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1 I am attracted by the thinking of Irwin Cotler on this matter, especially his view that the foundational principle in all matters of national security and human rights is to find their meeting ground in a conception of "human security." See Irwin Cotler, "Thinking Outside the Box: Foundational Principles for a Counter-Terrorism Law and Policy," in Ronald J. Daniels et al., eds., The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001), p. 112. 2 Public Safety and Emergency Preparedness Canada, Archive, "An Overview of Canada’s Counter-Terrorism Arrangements," n.d., at http://ww2.psepc-sppcc.gc.ca/publications/national_security/terrorism_arrangements_e.asp. 3 Department of Finance, Canada, Budget 2001, "Enhancing Security for Canadians," at http://www.fin.gc.ca/budget01/booklets/bksece.htm. 4 On this point, see Wesley Wark, "Learning Lessons (and how) in the War on Terror: The Canadian Experience," International Journal, vol. LX, no. 1 (Winter 200 4-2005), pp. 82-83. 5 See Reg Whitaker, "Securing the ‘Ontario-Vermont border’: Myths and Realities in Post- 9/11 Canadian-American Security Relations," International Journal, LX, no. 1 (Winter 2004-2005), 53-70. 6 Canada, Department of Foreign Affairs and International Trade, "32-point Action Plan," January 13, 2005, www.dfait-maeci.gc.ca/can-am/main/border/32_point_action-en.asp. 7 Department of Foreign Affairs, "Smart Border Action Plan Status Report," December 17, 2004, at http://geo.international.gc.ca/can-am/main/border/status-en.asp. 8 Whitaker, "Securing the ‘Ontario-Vermont border’," p. 66. 9 Ibid. 10 Citizenship and Immigration Canada, News Release, "Safe Third Country Agreement Comes into Force Today," December 29, 2004. www.cic.gc.ca/english/press/04/0420-pre.html. 11 François Crépeau and Delphine Nakache, "The Control of Irregular Migration in Canada: Placing Security Concerns within the Framework of Human Rights Protection, " Institute for Research on Public Policy, Choices, vol. 12, no. 1 (Feb. 2006), p. 18, at www.irpp.org See also Audrey Macklin, "The Values of the Canada-US Safe Third Country Agreement," (Ottawa: Caledon Institute of Social Policy, 2003). 12 KAIROS, Canadian Ecumenical Justice Initiatives, "Safe Third Country Agreement," Dec. 17, 2004, at www.kairoscanada.org/e/refugees/safeCountry/index.asp. 13 Canadian Council for Refugees, "10 Reasons Why Safe Third Country is a Bad Deal," Feb. 2005, http://www.web.ca/ccr/10reasons.html. 14 Foreword by Prime Minister Paul Martin, "Securing an Open Society: Canada’s National Security Policy," www.pco-bcp.gc.ca/docs/Publications/NatSecurnat/natsecurnat_e.pdf. 15 Ibid. 16 Edna Keeble, Defining Canadian Security: Continuities and Discontinuities," American Review of Canadian Studies, 35 (Spring 2005). 17 Bill C-36, Royal Assent version at http://www.parl.gc.ca/37/1/parlbus/chambers/house/bills/government/C-36/C-36_4/90168b-3E.html#12. 18 Ronald J. Daniels et al., eds. The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001). 19 Thomas Gabor, editor, "The Views of Canadian Scholars on the Impact of the Anti-Terrorism Act," Department of Justice, March 31, 2004. Section 6.1, p. 24. Released in 2005 and available at http://canada.justice.gc.ca/en/ps/rs/rep/2005/rr05-1/rr05-1.pdf. 20 Patrick Macklem, "Canada’s Obligations at International Criminal Law," in Daniels, ed., The Security of Freedom, p. 362. 21 On this general point, see Wesley K. Wark, "Intelligence Requirements and Anti-Terrorism Legislation," in Daniels, ed., The Security of Freedom, esp. pp. 288-89. 22 Department of Justice, "The ATA in Perspective," n.d., at www.justice.gc.ca/en/anti_terr/perspective_page2.html. 23 Kent Roach, "The New Terrorism Offences and the Criminal Law," in Daniels, ed., The Security of Freedom, p. 151. 24 Joint Statement by McLellan and Cotler, p. 3. 