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Jason Daigle (University of Windsor)

The violence of terror: Canada’s response to terrorism and the constitutional ramifications

 

            Since the devastating attacks of September 11th, the threat of violence in North America has escalated exponentially.  In Canada, the perceived threat of a similar attack fueled a public outcry for a governmental response. The Canadian Parliament has a responsibility to protect Canadians from actual and potential human rights abuses. However, the government must strike a delicate balance between collective security and the individual rights of all Canadians.  The introduction of Bill C-36 (The Anti-Terrorism Bill) was created to combat terrorism and minimize domestic violence.  Bill C-36 amends the current Canadian Criminal Code and makes terrorist activity a serious crime punishable by between 10 years and life imprisonment. The debate over Bill C-36 has focussed on two key themes that will be discussed at length throughout this paper.  First, the constitutional tensions between the collective security of the nation and the individual rights of the citizen have been clearly infringed through the broad and encompassing wording of the Bill.  It is clear that the State plans to utilize the powers bestowed within the Bill, however the question whether the Canadian courts will accept such grievous restrictions on freedom must be explored.  Second, the actual impact of the Bill to the criminal justice system will be discussed. While the legislation was being passed through the House, many Canadians believed that this was a political tactic and merely a Bill with little force or fervor.  Canada’s lawmakers rushed C-36 through the House of Commons and the Senate in record time, receiving royal assent barely three months after the atrocious attacks.  Domestically, this sense of urgency was perceived as a government response to tragedy, but received relatively little debate throughout the media.  However after almost two and half years, Canada has laid its first charge under the Bill.  Therefore it is necessary to examine the possible effects on the Canadian legal system and consequently the efficacy of this Bill as the means to the end of violence. In short, it is the contention of this study that Bill C-36 was a reactionary response to a public demand.  However, despite the constitutional barriers to successful implementation, Canadians may be subject to increased State intervention and a restriction on the rights and freedoms entrenched in the Charter.

The Canadian Charter of Rights and Freedoms embodies the cornerstone of Canada’s rights consciousness and acts as the bulwark in the States administration of law and justice.  Former Supreme Court Chief Justice Antonio Lamer summarized the power and influence of the Charter when he stated that the Charter represents a “revolution on the scale of the introduction of the metric system, the great medical discoveries of Louis Pasteur, and the invention of penicillin and the laser.”[1]  The Charter was established to protect individual rights and freedoms within Canada, hence, laws established post-implementation must face Charter scrutiny.  However these protections and guarantees are not absolute and can be withheld through Section 1, of the Charter, the resonable limitations clause as long as the limitation can be “demonstrably justified in a free and democratic society” by the government. The Anti-Terrorism bill has received substantial Charter scrutiny by the lawmakers and academics but has yet to be tested through the courts.  It is challenging to look at the Bill and ignore the liberty restricting characteristics.  The definition of a terrorist extends to any facilitation of terrorist activities which encompasses the “carrying out of terrorist activities or any other activity that would enhance the ability of terrorist groups to carry out terrorist activities; and to harbor or conceal those who have or are likely to carry out terrorist activities.”[2] And subsequently holds a minimum penalty of 10 years of imprisonment if convicted of a terrorist activity.  However the danger lies in the breadth of terrorist activity.  A person can be charged for knowingly harboring or assisting a terrorist either directly or indirectly.   Obviously if a person assists in a crime they should be held criminally liable, however holding people liable when indirectly assisting or harboring perverts the liberty of that person.  Could a doctor be held responsible if they helped a wounded man whom later performed a terrorist act?  This is quite unclear, Canadian precedence, as established in BC motor vehicle reference, refutes this claim.  The courts majority ruled that “A law with the potential of convicting a person who really has done nothing wrong offends the principles of fundamental justice and violates a person's right to liberty under s. 7 of the Charter if imprisonment is available as a penalty.”[3]  A law, which would condemn the innocent, clearly neglects Section 7 of the Charter, which guarantees the right to life, liberty, and security of the person.

Bill C-36 was drafted 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.”[4]  However to insure social compliance, State authorities were granted an expansive list of tools and remedies to prevent future attacks.  However one must question where the line between collective security and draconian law enforcement techniques will be drawn.  A police state where everyone is a suspect would not eliminate violence; rather it may act as fuel to encourage such behavior.  The Anti-Terrorism Bill extends police powers to create an institutional ease for obtaining a wiretap by eliminating the requirement of finding that ‘other investigative procedures have been tried and have failed or unlikely to succeed.  Therefore merely State suspicion of a terrorist can legally facilitate a wiretap before any other policing methods have been attempted, clearly neglecting freedom of privacy.  Other draconian provisions such as investigative hearings, recognizance with conditions or better known as preventative arrests and the and the ability to suppress State evidence to the defense before trial, clearly frustrates and breaches Canadians basic legal rights and protections.  However all are justified through the anti terrorism legislation.

