Home Newsroom 2005 Speeches (archive) McLellan: 2005-03-22

Sub-Committee on Public Safety and National Security Reviewing the Anti-terrorism Act

Speaking notes for
The Honourable Anne McLellan

House of Commons
Ottawa, Ontario
March 22, 2005

As delivered

I am pleased to be here with this Sub-Committee today and to participate in this important review of the Anti-terrorism Act.

I welcome this opportunity to examine our experience with this legislation and to determine whether adjustments are necessary – either because of changing circumstances or emerging challenges.

This is an important exercise. The Anti-Terrorism Act forms part of a carefully calibrated response to the dangers of terror and to addressing those dangers in a way that is consistent with our values. I would hope, therefore, that our focus today will be on the Anti-terrorism Act – so that we conduct the kind of careful, comprehensive and considered review that such an important law merits. The legislation itself directs it; fairness demands it and Canadians deserve it.

While I believe that our first responsibility is to discharge the legislated obligation to review the Anti-terrorism Act, I also appreciate that this Committee has chosen to broaden the discussion to include Security Certificates and Section 4 of the Security of Information Act.

I will also touch briefly on Security Certificates in my remarks. On the issue of Section 4, I will defer to my colleague, the Minister of Justice, who has primary responsibility in that area and who will appear before you tomorrow.

Before addressing the legislation, let me briefly review the environment in which we find ourselves. As you have heard from Mr. Judd, the Director of CSIS, the global threat environment has not diminished with the passage of three years.

Terrorism continues to evolve. Canada remains a target named by al-Qaeda. While our efforts in Afghanistan have destabilized Al Qaeda’s base of operations, the organization remains a threat. New technologies are extending the reach of terrorist cells. And terrorists, worldwide, continue to engage in acts of violence.

Since September 11 alone, there have been terrorist attacks in more than 30 countries, including at a nightclub in Bali, a train in Madrid and a school in Beslan. Frequently, new intelligence reveals plans for other attacks, in other parts of the world, demonstrating the reach and complexity of the threat.

We cannot afford to doubt for a moment the determination of terrorists, nor misinterpret any period of calm as the end of their objectives. As we have seen in many cases, attacks are many years in the planning. The hard truth is that the danger has not diminished. We must remain alert – and we must be prepared.

Being prepared, staying ahead of these dangers and preventing their occurrence is what the Anti-terrorism Act is all about. It is a vital cornerstone of our national security and an important instrument of our international engagement.

There are other tools and laws that we rely on in this context, including Security Certificates. Members will know that these Certificates have been available under immigration legislation for many years. They predate the Anti-terrorism Act by more than two decades. However, they are part of the national security framework.

Certificates issued under the Immigration and Refugee Protection Act can only be used with respect to foreign nationals and permanent residents and even then, only in very limited circumstances.

Certificates are only used where there are reasonable grounds to believe that an individual is involved in terrorist activities, but also such things as violations of human rights, espionage, subversion, serious criminality or organized crime. In such circumstances, the need to act is paramount and these Certificates provide us with a means of removing inadmissible individuals who pose a threat to Canada and undermine the integrity of Canada’s immigration and refugee system.

And, as you know, the Supreme Court of Canada has upheld the Security Certificate process as being a fair judicial proceeding in light of the requirements of national security.

While a Federal Court judge hears all or part of the evidence in the absence of the individual named, the judge also determines how much can be made available to that individual through an unclassified summary. The summary must include sufficient information to enable the individual to be reasonably informed of the circumstances that gave rise to the certificate, but it does not include anything that, in the opinion of the judge, would be injurious to national security or the safety of any person if disclosed. The judge will also hear evidence and testimony from the person named in the certificate.

Since 1991, there have been only 27 Certificates issued, and since 2001, only five Certificates have been issued. This suggests to me that their use has been carefully considered and judiciously applied. By comparison, through our immigration and refugee system we remove some 10,000 people a year by other means. So you can see, there is a clear recognition of the serious implications of issuing a Certificate and, as a result, they are used sparingly.

