Backgrounder

Amendments to the Anti-Terrorism Act

The proposed Anti-Terrorism Act creates measures to identify, prosecute, convict and punish terrorist groups; provides new investigative tools to law enforcement and national security agencies; and ensures that Canadian values of respect and fairness are preserved and the root causes of hatred are addressed through stronger laws against hate crimes and propaganda.

Since the introduction of Bill C-36, the Government of Canada has signalled its openness to suggestions for refinement, and has listened to the concerns of Canadians about whether the safeguards included in the Bill to protect the rights and freedoms of Canadians are sufficient. Based on recommendations and testimony of witnesses before Senate and House of Commons committees, the Government of Canada has proposed several amendments that will build on and clarify the safeguards currently in Bill C-36 and strike the right balance between ensuring the safety and security of Canadians and protecting our values and civil liberties.

The following are the key proposed amendments.

1. SUNSET CLAUSES

• In addition to the three-year Parliamentary review of the Act required by the legislation, sunset clauses would be added to the preventive arrest and investigative hearing provisions, so that these provisions expire five years after the bill receives Royal Assent. Either or both of these provisions could be continued for up to five more years following sunset through a resolution passed by both the House of Commons and the Senate. A provision would also be added to grandfather proceedings that have already started by the sunset date so that they could be completed if the powers are not continued by a Parliamentary resolution.

What the provisions in the proposed Anti-Terrorism Act do:

Under the "preventive arrest" provisions of the proposed Anti-Terrorism Act, suspected terrorists could be arrested and judicial supervisory conditions of release imposed where appropriate, in order to prevent terrorist activity and protect the lives of Canadians. Preventive arrest would allow a peace officer to arrest and bring a person before a judge to impose reasonable supervisory conditions if there are reasonable grounds to suspect that the person will commit a terrorist activity. A warrant of arrest and consent of the Attorney General would be required except in emergency circumstances, and the person would have to be brought before a judge within 24 hours of an arrest.

Under the "investigative hearing" provisions, individuals with information relevant to an ongoing investigation of a terrorist crime would be required to appear before a judge to provide that information. This would require the consent of the Attorney General. This provision would increase the ability of law enforcement to effectively investigate and obtain evidence about terrorist organizations, subject to legal safeguards to protect the witness, for example, from self-incrimination.

Rationale for the amendment:

The threat of terrorism is not a temporary one. The additional powers of preventive arrest and investigative hearings in Bill C-36 are designed to provide preventive tools that will be needed for the foreseeable future. They have also been carefully designed to ensure they meet the requirements of the Charter of Rights and Freedoms.

The current provisions in C-36 are in keeping with and, in some ways, significantly more restrained, than those proposed by other countries. For example, U.S. law allows grand jury hearings in criminal matters, not just terrorism-related investigations. Grand jury witnesses can be compelled to testify, and material witnesses can be detained if this is necessary to ensure their appearance before the grand jury. Under the U.K.'s Terrorism Act 2000, an officer can question a person about a recent incident that endangered life, and it is an offence not to answer. A suspected terrorist can also be arrested and detained without warrant for an initial period of 48 hours, which can be extended for up to five days with judicial approval.

The powers in Bill C-36 are not based on new concepts in Canadian law. The Competition Act and the Mutual Legal Assistance in Criminal Matters Act contain investigative hearing powers. The preventive arrest procedure is similar to existing provisions concerning peace bonds in the Criminal Code, which permit a judge to impose supervisory conditions on persons whom it is feared will commit certain types of violent offences.

However, these new powers have been perceived by many Canadians as exceptional extensions of law enforcement powers that hold the potential for abuse. In light of these concerns, the Government of Canada is proposing a five-year sunset clause for these provisions and a parallel resolution procedure for continuation so that these powers could be reconsidered by Parliament after they have been in effect for a few years. In doing so, Parliament would have the opportunity to determine if these new powers are working as they were intended, and, if they are still needed given a continued threat of terrorism, extend their use for up to five more years.

The grandfathering of proceedings that have already commenced when the powers sunset is important to ensure that, if no Parliamentary resolution is passed, law enforcement's efforts to identify and prosecute terrorists, and those who support them, are not lost when the powers expire and investigative proceedings have not been completed.

