The Security of Freedom

The Security of Freedom: Essays on Canada's Anti-Terrorism Bill

Ronald J. Daniels
Patrick Macklem
Kent Roach
Copyright Date: 2001
Pages: 256
https://www.jstor.org/stable/10.3138/9781442682337
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  • Book Info
    The Security of Freedom
    Book Description:

    Canada's Anti-Terrorism Bill (Bill C-36) proposes legislative changes to combat potential threats to Canada's security from terrorism at home and abroad. The papers in this collection address concerns about the scope and ramifications of these changes.

    eISBN: 978-1-4426-8233-7
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vii)
  3. ACKNOWLEDGMENTS
    (pp. viii-2)
    Ronald Daniels, Patrick Macklem and Kent Roach
  4. Introduction
    (pp. 3-18)
    Ronald J. Daniels

    This collection of essays is the product of an extraordinary two-day conference – The Security of Freedom – that was held at the Faculty of Law, University of Toronto on November 9th and 10th, 2001. The conference was open to the public, and attracted the active participation of more than 350 individuals representing the academy, the legal profession, the federal and provincial governments, and various local community groups.

    The purpose of the conference was to enlist the assistance of Canada’s leading academic experts in law, criminology and political science in analyzing the federal government’s proposed omnibus anti-terrorism legislation – Bill...

  5. The Security of Freedom

    • The Permanence of the Temporary: Can Emergency Powers be Normalized?
      (pp. 21-38)
      DAVID DYZENHAUS

      The Anti-Terrorism Bill,² says theGlobe and Mail, is ‘the exception, not the norm.’ TheGlobegoes on to argue that, because the bill deals with an emergency by stripping Canadians of civil liberties, it should have an expiry date, subject to ‘Parliament’s considered renewal.’ A crisis, it says, is ‘by definition finite.’³

      In talking of the ‘exception’ and the ‘norm,’ theGlobe’s editorial writer uses, perhaps deliberately, language that was coined by Carl Schmitt. Schmitt was one of the leading legal and political theorists of Weimar Germany. He wrote extensively and brilliantly on emergency powers and the problems they...

    • Cutting Down Trees: Law-Making Under the Shadow of Great Calamities
      (pp. 39-62)
      OREN GROSS

      In many respects the world post the September 11thterrorist attacks on the World Trade Center and the Pentagon is not similar to the one we lived in before that tragic Tuesday. Yet in some important respects nothing is really new, or at least not conceptually new. Much of the discussion around legal matters pertaining to dealing with terrorism and the structuring of counter-terrorism measures and extraordinary governmental powers to answer to future threats falls into that latter category. It is not only countries such as my own, Israel, that have grappled with terrorism and counter-terrorism for decades, but other...

    • Terrorism and the Risk Society
      (pp. 63-72)
      DAVID SCHNEIDERMAN

      The scene of twin crumbling towers is seared forever in our minds. Endless hours of ‘Die Hard’and ‘Terminator’ movies could not prepare us for the depth of destruction and loss of life we viewed in a couple of hours that Tuesday morning. The common wisdom is that the world forever has changed, at least its North American variant.¹ The event simply was beyond the capacity of anyone to imagine.

      The Anti-terrorism Act must be situated in this context.² Consider the chilling testimony of RCMP Commissioner Zaccardelli to the House Committee on Justice and Human Rights. ‘Terrorist activity is indiscriminate, global...

    • Network Wars
      (pp. 73-82)
      JANICE GROSS STEIN

      That we in North America face a new kind of threat is beyond question. The attacks against the heartland of the United States, its corporate and military icons, and the killing of over 3,000 civilians, mark a watershed in thinking about security. It is almost two hundred years since civilians in North America have been the object of systematic attack, and even longer since the core of the hegemonic power was struck from the periphery. It is no surprise that the public is anxious and threatened. The important analytical and political question is: what kind of threat, and from whom?...

    • Governing Security, Governing Through Security
      (pp. 83-92)
      MARIANA VALVERDE

      This conference is primarily about law – about the antiterrorism bill, about existing law (including the Charter), and more fundamentally about the rule of law. But in democratic discussions of laws it is always important also to discuss and analyze the entity, the condition, or perhaps more accurately the Utopian ideal for the sake of which laws like Bill C-36 are written – and that is, of course, ‘security.’

      The debate about civil liberties and Bill C-36 that already exists in civil society and to which this conference makes an important contribution has shown an unfortunate tendency to reproduce unthinkingly...