Let me turn now to the Anti-terrorism Act and remind Honourable Members of the events that preceded it. It is very important to understand that much of what is now part of the Act actually reflects work that had begun well in advance of September 11, 2001.

When we developed the Act, we were building on a solid foundation and experience gained through many years of engagement on the issue of terrorism. The attacks of September 11 accelerated those efforts, but they did not initiate them.

In crafting anti-terrorism legislation, work had already been undertaken, both at home and with our international partners. All told, some 12 UN instruments had been signed by Canada and all but two had been codified in our domestic laws.

What the Anti Terrorism Act did, was allow Canada to meet a number of our international obligations – notably the UN Convention Against Terrorist Bombings and the Convention for the Suppression of the Financing of Terrorism.

The Act also enabled us to respond to UN Security Council Resolution 1373, passed after September 11, which called on member states to undertake a wide range of measures aimed at combating terrorism.

We should also recall that Canada, regrettably, had first hand experience with terrorism before 2001, in the Air India bombing of 1985, when more than 300 people lost their lives in what was then the worst act of aviation terrorism in history.

And certainly with the arrest of Ahmad Ressam in 1999, we learned much more about the extent of terrorist plotting within Canada.

I would also stress that the Act contributes not only to Canadian efforts to combat terrorism at home, but also to the international fight against terrorism as well. It is part of a much larger whole and we cannot weaken its provisions without affecting that wider effort. The UN conventions we signed and ratified, stand as obligations we must fulfil.

As Honourable Members know, this law was, quite rightly, the subject of much lively debate when it was introduced three years ago. More than 100 witnesses appeared before the House committee examining Bill C-36 to express their views, indicate their support and raise their concerns. The Senate also heard witnesses – more than 75 – during its study of the bill. All of this public discussion and debate was both welcome and helpful, resulting in a number of amendments that were subsequently adopted.

Perhaps equally important, it provided Canadians with the opportunity to contribute to the fundamental question of how we balance the rights of the individual with the security of our society. In light of the clear dangers, vividly illuminated by the September 11 attacks, what was the appropriate response by democratic societies? What is the right balance?

This is a profoundly important issue. The formula is not readily at hand. But in a free and democratic society, it is absolutely essential that we debate it, discuss it – and decide it. And I believe that with the Anti-Terrorism Act, we have struck the right balance.

Canadians seem to agree. Recent public research shows a majority of Canadians approve of the government’s response to terrorism.

Of course, Canada is not the only nation wrestling with this question of balance. Around the world, open societies are discussing the best way to achieve it. Their approaches may differ, but the fundamental considerations will be the same. For our part, the Act represents a made-in-Canada response, reflecting Canadian values and consistent with Canadian law and the Charter of Rights and Freedoms.

One of the key attributes of the ATA is the review mechanisms it contains. As Minister, I am accountable to Canadians through Parliament. But the law also contains requirements for annual reports and sunset clauses for two of its provisions, as well as the mandatory review we are undertaking now. All of these speak eloquently to the desire to be open, transparent and accountable to Canadians.

For example, with respect to the “arrest without warrant power,” I am required, as Minister, to prepare and submit to Parliament an annual report pertaining to its use. And 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. Moreover, the various Portfolio agencies that apply the Act are subject to their own review mechanisms – including those that were in place before the Act was adopted.

Such transparency assures Canadians that we have not sacrificed our values in order to fight our adversaries. That we have remembered – and respected – the differences between them and us. And by “them” I mean terrorists. That is the focus of this legislation: terrorism; terrorist activities and terrorist groups.

The Act targets no community, singles out no religion and focuses on no nationality. Its objective is the protection of Canadians and the prevention of terrorist acts. Nothing more. But nothing less.

