadth and unfairness in these areas than were theSenate committee or the government. The Commonscommittee was also sensitive to privacy concerns. Itrecommended that the review body for Canada’s sig-nals intelligence agency be empowered to review itsactivities for compliance with the Charter and thePrivacy Act, a recommendation that was not made bythe Senate committee.
The difference between the Senate and Commonscommittees may not concern rights in general, butthe rights of unpopular groups. In this respect, itwould not be surprising if unelected parliamentariansin the Senate were more concerned with the rights ofunpopular individuals and groups than were theirelected colleagues, and their elected colleagues weremore concerned with the rights of more powerful andpopular groups such as lawyers and charities. Indeed,such insights inform most defences of the anti-majoritarian role of judges (Ely 1980; Roach 2001b).They also suggest that unpopular minorities and indi-viduals may consistently lose if, as some argue,courts defer to legislative interpretations of rights onthe basis that elected institutions should be able toresolve so-called reasonable disagreements aboutrights (Huscroft 2007; Waldron 1999). Such deferenceto majoritarian interpretations of rights could pro-mote the alienation of minorities, who could come tobelieve that their rights are consistently undervaluedor ignored (Ramraj 2006). More specifically, it couldfeed into allegations that there are double standardswith respect to the rights of Muslim minorities.Although civil liberties are usually and properly a
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hoaxing terrorism offence that was added to the listof terrorism offences in the ATA in 2004, in a gener-ally ignored amendment included in the omnibusPublic Safety Act. Although false threats of terrorismshould constitute a crime, there are arguments thatthe new hoaxing offence has inadequate faultrequirements, given the stigma and punishmentresulting from its status as a new terrorism offence(Roach 2006a).
The Senate committee did not recommend expan-sion of the ambit of terrorism offences. Nevertheless,it did recommend that the broader Criminal Code def-inition of terrorist activity be substituted for the nar-row definition of terrorism that is now used inimmigration law. The Supreme Court read the nar-rower definition of terrorism into immigration law in2002.42 The Supreme Court’s definition was inspiredby international law, and focuses on the intentionalkilling and maiming of civilians in order to intimi-date a population or compel governments or interna-tional organizations to act. Unlike the Criminal Codedefinition of terrorist activities included in the ATA, itdoes not include some forms of property damage anddisruptions of essential services. Nor does it requireproof of a political or religious motive. At the sametime, it distinguishes terrorism from ordinary crime,by requiring proof of an intent to intimidate the pub-lic or compel governments or international organiza-tions to act.
At the end of the day, the committees did not pro-vide the government or Parliament with all the toolsnecessary to engage in a rethinking of the crucialdefinition of terrorist activities in the Criminal Code.They provided disparate assessments and dividedviews, and failed to see all the implications of theirown recommendations. The research and analysis ofthe Canadian committees pale when compared to the48-page report on the definition of terrorism pro-duced by Lord Carlile, in the independent review ofterrorism legislation in Britain. The British reportincluded research on the definitions in many othercountries and in international and regional conven-tions (Carlile 2007).
The conclusion that the Canadian reports wereinadequate on definitional issues is sobering, giventhe weight of attention paid, both in the debates inthe fall of 2001 and during the review process, tosuch issues. Indeed, the definitional issue is morepressing in Canada than in Britain, because aCanadian court has found parts of our definition ofterrorist activities to be constitutionally deficient
Strangely, the Senate committee did not address thisdanger with respect to the Criminal Code definition ofterrorist activities as amended by the decision inKhawaja, even while it recognized the same problemwith respect to the CSIS Act.
In contrast to the Senate, the Commons committeeaccepted the government’s argument that the politicalor religious motive requirement is required to distin-guish terrorism from ordinary crime. The Commonscommittee noted that the “irony” of the Khawajajudgment was that the Crown now had one less factorto establish concerning the accused’s crime. As willbe seen, however, the Commons committee itself wasnot averse to making recommendations that wouldexpand the ambit of terrorism offences. TheCommons committee was quite dismissive of thecourt’s decision in Khawaja, but it did note that theissue “is still before the courts and that future judg-ments may have a bearing on the issue” (Commons2007, 9). The Supreme Court has refused to hear anappeal from this case and, like it or not, the Khawajaruling on political and religious motive will stand, atleast until the prosecution is completed.
The Commons committee also recommendedexpanding the definition of terrorist activities and theambit of terrorism offences in several ways. It sug-gested that references to governments be expanded toinclude municipal, regional and territorial govern-ments (Commons 2007, 14). It also recommended thatthe reference to compelling persons be changed tocompelling entities, to ensure that attempts to compelunincorporated groups and associations to act beincluded in the definition of terrorism (Commons2007, 14). Finally it proposed that Parliament’s broaddefinition of terrorist activities, which at present isincorporated into many offences relating to the facili-tation, financing and instruction of terrorist activi-ties, itself be made into a separate terrorism offence(Commons 2007, 15). If adopted, this expansion ofterrorism offences could reopen arguments rejectedby the trial judge in Khawaja that the definition ofterrorist activities and the ambit of terrorism offencesare unconstitutionally vague and over-broad.
Neither committee raised concerns about whetherexisting terrorism offences are vague or over-broador have insufficient fault requirements, perhapsreflecting the fact that such Charter challenges wererejected by the trial judge in Khawaja. It would havebeen helpful if the committees had explained whythey agreed with these less well-known parts of theKhawaja decision. Both committees also ignored a
federal government does not have an ombudsman, andthe Arar Commission recommended a significant expan-sion of the Security Intelligence Review Committee’s(SIRC) mandate to provide independent review andcomplaints handling for a wide range of governmentofficials involved in national security activities (Roach2007d). Under these recommendations, SIRC would havethe power to conduct self-initiated reviews as well ashear complaints, and it would be entitled to see secretinformation (Canada 2006a). Others have recommendedan enhanced role for the Canadian Human RightsCommission in this area (Wark 2006).
The issue of profiling raises both instrumental andnormative concerns. Allegations of profiling are allega-tions of racial or religious discrimination that should betaken seriously. In addition, allegations of profiling canpoison relations between minority communities and thestate. Untested assertions of profiling may feed into thedisaffection of some members of minority groups andcreate false but dangerous impressions that the fightagainst terrorism is directed against Islam. TheCommission for Public Complaints against the RCMPdismissed allegations of discriminatory profiling inconnection with the 2003 Operation Thread seizure ofstudents on fraudulent visas, even though officials ini-tially depicted the case as a suspected al-Qaeda cell andselected only students from Pakistan for further investi-gation (Roach 2006b, 430). Concerns about profilinghave plagued Canada’s fledgling no-fly list, and theycan adversely affect other national security activities.Even if one is confident that discriminatory profilingdoes not occur, there is a need to ensure that we haveadequate definitions of discriminatory profiling andadequate review mechanisms to respond to profilingshould it occur.
A glorification of terrorism offenceThe Commons committee recommended the addition ofa new offence of glorification of terrorism for the pur-poses of emulation. In one of its very few forays intocomparative experience, it looked to the BritishTerrorism Act, 2006 in this regard and concluded that“hate propaganda offences now contained in theCriminal Code are not adequate to address the glorifi-cation and encouraged emulation of terrorist activities”(Commons 2007, 12) The committee concluded that theexisting terrorist activity offences were “inadequate toaddress the situation within which the glorification orincitement is expressed to the public, and no particularindividuals are encouraged to emulate any specificactions. Such expressive behaviour is diffuse and
(Khawaja 2006) and because the Canadian SupremeCourt has ventured into the difficult territory ofdefining terrorism.43 As much as some may want tomove beyond definitional issues, they are the founda-tion of any anti-terrorism law. Problems with the def-inition of terrorist activities cannot be ignored, butthey were not adequately addressed in either of thereports.
Discriminatory profiling and relations withMuslim communitiesThe Senate committee’s support for the deletion of thepolitical and religious motive requirement was relatedto its concerns about discriminatory profiling. Itechoed the Arar Commission’s recommendations thatthe RCMP, CSIS and other security agencies createpolicies against racial profiling and called for “suffi-cient monitoring, enforcing and training to ensure thatracial profiling does not occur” (Senate 2007, 24),including an enhanced complaints procedure for theRCMP (Senate 2007, 26). It also called for a procedurethat would enable individuals to appeal decisions toplace them on Canada’s “passenger protect” no-fly list(Senate 2007, 88).44 In addition, it called for more inde-pendence and budget for the Cross-CulturalRoundtable on Security Issues. The committee, howe-ver, stopped short of recommending that a non-discrimination clause (Cotler 2001) or an anti-profilingprovision (Choudhry and Roach 2003) be included inthe ATA, even though it had argued in 2001 that ananti-discrimination clause should be added.
The Commons committee devoted a mere page of itsreport to the “concerns of minority communities,” asopposed to the 11-page chapter in the Senate commit-tee’s report. The page in the Commons committeereport stressed efforts made by the RCMP and CSISwith respect to diversity. It concluded that “while theSubcommittee makes no specific recommendation onhow best to respond to the concerns about racial andreligious profiling, much more has to be done in con-sultation with the affected ethno-cultural communitiesto address these concerns” (Commons 2007, 10). Thecommittee did not address the danger that consultationin the absence of effective review and remedies for dis-criminatory treatment might be seen as meaningless. Italso ignored the Arar Commission’s recommendationswith respect to the need for security agencies to de-velop policies against profiling and for enhancedreview, in part to investigate allegations of profiling.
The issue of discriminatory profiling is tied to theadequacy of review and complaints mechanisms. The
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dangers of extremism. If the government moves inthe direction of a glorification offence, it will haveto do more homework than was done by theCommons committee, and it will have to demon-strate why actions short of enacting legislationdefining certain kinds of speech as a criminaloffence will not be effective.
Investigative hearings and preventive arrests As discussed above, the Commons committee issuedan interim report that recommended an extension ofinvestigative hearings, but subject to a qualificationthat they only be used with respect to imminent actsof terrorism. Although there was all-party agreementon this matter, the Conservative government’s subse-quent defence of investigative hearings, as requiredin the RCMP’s continuing investigation of the 1985bombing of Air India, suggests that its position todaymay be different. This apparent change of positionhighlights the need to explore the purposes of inves-tigative hearings more carefully than was done in theinterim report of the Commons committee.
The Senate committee recommended that bothinvestigative hearings and preventive arrests beextended for three years, a period consistent with thegovernment’s defeated resolution on the matter. Italso recommended that Attorneys General providefuller and prompter reports explaining why the provi-sions were or were not used. Although preventivearrests and investigative hearings are no longer partof the law as a result of the defeat of the govern-ment’s resolution to renew them, there may beattempts to revive them in the future.
Neither committee examined the case for reform-ing preventive arrests and recognizance with condi-tions provisions, despite arguments that there shouldbe statutory guidance, as there is under Australianlaw with respect to the conditions of detention andwhether a person subject to a preventive arrest can beinterrogated during the maximum 72 hours of judi-cially approved detention (Trotter 2001). There wasalso no discussion of the fact that the Supreme Courtfound one of the grounds provided in the law for ajudge to deny release to a person, namely the “justcause” provision, to be unconstitutionally vague inthe regular bail context.45
Both reports also ignored the fact that the ATAamended the regular peace bond provisions in theCriminal Code to allow conditions to be placed onindividuals on the basis of reasonable fears that theywill commit a terrorism offence.46 These regular peace
untargeted” (Commons 2007, 12). This analysis, how-ever, ignores the fact that the definition of terroristactivities in the Code already includes threats to com-mit terrorism. The committee recommended that thenew offence be subject to the various free speech andfair comment defences available for hate propaganda.The two dissenting members of the committee arguedthat hate propaganda offences were sufficient andthat the proposed glorification offence would violatefreedom of expression (Commons 2007, 12).
