Home Newsroom 2005 Speeches (archive) McLellan: 2005-02-14

Review of the Anti-Terrorism Act

Speaking notes for
The Honourable Anne McLellan
Before the Special Committee of the Senate 

Ottawa, Ontario
February 14, 2005

As delivered

Good morning, Honourable Senators.

As the Minister who introduced this legislation, I am pleased to speak to the role that it is playing and the difference that it is making. I appreciate the important contributions Senators made at the time of its introduction, and I welcome your input and insights today and in the weeks ahead.

I sincerely want to thank the Senate for the extraordinary work you did in the weeks and months following September 11, 2001. We all remember that as a time of intense work on the part of the Senate and the House of Commons here in Canada, as well as by organizations around the globe, such as the United Nations and other key international organizations. I want to sincerely thank the Senate again for your outstanding work and the openness and thoughtfulness with which you approached what was obviously an extremely and difficult task.

I welcome this opportunity to review our work, to benefit from the experience we have gained and to determine whether adjustments are necessary – either because of changing circumstances or emerging challenges.

This is important and complex legislation. It deserves a comprehensive review. I believe that the best way to achieve that is by focusing on the legislation itself – rather than engaging in broader discussions about matters beyond its purview and intent.

There are appropriate times and venues to have those wider debates, but I would hope that we would focus, at least initially, on the provisions of the Anti-Terrorism Act so that it receives the thorough airing it deserves – and which Canadians obviously expect.

In undertaking that review, it is essential that we remember why this legislation was passed in the first place – to remind ourselves of the threat environment that has emerged and which continues unabated.

To be sure, Canada was no stranger to the issue of terrorism before September 11, 2001. We had experienced terrorism first-hand.

The Air India bombing in 1983 was the single most destructive Act of terrorism the world had ever seen. It was very much a Canadian tragedy.

Following the apprehension of Ahmed Rassam at the U.S. border in December 1999, and through his trial and conviction in April 2001, we learned still more about terrorist planning here in Canada.

For many years before September 11, 2001, we had been at the forefront of work at the United Nations and elsewhere, signing 12 international instruments dealing with various aspects of terrorist activity.

The adoption of the Anti-Terrorism Act enabled us to fulfill many obligations we had made under earlier international instruments, including the UN Convention against Terrorist Bombings and the UN Convention for the Suppression of the Financing of Terrorism. The Government signed these two conventions in 1998 and 2000 respectively, but in 2001 we had yet to implement them into Canadian law.

Key provisions in the Anti-Terrorism Act did not simply arise because of the tragic events of September 11, 2001. The Department of Justice had been developing measures required by those conventions and drawing on respected international standards for many months prior to the events of that day.

Let me reinforce this: As Minister of Justice at the time and before, we had worked in some cases for up to five years on aspects of the implementation of various of the UN conventions, and we were working with our international counterparts around the world to determine, wherever possible, the international standards that we could all adopt as a collective community committed in its fight against terrorism.

There is no question, however, that September 11, 2001, added new impetus and urgency to our efforts. In its condemnation of the attacks, the UN Security Council adopted Resolution 1373, which, among many things, called upon states to freeze terrorist assets and report within 90 days on the steps being taken to implement the resolution.

In fact, the resolution goes well beyond that, and I am sure that you have looked at this resolution. It is an all-embracing resolution that called upon the civilized world to take up action against terrorist activity after September 11.

Following the events of September 11, all of us grasped in a profound way what many perhaps had only understood in the abstract: that terror knows no bounds. It has become an unwelcome addition to our landscape – a challenge we did not invite, but could not ignore. A response was required on the part of the global community.

Part of Canada's response was the Anti-Terrorism Act.

This law recognized that there is no more fundamental – or important – role for government than ensuring the security of its citizens; that safety and security are the foundations for every other right of citizenship and the essential conditions for every other freedom.

The Act confronts the issue that once a terrorist event takes place, it is too late. I think many of you in this room heard me say, and I believe it more profoundly today, that if the terrorists are on the planes, it is too late and we have failed.

