I take as my departure the search for the right balance between the freedoms of the individual and the securi- ty of the state. Clearly, there is often a dynamic tension, and sometimes quite anomalous behaviour, as we try to find our way through the maze to achieve the right kind of solu- tion. Take, for example, the actions of Prime Minister Trudeau when he enunciated in 1970 the right of the state to carry out its functions, in that case by using a decades-old blunt instrument called the War Measures Act. And yet this is the same prime minister who some years later champi- oned, and encouraged some of the best minds in the coun- try to craft, what has become the seminal Canadian legisla- tion protecting an individual’s rights"the Canadian Charter of Rights and Freedoms.
Clearly, legitimate advocacy, protest and dissent are fundamental to the health of our democracy. When do such advocacy, protest and dissent cross the line from legitimacy to violence and incitement to violence? Where should the lines be drawn when matters of state or international ques- tions are being debated, as we have seen in the protests and marches and criticisms in Seattle, in Quebec City and in Genoa? To have this work effectively there has to be an understanding on both sides of the fence, so to speak. Unfortunately, the dialogue needed to define this particular balance is largely absent, in part because governments sus- pect that those with legitimate concerns or with relatively little understanding of the issues at play are stampeded by others advocating divisive and conceivably violent courses of action. The radicals, for their part, have no interest in dia- logue and compromise.
We should, then, have a look at whether the (first draft of) anti-terrorism legislation brought forward by the gov- ernment in the wake of September 11 has materially altered the balance between the rights and freedoms of individuals to protest and to advocate and the safety and security of the nation and its population collectively. These issues have been debated extensively across the country. Views range from a ringing affirmative that this legislation does pose dangers to our democratic rights to advocate, protest and dissent, to a rather muted call for improvements to the bill by restricting some of its more sweeping clauses, to the view held by some that parts of the bill do not go far enough. They represent a healthy spectrum of views, intellectually yet passionately argued. Significantly, there is a recurring concern that the new powers given to the police will not be effectively monitored and overseen to ensure that these provisions are rigorously restricted to matters which dwell directly on potential or actual terrorist activities or acts. In short, there is uneasiness that, wilfully, inadver- tently or through inexperience, the police will deploy these new powers in unrelated or unin- tended areas.
The question is not whether Canada needed additional legislative heft in its efforts to counteract terrorism. It did. The question is whether the hastily drafted legislation (since revised) has accomplished its essential purposes without tipping the balance away from legitimate advocacy, protest and dissent and toward the security of the state and its inhabitants, thereby unacceptably chilling exercise of these rights.
Even in the absence of a state of war, in the strict legal sense there is no question that the United States and its allies have a right to respond to the recent attacks on American terri- tory. This right is accepted under international law.
States have the inherent right in international law to take action individually and collectively to deal with terrorist attacks and to safeguard the peace and security of their populations. Article 51 of the UN Charter codifies this right. It says that nothing in the Charter ”œshall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain interna- tional peace and security.”
In addition, supporting direct action by the United States and its allies is the legal doctrine of self-help in times of necessity, reflected in numer- ous decisions by the International Court of Justice and its predecessor, the Permanent Court of International Justice. That doctrine, part of the inherent right of state security, allows states to take actions to protect themselves, individually and collectively, in terms of immediate and grave threats to international peace and security, and to their own safety.
That is not to say that self-help has not often been abused as a means of justifying aggressive behaviour. For example, of particular concern to Martin Friedland at the University of Toronto Law School is the fact that in the United States and the United Kingdom which have, give or take, equiv- alent legislation, the police powers are much more carefully overseen and controlled by the central government. In the case of the United States the additional powers under their legisla- tion are given to the FBI, whereas in the United Kingdom policing is a centralized function with the responsibility lying ultimately with the Home Office. The point is that in our decentralized law enforcement system there is likely to be much less oversight and control over the potential misuse of these powers by police forces of widely differing size and experience across the country.
Ironically, by granting these increased pow- ers to all police forces in Canada"and policing is, at the end of the day, designed to make an arrest and secure a conviction"zealous police forces may well be interfering with the preventive intel- ligence-gathering process which is centred in the Canadian Security Intelligence Service (CSIS).
The recent terrorist attacks raised serious ques- tions about the adequacy of Canada’s exist- ing laws concerning economic sanctions and embargoes, as well as those permitting the freez- ing of financial and other assets belonging to or forming part of the activities of any international terrorist organization.