The Commons committee did not note that UNSecurity Council Resolution 1624 calls on states toensure that incitement of terrorism is an offence, whileat the same time calling for increased cross-culturaldialogue. Canada has already responded to that resolu-tion by reporting to the UN Counter-TerrorismCommittee that existing laws against incitement crimeand hate propaganda are adequate. The committee alsodid not examine the controversy in Britain over theglorification offences, which were amended in com-mittee in an attempt to better accommodate freedomof expression, or the effectiveness of British prosecu-tions against extreme speech both at the Finsbury ParkMosque and in protest against the Danish cartoons.The Commons committee did not examine other, lesscoercive, means to combat extremism and violent rhet-oric than the passage of a criminal offence. Althoughthe committee based much of its recommendation onthe precedent of hate propaganda offences, it also didnot examine Canada’s troubled experience with suchprosecutions, or the argument that they can give radi-cals more attention. Nor did it explain how prosecu-tion of those who glorified terrorism would contributeto the prevention of terrorism.
It will be interesting to see if the Government ofCanada acts on the recommendation to create a glori-fication of terrorism offence. Although there areprecedents for similar speech-based offences inBritain and Australia, there will likely be strongopposition to such an offence from both Muslim andcivil liberties groups in Canada. It is also noteworthythat the Senate committee did not recommend thecreation of such an offence. Attempts to define glori-fication of terrorism as an offence will raise Charterissues and may adversely affect relations withMuslim communities.
At the same time, the fact that some people inCanada apparently see terrorists such as Osama BinLaden or Talwinder Singh Parmar as heroes is aproblem. The Commons committee seems to assumethat only a criminal offence will respond to the
ing, but they took significantly different approaches.The Commons committee took the more civil libertarianapproach by recommending that lawyers be exemptedfrom a Criminal Code requirement to report the exis-tence of terrorist property in their possession or con-trol, or information about a transaction in respect ofsuch property if they are providing legal services asopposed to acting as financial intermediaries. TheCommons committee also recommended that a due dili-gence defence be provided for those charged under theCriminal Code for knowingly dealing with terroristproperty, facilitating such a transaction or providingfinancial or related services with respect to terroristproperty (Commons 2007, 24). The Senate committeedisagreed on both points. It accepted government argu-ments that due diligence defences are not necessary forcriminal offences that already require proof that theaccused is knowingly dealing with terrorist property. Italso concluded that no special exemptions were neces-sary for lawyers, given the knowledge requirement, andthat information about transactions related to terroristproperty would as imminent crimes not be protected bysolicitor-client privilege (Senate 2007, 51-7). These dis-agreements between the committees underline the com-plexity of determining the precise ambit of the new andbroadly worded financing crimes and reporting obliga-tions in the ATA.
Neither committee examined the efficacy of terroristfinancing prosecutions as a means of either disruptingterrorists or preventing acts of terrorism. The failure ofthe committees to examine such matters may mean thatquestions of efficacy are left to ministers. Various rightswatchdogs such as the Privacy Commissioner and theenhanced review mechanisms recommended by the ArarCommission will focus on the propriety of nationalsecurity activities. Although independent review todetermine the propriety of the state’s national securityactivities is important, there is also a need for somereview to ensure that Canada’s various security agenciesare taking adequate measures to investigate and preventterrorism. The Auditor General and some Senate com-mittees chaired by Senator Kenny have issued somescathing reports on inefficiencies and weaknesses innational security activities (Whitaker 2005). One role forlegislative committees, particularly legislative commit-tees that are given access to classified information, maybe to make judgments about the efficacy and efficiencyof national security activities (Roach 2007c). Unfortu-nately, there is no evidence that the committees thatissued the three-year review reports were willing or ableto take up this difficult but important review task.
bond provisions were not subject to the five-yearsunset or the special reporting requirements for pre-ventive arrests. Although peace bonds have beenfound to be consistent with the Charter when usedwith respect to reasonable fears that a person willcommit a sexual offence,47 their effects or utility inthe terrorism context are not known.
There is also no discussion in either report of theBritish experience, where a 7-day period of preven-tive arrest was extended to 14 days in 2003 and to 28days in 2006, with the government continuing to askfor longer periods. One of the weaknesses of bothcommittee reports is that there is little examination ofthe vast amount of comparative experience with anti-terrorism law (Ramraj, Hor and Roach 2005).Comparative analysis can be helpful in revealing boththe strengths and weaknesses of the Canadianapproach (Wark 2006). Although the Canadian legaland social contexts are distinct, the lack of compara-tive research in this dynamic area may be related tolimits on the research resources and capacities ofCanadian parliamentary committees, as well as thewitnesses appearing before them.
Finally, there was no sustained discussion in thereports of the fact that the proposed investigativehearing of a reluctant witness in the Air India trialwas in fact never held, despite the fact that theSupreme Court upheld investigative hearings as con-sistent with the Charter. The use of investigativehearings to compel a reluctant witness to cooperateraises larger issues about witness protection that gowell beyond the issue of whether investigative hear-ings are “Charter-proof.” There is a danger that judi-cial and legislative debate may be fixated on Charterissues and may ignore larger questions about theeffectiveness of particular policies such as witnessand informer protection (Roach 2001b).
Terrorist-financing and due-diligence defencesOne of the major thrusts of Security CouncilResolution 1373, enacted in the wake of 9/11, was toencourage countries to ratify the 1999 Convention onthe Suppression of Terrorist Financing and to enactvarious laws against terrorism financing. Canada’sATA followed this orientation, both in enacting abroad range of terrorism financing offences under theCriminal Code, and in amending the Proceeds ofCrime Act to provide officials with information aboutpossible terrorism financing.
Both committees appropriately devoted chapters intheir reports to the complex topic of terrorism financ-
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decertify or deny charitable status on the grounds ofintelligence reports that may not be disclosed to thecharity. Both the Commons and Senate committeesrecommended that security-cleared special advocatesbe available to challenge intelligence that is not dis-closed to a charity through this decertification process.This independent challenge function could increase thelegitimacy of a decision to deregister a charity.
The Commons committee accepted arguments thatthe broad nature of the decertification procedure couldchill legitimate charities, and recommended that theAct be amended to require proof that the charity knewor ought to know that it was supplying resources to aterrorist group that had been listed by the cabinet. Inall cases, charities should have a due diligence defenceon the basis that they took reasonable steps to ensurethat their funds would not support terrorists (Commons2007, 36-8). In contrast, the Senate committee accept-ed an argument that adding a due diligence or human-itarian defence “could have the unintended effect ofmaking charities more vulnerable to being used asfront organizations for terrorists” (Senate 2007, 60).The conflicting approaches taken by the committeeswill not make the government’s job in responding tothe three-year review easier.
One striking fact that receives mention but littlecomment in both reports is that not one charity hasbeen deregistered under the new Act, despite reportsof widespread fundraising in Canada for various ter-rorist groups (Bell 2004). The Senate commented thatthis record indicated that “the government is usingappropriate restraint” (Senate 2007, 60). Neither com-mittee raised the issue of whether the governmentshould use the Act more or of the efficacy of deregis-tering charities in disrupting or preventing terrorism.The same is true with respect to terrorism financing,where neither committee addressed the effectivenessof the resources that Canada has devoted to investi-gating terrorism financing. The performance of thecommittees again raises the issue of where, if any-where, the efficacy of the state’s national securityactivities will be reviewed.
National security confidentiality and secrecyThe Senate committee recommended a number ofreforms to s.38 of the Canada Evidence Act, asamended in 2001. This obscure provision will play acrucial role in cases where the government claimsthat national security requires the non-disclosure ofinformation in criminal prosecutions or other legalproceedings. The Senate committee recommended
Indeed, there is no evidence that they even saw effi-cacy review as an issue.
Listing of terrorist groups and charitiesAnother feature of the ATA is that it gives the cabinetthe power to list individuals and groups as terroristgroups in part in order to facilitate sanctions againstthe financing of terrorism. To their credit, both com-mittees recognized that listing is a complex processthat occurs not only under new Criminal Code provi-sions added by the ATA, but also under the UnitedNations Act and pre-9/11 regulations aimed at theTaliban and al-Qaeda. Both committees recommendedconsolidation of these lists.
Consistent with its attentiveness to the concerns ofminority communities, the Senate committee advertedto the experience of Liban Hussein, a man who waswrongly included on both the Canadian and UnitedNations lists and suffered “serious personal conse-quences” (Senate 2007, 47; see also Dosman 2004).The Senate committee, however, did not recommendthat individuals not be listed. Neither committee dealtwith the fact that a listed entity under the CriminalCode is deemed to be a terrorist group for purposes ofa criminal trial, effectively substituting the cabinet’sdecision that a group is a terrorist group for proofbeyond a reasonable doubt and raising Charter con-cerns (Paciocco 2002). The Senate committee recom-mended that the Justice Department lawyers challengelisting decisions before they are made by the cabinet(Senate 2007, 49), but did not recommend that inde-pendent special advocates play such a role. The use ofindependent counsel to challenge listing decisionscould help respond to charges that the cabinet’s listingdecisions are politicized.
The two dissenting members of the Commonscommittee questioned the necessity for any listingprocess, arguing that it is subject to politicization,abrogates due process by avoiding judicial hearings,and reduces “complex historical and political situa-tions to a simple ‘black and white’ category” and may“impede peace and reconstruction processes” (Senate2007, 124). The dissents issued by NDP and BlocQuébecois members in the Commons committeeallowed for root and branch critiques of the ATA thatwere not present in either the majority report of theCommons committee or the Senate committee report.
One of the more controversial features of the ATAwas the enactment of a new law, the Registration ofCharities (Security Information) Act, which provides ameans for the ministers of public safety and revenue to
ate a howl of resistance from the bar, but it is used inboth Australia and the United States. Although securityclearances could adversely affect choice of counsel,defence lawyers will have a better sense of their client’scase than a special security-cleared counsel, who musttake time to get up to speed with the case and who maybe restricted from communicating with the affectedperson after having been exposed to the secret infor-mation. These omissions represent another examplewhere the committees’ lack of knowledge of compara-tive experience may have narrowed the range of theirrecommendations.
Neither committee recommended abolition of theAttorney General’s power to block a court order fordisclosure to, for example, protect an undertakingmade to a foreign agency that information would notbe disclosed in court proceedings. Both committeesreported that they were not aware of any use of theAttorney General’s certificate.
The dissenting members of the Commons committeeargued that the Attorney General’s secrecy certificateshould be abolished. When used in criminal cases, theyargued, the certificate “overrides the rights of theaccused...to full disclosure by the Crown of exculpatoryas well as inculpatory evidence, and the right to fullanswer and defence” (Commons 2007, 126). This may betrue, but the existing law recognizes that if the AttorneyGeneral blocks disclosure, a fair trial may no longer bepossible and the trial of the accused may have to beabandoned. The dissenters also objected to the use ofthe certificate in civil, access to information and PrivacyAct proceedings on the basis that it could be used to“keep secret…a corruption scandal, a controversial pro-gram, a serious environmental threat, a miscarriage ofjustice, an operational fiasco, or any other kind of gov-ernment wrongdoing” (Commons 2007, 123). This toomay be true, but existing access to information legisla-tion already provides robust protection for state secrets.