The Act creates offences that criminalize activities that take place before a terrorist event can occur, such as knowingly facilitating a terrorist activity. That is why the Act is sometimes described as an Act of prevention. I believe my colleague the Minister of Justice, Mr. Cotler, will spend time talking to you about the importance of the preventative aspects of this Anti-Terrorism legislation.

There is nothing theoretical or abstract about security. It is reflected in communities that provide the safety and stability upon which Canadians build their lives. It is about creating the conditions in which people can invest with confidence and work without fear. It is about the quality of our lives as Canadians and about our responsibilities as citizens of the world. It is about meeting the international standards that our counterparts expect of us to facilitate the trust, trade and access across borders and between countries that we all too often take for granted.

Meeting this global responsibility is a key component of what the Act is about.

Technology has given terrorists the tools for unparalleled coordination and global reach. The power of technology to connect and combine forces across continents has created a threat environment unlike anything we have experienced before.

Because terrorists see the world as their field of operation, so must we.

Security requires us to unite with those beyond our borders. This legislation does just that. It is part of a wider international effort. Enhancing our security measures not only enhances Canada's security, but also strengthens the worldwide response against terror. If we do not employ appropriate measures, we will be failing the international community and making Canada a more attractive place for those who seek a base for terrorism.

Let me turn briefly to the law itself.

As Honourable Senators will know, this law was not without debate – intense debate, as it should have been. When it was introduced, it sparked lively discussion. It was the subject of a full Parliamentary review. While the legislation was examined on an expedited basis, it was the subject of intensive and focused examination by Parliamentarians.

Over 100 witnesses appeared before the Commons committee over three weeks, while the Senate held a pre-study, hearing 76 witnesses, allowing the bill to proceed expeditiously.  Most importantly, amendments were proposed during that process and were adopted.

Any law that attempts to balance the rights of citizens and the demands of national security should be undertaken with care and under full public scrutiny. I am proud of the way this legislation evolved. I am proud of the values that shaped it, the amendments that improved it and the public and Parliamentary debate that informed it.

I believe the result was a law that strikes the right balance between the need to protect the security of Canadians and the importance of protecting the rights of Canadians.

Its focus is on terrorists: their acts, their aims and their support networks. And it reflects our highest ideals as a nation. It speaks to what we believe about human freedom and individual liberty.

In passing legislation to fight terrorism, it was important to demonstrate that a free society could act in a way that was consistent with its values.

The Act, I believe, does all of this. It respects such important Canadian values as fairness, due process and judicial review. It is consistent with the Canadian Charter of Rights and Freedoms. It is, in short, a made-in-Canada solution.

Among the key attributes are important safeguards and accountability mechanisms within the context of the Act and review mechanisms for the various agencies it covers. These include oversight and review mechanisms already in place – notably the Commission for Public Complaints against the RCMP, the Security and Intelligence Review Committee, or SIRC, the Communications Security Establishment Commissioner and the Office of the Privacy Commissioner of Canada.

Going further, the fact that the law also contains requirements for annual reports, along with the statutory review we are now undertaking, points to the desire to prevent abuse and to be open, transparent and accountable to Canadians.

For example, with respect to the “arrest without warrant” provision, also known as preventive arrest, I am required as Minister to prepare and submit to Parliament an annual report pertaining to its use. Safeguards are also required in each case where this power might be used, such as judicial supervision and the consent of the Attorney General.

Amendments to the Criminal Code also require the minister responsible for policing in every province to make available to the public an annual report pertaining to the use of the arrest without warrant power, the period of detention and the number of cases where a person was arrested without warrant and subsequently released.

Let me turn now to how the law has worked in practice. Although three years is a very short time to evaluate comprehensive legislation that addresses complex issues, I believe there are lessons already learned and successes already achieved.

First, we should note how terrorism is fuelled by dollars and cents. Without money, terrorists cannot buy weapons, train personnel or establish cells in foreign lands.

One of the important effects of the Act has been to expand the mandate of FINTRAC to include detecting, preventing and deterring the financing of terrorist activities.

Under the Act's provisions, FINTRAC is now able to share certain information with its international counterparts for the purposes of investigating and prosecuting terrorism financing offences These provisions also enable FINTRAC to provide law enforcement authorities and CSIS with information about terrorist financing.