2. ANNUAL REPORT TO PARLIAMENT

• The Government of Canada is also tabling an amendment requiring the Attorney General and Solicitor General of Canada, provincial Attorneys General and Ministers responsible for policing, to table an annual report to Parliament on the use of preventive arrest and investigative hearings.

The Criminal Code and other federal laws already require reports to Parliament on the exercise of certain powers, and Bill C-36 itself already requires the Commissioner of the Communications Security Establishment to report annually on the activities of the CSE to the Minister of National Defence, who then tables the report in Parliament.

An annual reporting requirement on the operation of the Anti-Terrorism Act would help the Government of Canada and the provinces to monitor the use of preventive arrest and investigative hearings. The annual reports would also help to inform the Parliamentary review of the legislation within three years, which is already required by Bill C-36, by providing information on where refinements may be necessary.

3. DEFINITION OF TERRORIST ACTIVITY

• The definition of terrorist activity related to disruption of essential services would be changed to delete the word "lawful." This would ensure that protest activity, whether lawful or unlawful, would not be considered a terrorist activity unless it was intended to cause death, serious bodily harm, endangerment of life, or serious risk to the health or safety of the public.

• An interpretive clause would be added to the Bill stating for greater clarity that an expression of political, religious or ideological beliefs alone is not a "terrorist activity," unless it is part of a larger conduct that meets all of the requirements of the definition of "terrorist activity." (i.e. conduct that is committed for a political, religious or ideological purpose, is intended to intimidate the public or compel a government, and intentionally causes death or serious physical harm to people.)

What the provisions in the proposed Anti-Terrorism Act do:

Bill C-36 defines "terrorist activity" in the Criminal Code as an action that takes place either within or outside of Canada that:

• is an offence under one of 10 UN anti-terrorism conventions and protocols; or

• is taken for political, religious or ideological purposes and intimidates the public concerning its security, or compels a government to do something, by intentionally killing, seriously harming or endangering a person, causing substantial property damage that is likely to seriously harm people or by seriously interfering with or disrupting an essential service, facility or system.

The definition currently makes it clear that disrupting an essential service is not a terrorist activity if it occurs during a lawful protest or a work strike and is not intended to cause death or serious harm to persons.

Rationale for the amendment:

Many Canadians are concerned that the expression of political, religious or ideological beliefs would be targeted by the definition of "terrorist activity." Others are concerned that the definition, as currently worded, would capture all unlawful protest activity, including relatively minor acts such as vandalism and property damage, under the terrorism umbrella.

Interpretive clause

It is important to preserve a definition of terrorism so that it recognizes the unique and insidious nature of this activity. Removing the notion of political, religious or ideological motivation would transform the definition from one that is designed to recognize and deal strongly with terrorism to one that is not distinguishable from a general law enforcement provision in the Criminal Code. Further, other Western democracies have recognized the need to identify political, religious or ideological motivation in relation to terrorist acts. The U.K. Terrorism Act 2000, for example, defines terrorism as the use or threat of action where it is made "for the purpose of advancing a political, religious or ideological cause."

Moreover, this clause in the definition must be applied in association with the other elements of the definition. It is not enough for an act to be an expression of political, religious or ideological belief. It must also be committed for a political, religious or ideological purpose, and it must also intentionally cause death or serious injury, and it must also have the intent to intimidate the public or compel a person, organization or government to do something.

Adding an interpretive clause clarifies that the paragraphs should not be read in isolation and will ensure that the powers available under the proposed Anti-Terrorism Act would not be used to discriminate against any individual or group on the basis of religious, political or ideological belief alone.

Removing "lawful"

The Government of Canada also recognizes that Canadians must feel confident that protest or other activities, which form an important part of our democratic process, will not be targeted by the new legislation unless they clearly meet this strictly limited definition of "terrorist activity."

Removing the word "lawful" clarifies the intent of the definition to ensure that the focus is on the harm intended and caused, rather than on the lawfulness of the protest. This amendment will reduce confusion and ensure that protest activity that intentionally causes serious disruption of essential services or infrastructure, even if it is unlawful, would not be inadvertently characterized as a terrorist activity unless it also intentionally causes death or serious harm to people. Examples of serious disruption of an essential service or infrastructure might include major destruction of a hydroelectric system or critical computer systems. Terrorist activity would not include acts of civil disobedience or labour actions, even if they were unlawful, such as acts that resulted in some property damage.