Prevention is a key part of our efforts. As I have said many times, if the terrorists are on the planes, it is too late. We will have failed. We need to be ahead of their actions, understand their plans and frustrate their designs.

The thrust of the Act, therefore, is forward looking, designed to prevent terror, not simply respond to it. In undertaking this review, that character of the law must be clearly understood. So how has it worked in practice – and how might we improve it going forward?

Mr. Chairman, there have already been achievements, particularly in cutting off sources of funding for terrorism. Since September 11, 2001, some $147 million in terrorist-related funds have been frozen internationally from nearly 400 individuals and entities. This is vital and we must be part of the international effort. Terrorism may be inspired by ideology and hate, but it is fueled by dollars and cents. Without money, terrorists cannot undertake their activities or achieve their aims.

The Act has enabled Canada’s Financial Intelligence Unit (FINTRAC) to detect, prevent and deter the financing of terrorist activities. Between 2001 and 2004, FINTRAC disclosed 73 cases to law enforcement and intelligence agencies related to suspect terrorist financing.

The Act has also made it possible for Canada to broadly meet its obligations to the Financial Action Task Force, an international body that promotes international policies to fight money laundering and terrorist financing. And this Act helps to ensure the integrity of Canada’s charities by preventing organizations that support terrorist activities from obtaining registered charitable status.

The Act has created a way to publicly identify groups or individuals associated with terrorism through its “listing” provisions. This helps to deprive terrorist organizations of access to certain assets, curtails their ability to raise funds, and helps to prevent their establishing a base here in Canada. Thirty-five entities have been listed thus far.

Let me just quickly touch on two measures contained in the legislation – the investigative hearing provision and the recognizance with conditions provision, more commonly known as preventive arrest. In both cases, the concerns expressed at the time the bill was proposed have proven to be unfounded. There has been only one use of the investigative hearing section since the Act was adopted and that was with respect to the Air India case. It is also worth noting that the Supreme Court of Canada has ruled that these hearings are fully consistent with our Charter. The arrest without warrant provision has not been used and one person has been arrested on terrorism charges.

Mr. Chairman, the fact that these provisions have been used so exceptionally – or not at all in the case of preventive arrest - has led some to conclude that the powers are unneeded. I would suggest that it means they are being appropriately utilized – and that law enforcement officials in our country take their commitment to the rule of law very seriously.

What’s more, the fact that these provisions have not been used – or used sparingly – may well point to the fact that the situation requiring their use has not yet arisen. But this does not mean that such situations or circumstances will not arise. The important point is to be ready, to have those tools at our disposal when and if they are needed.

Let me turn now to some of the lessons learned during the brief time that this law has been in place. I said a moment ago that I believe we have struck the right balance in terms of individual rights and collective security. But I am also aware that there are those who have felt unfairly singled out or set apart.

We need to be sensitive to the concerns raised by certain communities perhaps most especially the Muslim and Arab communities. We need to make it clear that terrorism is the target - and that terrorists come in all colours, speak all languages and practice every religion. No group should be singled out and no group should me made to feel left out.

This Act is about protecting Canadians – all Canadians. It is not about dividing Canada into communities we trust and those we suspect.

The National Security Policy released almost one year ago recognized the fact that ethno-cultural communities must be engaged in a meaningful dialogue with the government on matters of security.

I am pleased that the membership of the government’s Cross-Cultural Roundtable has recently been announced and held their first meeting. Minister Cotler and I had the pleasure of meeting with the Roundtable and I am confident that it will provide insight to policy makers on how national security measures may impact Canada’s diverse communities .

I look forward to continuing to work with Canadians from all parts of our country to make sure that we administer the ATA in a way that is sensitive to their concerns and consistent with our security.

Let me again thank you for your attention here today and for your continuing dedication to the protection of Canadians and to our international efforts to root out terrorism wherever it may be found.

I welcome your comments and remain open to any suggestions you may have which would advance those fundamental goals.

Thank you.