25 Ibid., pp. 6-7. 26 The Research and Statistics Division of the Department of Justice conducted studies of minority group attitudes to the ATA in March 2003. They followed this up with a study of broad Canadian public views in 2004. The latter study was based on focus group methodology and conducted by the firm of Millward, Brown, Goldfarb. See Department of Justice, "Public Views on the Anti-Terrorism Act," Executive Summary, at http://www.justice.gc.ca/en/ps/rs/rep/2005/rr05-3/rr05-3_01.html. 27 Ibid, Executive Summary, p. 2. 28 Bruce Hoffman, Inside Terrorism (NY: Columbia University Press, 1998), Chapter 1, "Defining Terrorism." 29 Sections 83.18 to 83.23 of the Anti-Terrorism Act. 30 Bill C-36, the Anti-Terrorism Act, http://www.parl.gc.ca/37/1/parlbus/chambers/house/bills/government/C-36/C-36_4?90168b-#E.html#12. 31 The Hon. Anne McClellan, Minister of Justice and Attorney General, addressing the House of Commons on October 16, 2001. At www.parl.gc.ca/37/1/parlbus/chambus/house/debates/095_2001-10-16/han095_1010_E.html#Int-56581. 32 See, for example, Kent Roach, "The Dangers of a Charter-Proof and Crime-Based Response to Terrorism," in Ronald J. Daniels, et al., eds., The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001), 131-47. 33 Ibid., 133-35. 34 The investigative hearing involved Satnam Reyat, the wife of Inderjit Singh Reyat. The Supreme Court upheld the constitutionality of the investigative hearing process on June 23, 2004, but the hearing itself did not proceed. Satnam Reyat was never called to testify at the Air India trial. 35 RCMP statement regarding the case of Mohammad Momin Khawaja, April 2, 2004. Quoted at CBC News In-depth: Canadian Security, at www.cbc.ca/news/background/cdnsecurity/khawaja_mohammad.html. 36 Department of Justice, "Annual Report concerning Investigative Hearings and Recognizance with Conditions, December 24, 2003 – December 23, 2004," at www.justice.gc.ca/en/anti_terr/annualreport_2003-2004.html. 37 Ibid. 38 Minutes of the meetings and evidence presented to the House of Commons Subcommittee on Public Safety and National Security during the 39th Parliament, 1st session, can be found at www.parl.gc.ca/committee/CommitteeList.aspx?Lang=1&PARLSES;=381&JNT;=0&SELID;=e21_&COM;=9242 The material for the Senate Special Committee can be accessed at http://www.parl.gc.ca/common/Committee_SenHome.asp?Language=E&Parl;=38&Ses;=1&comm;_id=597 Both committees ceased their work in late November 2005. 39 Joint Statement by the Hon. Anne McLellan, Deputy Prime Minister and the Minister of Public Safety and Emergency Preparedness and the Hon Irwin Cotler, Minister of Justice and Attorney General of Canada, on occasion of appearances before the Senate Special Committee on the Anti-Terrorism Act and the House of Commons Subcommittee on Public Safety and National Security, November 14, 2005, p. 18. At www.justice.gc.ca/en/news/sp/2005/doc_31726.html 40 Ibid. 41 Irwin Cotler, "Thinking Outside the Box: Foundational Principles for a Counter-Terrorism Law and Policy, in Daniels, ed. The Security of Freedom, p. 129. 42 Kent Roach, September 11: Consequences for Canada (Montreal: McGill-Queen’s University Press, 2003), p. 70. 43 Department of Justice Canada, Public Safety Act, 2002, at http://lois.justice.gc.ca/en/P-31.5/index.html. 44 Department of National Defence, Backgrounder, "Highlights of the Public Safety Act, 2002," May 6, 2004, at http://www.forces.gc.ca/site/newsroom/view_news_e.asp?id=1375. 