Strength Under Siege: Canadian Civil Society Post-September 11th

It was immediately obvious to all of us in government, just as it was to television viewers around the world, that the September attacks in the United States would create a new reality. It is an understatement to describe those images as powerful, complex, and frightening. Feelings of sadness, helplessness and anger washed over each and every one of us. Canadians were also scared: could something like this happen here?

Gnawing fears did not prevent immediate action: even on September 11^th itself Canadians were mobilized. We accepted diverted passenger aircrafts and opened our airports, and in many cases our homes, community centres, and school gymnasiums to thousands of stranded passengers. Some felt compelled to head straight to 'ground zero' to help with rescue efforts. Thousands more lined up to donate much needed blood and money.

We pulled our families closer and vowed to stand “shoulder to shoulder” with American neighbours.  On September 14^th, 2001, a national day of mourning was declared and one hundred thousand people stood together on Parliament Hill and in various other centres across the country.  Canadians united by grief were determined to show Americans that we were with them, as Prime Minister Chrétien put it, "...every step of the way.  As friends.  As neighbours.  As family."[1]

Just as fear did not cause paralysis, neither did it prevent quick and decisive action. A new ad-hoc cabinet committee on Public Security and Anti-Terrorism was struck and began framing an anti-terrorism plan. The Government of Canada invested $280 million in immediate measures to enhance policing, security and intelligence capabilities. This represents a small portion of the planned $7.7 billion in the December 2001 budget for such matters over the next five years.

As weeks passed and the new geopolitical realities began to set in for parliamentarians, the need for new legislation became clear. Anne McLellan, Minister of Justice at the time, described the new reality in testimony before the House Standing Committee on Justice and Human Rights: “Yes, we have hijackings, sabotage and murder offences already in the Criminal Code. They do remain available to us. But terrorism...is a special threat to our way of life. When dealing with groups that are willing to commit suicidal acts of mass destruction against innocent civilians, it is necessary to consider whether existing legislative tools are adequate to the challenge.”[2]

The core of existing legislative tools includes the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Federal Court Act, and the Proceeds of Crime Act. The government tabled new legislation, the proposed Bill C-36 or the ‘Anti-Terrorism Act’. The Bill generated heated debate over the following months, not unlike the reception for similar anti-terrorism laws introduced in other countries around the world.

1. Public Safety vs. Civil Liberties - A Balancing Act

Canadians are highly concerned with balancing public safety and civil liberties. Many believed that in protecting some members of society, others might face persecution: safety to one can mean anxiety to another.  Others held that a properly crafted act could protect civil and human rights from harm. As Fo Niemi of the Centre for Research-Action on Race Relations said in testimony before the House Judicial Committee: “The fight to protect Canadians from terrorist acts is basically also a fight for human rights and freedoms. We believe the battle is to ensure that hard-gained Canadian democratic values and standards are not compromised by physical or psychological violence committed by any person, group, or state.”[3]

In the wake of September 11^th, what new domestic risks does Canada face? Did the world really enter a new era? Clearly the answer must be a resounding “yes”. In this new period, were Canadians less safe than before? Possibly. Society was certainly far more aware of its vulnerabilities. The corollary to this was whether or not the attacks of September 11^th represented a new ongoing domestic security risk. There is evidence that the answer is an unequivocal “yes”. Witness, for example, the plot to construct a so-called “dirty-bomb” in the U.S. in June 2002.

Consider also whether or not Canada could legally maintain the status quo. Would existing laws fully comply with the rapidly-developing new standards of international law? In fact, once C-36 was given Royal Assent as the Anti-Terrorism Act, Canada was able to comply with the final two of the twelve UN conventions on terrorism[4].

Having established some basis for new laws, legislators asked themselves a final pivotal question: Could our existing legal framework provide enough domestic protection and allow for the effective proper prosecution of this new species of international crime?

Professor David Paciocco of the University of Ottawa makes a compelling case for why existing Canadian laws were inadequate. First, he says[5] Canada’s criminal institutions were not equipped to deal with this new crime. The current situation accounted only for crimes committed “by individuals or small domestic, non-political groups”. Second, our law is designed to be reactive, doling out punishments only after a crime is committed. Such punishments mean nothing for terrorists who believe themselves to be at war and are often willing to die while completing a mission. Therefore, since legislators can no longer rely exclusively on the threat of punishment to reduce crime, the law must become pre-emptive. Finally, the law allows for broad dispersal of information as it generally considers crimes to be discrete events, especially once the perpetrators are in custody. With terrorist crime, sharing information could be a disaster since investigations are always ongoing and often international. The web of associates ensures that terrorist crimes are very rarely discrete in the traditional sense.