The Commons committee made a number of largelytechnical recommendations about the national secrecyprovisions of the Canada Evidence Act, including thatthe lifespan of the Attorney General’s certificate bereduced from 15 to 10 years, that appeals be allowedfrom judicial review of the certificate and that courtorders for disclosure not take effect until appeal periodshad ended. The Commons committee accepted thePrivacy Commissioner’s recommendations that theAttorney General should provide annual reports on theuse of certificates blocking disclosure, but not that theextraordinary power of issuing a certificate be subjectto a sunset (Commons 2007, 46).
that the Attorney General of Canada supply moreinformation about how the release of informationthat it wants to keep secret will actually harm nat-ional security, national defence or international rela-tions. It also recommended that a judge should beable to balance the interests in secrecy and disclo-sure, even in those cases in which the AttorneyGeneral of Canada has issued a certificate to block acourt order for disclosure. If implemented, this rec-ommendation would effectively give the courts, asopposed to the Attorney General of Canada, the finalword about whether secret information that Canadagenerates or receives from others will be disclosed.
Both committees recommended that security-cleared special counsel be allowed to see secret infor-mation and challenge the government’s case fornon-disclosure of such information. In this way, bothcommittees made recommendations that were consis-tent with the Supreme Court’s decision in Charkaoui,even though only the Commons committee had thebenefit of that decision when writing its final report.The Commons committee considered the practice ofthe Arar Commission, during which commission coun-sel with security clearances consulted with Mr. Ararand special security-cleared counsel challenged thegovernment’s case for secrecy (Commons 2007, 78-9).The Senate committee specifically recommended that“that the special advocate be able to communicatewith the party affected by the proceedings, and his orher counsel, after receiving confidential information...and that the government establish clear guidelinesand policies to ensure the secrecy of information in theinterest of national security” (Senate 2007, 42). This isdifferent from the British system, where the specialadvocate cannot generally speak to the affected partyafter seeing the secret information. The ability of asecurity-cleared counsel to communicate with theaffected party after having seen the secret evidence isa critical design issue that deserves more attention andcareful thought.
Neither committee considered the experience of theAir India trial, in which defence lawyers were givenaccess to some secret material on an initial undertak-ing that they would not disclose such information totheir clients (Code 2004; Code and Roach 2007). Somewould criticize such an approach for running the riskthat defence counsel might leak secret information.Another possibility, again not explored by either com-mittee, is to require defence lawyers to receive securi-ty clearances as a precondition of any access toclassified information. Such an approach might gener-
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time, the committees should have been aware thatboth the Supreme Court and the Federal Court hadearlier raised concerns about such inflexible provi-sions for closed courts.51 The Commons committeenot only ignored these important rulings, but recom-mended the revival of mandatory closed proceedingsunder a provision that was added to the CanadaEvidence Act by the ATA but repealed by Parliamentin 2004. The committee appeared oblivious to the factthat a number of courts had ruled mandatory andsweeping publication bans to be unconstitutional.Some commentators assert that Parliament has a rightto ignore Charter rulings by the courts (Huscroft2007), while others argue that Parliament should notbe the captive of judicial interpretations of theCharter (Hiebert 2002). Nevertheless, it seems strangethat the committee would not even mention Charterrulings against mandatory closed courts that it appar-ently rejected. A likely explanation is inadequatelegal research. This suggests that the research supportfor the committees is inadequate. This is not simply atechnical point if it results in recommendations thatcould produce legislation that will be struck down bythe courts or recommendations that ignore valuablecomparative experience with anti-terrorism laws.
The Security of Information ActAs discussed above, the broad and complex provi-sions of the old Official Secrets Act now renamed theSecurity of Information Act — received relatively littlecritical commentary at the time that the ATA wasenacted (Wark 2001). Although it amended most ofthe Act, Parliament left intact the oft-criticizedoffence in s .4 that applied to the possession ofleaked official information. This offence was struckdown in 2006 by a judge in the Juliet O’Neill case,and both committees recommended the creation of amore narrowly defined offence. The Commons com-mittee surveyed various proposals ranging fromrepeal of the offence to the creation of a new offencewith fault requirements and a disclosure in the publicinterest defence. In the end, however, the committeeunhelpfully concluded it will “not make any specificrecommendation as to how section 4 of the Securityof Information Act should be amended” (Commons2007, 63). The Senate committee recommended thatany new offence only apply to secret official infor-mation the disclosure of which would harm nationalsecurity, national defence or other public interests.The fact that the committees did not specify an actualresponse to the O’Neill decision means that the
Both committees tended to focus on the proceduralissues surrounding the use of secrecy certificates anddid not address a number of important practical mat-ters raised by governmental claims of secrecy. Courtshave repeatedly stressed that Canada is a net importerof intelligence,48 and it is likely that this fact affectshow often the government attempts to keep informa-tion secret. The government may often be attemptingto protect not only Canada’s secrets, but the secrets ofour allies. The Arar Commission stressed the impor-tance of respecting caveats or restrictions on infor-mation that Canada passes on to or receives fromother countries. At the same time, it recognized thatCanada could always ask another country to lift therestrictions that it had placed on the disclosure ofinformation.
The Arar Commission, Justice Mosley in theKhawaja case and Justice Noël in the proceedingsabout the release of the Arar report all concluded thatthe government had at times made unwarranted andextravagant claims of national security confidentiali-ty.49 Such findings affect the government’s credibility.There is a danger that it may have cried the wolf ofnational security confidentiality too often. In addi-tion, there are arguments that all countries mustmove from a Cold War paradigm, where secrecy wasoften an overarching value in counterintelligenceoperations, to a new paradigm that recognizes terror-ism as a leading threat to national security and onethat may require increased disclosure of secrets if ter-rorists are to be successfully prosecuted and incapaci-tated. None of these practical factors, including thedangers of extravagant claims of secrecy, were con-sidered by the committees.
The committees also did not discuss how the pro-cedure in the Canada Evidence Act can disrupt anddelay terrorism prosecutions by requiring issues ofnon-disclosure of secrets to be litigated in the FederalCourt before being returned to the criminal trialcourt, which must accept any non-disclosure ordermade by the Federal Court but then decide whether afair trial is still possible. There was no reference topast experiences with this awkward two-court proce-dure, which is producing delays in the Khawaja ter-rorism prosecution and is not used by our allies.
Neither committee discussed a decision made inearly February 2007 holding that provisions thatrequired closed proceedings in all s. 38 matters werean unjustified and disproportionate violation of free-dom of expression.50 Even though the reports hadalready been written and were being translated at the
government and Parliament will have to choose fromthe significantly different approaches taken by the twocommittees with respect to both the breadth of varioussecurity offences and government secrecy. TheCommons committee generally followed the govern-ment in stressing the need to maintain and expandbroad offences and robust protections for secrecy, whilethe Senate committee was more responsive to civilsociety and judicial critiques of the ATA as over-broadand favouring the government’s interest in secrecy overthe public’s interest in disclosure and openness.
Interceptions of communication by securityintelligence agenciesAn interesting feature of the ATA that again escapedmuch critical commentary in 2001 was the amendmentof the National Defence Act to recognize the existenceof Canada’s signals intelligence agency, theCommunications Security Establishment (CSE). Theseamendments enabled the Minister of Defence to author-ize the interception of private communications, provid-ed that the intercepts be for the sole purpose ofcollecting foreign intelligence and be directed at foreignentities and that there be satisfactory measures to pro-tect the privacy of Canadians. In addition, the CSE canhelp the government of Canada protect its own comput-er systems and provide technical and operational assis-tance to CSIS and the RCMP. The Senate committeereported that, as of April 2005, fewer than 20 ministeri-al authorizations had been issued and only 5 were stillongoing (Senate 2007, 79). The Commons committee didnot report any such information. The Senate committeeat least provided valuable information that might inother times have remained secret (Farson 1995). Neithercommittee, however, dealt with the fact revealed by theArar Commission that, since 2002, the CSE has “addedmany new staff and expanded its office space to threeadditional buildings” (Canada 2006b, 146). Canada’sears in the sky appear to be multiplying. The commit-tees did not deal with the risk that the technical andoperational assistance that the CSE provides to domesticofficials could be quite extensive.
Both committees rejected suggestions that CSE inter-cepts be authorized by judges as opposed to ministers,with only the dissenting members of the Commons com-mittee arguing that judicial warrants should be required,as they are for CSIS intercepts (Commons 2007, 127).There are some interesting questions as to whether min-isterial authorizations will survive Charter challenge(Cohen 2005). The Senate committee did, however, callfor a clear standard for ministerial authorizations and
Department of Justice will play its often dominantrole in drafting a response and ensuring that it isconsistent with the Charter (Kelly 2005). Concernshave been expressed that the Charter lawyers in theDepartment of Justice may be more averse to the riskof Charter invalidation and more influenced by courtdecisions than are parliamentarians (Hiebert 2002).That said, the parliamentarians involved in the three-year review did not seem particularly anxious to crafta response to O’Neill.
The Senate committee proposed a sweeping andgenerous public interest defence that would relieve aperson of guilt whenever a judge determines that theperson leaking or receiving the information “acted inthe public interest and the public interest in disclo-sure outweighed in importance the public interest innon-disclosure” (Senate 2007, 97). The present publicinterest defence in s. 15 of the Act is much morerestrictive. It requires a whistle-blower to firstapproach the Deputy Attorney General of Canada.Although the Senate draws an analogy to the judicialbalancing of the interests in disclosure and non-disclosure that is done under some parts of theCanada Evidence Act, a crucial difference is that pub-lic servants, not the court, would in the first instancedecide to release the secret information.
It should also not be assumed that civil servantswill leak information for altruistic purposes. JusticeO’Connor was highly critical of those who leakedsecret information about Maher Arar in an attempt todiscredit him to the media, including to Juliet O’Neill(Canada 2006b, 255). The O’Neill case and any broad-er whistle-blower defence can be portrayed as a vic-tory for press freedom. Nevertheless, the role that theCanadian media played in transmitting the damagingleaks about Maher Arar has generated some much-needed soul-searching (Greenspon 2007). Althoughthe Canadian media may aspire to the role that theNew York Times and other American media outletshave played in revealing post-9/11 abuses, they havenot played such an important watchdog role.
Their treatment of the Security of Information Actalso demonstrates the different approaches taken bythe Senate and Commons committees. The Senatecommittee concluded that the concept of prejudice tothe interest of the state incorporated in some offenceswas too broad, including references to offences com-mitted with political or religious motives (Senate2007, 99). In contrast, the Commons committee foundthat the term was too narrow and should be expand-ed by leaving it open-ended (Commons 2007, 65). The
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prehensive manner than was open to the court. Unlikethe Court, the committees focused not only on thedilemma of judges receiving secret evidence not dis-closed to the detainee when deciding whether touphold security certificates under immigration law,but also on similar national security secrecy provi-sions that could apply under laws relating to evidence,charities and the listing of terrorist groups.