4. REVIEW MECHANISM FOR ATTORNEY GENERAL CERTIFICATES

• A number of changes are being made concerning the Attorney General certificates. The certificate could no longer be issued at any time, but only after an order or decision for disclosure, for example by a Federal Court judge, in a proceeding. The life of the certificate would be fifteen years, unless re-issued. The certificate would be published in the Canada Gazette. The certificate would be subject to review by a judge of the Federal Court of Appeal. The existing provisions and process for the collection, use and protection of information would be preserved under the Privacy Act and the Personal Information Protection and Electronic Documents Act.
  

What the provisions in the proposed Anti-Terrorism Act do:

The proposed Anti-Terrorism Act would allow the Attorney General to issue a certificate in connection with a proceeding under the Canada Evidence Act to prohibit the disclosure of information for the purpose of protecting national defence, national security, and information obtained in confidence from or in relation to a foreign entity.

Rationale for the amendment:

Freedom of information remains the rule rather than the exception, and full public access to the vast majority of government information will not be affected by this legislation.

The Attorney General certificate process is intended to apply, in exceptional cases only, as the ultimate guarantee that ensures the protection of very sensitive information by the Government of Canada. The protection of this information is of particular concern where it has been obtained from our allies on the condition that it not be released to a third party without the consent of the originating country, and where the consent is not given for such release. The Attorney General's certificate provides an assurance and absolute guarantee that this information will be protected.

The certificate could only be issued personally by the Attorney General of Canada, and only where very sensitive information is threatened by disclosure in individual proceedings. It does not exempt entire departments or all information from the Privacy Act or the Access to Information Act. Where a certificate has been issued in another proceeding, it would also prevent the disclosure of the same information contained in a record under the Access to Information Act or the same personal information of a specific individual under the Privacy Act and the Personal Information Protection and Electronic Documents Act.

The certificate would also suspend only the right of access under the Privacy Act and the Personal Information Protection and Electronic Documents Act. The existing provisions and process for the collection, use and protection of personal information would be preserved under these Acts.

The amendments would also restrict the timing of issuance of the certificate. While, initially, the wording of the Bill allowed for the Attorney General certificate to be issued at any time, the amendment would stipulate that the certificate could be issued only after an order or decision for disclosure of that information has been made in a proceeding.

Some have also expressed concern that, in the absence of a review mechanism and a specific time limit on certificates, the power to prevent disclosure could be used too broadly.

The Government has listened closely to the concerns of Canadians on this issue. The certificate process in the proposed Anti-Terrorism Act will be amended so that a judge of the Federal Court of Appeal would be given an independent review role to ensure that the limited scope of information for which certificates may be issued under the legislation is respected. Further, the certificate would be limited in time to 15 years, but could be reissued by the Attorney General. Finally, each certificate would now be published in the Canada Gazette.

Through these amendments, the Government of Canada could continue to protect highly sensitive information. This ability is essential in order for Canada to play a meaningful role with its international partners in confronting terrorism, both at home and abroad.

5. FACILITATION DEFINITION

• The interpretive provision in the definition of facilitation offences will be moved from section 83.01(2)(c) to section 83.19. A "flag" will be left at section 83.01 to indicate that the provision has been moved.

What the provision in the proposed Anti-Terrorism Act does:

The proposed Anti-Terrorism Act makes it an offence to participate in, contribute to or facilitate the activities of a terrorist group or to instruct anyone to carry out a terrorist activity or an activity on behalf of a terrorist group.

Rationale for the amendment:

The provisions concerning facilitation of a terrorist activity would be reordered so that they clearly state that, in order to be guilty of an offence, an individual must know or intend that his or her act would help a terrorist activity to occur, even if the details of the activity are not known by the individual.

6. TECHNICAL AMENDMENTS

The amendments also include a number of provisions to clarify the intent of the Bill, as well as technical amendments to improve the Bill.

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Department of Justice
November 20, 2001