As tough additions to legislation were required by logic of new crimes and demanded by a majority of the public, a measured debate over such changes was required. The proposed time-line prompted criticism: many groups disputed the call for quick, decisive action, saying this would only lead to poor legislation that compromised civil rights. Others warned that new laws might conflict with a cornerstone of the Canadian legal framework: the Charter of Rights and Freedoms. How could terrorism, a word both loaded with meaning and easily manipulated, lead to careful applications under Canadian law?

The Anti-Terrorism Act Takes Form

A majority of Canadians indicated to pollsters that increased security would be desirable even at the expense of some personal liberties.[6] Legislators attempted to strike a reasonable balance between protecting the public with new counter-terrorism measures while maintaining Canada’s long dedication to civil liberties and public dissent. The core elements in the Act are: a definition of terrorism; a process for establishing a list of terrorist groups; comprehensive new terrorism offences; new tools such as preventative arrest and investigative hearings procedures; a tool to change the treatment of evidence during litigation and the investigation of terrorist crimes; and new measures to deal with discrimination and hatred.

Many groups and individuals from across the country made submissions to the House Standing Committee on Justice and Human Rights. It is a testament to the Bill’s significance that Canadian groups and individuals sent over one hundred detailed briefs. Furthermore, during the three months of work spent drafting the Bill, over sixty witnesses testified before the Committee. They focussed on the full range of issues from human rights (Canadian Human Rights Commission) to public policy advocacy (Centre of Public Policy Alternatives), from the religious (the Council on American-Islamic Relations - Canada) to legal (the Canadian Bar Association). With some exceptions, these varied organisations provided a general and common support for some sort of legislative redress to terrorism.

However, many groups, having reviewed the initial draft of the Act, raised objections to the balance struck between security and personal liberties. Almost without exception, each submission exhorted the virtue of caution in the task of defining terrorism and terrorist activities. This objection was not based on ideology or perspective, but it reflected the very real task of defining a word whose ubiquity has reduced meaning almost to nothing. All nations who dealt seriously with legislative reform on terrorism encountered this difficulty. Britain, India, and the U.S. each had a similarly vociferous debate. Furthermore, the definition of terrorism and terrorist activities is unavoidably subjective and politicised[7]. As several groups pointed out, throughout recent history the term has often been applied loosely and as a simplistic condemnation of freedom fighters, anti-state activists, and democracy groups: A terrorist to one is a freedom fighter to another.[8]

Defining Terrorism

Terrorism, however, can be defined. We must not fall into the trap of believing terrorist activity is either too broad to capture or a chimera. At the same time, we cannot responsibly enter the task of defining terrorism with illusions as to the complexity of this undertaking. Furthermore, civil society groups raised two additional concerns. First, concern that any definition would be too broad and could allow for discretionary application. In this ad hoc scenario certain groups would be targeted and liberty reduced. Second was the concern that the definition could either deliberately, or in the fervour of the moment, inadvertently include legitimate activities. In the U.S., for example, concern about food security and the potential of crop terrorism even brought the suggestion that sneezing on crops might constitute a terrorist activity under a strict definition.

Our legislation successfully avoided both traps. In fact, through a precise definition, the Act was able to strengthen the rights of civil society despite concerns to the contrary. For example, the final definition of terrorism in the Act explicitly excludes any “advocacy, protest, dissent or stoppage of work”. This key concern of civil society groups provides a precise safeguard for and re-affirms the right of citizens to meet, gather, or protest.  C-36 will not in any way restrict the right to express dissent.

Another contentious aspect of Canada’s new definition of terrorism was a reference to one of terror’s main mobilisers: a “political, religious or ideological purpose, objective or cause”. Contrary to commentary in the media and testimony to the judicial committee, this inclusion will not enable law enforcers or legislators to single out certain groups for increased surveillance or harassment. The description is a key to differentiating this new crime, and simultaneously defining and limiting the scope of the Act so as not to encroach on civil liberties. The precise wording of the new law establishes that political, religious, or ideological expression alone will never be considered terrorism in the absence of a larger, more ominous framework for action.

A final point of debate focused around the “facilitation of terrorism”. Many groups[9] pointed to the proposed law suggesting that it could potentially convict without requiring criminal intent, but only through support for terror. The proposed law would make it a crime to materially support terrorist activities directly or indirectly.  In the weeks after September 11^th, some charities were singled out as a major source of financing for groups like al Qaeda. It is possible that some of these charities may have been unwitting supporters, not knowing the true purpose for sent monies. Certainly, it is conceivable that the donors might be duped by false promises. Neither the duped donor nor the unwitting administrator ought to be held criminally liable, and so the Bill was amended to clarify this point. The Act “clearly state[s] 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.”[10]

New Laws: Balance in the Fight Against Terrorism

While the new Act addressed many domestic elements of the fight against terrorism, four in particular are considered essential for protection against future attacks. These elements also ignited the most controversy.

