INDEPTH: CANADIAN SECURITY
Anti-terrorism Act
CBC News Online | October 24, 2006
Anne McLellan, justice minister at the time the Anti-terrorism Act was passed
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In the aftermath of the Sept. 11, 2001 attacks on the U.S., the federal government created Canada's first anti-terrorism legislation defining what terrorism is and making it a punishable offence within Canada's Criminal Code. The anti-terrorism act (Bills C-36 and C-42), was the subject of heated debate and controversy as the Liberal government of the time fast-tracked it through the House of Commons and the Liberal-dominated Senate.
The act became part of the Criminal Code on Dec. 18, 2001. The changes to the code are "aimed at disabling and dismantling the activities of terrorists groups and those who support them."
As it was being drafted politicians and protesters raised concerns that the legislation as proposed trampled on civil liberties because it gave police sweeping new powers, including the ability to arrest people and hold them without charge for up to 72 hours if they're suspected of planning a terrorist act.
The Liberals used their majority to pass a motion to curtail debate, and rejected all of the remaining opposition amendments. The motion passed easily in the House of Commons with a vote of 190 in favour and 47 against.
The justice minister at the time, Anne McLellan, said the bills had three main objectives: to suppress existing terrorist groups, provide police with new investigative tools, and toughen prison sentences for terrorists.
"We believe that people everywhere are entitled to live in peace and security," McLellan said.
The Liberal government gave in to public and political pressure and attached a five-year sunset clause on the law, at which time the government will review it to determine whether it should be softened according to the current threat of terrorist activities. Major provisions of the law would expire unless they are renewed by the beginning of 2007.
On Oct. 23, 2006, a parliamentary committee recommended extending two of the measures — preventive arrest and investigative hearings for material witnesses — until 2011. Neither of these provisions has yet been used.
 Justice Minister Vic Toews
This clause defines a terrorist act as one committed "for a political, religious or ideological purpose, objective or cause." Toews said there are two problems with that definition: it could lead to profiling of people of a particular religion, Islam especially, and it could be difficult for prosecutors to provide evidence of a suspect's personal beliefs.
On Oct. 24, 2006, a Superior Court judge stuck down the motive clause, saying it violates the Charter of Rights and Freedoms. The judge was working on the case of Mohammed Mormin Khawaja, the first person charged under the new anti-terror provisions.
Khawaja, a software developer, was arrested on March 29, 2004, and faces seven criminal charges alleging that he participated in and gave assistance to an alleged British terrorist organization.
Although the judge struck down part of the law used to arrest Khawaja, he said his trial on the charges could go on.
Highlights of the Anti-terrorism Act:
- It gives the police wide, sweeping powers to act on suspected acts of terrorism.
- It allows suspected terrorists to be detained without charge for up to three days.
- It makes it easier for the police to use electronic surveillance, which used to be seen as a last resort.
- It allows for preventive arrests.
- It allows judges to compel witnesses to give evidence during an investigation.
- It allows for the designation of a group as a terrorist organization.
The legislation makes it a crime to:
- Knowingly collect or provide funds, either directly or indirectly, in order to carry out terrorist crimes. Using this definition, the Crown must prove that the accused collected, provided or made available funds that he or she knew would be used to help a terrorist group. Canadian courts would be given the jurisdiction to try this offence even if it were committed outside Canada, when the accused is found in Canada. The maximum sentence for this offence would be 10 years.
- Knowingly participate in, contribute to or facilitate the activities of a terrorist group. The participation or contribution itself does not have to be a criminal offence and would include knowingly recruiting into the group new individuals for the purpose of enhancing the ability of the terrorist group to aid, abet or commit indictable offences. The maximum sentence for the offence of participating or contributing would be 10 years imprisonment. The maximum sentence for facilitating would be 14 years imprisonment.
- Instruct anyone to carry out a terrorist act or an activity on behalf of a terrorist group (a "leadership" offence). This offence carries a maximum life sentence.
- Knowingly harbour or conceal a terrorist. The maximum sentence for this offence would be 10 years.
In addition to the changes to the Criminal Code, the anti-terrorism legislation makes changes to:
The Official Secrets Act - renamed to the Security of Information Act it creates new offences against threats of espionage by foreign powers and terrorist groups and allows ministers to declare certain actions secret.
The Canada Evidence Act - amended to include changes to courtroom and other proceedings to protect classified information.
The National Defence Act - amended to clarify the mandate of the Communications Security Establishment to intercept communication of foreign targets and undertake security checks of government computer networks to protect them for terrorist activity.
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