Like the Supreme Court, both the Senate andCommons committees found that there is a need forsome form of adversarial challenge to governmentalclaims that secrecy is necessary and to the secretintelligence that is presented to the judge reviewingthe security certificate. For example, it is possible thatthe security certificate detainee may have vital infor-mation that would reveal the intelligence to be inac-curate or unreliable. Both committees recommendedthat security-cleared counsel should represent theinterests of the affected person whenever informationis withheld for reasons of national security.
The two committees went beyond the SupremeCourt’s survey of a range of less rights-invasive alter-natives, and proposed that the affected party be enti-tled to select a special advocate from a roster ofsecurity-cleared counsel who are funded by but inde-pendent of the government. Both committees havedone research that should help Parliament to selectamong the range of available responses to Charkaoui,and also to make amendments that will apply to mat-ters beyond the security certificates under immigrationlaw. At the same time, a recent decision by the FederalCourt upholding ex parte procedures under s. 38 of theCanada Evidence Act suggests that Parliament will notnecessarily have to respond with new legislationenabling and structuring security-cleared counsel,because the Federal Court may already have the powerto appoint them.53 A failure by Parliament to respondto Charkaoui, however, would mean that Canadawould be deprived of any democratic debate inParliament about the precise and controversial con-tours of the new procedural mechanisms. It would alsomean that judges would decide when and if a security-cleared counsel was necessary, and the excluded liti-gants would not necessarily have a right to have theirinterests represented when they are excluded from thecourt for security reasons.
The issue of security certificates revealed someinteresting differences between those members whodissented from the Commons committee report. SergeMénard of the Bloc argued that security certificatesshould only be continued if the allegations made in
reporting of the number of such authorizations eachyear, as well for publication of the CSE’s policies onretention and destruction of the material collected. TheSenate conceived of the retention issue as mainly oneof privacy, but the destruction of CSIS tapes during theAir India investigation also suggests that there may beinstances where the police have a case for access tosecurity intelligence intercepts.
The Commons committee recommended that thereview commissioner for the CSE report on any viola-tions of the Charter or the Privacy Act as well as thelegality of the CSE’s activities. It also recommended thatthe commissioner always be a retired or semi-retiredsuperior court judge (Commons 2007, 55). This recom-mendation recognizes the importance of effective reviewof perhaps the most secret of all of Canada’s nationalsecurity actors. It also recognizes that review agenciesare creative hybrids of all branches of government.Public inquiries and the CSE commissioner rely on sit-ting and retired judges to bring quasi-judicial qualities tothe review process, while SIRC relies on retired seniorpoliticians from all major political parties (Roach 2007d).
Although only the CSE and not CSIS was mentionedin the ATA, it is unfortunate that neither committeeaddressed the warrant structure under the CSIS Act,which was enacted in 1984 and has remained virtuallyunamended since that time. The leading decisionupholding the constitutionality of its warrant scheme isnow 20 years old, and it was a divided one at the timeit was decided.52 Since then, the scheme for grantingelectronic surveillance warrants and the exclusion ofevidence from illegal wiretaps have significantlychanged. In some ways, it is now easier to obtain aCriminal Code wiretap warrant than a CSIS wiretapwarrant in a terrorism investigation, because only thelatter requires one to show that less- intrusive inves-tigative means would not be successful. Neither com-mittee examined the performance and capacity of SIRC,which reviews the activities of CSIS. Concerns havealso been raised about SIRC’s ability to adequately andpublicly review CSIS (Wark 2006), and the Arar Com-mission has recommended a substantial increase inSIRC’s workload (Canada 2006b). Although a case canbe made that the committees had already undertakenan overly ambitious mandate, it would have been help-ful for them to examine how the 1984 CSIS Act fitsinto a changed legal, security and review landscape.
Immigration law security certificatesBoth committees examined the issue that confrontedthe Supreme Court in Charkaoui, but in a more com-
jected to torture. These calls came in the wake of theSupreme Court of Canada’s controversial statement inits 2002 decision in Suresh v. Canada that in some“exceptional circumstances” deportation to a countrywhere torture is a possibility might be consistent withthe Canadian Charter, even though it would violateinternational law. The Senate committee recommendedthat the immigration law be amended to repeal theSuresh exception (Senate 2007, 110) The Senate com-mittee in general paid more attention to internationalhuman rights concerns than the Commons committee,and this perhaps reflects the fact that the former com-mittee heard from a United Nations representative,while the latter did not.
Although the Senate committee recommended thatCanada affirm its absolute commitment not to deportsomeone to torture, it was not naïve about the dilem-mas posed by suspected terrorists who cannot bedeported to home countries with poor human rightsrecords. It recommended that work be done to ensurethe effectiveness of assurances that a person would notbe tortured. The Senate committee also recommendedthat Canada show leadership at the United Nations inworking on the dilemmas created by suspected terror-ists who may be subject to indeterminate detention andcontrol in circumstances in which they cannot bedeported because they will be tortured.
The Commons committee ignored the conundrum ofdeporting non-citizens suspected of terrorism to tortureor subjecting them to indeterminate detention inCanada. This is unfortunate, because the issue of howwe deal with security certificate detainees who could betortured if deported to Egypt or Syria is a pressing one.On the one hand, Canada should honour its interna-tional commitments against condoning torture. On theother hand, refusal to deport such persons could resultin indeterminate detention. The release of most of thesecurity certificate detainees under house arrest condi-tions is the present solution, but it is unlikely to be asatisfactory or permanent one. The detainees will con-tinue to exercise their Charter rights to challenge thevery tight restrictions placed on them, and the Britishexperience with control orders suggests that one daythey will win. Here again, examination of how othercountries struggle with the difficult choices inherent insecurity policies would have been helpful. It mightreveal pitfalls for Canada to avoid and challenges thatCanada will soon face. The British experience withrespect to escalating challenges to control orders andproblems in administering control orders after indeter-minate detention of terrorist suspects was scrapped
them were subject to the criminal law standard ofproof beyond a reasonable doubt, if special advocateswere available to challenge secret evidence and if itwas never possible to deport someone to face torture(Commons 2007, 133). In this, he parted companywith Joe Comartin of the NDP, who argued that secu-rity certificates should be abolished (Commons 2007,139). Mr. Ménard’s position raises the issue ofwhether it would be possible to bring criminal prose-cutions instead of using security certificates. Securitycertificates, even if subject to adversarial challenge,will allow the government to use secret intelligenceagainst a detainee without disclosing it to that per-son, whereas criminal prosecutions will require thatany evidence used against the accused be disclosed tothe accused.54
Both committees also made some other importantrecommendations with respect to security certificates.They both recommended that judges only considerinformation and intelligence introduced in support ofsecurity certificates if it was reliable and appropri-ately obtained. The Senate committee referred to theArar Commission’s warnings about the dangers ofrelying on evidence obtained through torture (Senate2007, 106-7). Both committees, however, rejected aproposal by the British Columbia Civil LibertiesAssociation that only relevant evidence be con-sidered. In the absence of such an amendment, theintelligence that is used to support a security certifi-cate may involve wide-ranging information about thedetainee’s associations, travel patterns and politicaland religious views. The approach recommended byboth Serge Ménard and the British Columbia CivilLiberties Association would have disciplined securitycertificates away from the wide-ranging intelligenceabout security risks to more narrow, focused ques-tions of evidence of planned wrongdoing. Parliamentshould respond to Charkaoui, but there is a dangerthat Charter-proofing security certificates by addingsecurity-cleared friends of the courts to the processwill gloss over more fundamental questions about thefairness of relying on secret intelligence, as opposedto evidence, to justify indeterminate detention ordeportation of suspected terrorists.
The Suresh exception of deportation totortureThe Senate committee noted that both the UnitedNations Committee Against Torture and the HumanRights Committee had called on Canada to reaffirmits commitment to the absolute right not to be sub-
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committee argued that such a committee should haveaccess to information that was classified secret. Theyeven contemplated the possibility that the parliamen-tary committee might have powers to authorize “therelease of previously classified information”(Commons 2007, 128), an intriguing approach thathas been recommended by other commentators(Ackerman 2006). They did not, however, deal withthe possibility that parliamentarians with access tosecret information might be prevented from usingthat information publicly. One of President George W.Bush’s earliest defences in support of warrantlessintercepts by the National Security Agency was thatcongressional leaders had been briefed on the topic(Roach 2007d). Access to secret information couldbind parliamentarians to secrecy. This does not neces-sarily mean that legislative committees should nothave access to classified information, but it does sug-gest that the issue is more complicated than theCommons report suggests. The Commons committee’slack of insight into review matters does not inspireconfidence that it would effectively discharge newreview functions.
The Senate committee recommended that a stand-ing committee of the Senate “with dedicated staff andresources” be created (Senate 2007, 122). It under-standably resisted proposals for a joint committeethat would have twice as many members from theCommons than the Senate. Commentators in Britainhave concluded that, on anti-terrorism matters espe-cially, the unelected Lords have been more concernedwith rights issues than have the elected members ofthe Commons (Hiebert 2005; Nicol 2004).
Although this may change with Senate reform, therelative stability of the Senate is an advantage. Thesteep learning curve with respect to the complexitiesof security policy-making suggests that there is aneed for continuity on parliamentary committees inthis area. The 2004 and 2006 elections meant thatonly four of the seven members of the Commons sub-committee remained constant, even during the timeof the delayed three-year review of the ATA, whereasthe majority of the Senate committee members cameto their task familiar with the issues because they hadbeen part of the Senate committee that reviewed theATA in 2001. Senator Kenny has also developedexpertise and a profile on security matters that is notmatched in the Commons. Although the Senate mayhave originally been intended to represent the rich asa minority, the Senate’s report on the ATA demon-strated much more interest in Muslim groups’
could provide important lessons for Canada. IfCanada does not understand the difficult experienceof countries with more experience with terrorism, itmay be destined to repeat many of the mistakes thosecountries have already made.
Review and oversight: parliamentarycommittees and the Arar Commission Both committees addressed the important issue ofreview and oversight, but again in different ways.The Commons committee recommended that anational security committee of parliamentarians becreated, as proposed in 2005 by the Martin govern-ment. This committee would consist of six membersof the Commons and three members of the Senate. Itwould have the power “to engage in on-going com-pliance audits” of various departments involved innational security to “ensure that law and policydirections are being properly applied, and that rightsand freedoms are being respected in day-to-dayactivities” (Commons 2007, 85). No mention wasmade of how this committee of parliamentarianswould interact with existing review bodies includingSIRC, the CSE commissioner, the Commission forComplaints against the RCMP, the privacy and accessto information commissioners and the CanadianHuman Rights Commission. No mention was made ofthe dangers of excessive and duplicative review, anissue that the Arar Commission was concerned about(Canada 2006b, 476). The committee also did notaddress concerns that a statutory committee of par-liamentarians might have less-inherent powers thandid a parliamentary committee (Whitaker 2005).
The Commons committee seemed to assume thatthe new committee of parliamentarians would focuson assessing the propriety and legality of nationalsecurity activities. The committee demonstrated noawareness that if the new committee were to focus onreview for legality and propriety, it would occupy acrowded field populated by many other review bod-ies. It also failed to explore the possible role of a le-gislative committee in assessing the efficacy andefficiency of the state’s national security activities.Although such tasks are sometimes undertaken by theAuditor General and some Senate committees(Whitaker 2005), there is no visible body with thisefficacy mandate.
