Politics and security: Stephen Harper and Stephane Dion joust in the Commons over the Anti-terror Act. (Tom Hanson/Canadian Press)

In the aftermath of the Sept. 11, 2001 attacks on the U.S., the federal government created Canada's first anti-terrorism legislation defining what terrorism is and making it a punishable offence within Canada's Criminal Code. The Anti-terrorism Act (Bills C-36 and C-42), was the subject of heated debate and controversy as the Liberal government of the time fast-tracked it through the House of Commons and the Liberal-dominated Senate.

The act became part of the Criminal Code on Dec. 18, 2001. The changes to the code are "aimed at disabling and dismantling the activities of terrorists groups and those who support them."

As it was being drafted politicians and protesters raised concerns that the legislation as proposed trampled on civil liberties because it gave police sweeping new powers, including the ability to arrest people and hold them without charge for up to 72 hours if they are suspected of planning a terrorist act.

The Liberals used their majority to pass a motion to curtail debate, and rejected all of the remaining opposition amendments. The motion passed easily in the House of Commons with a vote of 190 in favour and 47 against.

However, in a nod to civil libertarians, the bill contained a five-year sunset clause on some of its more controversial elements and it is the proposal to extend these provisions that has provoked enormous controversy in Parliament in recent weeks.

The Conservative government has tried to paint the Liberals as hypocritical and weak on terrorism for refusing to extend two provisions in particular. Because both the NDP and the Bloc Québécois are also against an extension, Liberal support is necessary if these elements of the act are to continue.

What's at stake

Of the two clauses that are at the heart of the debate, one allows police to arrest suspects without a warrant and detain them for three days without charges if police believe a terrorist act may be committed.

The other would allow a judge to compel a witness to testify in secret about past associations or perhaps pending acts under penalty of going to jail if the witness doesn't comply.

Neither clause has been used by police or prosecutors in the five years the act has been enforced but, in October, a parliamentary committee recommended extending the two provisions for another five years.

As well, Prime Minister Stephen Harper caused a partisan stir last week when, reading from a news report, he said a relative of a Liberal MP was on a secret list to be questioned by authorities in their reinvestigation of the Air India tragedy and implied this was the reason the Liberals were switching sides.

In the Commons this week, deputy Liberal leader Michael Ignatieff explained his party's change of position, arguing that the curtailment of civil liberties can only be justified under emergency provisions and when public safety absolutely requires it.

"If this is the test," he said, "the clauses should sunset because they have not proven absolutely necessary to public safety. The government, in essence, has not proven its case and on these questions where our liberties are at stake the government has to prove the case of public necessity beyond a shadow of a doubt."

Motive and history

When the bills were passed, the Liberal justice minister at the time, Anne McLellan, said the provisions had three main objectives: To suppress existing terrorist groups, provide police with new investigative tools, and toughen prison sentences for terrorists.

The bills also contained provisions to comply with new UN rules on combating terrorism as well as with similar laws that were being put in place in the U.S. and Britain.

"We believe that people everywhere are entitled to live in peace and security," McLellan said.

Former justice minister Vic Toews

In June 2006, then Conservative justice minister Vic Toews said the government had no plans to toughen the Anti-terrorism Act after the arrest of 17 people in Toronto suspected of planning a bombing campaign. However, he said, it may consider changing the law's definition of terrorism, which is called the motive clause.

This clause defines a terrorist act as one committed "for a political, religious or ideological purpose, objective or cause." Toews said there are two problems with that definition: it could lead to profiling of people of a particular religion, Islam especially, and it could be difficult for prosecutors to provide evidence of a suspect's personal beliefs.

On Oct. 24, 2006, a Superior Court judge struck down the motive clause, saying it violates the Charter of Rights and Freedoms. The judge was working on the case of Mohammed Mormin Khawaja, the first person charged under the new anti-terror provisions.

Khawaja, a software developer, was arrested on March 29, 2004, and faces seven criminal charges alleging that he participated in and gave assistance to an alleged British terrorist organization.

Although the judge struck down part of the law used to arrest Khawaja, he said his trial on the charges could go on.

Highlights of the Anti-terrorism Act:

• It gives the police wide, sweeping powers to act on suspected acts of terrorism.
• It allows suspected terrorists to be detained without charge for up to three days.
• It makes it easier for the police to use electronic surveillance, which used to be seen as a last resort.
• It allows for preventive arrests.
• It allows judges to compel witnesses to give evidence during an investigation.
• It allows for the designation of a group as a terrorist organization.

The legislation makes it a crime to:

• Knowingly collect or provide funds, either directly or indirectly, in order to carry out terrorist crimes. Using this definition, the Crown must prove that the accused collected, provided or made available funds that he or she knew would be used to help a terrorist group. Canadian courts would be given the jurisdiction to try this offence even if it were committed outside Canada, when the accused is found in Canada. The maximum sentence for this offence would be 10 years.
• Knowingly participate in, contribute to or facilitate the activities of a terrorist group. The participation or contribution itself does not have to be a criminal offence and would include knowingly recruiting into the group new individuals for the purpose of enhancing the ability of the terrorist group to aid, abet or commit indictable offences. The maximum sentence for the offence of participating or contributing would be 10 years imprisonment. The maximum sentence for facilitating would be 14 years imprisonment.
• Instruct anyone to carry out a terrorist act or an activity on behalf of a terrorist group (a "leadership" offence). This offence carries a maximum life sentence.
• Knowingly harbour or conceal a terrorist. The maximum sentence for this offence would be 10 years.

In addition to the changes to the Criminal Code, the anti-terrorism legislation makes changes to:

The Official Secrets Act - renamed to the Security of Information Act it creates new offences against threats of espionage by foreign powers and terrorist groups and allows ministers to declare certain actions secret.

The Canada Evidence Act - amended to include changes to courtroom and other proceedings to protect classified information.

The National Defence Act - amended to clarify the mandate of the Communications Security Establishment to intercept communication of foreign targets and undertake security checks of government computer networks to protect them from terrorist activity.