The Anti-terrorism Act
Frequently Asked Questions
- What is the Anti-terrorism Act?
- Why is the Anti-terrorism Act necessary and why does it continue to be necessary?
- What does the Anti-terrorism Act do?
- Are there any statistics on how the Anti-terrorism Act has been used?
- If key provisions have not been used frequently, are they still necessary?
- How does the Anti-terrorism Act compare to measures taken by other countries?
- What are some of the safeguards built into the Anti-terrorism Act?
- Have law enforcement officials received enhanced powers as a result of the Anti-terrorism Act?
- Has CSIS received enhanced powers as a result of the Anti-terrorism Act?
- Are security certificates part of the Anti-terrorism Act?
- Why is it now the subject of a Parliamentary review?
- How does the review process work?
- What is the scope of the review?
- How can I make my views known to the Government and to Parliamentarians?
- Who has appeared before the Committees as witnesses?
1. What is the Anti-terrorism Act?
The Anti-terrorism Act (ATA) was carefully developed to combat terrorism, while ensuring that fundamental interests such as privacy and other human rights are respected. The ATA improves the ability to investigate, detect and prevent terrorist activities at home and abroad, including taking the necessary steps to deter and detect money laundering and to deny terrorists access to funding. It was also designed to allow Canada to work with the international community in the fight against terrorism. For example, it permitted Canada to implement the last two of the 12 United Nations (UN) anti-terrorism conventions - the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism.
The ATA was an omnibus piece of legislation containing major enactments or amendments to a number of federal statutes, including the Criminal Code, the Security of Information Act (amending and renaming the Official Secrets Act), the Canada Evidence Act; the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act, the Charities Registration (Security Information) Act, and the National Defence Act (setting out for the first time in statute the mandate of the Communications Security Establishment (CSE)). Additionally, there were numerous (but significant) amendments to other pieces of legislation.
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2. Why is the Anti-terrorism Act necessary and why does it continue to be necessary?
The ATA includes important preventive measures in the federal government’s overall anti-terrorism strategy.
After September 11, 2001, the Government believed that it was necessary to include specific terrorism offences in the Criminal Code to confront the issue that “once a terrorist event takes place, it is too late.” In effect, the ATA creates offences that criminalize activities such as "participation" in a terrorist group, that take place before a terrorist event can occur.
Events since September 11, 2001 reinforce the importance of continued vigilance and the maintenance of appropriate measures to combat terrorism. The Bali discotheque bombing in 2002, the Madrid train stations bombing in 2004, and the Russian school tragedy in 2004 are vivid reminders of the dangers posed by terrorism. No country, including Canada, is immune.
Globally, there is clearly an ongoing willingness by groups, individuals and states to use violence in support of political, religious, ideological and territorial agendas. The most significant threat to Canada is that posed by terrorism. As Canada continues to be an active player in the international struggle against terrorism, it will face increasing threats from transnational terrorist organizations.
The ATA allows Canada to meet its international counter-terrorism obligations through the ratification of the two most recent UN Conventions on terrorism, as well as UN Security Council Resolution 1373, which requires states to take measures against terororist financing, amngst other things. (For more information on UN Security Council Resolution 1373, please visit http://www.un.org/terrorism/sc.htm.)
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3. What does the Anti-terrorism Act do?
The ATA is designed to:
- deter and disable terrorist organizations;
- provide investigative tools to law enforcement and
national security agencies;
- support effective prosecution of terrorist crimes;
- meet Canada’s international legal obligations to
combat terrorism; and
- ensure that Canadian values of respect and fairness are preserved through stronger laws against hate crimes and propaganda.
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4. Are there any statistics on how the Anti-terrorism Act has been used?
Law enforcement agencies are constantly guided by the ATA when investigating terrorism offences. These investigations are often complex, and require several years of work before criminal charges are laid. Some concrete examples of how the ATA has been used include:
- The Government has established a list of entities for which there are reasonable grounds to believe they have knowingly participated in or facilitated a terrorist activity. There are currently 35 entities on this list, and the process is continuing. The legislation requires that those on the list be reviewed every two years by the Minister of Public Safety and Emergency Preparedness. The first review has taken place, and all 35 entities remain listed.