45 Notes for an Address by The Hon. Joe Volpe, Minister of Citizenship and Immigration, before a meeting of the Special Senate Committee on the Anti-Terrorism Act, Nov. 14, 2005 at www.cic.gc.ca/english/press/speech%2D2005/anti%2Dterrorism.html. 46 Joint Statement by the Hon. Anne McClellan, Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness, and the Hon. Irwin Cotler, Minister of Justice and Attorney General of Canada, before the Senate Special Committee on the Anti-Terrorism Act and the House of Commons Subcommittee on Public Safety and National Security, November 14, 2005 at http://www.justice.gc.ca/en/news/sp/2005/doc_31726.html. 47 It should be noted that previous Supreme Court reviews of aspects of the security certificate process have upheld its constitut ionality. 48 McClellan and Cotler joint statement, op. cit . 49 The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Under Article 3, no person may be returned to another state where "there are substantial grounds for believing he would be in danger of being subjected to torture." This principle is known as "non-refoulement." Manickavasagam Suresh v. The Minister of Citizenship and Immigration and the Attorney General of Canada, 2002, SCC1 File no. 27790, January 11, 2002, at www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol1/html/2002scr1_0003.html. 51 Privy Council Office, "The Canadian Security and Intelligence Community: Helping Keep Canada and Canadians Safe and Secure," March 2001. This booklet, also posted on the PCO website, www.pco-bcp.gc.ca, has not been updated since March 2001. 52 CATSA mandate, http://www.catsa-acsta.gc.ca/english/about_propos/mandat.shtml. 53 The Public Safety portfolio has a current annual budget of $5 billion and employs 52,000 people across Canada. See www.psepc-sppcc.gc.ca/abt/wwa/index-en.asp. 54 Auditor General of Canada, March 2004 Report, Chapter 3, "National Security in Canada," 3.15 and 3.16. 55 It should be noted that there are Parliamentary committees which have stepped into the breach, including a subcommittee on national security of the House of Commons Justice Committee and the Senate Committee on National Security and Defence. 56 David E. Smith, "Clarifying the Doctrine of Ministerial Responsibility as it Applies to the Government and Parliament of Canada," Restoring Accountability - Research Studies, vol. 1, Commission of Inquiry into the Sponsorship Program and Advertising Activities (Gomery Inquiry), p.133. Accessed at www.gomery.ca/en/phase2report/volume1/CISPAA_vol1_4.pdf. 57 "Duties of the Inspector General," www.psepc-sppcc.gc.ca/abt/wwa/igcsis/igcsis-en.asp. 58 Copies of the CSIS IG certificates for the period 2000 to 2004, released under the Access to Information Act, are available on the website of the Department of Public Safety, at www.psepc-sppcc.gc.ca/abt/wwa/igcsis/igcsis-en.asp. 59 Wesley Wark, "Learning Lessons (and how) in the War on Terror: The Canadian Experience," The International Journal, LX, no. 1 (Winter 2004-2005), 71-90. 60 SIRC annual reports are posted on the Committee’s website at www.sirc-csars.gc.ca/reports_e.html. 61 Mandate of the Office of the Communications Security Establishment Commissioner, at http://csec-ccst.gc.ca/mandate/index_e.php. The mandate is formally set out in Part V.1 of the National Defence Act and in section 15 of the Security of Information Act. 62 "Review Function," Office of the CSE Commissioner, ibid. 63 The CSE Commissioner’s website also notes that other agencies may be involved in examining the activities of the CSE. The agencies listed are the Canadian Human Rights Commission, the Privacy Commissioner, the Information Commissioner, the Commissioner of Official Languages and the Auditor General of Canada, ibid. 64 CPC News Release, "Commission for Public (EDITOR’s note – footnote incomplete) 65 Supplementary Submission of the Commission for Public Complaints against the RCMP Regarding the Policy Review of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, October 18, 2005, "Conclusion," at www.cpc-cpp.gc.ca/DefaultSite/Reppub/index_e.aspx?article=90. 66 Ibid. 67 OAG, "The Canadian Intelligence Community: Control and Accountability," http://www.oag-bvg.gc.ca/domino/reports.nsf/html/9627ce.html. 68 Ibid, "Conclusion." 