The Canadian anti-terrorist regime was divided among at least three different statutes and separate enforcement regimes. Sanctions were enforced mainly through the provisions of the United Nations Act and the Export and Import Permits Act. This first law operates under certain limitations, the most critical being the restriction of its application to the implementation Canada’s obligations under binding resolutions of the United Nations Security Council adopted under Article 41 of the UN Charter. There was no authority for the federal cabinet to make orders beyond the scope of such resolutions. Therefore, if the Security Council did not act under Article 41, no cabinet orders could be issued under the UN Act, whatever the crisis or whatever the urgency to protect Canada’s vital interests.
With these limitations in view, the federal government has filled the gaps through regula- tion and legislation. The initial regulations implemented UN Security Resolution 1373 of September 28 and for the first time included a list of terrorist organizations in addition to the Taliban and bin Laden and his circle. The regula- tions penalize knowingly raising funds for or dealing in the assets of any such listed organiza- tions. In addition, these regulations impose sig- nificant new reporting and disclosure obliga- tions, placing the onus on Canadian financial institutions to determine ”œon a continuing basis” if they are in possession or control of terrorist property. I have no difficulty with these provi- sions on the surface but acknowledge that legiti- mate concerns arise whenever a ”œlist” is created with coercive intent.
Bill C-36, the Anti-terrorism Act, has four objectives:
stopping terrorists from getting into Canada and protecting Canadians from terrorist acts;
bringing forward tools to identify, prose- cute, convict and punish terrorists;
preventing the Canada-U.S. border from being held hostage by terrorists and impacting on the Canadian economy; and
working with the international commu- nity to bring terrorists to justice and address the root causes of such hatred.
Despite serious reservations from many quar- ters as to the breadth of Bill C-36, the govern- ment pushed it through Parliament before Christmas because it was seen as part of the effort to counter Canada’s allegedly soft stance on ter- rorism. The minister of justice defended this leg- islation as constituting a balance between the protection of society and the safeguarding of Canadian rights and freedoms. She said that it was necessary to give the justice system the tools it needed to shut down terrorism, first by defin- ing the unique attributes of terrorist activity that distinguish it from other forms of criminal activ- ity, and second, by creating a criminal law struc- ture around the terrorist problem, including cre- ating distinct offences of facilitating, financing and otherwise participating in terrorist activity. This new legal framework, claimed the minister, is intended to benefit both police officers and prosecutors as well as defence counsel and all Canadians who want to understand clearly what Parliament intended regarding countering terror- ists’ acts, particularly inside Canada.
However, there are problems with Bill C-36. Conceptually, the new law diminishes due process protections as it seeks to introduce counter-terror- ist measures, allegedly in conformity with the Canadian Charter of Rights and Freedoms. The spe- cific problem with the bill is the very definition that it introduces. The definition of ”œterrorism” is so wide that it could easily catch behaviour that does not remotely resemble terrorism. Once the ”œterrorist” label is fastened on an individual, organization or suspect, then the rules of proce- dural justice are more easily suspended.
The definition of ”œterrorist activity” in Bill C-36 targets ”œpolitical, religious or ideological beliefs.” Granted, the justice minister brought in a last- minute interpretative amendment purporting to provide assurance that the basic rights enshrined in the Charter would be respected. For greater clarity, the amendment says that the expression of politi- cal, religious or ideological belief is not ”œalone” a terrorist activity unless it is part of a ”œlarger con- duct” that meets the other requirements of the def- inition. Some legal experts have suggested the amended definition will still invite law enforcement authorities to engage in ideological profiling, which can be just as invidious as racial profiling. In this sense Bill C-36 will permit the making of individu- als and organizations for the beliefs they hold and espouse, which is something quite inconsistent with traditional Canadian values. In fact, this approach was rejected as a result of parliamentary debate over provisions of the CSIS Act in the early Eighties. Bill C-36 also gives the Solicitor General the power to act on the advice of CSIS or the police in branding activities and organizations as ”œterror- ist,” with virtually no provision for review. It is widely acknowledged that the communities most vulnerable to being listed are those who are visibly identifiable as racial, ethnic or political minorities, often recently arrived in Canada as immigrants and refugees. Yet these are the communities most dependent on their organizations for language and relocation services as well as for that vital link to their homeland. The diminution of reviewability or due process in these situations is frankly worrying.