- One individual has been charged with participating in the activities of a terrorist group under the Criminal Code and this matter is currently before the courts.
- One investigative hearing order was issued. This order was made in relation to the Air India case, which is being prosecuted by Attorney General for British Columbia. The Supreme Court of Canada determined that the investigative hearing process was constitutional.
- To date, no recognizance with conditions, commonly referred to as preventive arrests, have been issued.
- During the 2003-2004 fiscal year, FINTRAC made 197 case disclosures of financial intelligence on suspected money laundering and terrorist activity financing, involving transactions valued at approximately $700 million. Of the 197 total disclosures, 48, involving approximately $70 million in transactions, related to suspected terrorist activity financing and/or other threats to the security of Canada.
- Between April 1 and December 31, 2004, FINTRAC made a total of 99 case disclosures involving more than $1.25 billion in transactions. Of these, 25 were suspected terrorist activity financing cases.
- The Minister of Public Safety and Emergency Preparedness has published annual reports (2002 and 2003) on the use of arrests without warrant under the ATA.
- The Attorney General of Canada has published annual reports (2002 and 2003) concerning the use of investigative hearings and the recognizance with conditions provisions of the ATA.
The ATA has also allowed Canada to fulfill its many international obligations to implement counter-terrorism measures and to demonstrate leadership with respect to the implementation of UN requirements, particularly those in UN Security Council Resolution 1373.
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5. If key provisions have not been used frequently, are they still necessary?
Yes. Many of these provisions are reserved for very specific circumstances. They provide law enforcement with the vital ability to act quickly should circumstances warrant. This could ultimately save lives.
Whether or not the provisions are exercised frequently does not in any way diminish their potential to safeguard Canadians.
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6. How does the Anti-terrorism Act compare to measures taken by other countries?
Canada’s actions parallel those taken by other countries but we have adopted an approach based on Canadian values and the Charter of Rights and Freedoms. Other countries, such as the United States, the United Kingdom, Australia and New Zealand have passed legislation consistent with the objectives of the ATA .
The threat posed by terrorism required a strong and immediate global response following September 11, 2001. The ATA was the legislative vehicle to implement two UN instruments dealing with terrorist bombing and terrorist financing measures.
As well, the ATA facilitated the implementation of UN Security Council Resolution 1373, and enabled compliance with the Special Recommendations on Terrorist Financing of the Financial Action Task Force on Money Laundering.
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7. What are some of the safeguards built into the Anti-terrorism Act?
The ATA , like all laws, was crafted in accordance with the rule of law and the Canadian Charter of Rights and Freedoms. The ATA includes a number of safeguards that balance the need to protect individuals from the threat of terrorist acts while ensuring their rights and freedoms are respected. Some of the safeguards in the ATA include:
- the definition of "terrorist activity" requires that intent and purpose elements be satisfied. The definition expressly excludes "advocacy, protest, dissent or stoppage of work" (where these are not intended to result in serious forms of specified harm);
- the Minister of Public Safety and Emergency Preparedness and the Attorney General of Canada, and their provincial equivalents, are required to report annually on the use of the recognizance with conditions and investigative hearing powers;
- judicial review, appeals, and judicial oversight mechanisms are incorporated into provisions like the listing process, investigative hearing, recognizance with conditions, and seizure, restraint and forfeiture of property; and
- the usual protections regarding the protection against self-incrimination and the right to counsel are expressly included in the investigative hearing setting.
- Section 145 of the ATA requires that a committee or committees of Parliament begin a “comprehensive review of the provisions and operation of the Act,” within three years from the date that the Act received Royal Assent, which was December 18, 2001.
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8. Have law enforcement officials received enhanced powers as a result of the Anti-terrorism Act?
The majority of the law enforcement powers used to investigate crime and security threats in Canada have existed for some time and were not amended or expanded by the ATA. However, the ATA introduced certain amendments, including:
- New terrorism offences were added to existing Criminal Code powers for electronic surveillance and search warrants.