The majority of the Commons committee alsoignored the crucial issue of whether a new committeeof parliamentarians should have access to classifiedinformation. Only the dissenting members of the
Egypt or Syria. The Commons committee was alive tothe important role of the ATA in regulating charitiesand those who might provide financial services to ter-rorists. It also recognized the key role of Canada’s sig-nals intelligence agency and the effects of its activitieson privacy. The ultimate influence of the reportsremains to be seen. Although they provide some valu-able information and analysis for policy-makers, theymust compete with court decisions, United Nationsedicts, reports from public inquiries and rights watch-dogs such as the Privacy Commissioner and the experi-ence of our allies for the limited attention ofpolicy-makers.
Moreover, the committees also made some poorlyreasoned recommendations. The Commons committeeopened the glorification of terrorism issue without rec-ognizing the controversies that it would cause orexploring alternative strategies to deal with extremistswho would glorify acts of terrorism. It recommendedmore mandatory secrecy provisions, even though thecourts would strike them down under the Charter. It rec-ommended the creation of a new parliamentary com-mittee on security matters, without situating thecommittee with respect to the many other bodies thatreview national security activities. It did not reflect onthe potential for legislative committees to evaluate theefficacy of national security activities and it did notadvert to the dangers of excessive and redundant reviewwith respect to the propriety of national security issues.
The committees ignored some important issues.Although each committee devoted considerable atten-tion to the secrecy provisions in the Canada EvidenceAct, they ignored the danger that governments maymake extravagant claims of secrecy55 or that secrecyclaims in the Federal Court might delay terrorism pros-ecutions in the criminal trial courts. Neither committeeconsidered the case for a root and branch reconsidera-tion of Canada’s broad definition of terrorist activitiesor its official secrets law. The committees have notgiven the government or Parliament the raw material totake on either of these complex tasks. The committeessplit on the appropriate response to the decision inKhawaja to sever the political and religious motiverequirement from the definition of terrorist activities.They also did not provide helpful advice on the morelimited and immediate task of responding to the O’Neilldecision, which invalidated the leakage offence underthe Security of Information Act.
Although the committees discussed now-expiredinvestigative hearings at some length, they did not linkthem with how authorities induce reluctant witnesses to
concerns with anti-terrorism policies than did theelected Commons committee.
The Commons committee focused almost entirelyon the parliamentary review of national securityactivities, but the Senate committee took a broaderapproach. Following the part 2 recommendations ofthe Arar Commission, it recommended that the RCMPbe subject to self-initiated review with access tosecret information in a manner similar to SIRC’sreview of CSIS (Senate 2007, 118). The committee didnot, however, address the Arar Commission’s propos-als to extend SIRC’s mandate to include a number ofother national security actors (Canada 2006b). But itdid endorse the Arar Commission’s recommendationswith respect to the need for explicit information-sharing agreements and suggest that Canada com-plain to foreign governments if Canadian informationwas misused (Senate 2007, 92). It also recommendedthat the federal government take steps to protectinformation that under outsourcing contracts mightbe vulnerable to seizure under the Patriot Act, andthat federal officials report any demands for personalinformation to the Privacy Commissioner (Senate2007, 91). In this way, the Senate committee demon-strated more awareness of existing review mecha-nisms than did the Commons committee. At the sametime, neither committee engaged in a comparativeanalysis of review mechanisms in other countries,even though some of this information was readilyaccessible in a 2004 discussion paper on a nationalsecurity committee of parliamentarians (Privy CouncilOffice 2004) and in the Arar Commission’s report(Canada 2006a).
A Report Card on the Three-YearReview Conducted by theCommittees
S ome of the work of the Commons and Senatecommittees demonstrates that parliamentariansare capable of sustained analysis and intelli-
gent critique of a large body of anti-terrorism law.Both committees did a good job of placing theCharkaoui issue of how secret information is treatedinto a larger policy context that included similarissues under the ATA. The Senate committee recog-nized the complexities of many of the issues sur-rounding the detention of suspected terrorists whomay face torture if deported to countries such as
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available to investigate imminent acts of terrorism. Thisunanimous interim recommendation to limit investiga-tive hearings seems, rightly or wrongly, to have disap-peared off the radar screen.
The government’s response also did not deal withthe Senate committee’s report and this meant thatsome issues like the Suresh exception for deportationto torture and how it affects the long-term sustain-ability of the security certificate regime were notaddressed in the government’s response. As suggestedabove, the Commons and Senate committees broughtdifferent perspectives to their work and it would havebeen helpful for the government to have responded toboth reports at the same time.
Although the government indicated that it wouldaccept the Commons committee’s recommendationthat only “reliable” evidence be used in security cer-tificate proceedings, it did not provide any firm indi-cation of how it planned to respond to the SupremeCourt’s decision in Charkaoui, beyond stating that itwould study “the possibility of establishing a specialadvocate role in the security certificate process”(Canada 2007b, 23). It did, however, hint that it mightprovide for increased adversarial challenge to secretevidence only in security certificate cases and not inall proceedings where the government makes repre-sentations to judges without the other side beingpresent. Such a limited approach could possibly bejustified on Charter grounds,56 but it would goagainst the recommendations of both the Commonsand Senate committees for a more generalized use ofspecial advocates when the government presentssecret information (Canada 2007b, 23). Both commit-tees recommended reforms that went beyond theminimum standards of the Charter.
The government accepted the Commons committeerecommendation to retain the existing definition ofterrorist activities, noting that both the Australianand British reviews of their comparable definitionshad reached similar conclusions. The government wasnot shy about citing relevant comparable experienceto support its position, even though the Commonscommittee generally neglected the comparable expe-rience. The government only indicated that it “willcarefully consider” whether the glorification of ter-rorism offence proposed by the Commons committee“ought to be created, bearing in mind that CanadianCharter of Rights and Freedoms (Charter) and the pol-icy implications” (Canada 2007b, 5). As suggestedabove, the government should consider not onlywhether a glorification of terrorism offence can be
cooperate and how they protect such witnesses. Theyalso did not examine the case for and against givingparliamentarians access to secret information and anoversight role in examining whether Canadian officialsare taking adequate measures to prevent terrorism.
The differences between the two committees areintriguing and suggest that getting separate commit-tees to conduct three-year reviews has the potentialto enrich parliamentary deliberation about securitylegislation. The Senate committee adopted many ofthe concerns of Muslim and civil liberties groupsabout profiling, political or religious motive require-ments in terrorism prosecutions, effective and inde-pendent review of national security activities anddeportation to torture. In contrast, the Commonscommittee rejected or ignored these concerns andinstead focused on issues such as privacy and con-cerns that laws could apply to the legitimate activitiesof charities and lawyers. The sum of the committees’work was greater than the individual parts.
The differences between the committees will notmake the government’s job in crafting a responseeasy. The government now has some conflictingadvice from the two committees on important issuessuch as whether to enact a glorification of terrorismoffence, whether to repeal the political or religiousmotive requirement and whether charities and othersalleged to have provided financial support to terroristsshould have a due diligence defence. Contradictoryadvice may, however, be inevitable given the complexand controversial nature of security legislation.
The Government Responds to theCommons Committee
O n July, 18, 2007, the government issued its for-mal response to the Commons committeereport. The response was accompanied by a
headline-grabbing press release that stated that theministers of Justice and Public Safety “reiteratedCanada’s New Government’s intention to reintroducelegislation to restore the anti-terrorism powers lost overrecent months and to address recent decisions made bythe Supreme Court of Canada in regards to the securitycertificates” (Canada 2007a). Unfortunately, the govern-ment’s response did not discuss the rationale for reviv-ing investigative hearings or preventive arrests. It alsodid not mention the Commons committee’s interim rec-ommendations that investigative hearings only be
tee’s recommendations for expanding terrorism andsecurity offences. Moreover, it correctly noted that thecommittee’s call for the revival of a mandatory publi-cation ban in some proceedings went directly contraryto a number of recent judicial decisions on freedom ofexpression (Canada 2007b, 18-9), and that it would notbe pursued by the government. The government, whichreceives its Charter advice from experts within theDepartment of Justice (Hiebert 2005; Kelly 2005),seemed to be better informed and more willing to fol-low court decisions interpreting the Charter than wasthe Commons committee.
The government also rejected the Commons commit-tee’s proposals to provide more protection for lawyersand charities from measures designed to stop anti-terror-ism financing. It concluded that solicitor-client privilege“should not be used as a shield” for the knowinginvolvement of lawyers in various terrorist activities(Canada 2007b, 5, 8). It also rejected the recommenda-tion to add a due diligence defence to financingoffences, correctly noting that they already require proofthat the accused knowingly dealt with terrorism proper-ty. The government rejected the Commons committee’srecommendation that only charities that knew or oughtto have known that they were involved in terrorismshould be deprived of charitable status. It stressed thatthe deprivation of charitable status was “an administra-tive remedy” and pointed out the danger that charitiesmight “structure their affairs” to take advantage of a duediligence defence (Canada 2007b, 14).
The government recognized that questions of reviewwere more complex than the addition of a nationalsecurity committee of parliamentarians, as recommend-ed by the Commons committee. The government didnot disagree with the recommendation that the activi-ties of Canada’s signals intelligence agency be reviewedfor compliance with the Charter and the Privacy Act,but concluded that amendments to require such com-pliance might “weaken…the fundamental principle”that the CSE should comply with all laws (Canada2007b, 20). Again, the government seemed to defer themost important questions for more study. Although itindicated that “various forms of review are essential toensure that Canada’s national security laws and prac-tices safeguard both security and civil liberties”(Canada 2007b, 24), it only stated that sometime in thefuture it would propose an approach to national securi-ty review that “will meet the basic objectives” set out inthe Arar Commission’s second report (Canada 2007b,25). This suggests that the government will, like theSenate committee, take a more comprehensive
justified as a reasonable limit on freedom of speech,but also whether it represents a wise policy inresponding to extremism.
The government’s reticence on many of the mostcontroversial issues dealt with in the three-yearreview — investigative hearings, preventive arrests,glorification offences, the response to Charkaoui andreview of national security activities — may onlydefer the controversy until a new security bill isintroduced. A fuller explanation of where the govern-ment is heading on these issues might help establishthe basis for a better debate on the merits of its pro-posals. As discussed above, one of the flaws of thedebate over the expiry of investigative hearings andpreventive arrests in early 2007 was that it was con-ducted in a rushed manner, with the clock ticking onthe expiry of the provisions.
The Canadian government’s response can be con-trasted with that of the new British government aweek later. Prime Minister Gordon Brown made adetailed statement about his government’s securityplans, including its intent to provide for longer peri-ods of pre-trial detention in a new terrorism bill to beintroduced this fall. This was accompanied by theposting of six detailed documents outlining possiblemeasures in the new bill as well as other policyoptions on the most controversial issues, includingpre-trial detention and the use of intercept evidence.(Home Office, 2007) Advance warning of the govern-ment’s plans may allow opposition to mobilize, but italso provides time for reflection, research and debateon the various policy options both within and outsideParliament. It is difficult to know why the Britishgovernment was more forthcoming about its futurelegislative plans than was the Canadian government.Although it is difficult to know whether this is acause or an effect of the government’s approach,debates in parliament and the media about anti-terrorism policy in Britain are often better informedand more sophisticated than they are in Canada. Ifthe government waits until a bill is introduced to sig-nal its policy intentions, there is a danger that thedebate over the Bill will be framed by initial and per-haps unreflective sound bites.