    • Terrorismʹs Challenge to the Constitutional Order
      (pp. 93-108)
      LORRAINE E. WEINRIB

      The proposedAnti-Terrorism Act, Bill-36, embodies Canada’s legislative response to the terrorist attacks upon the United States on September 11, 2001. It reflects the realization that fundamentalist, internationally directed terrorist groups have the ability to effect massive loss of life, devastation and disruption of basic public services within North America. It also reflects the fact that the standard approaches to criminal activity – deterrence, detection and punishment – will not satisfy the government’s commitment, in concert with other western countries, to prevent further attacks and ultimately dismantle these groups.

      In introducing the Bill, Justice Minister McLellan described it as ‘the...

  6. The Charter and Democratic Accountability

    • Thinking Outside the Box: Foundational Principles for a Countèr-Terrorism Law and Policy
      (pp. 111-130)
      IRWIN COTLER

      It has been said that the world changed on September 11. I do not know whether the world changed – or whether the darker side of the universe was exposed – but what is clear is that September 11 was a transformative event, impacting on our psyches as well as on our politics, on our priorities as on our purposes. It has been a central motif of public and Parliamentary discourse – whether in the public square or the halls of Parliament – while the ‘war on terrorism’ has become a centrepiece of the daily media.

      Indeed, while the threat...

    • The Dangers of a Charter-Proof and Crime-Based Response to Terrorism
      (pp. 131-148)
      KENT ROACH

      We have been told countless times that everything changed on September 11, 2001. The idea that everything changed should, however, make us deeply uneasy. A great strength of our free and democratic society is its traditions of freedom, democracy and the rule of law. Those such as the September 11 terrorists who have nothing but contempt and hatred for these traditions would be only too happy to hear that everything has changed as a result of their evil deeds. They do not deserve that pleasure.

      The best thing that has happened since September 11 is not Bill C-36, the comprehensive...

  7. Criminalizing Terrorism

    • The New Terrorism Offences and the Criminal Law
      (pp. 151-172)
      KENT ROACH

      What the September 11 terrorists did was a crime long before they boarded the doomed aircraft. The existing criminal law relating to assisting, attempting, counselling and conspiring to commit criminal offences is very broad. Moreover, there is no reason to believe that weaknesses in the substantive criminal law, as opposed to weaknesses in law enforcement and intelligence gathering, contributed to the tragedy of September 11. Nevertheless, Bill C-36¹ proposes to respond to September 11 in part by adding new offences to theCriminal Codethat would make it a serious crime punishable by between 10 years and life imprisonment to...

    • Political Association and the Anti-terrorism Bill
      (pp. 173-194)
      DAVID SCHNEIDERMAN and BRENDA COSSMAN

      After September 11th, it is said, the world changed forever. Public opinion polling data demonstrates that Canadians view the protection of civil liberties differently after the World Trade Centre disaster than before. Canadians now are prepared to sacrifice their liberties in order to enhance their security and safety. What specific liberties are we prepared to sacrifice, however, and to what degree? For many, this loss of liberty will entail only searches of bags and purses before embarking on a plane, or longer lines and more inquiries at border crossings. These are minor inconveniences, additional conditions imposed on what are privileges,...

    • Effectiveness of Anti-Terrorism Legislation: Does Bill C-36 Give Us What We Need?
      (pp. 195-204)
      MARTHA SHAFFER

      The tragic events of September 11, 2001 have left most of us wondering how such a horrific thing could happen. How is it that terrorists managed to attack the World Trade Center and the Pentagon, bastions of U.S. financial and military might? How is it that the activity involved in planning the attacks escaped the notice of U.S. intelligence gathering agencies, as well as those of other countries? Why is it that this activity went undetected by law enforcement officials? Would an anti-terrorism law, such as Bill C-36, have made a difference?

      In this paper I seek to raise concerns...

    • The Dangers of Quick Fix Legislation in the Criminal Law: The Anti-Terrorism Bill C-36 should be Withdrawn
      (pp. 205-214)
      DON STUART

      The horrifying events of September 11 make it easy to support the allocation of significant sums of Government money for preventive measures such as better airport security, medicine to counteract anthrax, more anti-terrorist police and C.S.I.S. personnel and perhaps even for our military assistance to the United State’s uncomfortable war in Afghanistan. It is of interest considerable amounts of money are available although just short weeks ago we were being told there was no new money for health care and certainly not for day care.

