A decade on

A decade on
Kent Roach thinks of it as the age of innocence, those emotional early months following the Sept. 11, 2001 attacks in New York and Washington, D.C., when Canadians were vigorously debating new anti-terrorism laws. Parliament, the legal community, and other stakeholders were consumed with how to craft legislation that would properly balance national security, privacy, and human rights. That was long before most Canadians had ever heard of Maher Arar or Omar Khadr. No-fly lists, security certificates, and electronic surveillance were barely on the national radar. The federal public safety department, now one of the most high-profile federal ministries, didn’t exist. Canada had not yet deployed the 37,000 soldiers who would serve in Afghanistan over the following decade, 157 of whom lost their lives.
Roach, one of the country’s most noted legal academics on national security issues, says Canadians had no idea at the time of the relatively little impact the Anti-terrorism Act would have on the legal, political, and human rights landscape in the coming decade, compared to what would happen behind the scenes. “I reflect on the Anti-terrorism Act debate 10 years ago as a form of innocence,” says Roach, a University of Toronto law professor and author of the newly published The 9/11 Effect: Comparative Counter-Terrorism. “With the wisdom of a decade’s experience, we now know there is a lot of counter-terrorism that goes on outside the confines of the ATA.”

“From my point of view,” adds Toronto lawyer Lorne Waldman, “the things we have to be more worried about are the things we don’t know about.”

As the 10th anniversary of Sept. 11 approaches, there is a growing feeling in the legal community that it is time to reflect on Canada’s response over the last decade. Several lawyers and academics who have paid attention say the debate should not be about examining whether Canada is safer — by most accounts it is — but to determine which practices have made the country better able to protect its citizens and which measures have had relatively little value when the time, money, and threat to individual liberties have been taken into account. Issues they say merit examination include the Anti-terrorism Act, increased surveillance, accountability of national security agencies, the federal security certificate program, and how the courts have reacted to counter-terrorism laws and practices.

The Anti-terrorism Act, adopted in haste just three months after Sept. 11, remains on trial on Parliament Hill and in Canadian courts, yet it has a relatively solid track record thus far in terms of surviving legal challenges and producing tough sentences. “The ATA, especially in comparative terms, has stood up as a pretty fair balance,” says Roach. “Most of the act that has been challenged has been upheld by the courts, with a little bit of tweaking.”

The 2001 legislation, among other things, specifically defined terrorism, making it a criminal offence for the first time, and gave police new pre-emptive powers to detect plots and head off attacks. “The goal was to break up terrorist acts before they happened and that’s not the normal purpose of the criminal law,” says Anne McLellan, the former federal justice minister who ushered the changes to the Criminal Code through Parliament while New York’s twin towers were still smoldering. “We wanted to create offences that spoke to the planning of terrorist attacks and prevent them from happening in the first place.”

The act, despite enjoying relative legal success all the way up to the Supreme Court of Canada, has been denounced by some critics as a draconian piece of legislation that tramples civil liberties and Charter rights, mainly by threatening presumed innocence and the right against self-incrimination. One of the most contentious and extraordinary provisions — which has never been used — gives police the power to arrest suspects before a terrorist attack occurs, and hold them for up to three days before receiving a judicial hearing.

Authorities were also empowered to compel people to testify at closed-door “investigative hearings” if they were suspected of knowing something about a terrorist act, before or after the fact. The hearings survived a 2004 legal challenge in the Supreme Court of Canada when the bench ruled they do not breach the Charter right against self-incrimination.

The top court, in other rulings outside the ATA that have touched on national security, has further disappointed the human rights community, such as overturning a lower court decision that had ordered Canadian Omar Khadr’s repatriation from Guantanamo Bay, Cuba as repayment for Canadian officials violating his Charter rights when they interrogated him without a lawyer present. “I think the courts have been quite deferential to the Canadian government,” says Michael Byers, a human rights activist who holds the Canadian research chair in international law at the University of British Columbia. “There is certainly an argument that all these issues touch on national security and the government needs leeway . . . but for the judiciary to take a deferential position is an abdication of the judicial role.”

The Anti-terrorism Act will face another key legal test, likely early next year, when the Supreme Court hears an appeal from Momin Khawaja, a former Ottawa software developer who is serving a life sentence for his role in plotting to bomb London and other targets in 2004 and wage a jihad against the West. Khawaja will try to convince the court that the act’s definition of terrorism violates his Charter right to religious freedom. The definition of terrorism is still being sorted out worldwide and there is no international consensus on what it means, leaving countries to battle it out domestically. “This will be the first opportunity for the Supreme Court, in a very direct and focused way, to take a look at a key part of the legislation,” says McLellan, now a strategic adviser at Bennett Jones LLP in Edmonton.

At issue is the act’s “motive clause,” which requires proof that terrorist crimes were committed for religious or political motives. While this has been defended as a way of restricting the ambit of crimes of terrorism, it also requires authorities to probe the religious and political beliefs of suspects. “We continue to have grave concerns about the way terrorism is defined,” notes Nathalie Des Rosiers, general counsel for the Canadian Civil Liberties Association. “It has immense repercussions for freedom of association that I think has the potential to really undermine freedom of participation.”