Although it did not address the most controversialissues, the Canadian government responded to manyof the Commons committee’s more detailed recom-mendations. The result was a decidedly mixed verdict,with a significant number of the committee’s recom-mendations being rejected by the government. Forexample, it rejected some of the Commons commit-
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and preventive arrests. In part, this was because thecomprehensive three-year reviews were delayed andcame too late to influence the debate about investiga-tive hearings and preventive arrests. Once theCommons descended into a welter of partisan accusa-tions and counter-accusations, any analysis of thepolicy issues were beside the point. Parliament willhave to improve its performance if it is to do justiceto the committees’ three-year review reports.
Some parliamentarians seem to despair of the pub-lic, and perhaps some of their own colleagues, everbeing able to understand the complex issues thatarise from a review of the ATA. Joe Comartin of theNDP and Serge Ménard of the Bloc Québecois in theirdissenting report warn that:
The arcane nature of the ATA has significantconsequences for the public debate thatshould surround such major legislation.Because few people have both the trainingand the time needed to understand it suffi-ciently to reach an informed judgment, thepublic debate comes down to trust. Either thepublic trusts the ministers who claim thatdespite their haste a fair balance has beenstruck between the requirements of fightingterrorism and respect for fundamental free-doms, and in the police who assure us that inany event they will not abuse the new powersthat they have been given; or they trust thecivil liberties organizations and the academicswho devote their lives to studying the legalconditions necessary for respecting our rights.The verdict of these latter groups is disturb-ing, to say the least. (Commons 2007, 115)
These two lawyers paint a dismal picture of apublic that is effectively disenfranchised from themaking and review of anti-terrorism legislation. Totheir mind, the public must simply choose whetherto trust the state or its critics, even though bothsides have an interest in spinning their analysis tosuit their own purposes. The stark choice betweentrusting the state or its critics also suggests thatthe debate will inevitably be polarized. This argu-ment that security issues are ultimately questionsof trust rather than reason or deliberation isdepressing, but it must be taken seriously. It moreor less accurately describes the polarized debateabout the sunsetting of preventive arrests andinvestigative hearings. That debate was less sub-stantive than was the original debate surroundingBill C-36 in 2001 or the debate between the jus-tices of the Supreme Court when, in a divided deci-sion, they held that investigative hearings wereconsistent with the Charter but should be subjectto the presumption that the hearings would be con-ducted in open court.
approach to review and not simply focus on the issueof a new committee of parliamentarians. The govern-ment did not, however, reveal the review options itwas examining or the balance between reviews of theefficacy of the government’s efforts in preventing ter-rorism and the propriety of it’s efforts to respecthuman rights.
Finally, the government indicated that while thereview of the Anti-terrorism Act “has been a positiveand useful exercise,” it pointedly refused to commititself to another similar review process, as had beenrecommended by the Commons committee. It statedthat “the Government generally believes that suchreviews should be conducted when they are needed,as opposed to having a pre-set timetable” (Canada2007b, 24-5). The result is that subsequent reviews ofthe ATA or related legislation will be left to the dis-cretion of governments, because the ATA does notrequire subsequent parliamentary reviews.
Although the delayed three-year review could cer-tainly have been improved, it would be unfortunate ifno comprehensive reviews of security legislation wereconducted in the future. Comprehensive and periodicreviews allow a form of systemic and public stock-taking that is not undertaken even when a govern-ment decides that controversial security legislationmust be amended. The internal reviews that the gov-ernment proposes to rely on in the future will gener-ally not be made public. This is unfortunate, becauseone the virtues of the comprehensive parliamentaryreview process is its potential to increase parliamen-tary and public understanding of complex and inter-connected security issues. Comprehensive reviews aredifficult, and as with this review of the ATA, they canbe delayed. It is, however, better that they be con-ducted late rather than not at all.
Conclusion
A n optimist can hope that the committees’reports will have an enlightening and educa-tive effect on debates about the ATA in
Parliament and society. They could be part of an iter-ative process in which our knowledge and under-standing of the complex issues involved in securitylegislation are gradually enhanced.
But there are plenty of grounds for pessimism. Thecommittees’ reports had virtually no impact on thedebate about whether to renew investigative hearings
more difficult for Parliament and the government todevelop sustainable security legislation that enjoyswide public support and confidence. It increases therisk that Parliament may only legislate in response toreal or imagined crises. It also increases the risk thatParliament could enact unconstitutional and/or inap-propriate security legislation.
In 1979, Franks observed that the main reason forpoor parliamentary debates about security matters wasthat “Parliament and the public have not had an ade-quate information and knowledge base on which tobase discussion” (Franks 1979, 65). Unfortunately, littleseems to have changed more than a quarter of a centurylater (Whitaker 2005). Indeed, the partisan and largelyuninformed debate over the expiry of preventive arrestsand investigative hearings represents a new low.
One thing that has changed since Franks made hisobservations, however, is the increased role of thecourts under the Charter. The Supreme Court in itsCharkaoui decision expected that Parliament would,within a year of its decision, be able to craft new legis-lation to allow for greater adversarial challenge of thesecret information that the government presents to jus-tify security certificates. Although Charkaoui wasdecided under immigration law, it has implications formultiple sections of the ATA that also allow the gov-ernment to present secret intelligence to courts. Boththe Commons and Senate committees were well awareof the serious implications of Charkaoui for the ATA.Both committees recommended that security-clearedcounsel should be available to challenge secret evi-dence not only for security certificates, but with respectto reviews of the listing of terrorist groups, the denialof charitable status and applications for non-disclosureof sensitive information under various parts of theATA. On this issue, the committees did their homeworkand their job.
The dismal debate over the sunset provisions, as wellas the precarious nature of legislation introduced by aminority government,57 however, raise the issue ofwhether Parliament can do its job. If Parliament cannotenact legislation to respond to the difficult issues raisedby Charkaoui, the courts will have to fill the policyvacuum. There are already signs that courts may bewilling to create their own devices to allow for adver-sarial challenge of secret information. A recent FederalCourt decision suggests that security-cleared friends ofthe court could be appointed by judges on a case bycase basis.58 The Federal Court has already commis-sioned its own research into special advocates, suggest-ing that it has an interest and may attempt to take
Parliamentary and public debates about nationalsecurity matters should be becoming more sophisticat-ed and nuanced as we move away from 9/11 anddevote more resources and thought to national sec-urity matters. Unfortunately they seem to be gettingless substantive. One factor may be the precariousnature of minority governments. The government thatintroduced Bill C-36 enjoyed a majority. It couldafford to let a substantive debate about the merits ofits legislation play out, at least for a time, before itinvoked closure and party discipline to ensure that theATA was enacted before the end of the 2001. Minoritygovernments, which are always on the verge of goingto the polls and always searching for partisan advan-tage and wedge issues, may be less willing to allow asubstantive debate on the merits of legislation.
The nature of the parliamentary debate will alsoinfluence the nature of media discourse and, throughthat, public discourse. The relatively substantive BillC-36 debate in 2001 was well covered in the media,whereas in 2007 the media, like Parliament, ignoredboth the Commons and Senate reports and the sub-stantive issues that were discussed in them. Instead,the media focused on the drama of the partisan alle-gations made by the government and the opposition.This focus was only punctuated by media attention tothe drama of the Supreme Court’s decision inCharkaoui (Sauvageau, Taras and Schneiderman2006). The media largely focused on who were thewinners and losers in the case and not on the moredifficult issue of how Parliament should respond tothe decision or the complex issues surrounding thebalance between secrecy and disclosure. Too much ofthe parliamentary and media discourse was based onthe simplistic and divisive idea that supporters ofsecurity legislation were soft on the Charter whilecritics of security legislation were soft on terrorism.Canada was able to avoid that type of poisoned andpolarized debate in the immediate aftermath of 9/11.It is a shame that it has now emerged in 2007.
If the trend toward simplification and polarizationof the issues continues in Parliament and in themedia, Canada could fall further behind other democ-racies in the sophistication of its debate over complexand difficult issues involving the reconciliation ofrights and security. This creates a risk that Parliamentmay lurch from one extreme to the other and enactlegislation that is unconstitutional or inappropriate orboth. Lack of public knowledge and engagement withsecurity issues can have harmful repercussions on thedevelopment of vital public policy. It may make it
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Minority governments, especially those that maybe on the verge of an election, are in a difficult posi-tion when it comes to enacting or reforming securitylegislation. Parliamentarians must resist the urge tosimplify, distort or sidetrack the difficult issues raisedby security legislation for partisan advantage. Theymust resist the urge to characterize complex issues interms of a dichotomy that alleges that one side is softon terrorism and the other side is soft on the Charter.More of the discipline that parliamentarians bring totheir detailed work in the committees must somehowbe brought to the floor of the Commons. It remains tobe seen whether government, Parliament and Cana-dian society are up to the difficult task of dealingwith the merits and complexities of our security leg-islation. If they fail to do so in a sensitive and con-sidered way, however, the courts may, by default, takethe lead.
ownership of the issue. If Parliament were to fail totake on the complexities of security legislation, thecourts would have the final word by default. Thiswould refocus our debate about security policy onthose areas most directly affected by the Charter.Many other issues related to the workability ofCanadian security law, including its treatment ofsecret information and the review of the state’s oftensecret national security activities, could be neglectedbecause they do not raise Charter issues.
The three-year review of the ATA was delayed, andthis meant that parliamentary debate over renewal ofinvestigative hearings and preventive arrests proceed-ed in something of a vacuum and without a full con-sideration of other issues raised by the ATA and othersecurity legislation. Regardless of one’s views aboutwhether investigative hearings and preventive arrestsshould have been renewed, few would argue that theparliamentary debate over renewal was informed oredifying. In addition, the work of the two committeesplayed a negligible role in the debate. The committeeshad no need to hear from so many witnesses andwrite detailed reports if parliamentary debates aboutsecurity legislation are going to amount to simpleaccusations that one side is soft on terrorism and theother is soft on the Charter. The public deserves betterthan such a simplistic and polarized debate.
Consideration of Parliament’s review of the ATAand parliamentary debate on the issues reveals somemixed messages. The partisan discussions in the Houseover the sunset provisions were undoubtedly a lowpoint. The House and Senate reviews of the Act,although far from perfect, inspire hope of more consid-ered responses and legislative reform. Although theyneed more research support, particularly with respectto comparative experience, parliamentarians in com-mittee can engage with the difficult issues raised inour security legislation. As suggested above, theunelected Senators were more responsive to minorityconcerns about our security legislation, whereas theelected Commons committee was more concerned withprivacy and security interests that could potentiallyaffect all Canadians. We need both perspectives,because anti-terrorism legislation involves many com-plex issues, including evolving threats to security, lib-erty, equality and privacy. The government, however,has indicated that it has no intention of conductingfurther three- or five-year reviews of the ATA. This isunfortunate, because we need more Parliamentaryreflection about the difficult issues inherent in anti-terrorism legislation.
the renewal motion could not be amended (ATA s.83.32(3)).