      What cannot be supported are the complex new criminal laws in Bill C-36. When the...

  8. Terrorism and Criminal Justice

    • Rule of Law or Executive Fiat? Bill C-36 and Public Interest Immunity
      (pp. 217-238)
      HAMISH STEWART

      Under the common law doctrine of public interest immunity and under ss. 37, 38, and 39 of theCanada Evidence Act,⁴ a minister of the Crown and certain other persons may object to the disclosure of information in proceedings on grounds relating to the public interest or Cabinet secrecy. Typically, the validity of these objections is determined by a superior court or federal court judge, with appropriate procedural safeguards to prevent disclosure while the objection is being determined. The only information that is protected from disclosure without review by a judge is a Cabinet confidence.⁵

      Bill C-36 repeals and replaces...

    • The Anti-Terrorism Bill and Preventative Restraints on Liberty
      (pp. 239-248)
      GARY T. TROTTER

      The unspeakable magnitude of the September 11, 2001 terrorist attacks in the United States casts the critic of anti-terrorist measures in an uncomfortable role. In the din of the painful aftermath, will a meaningful voice be given to those who wish to apply the brakes to a legislative program on an unremitting course? Suggestions for improvement and restraint cannot realistically expect to elude allegations of being naive, insensitive to recent victims, disloyal or even worse. But this is precisely the climate in which the government’s newAnti-Terrorism Bill² has been introduced. While no one can quibble with the timing of...

  9. Information Gathering

    • Is Privacy a Casualty of the War on Terrorism?
      (pp. 251-268)
      LISA AUSTIN

      Prior to September 11, many airlines in the United States were already using a Computer Assisted Passenger Screening system (CAPS).² The system collects information about passengers and then screens individuals who are checking baggage according to ticket-purchase methods and travel patterns. The point of the system is to flag ‘suspicious’ behaviour, such as purchasing a one-way ticket with cash, as well as to periodically select travelers at random. If selected by the system, the passenger, along with her baggage, is taken aside for further investigation. Currently there are proposals to expand the use of CAPS and to integrate it with...

    • Police Powers in Bill C-36
      (pp. 269-286)
      MARTIN L. FRIEDLAND

      There are a series of interrelated questions one must ask before it is possible properly to evaluate whether the police powers in Bill C-36¹ are desirable.

      What is the threat posed by terrorism? What are the new powers given to the police? How are the offences that are the subject of these powers defined? Who exercises the new powers? And finally, who reviews the exercise of the powers?

      The threat is clearly a serious one. The threat was well known to the Canadian government long before the tragic events of September llth. Report after report produced by the Canadian Security...

    • Intelligence Requirements and Anti-Terrorism Legislation
      (pp. 287-296)
      WESLEY K. WARK

      Montesquieu’s famousPersian Letters, once on the Vatican Index, reminds us of an important facet of all law. This is what he wrote:

      I have often tried to decide which government was most in conformity with reason. I have come to think that the most perfect is the one which attains its purpose with the least trouble, so that the one which controls men in the manner best adapted to their inclinations and desires is the most perfect.¹

      To view Bill C-36 in the light of this maxim would be an interesting exercise, for it would force us to examine,...

  10. Financing Terrorism

    • Cutting off the Flow of Funds to Terrorists: Whose Funds? Which Funds? Who Decides?
      (pp. 299-320)
      KEVIN E. DAVIS

      One of the most important fronts in the newly declared war on terrorism is the financial one. The avowed aim of the United States and its allies is to cut off the flow of funds to terrorists.¹ This campaign involves a two-pronged attack: The first prong involves prosecuting the financiers,i.e.individuals or organizations that provide money or property to support terrorist activities. The second prong involves freezing, seizing and forfeiting property that has been or might be directed toward terrorist activities. This paper analyses the portions of theAnti-terrorism Act² that represent the federal government of Canada’s first sortie...

    • Charitable Status and Terrorist Financing: Rethinking the Proposed Charities Registration (Security Information) Act
      (pp. 321-338)
      DAVID G. DUFF

      Among the many provisions of Bill C-36,¹ Part 6 contains theCharities Registration (Security Information) Act(CRSIA) and consequential amendments to the federalIncome Tax Act,² which provide for the denial of charitable status to an applicant and revocation of charitable status of a registered charity where a Federal Court judge determines that there are reasonable grounds to believe that the applicant or registered charity has made, makes or will make available any resources directly or indirectly to an entity that engages or will engage in terrorist activities or activities in support of terrorist activities.