Meanwhile, in the criminal law realm, lower courts in Canada have also shown that crimes linked to terrorism are not to be treated lightly. Judges have handed down a wide range of sentences to more than a dozen people convicted in terrorism cases in Canada since Sept. 11, ranging from six months for Ontario resident Prapaharan Thambithurai for fundraising for the Tamil Tigers, to life imprisonment for Khawaja and the ringleaders of the Toronto 18, the “homegrown” cell charged in 2006 with plotting to blow up Ontario targets, including CSIS and the CBC. Eleven members of the group were convicted, including four minors. “The courts understand, as we did at the time and I hope Canadians do now, is that you have to understand the nature of global terrorism and that we are not immune,” says McLellan.

As the courts continue to grapple with the anti-terror laws, so does the federal government. As a tradeoff for quick passage in 2001, the ATA contained a sunset clause, in which the two most contentious elements would expire in five years if they were not specifically renewed by Parliament. The opposition parties, which dominated the House of Commons when the act came up for review in 2007, refused to revive the provisions. The new Harper majority government intends to bring the act back to full strength later this year, adding the two lapsed provisions as hip-pocket measures in case they are needed. Des Rosiers is among those who believe there is no need to revive two “outrageous” measures that have not been used in a decade. “The legislation was a message of empowerment for the security industry,” she says. “It created a culture that the end justifies the means. It set a tone and the tone was not good. It seemed like the ATA was like giving a car that goes 300 kilometres an hour and saying only use that if you have to.”

If the federal government has largely succeeded thus far with its anti-terrorism legislation, its heavy use of immigration law as a key component of its anti-terror strategy is arguably another story. Its security-certificate regime, which empowers the federal government to detain non-Canadian terror suspects indefinitely pending deportation proceedings, has been heavily litigated and it has been dealt several blows by the courts, leaving the Harper government to consider alternatives for the last two years or more. “Even the government has acknowledged they should be put out of their misery,” Roach says of the certificates.

The security certificate is an immigration proceeding from the days of the Cold War, which permits Canada to deport non-Canadians who pose a threat to national security, have committed violations of human or international rights, or are involved in serious or organized crime. The Chrétien government began using it as a counter-terrorism tool in the early 2000s, issuing orders against five Muslim men who were suspected of having ties to the al-Qaida terror network. On the approval of two cabinet ministers, based on information from the Canadian Security Intelligence Service, the government can hold a suspect in “administrative detention” without charges and without knowing all of the cases against them. It is then up to the Federal Court to decide whether the certificate is justified, a process that has proven to take years.

Opponents say the sheer amount of time suspects have spent in detention — in most cases several years — is evidence that the certificates were never meant to be used for long and complicated counter-terrorism cases. Another problem, they say, is that the Supreme Court ruled in 2002’s Suresh v. Canada (Minister of Citizenship and Immigration) that Canada cannot, except in extreme circumstances, deport people to countries where they risk torture — which could be a factor in the current cases. There is a persistent belief that foreign terror suspects should be given the benefit of Canadian criminal courts if the government believes it has enough evidence against them. “I happen to think that the obvious alternative is to rely on the regular judicial system and the rules of due process,” says Byers.

No certificate has been issued against a terror suspect since 2003, but the process remains under intense court scrutiny as cases wind their way through the system. The certificates have encountered far more legal challenges than the Anti-terrorism Act, producing dozens of rulings from the Federal Court and a major decision from the Supreme Court of Canada, Charkaoui v. Canada (Citizenship and Immigration), which struck down the regime as unconstitutional and forced an overhaul to give suspects more information about the case against them. The 2007 ruling, in the case of Montrealer Adil Charkaoui, called for security-cleared “special advocates” to be permitted to attend closed-door court hearings in which a judge assesses the validity of federal evidence without the presence of the suspects or their lawyers.

Waldman, a human rights and immigration lawyer who successfully defended Syrian-born Hassan Almrei until the security certificate against him was quashed in late 2010, says the presence of special advocates at hearings has resulted in judges ordering more disclosure of intelligence information. The outcome has been revelations of shoddy CSIS practices and government admissions that it poses too much of a threat to state secrets to continue the pursuit. The Federal Court has thrown out two certificates — one against Almrei, who came to Canada as a refugee claimant in 1999 and was arrested in 2001 on allegations that he was part of a Sunni extremist network. His case exposed a lying CSIS informant and in the end a judge concluded there was no evidence to support accusations of terrorism. The security certificate against Charkaoui, a landed immigrant from Morocco, collapsed because the government said it did not think it was worth it to reveal national security secrets, as ordered by the court.

Former CSIS director Jim Judd once referred to the court’s scrutiny as a “judicial jihad” and former public safety minister Peter Van Loan has publicly lamented that he fears for the government’s ability to fight terrorism in light of “an increasingly complex legal environment.”