22 Hansard, February 9, 2007, 6650.23 Ibid., 6626.24 Ibid., 6646.25 Hansard, February 12, 2007, 6677.26 Hansard, February 19, 2007, 6996-7.27 Ibid., 7125.28 Ibid., 7128.29 Ibid., 7133.30 Charkaoui v. Canada, [2007] S.C.C. 9 [henceforth
Charkaoui 2007]. 31 Hansard, February 23, 2007, 7251-2.32 Ibid., 7260.33 Hansard, February 26, 2007, 7286.34 Ibid., 7333.35 Ibid., 7298, 7331.36 Ibid., 7322.37 Ibid., 7405-6.38 My count of witnesses listed as appearing before the
Commons committee indicates that 38 were governmentofficials or ministers, 32 represented interest groups, 15represented review agencies and 8 were individuals. Thisamounts 93 persons, although the committee only reports87 witnesses, perhaps because some people appeared butdid not actually testify before the committee.
39 Most of the repeat groups were concerned about civilliberties and human rights. These included the BritishColumbia Civil Liberties Association, the Canadian CivilLiberties Association, the Civil Liberties Union, theInternational Civil Liberties Monitoring Group, AmnestyInternational, the Canadian Council of Refugees and theAssociation of University Teachers. Other groups includ-ed the Chiefs of Police, the Mackenzie Institute, theCanadian Bar Association, the Federation of LawSocieties, the Canadian Islamic Congress, the CanadianArab Federation and the Canadian Jewish Congress.
40 The author was among the individual witnesses whoappeared before the Senate committee.
41 My count of witnesses listed as appearing before theSenate committee indicates that 61 were either governmentofficials or ministers, 49 represented interest groups, 16represented review agencies such as the PrivacyCommissioner and 14 were individuals, usually academics.
42 Suresh v. Canada, [2002] 1 S.R.C. 3 [henceforth Suresh 2002].43 Suresh 2002.44 At the same time, the committee recognized that
aggrieved individuals could also complain to theCanadian Human Rights Commission, review bodies forboth the RCMP and CSIS and the courts (Senate 2007,88). The Senate committee, however, did not anticipatethe recent actions of privacy commissioners in callingfor a suspension of the no-fly list until there was an ade-quate statutory framework for the program and adequatereview of its privacy implications in terms of the transferof information.
45 Hall, [2002] 3 S.R.C. 309.46 Criminal Code, s. 810.01.47 R. v. Budreo, (2000) 142 C.C.C. 245.
NotesI thank Jean-Paul Brodeur, Mel Cappe, Reg Whitaker,Wesley Wark and two anonymous reviewers for help-ful comments on an earlier draft.
1 Bill C-36, containing the ATA, was introduced onOctober 15, 2001, and received royal assent onDecember 18, 2001.
2 United Nations Security Council Resolution 1373 calledon states to enact laws against terrorism and thefinancing of terrorism but, in a reflection of interna-tional disagreement, did not define terrorism. SeeRoach (2007b) for a critical examination of the resolu-tion’s influence on many post-9/11 anti-terrorism laws.
3 R. v. Khawaja, [2006] O.J. No. 4245 (O.S.C.) [henceforthKhawaja 2006].
4 In our adversarial system, which respects the right tosilence, the police cannot a compel a person with rele-vant information to assist them in their investigation.
5 Application under s. 83.28 of the Criminal Code (Re),[2004] 2 S.C.R. 248 [henceforth Re Section 83.28].
6 Re Vancouver Sun, [2004] 3 S.C.R. 332 [henceforthVancouver Sun 2004].
7 O’Neill v. Canada (Attorney General), [2006] CanLII35004 (O.S.C.) [henceforth O’Neill 2006].
8 Toronto Star v. Canada, [2007] F.C. 128 [henceforthToronto Star 2007].
9 Khawaja, [2007] F.C. 463 [henceforth Khawaja 2007a].10 The case involved the conviction of two men for con-
spiring to bomb an Air India flight in 1986, which wasoverturned because of the Crown’s failure to make fulldisclosure of relevant information that it held includ-ing the identity of a key informant and participant.R. v. Khella (1998) 126 c.c.c. (ed) 341 (Que. C.A.)
11 Khawaja 2006.12 Khawaja 2007a.13 Khawaja, [2007] F.C. 490 [henceforth Khawaja 2007b].14 Khawaja 2007b.15 Charter issues have also played a role here as it could be
argued that the Canadian Forces’ hand-off of itsdetainees, first to American forces (Roach 2003, chap. 5)and now to Afghan officials (Byers 2007), violates theCharter and international law if there are not adequateassurances that the prisoners will not be subject to tortureor the death penalty. A very recent 5-to-4 decision of theSupreme Court, however, casts doubt on whether theCharter will apply to the actions of Canadian officialsabroad (R. v. Hape, 2007 S.C.C. 26, at 101).
16 The chair of the committee was Conservative memberof Parliament Gord Brown. The vice-chairs were RoyCullen from the Liberals and Serge Ménard from theBloc Québecois.
17 Re Section 83.28, at 65.18 Criminal Code s. 810.01.19 Hansard, February 9, 2007.20 Ibid., 6623.21 Although the comprehensive review was supposed to
be completed more than a year before the sunset, theactual sunset provisions seemed to contemplate adebate on renewal alone because they provided that
31
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48 Ruby v. Canada, [2002] 4 S.R.C. 3 [henceforth Ruby2002]; Charkaoui 2007; Khawaja 2007b.
49 Justice O’Connor commented that more of the hearingscould have been made public “if the Government hadnot, for over a year, asserted NSC claims over a gooddeal of information that was eventually made public…This ‘overclaiming’ occurred despite the Government’sassurance at the outset of the inquiry that its initial NSCclaims would reflect its ‘considered’ position and wouldbe directed at maximizing public disclosure” (Canada,2006b). Justice Mosley commented, in Khawaja 2007b, at150, that “those holding the black pens seem to haveassumed that each reference to CSIS must be redactedfrom the documents even when there is no apparent riskof disclosure of sensitive information such as operationalmethods or investigative techniques or the identity oftheir employees.” In Canada v. Commission of Inquiryinto the Actions of Canada Officials in Relation to MaherArar, [2007] F.C. 766, at 91, Justice Noël indicated thatsome of the information redacted from the ArarCommission report could not, if released, injure nationalsecurity, national defence or international relations. Atthe same time, Justice Noël affirmed some of the gov-ernment’s objections to the release of parts of the report.
50 Toronto Star 2007.51 Ruby 2002; Vancouver Sun 2004; Ottawa Citizen
Group v. Canada (Attorney General of Canada), [2004]F.C. 1052.
52 Atwal, [1987] 36 C.C.C. 161.53 Khawaja 2007a.54 The Attorney General of Canada could apply under s. 38
of the Canada Evidence Act for the non-disclosure ofsome information, but such information could not be usedas evidence in a criminal prosecution (Charkaoui 2007).
55 See note 41.56 The Federal Court has, however, indicated that in some
cases special security-cleared lawyers could be usedwhen the government seeks the non-disclosure ofinformation under s. 38 of the Canada Evidence Act(Khawaja 2007a).
57 Introduction of new security legislation in a volatileminority Parliament may produce unpredictable resultsranging from paralysis, to defeat of a government bill,to odd amendments and coalitions. One likely scenariowas described by Franks, who predicted that with aminority government there are diminished “chances ofimportant but contentious legislation with no immedi-ate urgency, such as reforms to security legislation,being considered” (Franks 1979, 13). Of course a terror-ist attack, a narrowly averted attack or a failed terror-ism prosecution could add a sense of urgency and leadto rushed legislation. Such a response will, like theenactment of the ATA itself in 2001, only generate arange of Charter challenges in the courts.
58 Khawaja 2007a.
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Greenspon, Laurence. 2007. “Terror and the Press: Same OldStory.” Policy Options (June): 72-8. Montreal: IRPP.
Hiebert, Janet. 2002. Charter Conflicts. Montreal: McGillQueen’s Press.
Hiebert, Janet. 2005. “Parliamentary Review of TerrorismMeasures.” Modern Law Review 68 (4): 677-9.
Home Office. 2007. Documents Relating to the 2007 Counter-Terrorism Bill, July 25, 2007, at http://security.homeof-fice.gov.uk/news-publications/publication-search/counter-terrorism-bill-2007.
Huscroft, Grant. 2007. “Constitutionalism from the TopDown.” Osgoode Hall Law Journal 45: 91-104.
Kelly, James. 2005. Governing with the Charter. Vancouver:University of British Columbia Press.
Macklin, Audrey, 2001. “Borderline Security.” In The Securityof Freedom: Essays on Canada’s Anti-Terrorism Bill, edit-ed by Ronald Daniels, Patrick Macklem and Kent Roach.Toronto: University of Toronto Press.
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Paciocco, David. 2002. “Constitutional Casualties ofSeptember 11: Limiting the Legacy of the Anti-TerrorismAct.” Supreme Court Law Review 16 (2nd Series): 185-237.
Plaxton, Michael. 2007. “Irruptions of Motive in the War onTerror.” Canadian Criminal Law Review 11: 233-46.
Privy Council Office. 2004. A National Security Committee ofParliamentarians Discussion Paper. Ottawa.
Ramraj, Victor. 2006. “Counter-Terrorism Policy and MinorityAlienation: Some Lessons from Northern Ireland.Singapore Journal of Legal Studies 385-404.
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Carlile of Berriew, Q.C. 2007. The Definition of Terrorism: AReport of the Independent Reviewer of TerrorismLegislation. Cm 7052. March 2007.
Choudhry, Sujit, and Kent Roach. 2003. “Racial and EthnicProfiling: Statutory Discretion, ConstitutionalRemedies and Democratic Accountability.” OsgoodeHall Law Journal 41 (1): 1-36.
Code, Michael. 2004. “Problems of Process in LitigatingPrivilege Claims under the Flexible Wigmore Model.”In Law Society of Upper Canada Special Lectures 2003:The Law of Evidence, edited by Alan W. Bryant, MarieHenein and Janet A. Leiper. Toronto: Irwin Law.
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Studies Published/Études publiées
“Making the Connections: Ottawa’s Role in ImmigrantEmployment”Naomi Alboim and Elizabeth McIsaacIRPP Choices, Vol. 13, no. 3 (May 2007)
“Controlling Irregular Migration in Canada: Reconciling SecurityConcerns with Human Rights Protection”François Crépeau and Delphine NakacheIRPP Choices Vol. 12, no. 1 (February 2006)
“The Discounting of Immigrants’ Skills in Canada: Evidence andPolicy Recommendations”Naomi Alboim, Ross Finnie and Ronald MengIRPP Choices Vol. 11, no. 2 (February 2005)
“Tapping Immigrants’ Skills: New Directions for CanadianImmigration Policy in the Knowledge Economy”Jeffrey G. Reitz IRPP Choices Vol. 11, no. 1 (January 2005).