Moreover, the Act enabled Canada to meet its obligations to the Financial Action Task Force – an intergovernmental body aimed at promoting international policies to combat money laundering and terrorist financing.

The Act also helps to protect the integrity of Canada's charities by ensuring that organizations that support terrorist activities do not benefit from registered charitable status.

The Act has created a public way of identifying a group or individual associated with terrorism. Through the process of listing these entities or individuals, Canada and Canadians will know exactly who they are dealing with. We have listed over 30 entities to date. The process incorporates a rigorous test prior to listing. It also includes provisions for removal from the list, judicial review and a requirement that the list be reviewed every two years. A review of the list was completed in November 2004, whereupon the decision was made to maintain all 35 entities on the current list.

Listing also imposes certain reporting requirements on banks, brokerage houses and others in order to deprive terrorist organizations of access to assets they hold with these institutions.

Perhaps just as important as what is happening under the law is what is not happening. The investigative hearing provision has been used only once, in the context of our greatest terrorist tragedy in this country, Air India. As you know, the Supreme Court in that instance upheld the constitutionality of the investigative hearing.

Meanwhile, there has only been one arrest on terrorism charges and there have been no arrests without warrant. Discretion and the best practices of risk management are being brought to bear in decisions around the application of the Act.

Some might say that this record proves that the law was not needed. I argue that it demonstrates the law is being carefully and responsibly applied.

These developments allow us to put into perspective the fears of some that the Act would threaten particular groups or the rights of Canadians. Respect for the rule of law is an overarching principle in our democratic society and Canada's criminal justice system has demonstrated that it will only employ extraordinary powers in extraordinary circumstances.

What is more, if our laws are to serve as instruments of deterrence and prevention, it would be totally inappropriate to judge their worth by the frequency of their use. Prevention and deterrence are key. As we learned in 2001, and as I said in debate at that time and will say again: If the hijackers are on the planes, it is too late; we have failed. We must be clear with those who would do harm and prevent them from making Canada their base.

What lessons have we learned and what principles should we apply going forward?

I believe we struck the right balance with this law, but I recognize that some are not so comfortable with the perceived impact. I accept the need to review security measures and ensure that we are meeting our objectives and upholding Canadian values.

I have met with a variety of groups, including representatives of Canada's Arab and Muslim communities. I have heard their concerns and I respect them. I agreed at the time that the legislation would have a statutory three-year review; which is why we are here today.

Last April, when I introduced the Government of Canada's first-ever integrated National Security Policy, we committed to create a Cross-Cultural Roundtable on Security. Last week, the Minister of Justice and I announced the membership of the Roundtable and we both look forward to meeting with this group next month.

This Roundtable, as well as the ongoing discussions that we continue to carry on with other concerned groups and individuals representing diverse communities, will ensure engagement and dialogue on national security issues and their impact in our multicultural society.

In consideration of the future of the Act, it is essential to understand that September 11, 2001, was not an isolated incident. Indeed, since then the world has continued to witness horrific acts, including those in Bali, Madrid and Beslan – all tragic reminders that terrorists can strike anywhere at any time.

You will hear from others that the threat environment in Canada has not improved since September 11, 2001, and is arguably worse and certainly more complex.

Canada itself has been deemed a target of Al Qaida, named by Osama bin Laden in November 2002.

The danger has not passed, the threat has not diminished, and our vigilance must not falter.

The legislation under review today is a significant part of Canada's strategy to defend the safety and security of Canadians. And it is making an important contribution to the international effort to combat terrorism wherever it may exist.

Over the past three years, the Act has been judiciously applied and it is still needed. With the benefit of three years of hindsight and experience, I am more convinced than ever that the Act was the appropriate response, with the right measures. I can say without hesitation that it remains an appropriate response to the challenges we face, both here at home and around the world.

I want to thank Honourable Senators for your attention here today and for your ongoing commitment to enhancing the safety and security of Canadians. I look forward to your comments and questions, and remain open to any suggestions you may have for improving this law and contributing to Canada's efforts in the global response against the scourge of terrorism.

Thank you very much.