      Unlike other Parts of Bill...

  11. International Dimensions of the Response to Terrorism

    • Terrorism and Legal Change: An International Law Lesson
      (pp. 341-352)
      JUTTA BRUNNÉE

      Bill C-36, the proposedAnti-Terrorism Act,¹ is part of the crescendo of domestic and international anti-terrorism activities that we have witnessed since September 11. At an obvious level, Bill C-36 is intended to enable Canada to make its contribution to international anti-terrorism initiatives, including through the implementation of various conventions.² Indeed, the proposedAnti-Terrorism Actrelates its sweeping definition of ‘terrorist activity’ to ten such conventions,³ and extends Canada’s criminal jurisdiction so as to capture acts within the scope of these conventions as comprehensively as possible, whether committed in or outside of Canada.⁴ The proposedActalso contains provisions to...

    • Canadaʹs Obligations at International Criminal Law
      (pp. 353-364)
      PATRICK MACKLEM

      Perhaps ‘the first and foremost requirement imposed by international law upon a State is that... it may not exercise its power in any form in the territory of another state.’² But, in no small measure due to the atrocities committed by the Nazi forces in World War II, international law – specifically, international criminal law – also provides that a state has the jurisdiction to prosecute and punish the commission of certain crimes even if such crimes have no territorial link to the state or to the nationality of the offender or victim. Made famous in recent years by Spain’s...

  12. Administering Security in a Multicultural Society

    • Protecting Equality in the Face of Terror: Ethnic and Racial Profiling and s. 15 of the Charter
      (pp. 367-382)
      SUJIT CHOUDHRY

      The anti-terrorism omnibus bill currently before Parliament is a lengthy and complex statute whose provisions, taken together, have the twin goals of enhancing the effectiveness of existing instruments, and creating new instruments, for law enforcement officials to prevent terror both in Canada and abroad. What is striking about the legislation is its silence on one of the central issues in the public debate over how Canada and other liberal democracies should respond to September 11: ethnic and racial profiling (which I shall refer to simply as profiling in this paper).

      Profiling has burst onto the national agenda in the wake...

    • Borderline Security
      (pp. 383-404)
      AUDREY MACKLIN

      Geo-political borders serve many functions in public consciousness, both literal and symbolic: They demarcate the nation-state’s essential territoriality; they assert and exert sovereignty; and finally, their selective permeability operates as a measure of the nation-state’s security against external threat, whether characterized in physical, ideological or ethnocultural terms. The events of September 11 elicited an almost reflexive public clamour throughout Canada and the US to tighten their respective borders, followed by promotion of a fuzzily-defined ‘security perimeter’ that would encompass Canada and the United States and, in some versions, Mexico.

      It is unsurprising that many in the US, Canada and other...

    • A Thousand and One Rights
      (pp. 405-418)
      ED MORGAN

      The inclusion of non-disclosure provisions in Canada’s new anti-terrorism legislation, Bill C-36,¹ has given rise to the concern that those accused of terrorism-related crimes will have no real opportunity to know and counter the case against them.² The speculation is that criminal process will eventually come to resemble existing procedures under theImmigration Act, in which national security certificates issued by the Solicitor General and the Minister of Immigration on the advice of the Canadian Security Intelligence Service (‘CSIS’) are admissible against a prospective deportee and are subject only to in camera and ex parte judicial review.³ Scholarship dealing with...

    • The Intersection of Administrative Law with the Anti-Terrorism Bill
      (pp. 419-434)
      LORNE SOSSIN

      There are two complementary purposes which animate administrative law: first, to protect participatory rights in the public decision-making process; and second, to ensure accountability for public decision-making. Both purposes are contingent on the institutional and legislative contexts of administrative decision-making. Bill C-36 (the ‘Anti-Terrorism Bill’)¹ is ambitious and far-reaching. Its purpose, in part, is to ‘prevent and suppress the financing, preparation, facilitation and commission of acts of terrorism, as well as to protect the political, social and economic security of Canada and Canada’s relations with its allies.’ Such sweepingly vague goals raise complex and important questions as to how participatory...

  13. Concluding Comments from the Department of Justice
    (pp. 435-446)
  14. Appendix A: Annotated and Selected Excerpts of Bill C-36 As Introduced in Parliament October 15, 2001
    (pp. 447-494)
  15. Appendix B: Public Order Regulations, 1970 SOR/70–444
    (pp. 495-499)