- The investigative powers in the Criminal Code were amended to include investigative hearings, which allow a peace officer to request that a judge compel a person to appear and respond to questions. This procedure is supervised by a judge and is limited to investigations of terrorism offences. In June 2004, the Supreme Court of Canada held that this provision is constitutional.
- The Criminal Code already permits a peace officer to arrest a person without warrant where they believe on reasonable grounds that the person is about to commit a serious criminal offence. The amendments in the ATA allow a peace officer to request that a judge issue a recognizance with conditions order. The peace officer must obtain the consent of the Attorney General before an order is sought. As well, before the judge will issue such an order, the peace officer must show that they have reasonable grounds to believe that a terrorism offence will be carried out and reasonably suspect that the imposition of conditions, or the arrest of the person, is necessary to prevent the commission of a terrorist activity. In exigent circumstances and where there are grounds to suspect the detention of the person in custody is necessary to prevent a terrorist activity, an arrest without warrant may also be made to prevent a person from carrying out a terrorist activity. An individual arrested in this manner must be taken before a provincial court judge within 24 hours or, if none is available, as soon as possible. This power will also expire after five years unless extended by Parliament and is also the subject of annual reports to Parliament.
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9. Has CSIS received enhanced powers as a result of the Anti-terrorism Act?
The existing powers for CSIS were not changed. An amendment to the CSIS Act modified the definition of “threats to the security of Canada” to mirror the portions of the definition of terrorist activity in the ATA. This was to avoid the possibility of an unintended narrowing of the definition within the CSIS Act.
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10. Are security certificates part of the Anti-terrorism Act?
No. Security certificates are used pursuant to the Immigration and Refugee Protection Act (IRPA), not the ATA. For more information on security certificates, please visit www.cbsa-asfc.gc.ca/newsroom/factsheets/2005/certificat-e.html
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11. Why is it now the subject of a Parliamentary review?
The commencement of the Review was fixed by section 145 of the ATA. The ATA received Royal Assent on December 18, 2001. Section 145 reads as follows:
(1) “Within three years after this Act receives royal assent, a comprehensive review of the provisions and operation of this Act shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.”
(2) “The committee referred to in subsection (1) shall, within a year after a review is undertaken pursuant to that subsection or within such further time as may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including a statement of any changes that the committee recommends.”
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12. How does the review process work?
The ATA, enacted by Parliament in December 2001, requires that a committee or committees of Parliament begin a “comprehensive review of the provisions and operation of the Act” within three years from the date that the ATA received Royal Assent, which was December 18, 2001.
Separate reviews are underway in the House of Commons and the Senate.
In the House of Commons, the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness has tasked its Subcommittee on Public Safety and National Security to conduct the review. The Subcommittee began its hearings in February 2005.
In the Senate, a Special Committee on the Anti-terrorism Act was created in December 2004 specifically to undertake the review. The Senate committee began its hearings in February 2005. The ATA requires that both committees submit a report to Parliament within one year of the commencement of the review, unless their mandates are extended.
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13. What is the scope of the review?
The mandate for the Review is set out in s.145 of the ATA which calls for a review of the “provisions and operation” of the ATA.
The Government looks forward to working with the Committees on this important Review to ensure that the ATA continues to meet the demands we face, while respecting the values we share.
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14. How can I make my views known to the Government and to Parliamentarians?
- Contact the Department of Justice:
Anti-Terrorism Act Review Team
Criminal Law Policy Section
Department of Justice Canada
284 Wellington Street
Ottawa, Ontario
Canada K1A 0H8
- Contact the House sub-committee on Public Safety and National Security:
Clerk of the Subcommittee
Room 647 Wellington
180 Wellington Street
Ottawa, Ontario
Canada K1A OA6
- Contact the Senate Special committee:
The Special Committee on the Anti-terrorism Act
The Senate
Ottawa, Ontario
Canada K1A 0A4
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15. Who has appeared before the Committees as witnesses?
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