Much has been made about the provisions in Bill C-36 for preventative arrest and inves- tigative hearings. The minister of justice tried to soften the extreme nature of these powers at the last minute by providing a sunset clause under which the legislation would be reviewed after five years. In my view the sunset clause simply repre- sents a failure to address the fact that these pro- visions, in an unprecedented way, override fun- damental religious, expressive and associational freedoms that are at the core of section two of the Charter. Whether the government’s sunset clause is a compromise that meets the ”œdemonstrably justifiable” test of the Charter is something the courts will ultimately decide.
During the debates in Parliament on Bill C-36, it was noted that both United States and United Kingdom had anti-terrorist statutes in place before September 11 and that Canada did not. Whether or not this created a desire to ”œcatch up,” Canada seems to have overshot the mark. Nowhere is this more evident than in the definition of ”œterrorist activity,” which is not nearly as clear, careful or restrained as it should be. Indeed this definition is in some respects broader than the wide definition of terrorism in the United Kingdom’s Terrorism Act of 2000, after which it was modelled. The British definition does not add new crimes of terrorism, and it does not define as terrorism disruptions of essential public and private services. The U.S. leg- islation is also less broad and more precise than Bill C-36. Its definitions of terrorism and federal crimes of terrorism are all based on the commis- sion of predicate offences already in the criminal law. Finally, one cannot help but hark back to the oft-criticized definition of an ”œunlawful organiza- tion” that was enacted by the regulations of October 1970 under the War Measures Act. In some respects the definition of terrorism in Bill C-36 presents an even greater risk of catching legal dis- sent than the regime which existed under the War Measures Act.
One must never forget that existing criminal law in Canada already prohibits a broad range of terrorist activities, including agreements, attempts, assistance and counselling with regard to crime. But the Canadian government went beyond the British and American legislation in its race to catch up, defining terrorist activities in such a way as to include legal, political, religious and ideological protests that intentionally dis- rupt essential services. This definition then becomes the linchpin for other new offences such as facilitating and instructing in terrorist activities and participating in the activities of or harbouring those who engage in terrorist activi- ties. The overall effect is to lengthen the long reach of the criminal law in a manner that is complex, unclear and unrestrained.
What are some examples of activities or groups that would be caught under the Bill C-36 definition of ”œterrorism” that do not remotely resemble terrorism? Consider these, as enunciat- ed by the Honourable Ron Atkey in a recent address:
Protest activities by Aboriginal people, against development activities on Aboriginal lands that disrupt an essential service or block a road;
Workers involved in recent nurses’ or truckers’ strikes or the protestors of the Quebec City Summit or the APEC conference in Vancouver;
Political activists who may have appeared to be ”œterrorists” to those in power at the time but who are ultimately remembered as champi- ons of freedom, such as Louis Riel or Nelson Mandela; and
Community groups that sponsor Muslim immigration into Canada, when an immigrant is alleged to have been involved in terrorist activities in the country of origin, even if some time in the past.
At the end of the day, many of the misgiv- ings of lawyers and civil libertarians about Bill C- 36 will be addressed by the Supreme Court of Canada under the Charter. The Court can and will act as an effective institutional brake on the inherent excess contained in the law as drafted. This will not in any way diminish Canada’s anti- terrorist efforts militarily or in terms of intelli- gence and policing measures, screening of entrants to Canada, or border and air security.
The minister of justice claimed that Bill C-36 has been ”œCharter-proofed.” She also argued that the bill was necessary to bring Canada into com- pliance with its international obligations to fight terrorism, and that Canada is simply doing what other governments such as the United States and the United Kingdom have already done. But, in my view, she did not demonstrate that the limits this bill places on fundamental religious, expres- sive and associational freedoms guaranteed to Canadians by the Charter justifiable in a free and democratic society"really, the ultimate test of constitutionality under our Charter.
The real test of our values as Canadians is how they guide us in times of crisis, whether through military, intelligence, policing, adminis- trative or legal responses. In the past, we did not always measure up"for example, when we interned Japanese-Canadians in the early Forties or jailed hundreds of innocent Canadians in Quebec in 1970. But we have made progress. The 1988 Emergencies Act, which replaced the War Measures Act of 1914, is a good example. And since September 11, our national government for the most part has been more sensitive to the need for balance, for a coordinated response reflecting modern realities, for effectiveness in terms of deploying government resources and ensuring that we continue to have a Charter of Rights and Freedoms against which legislative or administra- tive excess may be tested before a competent judiciary.
The fact that Canadians can and are willing to debate these issues remains an important part of our freedoms, part of the creative tension that exists in a free and democratic society.