69 Report of the Auditor General of Canada, Chapter 3, "National Security in Canada—the 2001 Anti-Terrorism Initiative," conclusion, at 3.161, accessed at www.oag-bvg.gc.ca. 70 Government of Canada passport, as it appears on the inside cover. 71 Canadian Charter of Rights and Freedoms, enacted as Schedule B to the Canada Act 1982 (UK), c. 11. "Legal Rights," paragraph 7. Accessed at http://laws.justice.gc.ca/en/charter/index.html. 72 http://www.voyage.gc.ca/main/before/faq/tip-en.asp#ci. 73 Vienna Convention on Consular Relations, accessed at http://laws.justice.gc.ca/en/F-29.4/60418.html#rid-60420. 74 Jennifer Stoddart, "Transferring Personal Information about Canadians Across Borders—Implications of the USA Patriot Act: Submission of the Office of the Privacy Commissioner of Canada to the Office of the Information and Privacy Commissioner for British Columbia," August 18, 2004, accessed at www.privcom.gc.ca/media/nr-c/2004/sub_usapa_040818_e.asp. 75 Ibid. 76 This concern is at the heart of the book by James Littleton, Target Nation: Canada and the Western Intelligence network (Tornto: Lester and Orpen Dennys, 1986). A memoir by a former official of the Communications Security Establishment alleges that Canadian intelligence agencies engaged in sensitive intelligence gathering activities on behalf of their foreign partners. Mike Frost, Spyworld: Inside the Canadian and American Intelligence Establishments (Toronto: Doubleday, 1994). 77 Sir Richard Dearlove, former Chief, British Secret Intelligence Service (1999-2004), "The Craft of Intelligence in an Age of Terrorism," University of Toronto, March 29, 2006, notes in possession of the author. 78 Amnesty International (Canada), "Agenda for Real Security," accessed at www.amnesty.ca/realsecurity/. 79 Human Rights Watch, "Still at Risk: Diplomatic Assurances No Safeguard Against Torture," April 15, 2005, accessed at http://hrw.org/reports/2005/eca0405/eca0405.pdf. 80 Martin Rudner, "Canada’s Communication Security Establishment: From Cold War to Globalization," Occasional Paper # 22, 2000. Norman Paterson School of International Affairs, Carleton University. Copy in possession of the author. 81 Bill C-9, "An Act to Establish the Canadian Security Intelligence Service, July 1984. 82 SIRC Annual Review, 2004-05, pp. 23-26, 31-36. Available online at www.sirc-csars.gc.ca. 83 Ibid, at p. 36. 84 Note in particular the testimony by senior CSIS officials Ward Elcock and Jack Hooper and senior RCMP officials Gary Loeppky and Mike Cabana. Arar Commission website, testimony at www.ararcommission.ca/eng/11e.htm. 85 Canadian Human Rights Commission, 2001 Annual Report, accessed at www.chrc-ccdp.ca/publications/2001_ar/default-en.asp. 86 Ibid. 87 Ibid. 88 CHRC, "Looking Ahead," Consultation Paper, September 2004, accessed at www.chrc-ccdp.ca/pdf/consultation_en.pdf. Cited under Principle IV, "A Preventive and Forward-Looking System." See also the CHRC Annual Report for 2003. 89 www.amnesty.ca. See especially the Amnesty "Agenda for Real Security" at www.amnesty.ca/realsecurity/. 90 www.ccla.org. For the CCLA 2005 statement on the Anti-Terrorism Act, see www.ccla.org/pos/briefs/. 91 www.lcc.gc.ca. The Law Reform Commission hosted a conference on the Anti-Terrorism Act in the spring of 2002. 92 www.hrw.org. The Human Rights Watch maintains a section on its website entitled "Human Rights Watch work on: Counterterrorism in Canada." 93 The CAUT maintains a "War on Terrorism Watch: CAUT Resource Page" at www.waronterrorismwatch.ca/default.asp. 94 http://www.cba.org. See the CBA’s 2005 brief on the need for revisions of the Anti-Terrorism Act at www.cba.org/cba/news/2005_releases/2005-05-02_antiterror.aspx. 95 www.dd-rd.ca. 96 www.casis.ca.
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