Anti-terrorism Act has sparked legal, political challenges

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 constitutes terrorism and making it a punishable offence within Canada's Criminal Code.

First passed in 2001, the legislation has been controversial

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 constitutes terrorism 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 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.

When the bills were passed, Liberal Justice Minister Anne McLellan said the provisions had three main objectives: to suppress existing terrorist groups, provide police with new investigative tools and strengthen 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.

Controversial clauses not extended

In a nod to civil libertarians, the original bill contained a five-year "sunset clause" on some of its more controversial elements, meaning those sections would have to be reviewed by Parliament, which would decide whether or not to to extend them after five years. The act itself was not open to a sunset clause.

When the time came to revisit the provisions, Parliament was gripped by another  heated debate.

Of the two clauses that were at the heart of the discussion, one allowed police to arrest suspects without a warrant and detain them for three days without charges if police believed a terrorist act may have been committed.

The other allowed 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 didn't comply.

Neither clause was used by police or prosecutors in the five years before the necessary review.

In October 2006, a parliamentary committee recommended extending the two provisions and the Conservative government of the day agreed. The rest of the House of Commons, however, did not.

The three opposition parties united to defeat a Conservative proposal to keep the measures in place for three more years by a 159-124 vote. The rest of the legislation remained in force.

Courts test the legislation

In June 2006, 18 youths and adults were charged with offences under the Anti-terrorism Act in connection with an alleged bombing plot.

At the time, Conservative Justice Minister Vic Toews said the government had no plans to toughen the law but said the government could consider changing its definition of terrorism, which makes up what is known as the Act's motive clause.

Mohammad Momin Khawaja, shown in 2004, is accused of being part of an extremist organization that is alleged to have plotted to blow up Britain's electricity supply network, trains, pubs and nightclubs. ((Jonathan Hayward/Canadian Press) )

This clause defined a terrorist act as one committed "for a political, religious or ideological purpose, objective or cause." At the time, Toews said there were 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.

But 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 Anti-terrorism Act.

Khawaja, a software developer, was arrested March 29, 2004, and charged with seven criminal offences alleging that he participated in and gave assistance to an suspected 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. Khawaja's trial began in June 2008.

Highlights of the legislation

The Anti-terrorism Act gives the police sweeping powers to act on suspected terrorist activities. It makes it easier for the police to use electronic surveillance, which used to be seen as a last resort, and allows for the designation of a group as a terrorist organization.

The legislation also 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. If the accused were discovered in Canada, Canadian courts would be given the jurisdiction to try this offence even if it were committed outside 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 in prison.
  • 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 prison.

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 related to threats of espionage by foreign powers and terrorist groups and allows ministers to declare certain actions secret.

The Canada Evidence Act — This act was amended to include changes to courtroom and other proceedings to protect classified information.

The National Defence Act —This act was 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.