Pre-emptive Investigative Hearings

The legislation augmented in two dramatic ways the powers of investigators countering terrorism. Most importantly and controversially, the new powers provide for preventative arrests and special investigative hearings. Terrorism of the kind witnessed on September 11^th is only effectively combated with pre-emptive action. These two measures address the necessity of pre-emptive action for effective counteraction and prevention of terrorism. Both the U.S. and the U.K now have pre-emptive provisions in their laws. Civil society groups such as Amnesty International raised sharp concerns about any potential weakening of the right to a public and fair trial. Canada’s new laws take great pains to avoid potential infringements on individual and civil rights. For example, the most senior legal official, the Attorney General, must actually sign an arrest warrant under the provision. Also, detainees must appear before a judge within 24 hours. Unlike the situation in the US with “illegal combatants”, prisoners have access to counsel and cannot be held indefinitely. Although the threat of terrorism is not temporary, and, given events during the year after those dramatic attacks, shows little sign of abating, legislators have successfully avoided framing capricious laws.

Privacy and Access to Information

Canadians expect a general commitment to the protection of privacy under legislation such as our Privacy Act, freedom of information laws, and Official Secrets Act. Terrorism poses unique and critical challenges for law enforcement. These challenges, especially as suspects are often linked through web-like structures across vast geographies and multiple jurisdictions, necessitate that secrecy be invoked in certain cases. The investigation of certain crimes cannot be conducted successfully in the broad daylight of public scrutiny. Our anti-terrorism law allows, in exceptional circumstances, for the Attorney General to issue a certificate prohibiting disclosure of information for the purpose of protecting our national defense, national security, and information obtained from, or in relation to, a foreign entity. The Information and Privacy Commissioner (Ontario), in a brief to the House Judicial Committee, advanced serious opposition to some sections of the Bill. Partly in response to these concerns, and as in other sections of the Bill, safeguards have been erected around new powers to protect the freedoms and liberties of civil society. In this case, the issuance of such certificates will be made public. Also, a Federal Court judge will independently review the contents of certificates. As an additional safeguard, the Attorney General and Solicitor General must both submit annual reports on the use of the preventative arrests and investigative hearings provisions to Parliament.

Sunset Clause and Review

The idea of putting an additional measure of accountability gathered support as the months of testimony and public debate around the legislation took place. It was a common thread in those briefs submitted to the House Judicial Committee. Such a clause, it was felt by some critics, would provide an opportunity to re-visit the law in a global context after the passing of some time. While some witnesses called for such a clause to apply to the entire Bill, the final wording placed a five-year sunset clause on only two of the most controversial and innovative aspects: investigative hearings and preventative arrests.

Hate Crimes

The Anti-Terrorism Act correctly predicted a small surge in hate crimes in the period after the September attacks. Legislators took pains to ensure that such crime would never become the norm. Clause 12 of the Bill received limited critique from most briefs and witnesses. Some groups believed the law should go farther. The Anti-Terrorism Act addresses two key “hate crime” issues. First, changes to the Criminal Code would enable court-ordered deletion of publicly available “hate propaganda” from the Internet. Second “amendments that create a new offence of mischief motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin, committed against a place of religious worship or associated religious property, including cemeteries.”[11]

2. Immediate Reaction in Canada

While many Canadians were banding together in sorrow, outrage, and solidarity, unfortunately more Canadian victims were also being created. For example, police in Calgary and Ottawa reported that hate crimes doubled in the thirty days after the terrorist attacks, noting 24 and 44 hate-related incidents respectively.[12]  Across the country and around the world, Muslims, Sikhs, Arabs, Jews and others reported hundreds of cases of harassment, intimidation, and violence. Recorded incidents included assaults, arson, death and bomb threats, vandalism, malicious e-mails, slurs yelled out of passing cars and looks of distrust in shopping centres and city streets.  Places of worship were vandalized, individuals were humiliated and abused, and even children were victimized.

To describe these incidents as 'disturbing' is a gross understatement. These were senseless and ignorant attacks on Canadians who were equally patriotic and outraged by September 11th as any others. They were assaults against everything Canada represents in the world and were an embarrassment to the overwhelming majority of Canadians. We must not forget the stories or their significance.

A State of Siege? - Hate Crimes Post September 11th

For some, the impact of September 11^th reached no deeper than the inconvenience of waiting in long lines at the airports. For others, lives were forever changed. On September 21^st, the Globe and Mail ran a story whose lead read, “Overnight, Canada has changed from a country of easy tolerance to a place where people who look dark-skinned are the targets of insults, threats, and even physical attack."  John Asfour, President of the Canadian Arab Foundation explained, "There is the Canada before the 11^th of September and now as I see it, there is the Canada after the 11^th of September.”

Muslims

Many Canadians of Muslim faith felt under siege in their own country. From Sept. 11^th to the end of 2001, Canada’s Muslims were subjected to at least 90 incidents of harassment and threats, according to the Council on American Islamic Relations (Canada).