The government, which has been reviewing its entire national security policy and practices, has not said whether it will replace the security-certificate program. Federal officials, however, secured a much-needed victory last December when the Federal Court upheld the certificate against Algerian-born Mohamed Harkat, a former Ottawa gas station attendant, and concluded that the enhanced regime, created after the Supreme Court struck down the former system, is constitutional. It was a victory that gave pause to those who had asserted that the Federal Court was becoming more emboldened and less likely to defer to lawmakers as it was in the early years following Sept. 11.

While federal legislation has produced relentless litigation in the last decade, legal experts contend the greatest threat to human rights and civil liberties in post-Sept. 11 Canada is not the law, but the less formal and secret world of domestic and international intelligence sharing and surveillance. “The general public cannot assess blame,” says Des Rosiers, “because we don’t know what is happening.” Roach, echoing wide sentiment that there is sparse scrutiny of national security practices, says public inquiries, such as the one into the treatment of Maher Arar, have exposed the need for strengthened oversight. “The fact is, by international standards, we have a subpar accountability structure in Canada,” says Roach. “There is no effective audit of how police, intelligence agencies, customs, financial intelligence, and foreign affairs departments share information about suspected terrorists.”

The legal community, the political opposition on Parliament Hill, human rights activists, and civil libertarians are among those who persist in calling on the federal government to act on a five-year-old recommendation from Justice Dennis O’Connor, the judge who led the Arar inquiry, for greater scrutiny of the security community and better information sharing between counter-terrorism bodies. Arar, an Ottawa software engineer who lived in relative obscurity before Sept. 11, became a national symbol of intelligence SNAFUs. The Syrian-Canadian was put on a plane and sent to Damascus and tortured after being arrested during a stopover at a New York airport in 2002, based on faulty information that Canadian authorities passed on to the United States.

Among other things, O’Connor said the Commission for Public Complaints Against the RCMP, the independent watchdog for the Mounties, should be revamped and given the power to review all of the force’s national security activities. The commission has been repeatedly decried as toothless because it depends on the force’s voluntary co-operation. Moreover, it has no authority to probe whether the force is overstepping its authority on issues involving national security, leaving a sizeable amount of federal policing that is unchecked. The Conservative government promised last year to create a new independent, civilian RCMP commission, giving it new investigative power to subpoena documents and compel witnesses to surrender information for investigations and hearings. The initiative died when the spring election was called.

O’Connor also recommended that the Security Intelligence Review Committee, the CSIS watchdog, be given new, expanded power to monitor national security activities involving government departments, such as Citizenship and Immigration Canada and Foreign Affairs and International Trade Canada. His report noted that the Sept. 11 terror attacks thrust the RCMP and CSIS into expansive new roles in investigating and gathering intelligence without strengthened oversight.

Many intelligence gaffes and controversial practices have come to light in the last 10 years, mainly through the court rulings and inquiry findings. They include revelations that CSIS has used shady informants, has shared information that contributed to the detention and mistreatment of Canadian terror suspects abroad, and that it would use information obtained abroad through torture to derail a terrorist plot. Also, intelligence sharing has put Canadian residents on domestic or international watch lists or no-fly lists without explanation or means of being exonerated. “I have clients who can’t leave Canada because they are on a list and they don’t know why,” laments Waldman, of Lorne Waldman & Associates. “Or they are afraid to leave because they think they might not get back.”

Roach notes that authorities continue to share information with the United States and other countries based on association with suspected terrorists, and once the information is in foreign hands, Canadian authorities have no control over it. “The point is not that Canada should not share information,” he says. “Such a splendid isolationist approach is unrealistic given the reality of international terrorism. Rather, as the Arar commission recommended, independent review must be expanded to ensure appropriate screening of the information that must be shared.”

It is not lost on anyone that terror suspects and their associates are not the only ones for whom life has changed in the last decade. Governments worldwide, in the name of national security, have embraced surveillance measures such as body scanners and heightened screening at airports and border points, closed-circuit television cameras in public places, data mining, as well as restricted access and more policing at organized events. “Intensification,” says David Lyon, director of the Surveillance Studies Centre at Queen’s University. “I tend to think that one word is rather good to describe what happened.”

Lyon, however, believes that the world was heading in the direction of increased surveillance anyway, and that the Sept. 11 terrorist bombings created a perfect storm of sorts. Governments, led by the U.S. as it sought a new mission to replace the failed war on drugs, embraced technology that was offered up by a high-tech industry that was looking for new business after the dot-com bust. “All the types of technical devices and software were in place. It was just not at the stage of being used for national security,” says Lyon, author of the book Surveillance after September 11.

Critics of unaudited spending on national security say it’s time to do a cost-benefit analysis, given that the chances of a terrorist attack have proven to be low, with not even one occurring in Canada or the U.S. in the last decade. “Certainly the costs are enormous,” says Des Rosiers. “You can never have enough security for some people. There will always be a new gadget on the market to minimize the risks . . . and the sky’s the limit. There’s a feeling that if you don’t do it, you are failing the war on terror and failing your citizens and there is very little way to challenge this.”

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