“Beyond Harmonization: How US Immigration Rules Would HaveWorked in Canada”Alan G. GreenPolicy Matters Vol. 5, no. 4 (July 2004)
“Economic Integration and Security: New Key Factors in ManagingInternational Migration”Hélène PellerinChoices Vol. 10, no. 6 (July 2004)
« Intégration économique et sécurité : nouveaux facteurs détermi-nants de la gestion de la migration internationale » Choix Vol. 10, no. 3 (Avril 2004)
choicesImmigration and Refugee Policy/Politique de l’immigration
Studies Published/Études publiées
“Lost in Transition: Canada and the Search for a 3-D Solution inKosovo”Julian Wright IRPP Policy Matters Vol. 7, no. 1 (January 2006)
“Canada in Afghanistan: Assessing the 3-D Approach” Julian WrightSpecial Report (July 2005)
“Guarding the Continental Coasts: United States MaritimeHomeland Security and Canada”Joel J. SokolskyIRPP Policy Matters Vol. 6, no. 1 (March 2005)
Geopolitical IntegrityHugh Segal (ed.)Monograph (March 2005)
“Happiness Is — a Rising Defence Budget?” Don MacnamaraSpecial Report (February 2005)
“Addressing the Security-Development Nexus: Implications forJoined-up Government”Ann M. Fitz-GeraldPolicy Matters Vol. 5, no. 5 (July 2004)
“Realism Canadian Style: National Security Policy and theChrétien Legacy”Joel J. SokolskyPolicy Matters Vol. 5, no. 2 (June 2004)
“Force Structure or Forced Structure? The 1994 White Paper onDefence and the Canadian Forces in the 1990s”Sean M. MaloneyChoices Vol. 10, no. 5 (May 2004)
“A Vigilant Parliament: Building Competence for EffectiveParliamentary Oversight”Douglas L. Bland and Roy RempelPolicy Matters Vo. 5, no. 1 (February 2004)
“Four US Military Commands: NORTHCOM, NORAD, SPACECOM,STRATCOM — The Canadian Opportunity”Joseph T. JockelWorking Paper (November 2003)
“Are We Just Peacekeepers? The Perception Versus the Reality ofCanadian Involvement in the Iraq War”Sean M. MaloneyWorking Paper (November 2003)
“The SORT Debate: Implications for Canada”Philippe LagasséWorking Paper (October 2003)
“Military and Postconflict Security: Implications for American,British and other Allied Force Planning and for Postconflict Iraq”Ann M. Fitz-GeraldChoices Vol. 9, no. 3 (April 2003)
“A National Security Framework for Canada”W.D. Macnamara and Ann Fitz-GeraldPolicy Matters Vol. 3, no. 10 (October 2002)
“Multinational Land Force Interoperability: Meeting the Challengeof Different Cultural Backgrounds in Chapter VI Peace SupportOperations”Ann M. Fitz-GeraldChoices Vol. 8, no. 3 (August 2002)
“The Canadian Forces and the Doctrine of Interoperability: TheIssues”Danford Middlemiss and Denis StairsPolicy Matters Vol. 3, no. 7 (June 2002)
“Sailing in Concert: The Politics and Strategy of Canada-US NavalInteroperability”Joel J. SokolskyChoices Vol. 8, no. 2 (April 2002)
“Canada and Military Coalitions: Where,How and with Whom?”Douglas BlandPolicy Matters Vol. 3, no. 3 (February 2002)
choicesNational Security and Military Interoperability/Sécurité nationale et l’intéroperabilité militaire
37
Après une description préliminaire de la LAT et des cir-constances entourant sa promulgation en 2001, l’articleexamine le rapport intérimaire du comité de la Chambredes communes sur les audiences d’investigation et lesarrestations préventives. Ce rapport recommandait que cespouvoirs soient renouvelés, mais que les audiences d’in-vestigation soient uniquement accessibles aux fins d’en-quête sur des actes de terrorisme imminents et non sur desactes passés. Il revient ensuite sur les débats parlemen-taires ayant mené au rejet de la motion du gouvernementvisant à renouveler pour trois ans les audiences d’investi-gation et les pouvoirs d’arrestation préventive. Il soutientque les recommandations du comité de la Chambre descommunes ont joué un rôle négligeable dans ces débats,caractérisés de tous côtés par une partisanerie qui aempêché d’en discuter de façon rationnelle. Il évalue leprocessus d’élaboration des rapports de révision finaux surl’examen triennal des deux comités et décrit commentceux-ci ont recueilli les dépositions de nombreux témoinsissus du gouvernement, d’organismes d’examen indépen-dants et de groupes de la société civile. Malgré l’insuffi-sance du soutien apporté aux comités, surtout en matièrede recherche comparative, l’article conclut qu’ils ont pumener leur examen et faire des recommandations sur unegrande variété de questions touchant les lois sur la sécu-rité, et non seulement la LAT.
L’article recense et approfondit 12 enjeux majeursdécoulant des rapports finaux des comités du Sénat et dela Chambre des communes. Il compare, met en contrasteet analyse l’approche des comités face à ces enjeux, puisdétermine leurs domaines d’entente et de mésentente. Ilvise non pas à défendre des mesures particulières pourrésoudre ces enjeux, mais bien à évaluer les recomman-dations des comités et les lacunes de leur analyse.L’article analyse aussi la réponse donnée par le gouverne-ment en juillet 2007 au rapport du comité de la Chambredes communes. Il s’interroge enfin sur la capacité duParlement de mettre à profit le travail des comités defaçon intelligente et rationnelle. Malheureusement, lerécent débat sur les audiences d’investigation et les pou-voirs d’arrestation préventive laisse peu de place à l’opti-misme quant à la capacité du Parlement de gérer lacomplexité des nombreuses questions non résolues dansla législation canadienne sur la sécurité, y compris lanécessité d’élaborer une réponse globale et durable aujugement Charkaoui de la Cour suprême.
C et article propose une évaluation préliminaire duprocessus de décision entourant l’examen sur troisans de la Loi antiterroriste (LAT) et l’expiration en
février 2007 des audiences d’investigation et des pouvoirsd’arrestation préventive qu’elle prévoit. Il analyse aussil’incidence des délais ayant retardé l’examen de la LAT etfait en sorte que les débats parlementaires relatifs auréexamen quinquennal des audiences d’investigation etdes pouvoirs d’arrestation préventive furent menés enfévrier 2007 sans bénéficier de trois années complètesd’examen par les comités de la Chambre des communes etdu Sénat.
Comparant les travaux de ces comités, l’article met encontraste d’importantes divergences d’analyse. C’est ainsique le comité élu de la Chambre des communes a eu ten-dance à privilégier les questions de confidentialité sus-ceptibles de porter préjudice à tous les Canadiens, maisaussi certaines craintes selon lesquelles la LAT puisseléser les avocats et les organismes caritatifs. En revanche,le comité non élu du Sénat s’est intéressé aux préoccupa-tions sans doute moins répandues concernant le profilageracial et religieux, l’évaluation des agences de sécurité etl’expulsion éventuelle de non-citoyens soupçonnés deterrorisme vers des pays où ils risquent la torture.
L’article traite aussi des rôles respectifs du Parlementet des tribunaux relativement aux lois sur la sécurité.Pour ce faire, il analyse différentes décisions judiciairesayant invalidé des dispositions de la LAT et de lois con-nexes, tout en étudiant la capacité du Parlement d’appro-fondir le dialogue avec les tribunaux en promulguant denouvelles lois qui dépassent le cadre de certaines viola-tions de la Charte établies en cour. Il examine la possi-bilité d’une réponse législative efficace au jugementCharkaoui et à d’autres décisions fondées sur la Charteayant invalidé certains éléments de la définition d’uneactivité terroriste, de même que l’infraction de divulga-tion illicite prévue à la Loi sur la protection de l’informa-tion et l’obligation de mener à huis clos la procédurejudiciaire. Il précise toutefois que le Parlement pourraitse révéler incapable de convenir d’une loi répondant aujugement Charkaoui et qu’une récente décision dans l’af-faire Khawaja donne à penser que les tribunaux pour-raient, de leur propre initiative, désigner un avocat ayantune autorisation de sécurité pour contester les informa-tions secrètes soumises par le gouvernement en l’absencedes personnes directement visées.
RésuméBetter Late than Never? The Canadian Parliamentary Review of the Anti-terrorism Act
Kent Roach
38
investigative hearings and preventive arrests. This reportrecommended that these powers be renewed, but thatinvestigative hearings only be available to investigateimminent and not past acts of terrorism. It next examinesthe parliamentary debates that ended in the defeat of thegovernment’s motion to renew investigative hearings andpreventive arrests for three years. It finds that theCommons committee’s recommendations played a negli-gible role in those debates, which were characterized bypartisanship on all sides as opposed to rational discussionof the merits. It examines the process that led to the finalthree-year review reports of the two committees, and out-lines how the committees heard evidence from large num-bers of witnesses from government, independent reviewbodies, and civil society groups. Although the work of thecommittees could have been better supported, especiallywith respect to comparative research, the paper concludesthat the committees were able to examine and makerecommendations with respect to a wide range of issuesaffecting security legislation and not just the ATA.
The paper identifies and explores 12 major issues thatarise from the final reports of the Senate and the Commonscommittees. It compares, contrasts and assesses theapproach of the committees on these issues, identifyingareas of agreement and disagreement between the two. Itspurpose is not to advocate particular ways to resolve theseissues, but to assess the recommendations made by thecommittees as well as omissions in their analysis. Thepaper also assesses the government’s response in July 2007to the report of the Commons committee. The conclusionof this study explores whether Parliament is up to the taskof building on the work of the committees in a rationaland intelligent way. The recent debate over investigativehearings and preventive arrests unfortunately does not jus-tify optimism about Parliament’s ability to grapple with themany complex and unresolved issues in Canadian securitylegislation, including the need to devise a comprehensiveand sustainable response to the Supreme Court’s decisionin Charkaoui.
T his paper provides a preliminary assessment of thepolicy-making process surrounding the three-yearreview of the Anti-terrorism Act (ATA) and the
expiry of investigative hearings and preventive arrestpowers contained therein in February 2007. It exploresthe implications of delays in completing the review,which meant that parliamentary debates concerning thefive-year sunset of investigative hearings and preventivearrests were conducted in February 2007 without the ben-efit of the full three-year review of the ATA by commit-tees of both the House of Commons and the Senate.
The paper compares and contrasts the work of theCommons and Senate committees and highlights a num-ber of important differences between their analyses. Theelected Commons committee tended to focus on concernsabout privacy that could potentially affect all Canadians,as well as specific concerns that lawyers and charitiesmight be adversely affected by the ATA. In contrast, theunelected Senate committee took on perhaps less popularconcerns about racial and religious profiling, a review ofsecurity agencies and whether Canada should deport non-citizens suspected of terrorism to countries where theycould be tortured.
This paper also addresses the respective roles ofParliament and the courts with respect to security legisla-tion. It does so by examining how various court decisionshave invalidated parts of the ATA and related security leg-islation, and by investigating Parliament’s ability toexpand its dialogue with the courts by enacting new legis-lation that goes beyond the specific Charter violationsfound by the courts. It examines the possibility of aneffective legislative response to Charkaoui and otherCharter decisions invalidating parts of the definition ofterrorist activities, the leakage offence in the Security ofInformation Act and mandatory closed court procedures.It also notes that Parliament may not be able to agree onlegislation to respond to Charkaoui, and that a recentdecision in the Khawaja case suggests that the courts may,on their own initiative, appoint security-cleared counsel tochallenge the secret information presented by the govern-ment without the directly affected persons being present.
After a preliminary description of the ATA and themanner in which it was enacted in 2001, this paper exam-ines the interim report of the Commons committee on
Summary Better Late than Never? The Canadian Parliamentary Review of the Anti-terrorism Act
Kent Roach