 The legal use and Charter acceptability of Bill C-36 is impervious to judicial scrutiny and review.  The constitutionality of the bill is dependent on the interpretation of the courts. Anne McLellan, Canada’s Minister of Justice at the time of the Bill’s adoption, repeatedly defended the Anti-Terrorism Bill by proclaiming that it had faced Charter scrutiny from the governments legal experts and in turn had been Charter proofed.  The Charter proof argument is based on the belief that the government has analyzed all possible legal challenges to the bill and is confident the courts will uphold the law. The government may draw support from past judicial precedence.  The Canadian courts have shown a willingness to accept a right’s restrictive approach to collective security as demonstrably justifiable.  In Hunter v Southam[5] the court concluded that the standard expectation of privacy and guaranteed rights might be different and applied in contrasted ways when State security is threatened.  However the Court did not outline the steps a government would have to take to deny the fundamental rights and freedoms bestowed through the Charter.  Followers of Canada’s legal system accept that the only way to restrict rights is through the use of the reasonable limitations clause, or section one of the Charter

Lastly, to fully understand the institutional pith of the Anti-Terrorism legislation, it is necessary to analyze the change in Canadian law.  It is my contention, that most of the provisions outlined in the Bill were already solidified in the Canadian Criminal Code.  The existing criminal law in Canada already contains a wide array of offences to prohibit and punish terrorist acts.  Many offences highlighted in the Anti-Terrorism legislation are solidified in the criminal code, including murder, sabotage, documentation fraud and mischief to property, just to name a few.  The Canadian Aeronautics Act protects and criminalizes airplane hijacking, concealed weapons, hostage taking and forged passports and documentation.  Therefore one is left wondering what the Anti-Terrorism legislation introduces as new offences?  A leading Canadian political scientist suggests the difference is the inclusion of the word “terrorist”, “terrorist activities” and the outlining of the scope of these definitions to include “the illegal political, religious and ideological protests that intentionally disrupt essential services.”[6]  Which he suggests extends the reach of the criminal law in an unclear and unrestrained manner.  The broad and dangerous wording of a terrorist by definition can extend to peaceful protests, i.e. political and ideological protests or even encourage racial and group segregation through religious profiling.  Under the law anyone who “uses a name, word, symbol or other representation” associated with a known terrorist group or “associates” with a member in a terrorist group can be found guilty and face jail time, even if their actions do not aid or further a terrorist activities.  By definition, this can extend to a lawyer and client attorney privileges, and has the ability to criminalize defending an accused terrorist.  Criminals by association can obviously have a debilitating effect on the legal process.  The defendants right to representation are as fundamental as the presumption of innoncence and the necessity of a fair and impartial trial.  To a further extent, legal recourse may extend to a person wearing a Bin-laden T-shirt.  Although this would be distasteful, to criminalize a symbol on a T-shirt would reject the pillars of fundamental freedom and the freedom of choice.

In short, it would be irresponsible to assume that this legislation does not restrict and pervert Canada’s reliance on individual rights, protections to minorities, equality amongst its citizens and the fundamental freedoms enjoyed by any democratic society.  However, another benchmark of any democratic justice system, is a fair and impartial trial, thus it is necessary to view the effect the bill has had on the legal system before condemning the Bill altogether.

On March 29, 2004 Mohammed Momin Khawaja was the first person charged under Bill C-36.  He was accused of participating in the activities of a terrorist group and facilitating a terrorist activity.  The Royal Canadian Mounted Police (RCMP) confirmed that Khawaja’s arrest and charge were related to the massive effort in the United Kingdom where over 700 officers arrested eight men of Pakistani heritage and seized a half ton of ammonium nitrate.  And on May the 7th Khawaja was denied bail signifying that he may find himself incarcerated for the next two years while the hearing takes place.  Unfortunately there is a publication ban oh the preliminary hearing and trial and on evidence presented during the bail hearing.  Although this is not uncommon, a few basic right infringements of the accused have surfaced.  According to Khawaja’s lawyer legal counsel was denied during his initial interrogation.  Moreover, the defendant and his team have yet to see the evidence held against them.  Which creates a challenging case for the defense, when you don’t know what your defending against, preparation is only a dream.  Although it is attractive as a concerned citizen to say “lock up all the terrorists and throw away the key”, there are fundamental legal rights that every person should be afforded; isn’t this what we are trying to protect? The denial of bail, the negligence by the State to permit counsel, the States persistence to not disclose evidence and the publication ban instilled by the courts represent a grievous mark to Canadian law, however the greatest atrocity committed through this case lies in the States handling of the innocent.  

While capturing Momin, the police “stormed his family’s home and seized papers, passports and computers and began to arrest members of the family – at the home, at school and at a grocery store.  The phones had been tapped for a month the police said, as they asked the Khawaja's to tell them what they knew about making bombs.”[7] Momin’s Mother, who was not charged or considered a suspect, was forcibly confined in the middle of an upper-scale shopping mall, handcuffed and dragged to a police car.  Although the State had a right to question Momin’s family the degrading and inhumane treatment afforded to his immediate family was quite unbecoming of Canadian authorities.   Momin’s brother was confined for eight hours without counsel and repeatedly asked questions about his brother and his own personal knowledge of bombs. Momin’s father, Mahboob Al Khawaja, was in Saudi Arabia at the time and was detained by Saudi authorities where he alleged the Saudi officials held him for two weeks under intense interrogations.  The elder Khawaja holds a doctorate degree and has written several essays where he has denounced British P.M and the Pakistani President as “U.S lapdogs complicit in American-Zionist collaborative political encroachment in the Middle East.”[8]   Upon his detention in Saudi Arabia, his family was not informed of his capture and did not receive information of his whereabouts until his release.  If Momin is found guilty though, then the anti-terrorism bill has ultimately succeeded and has helped stop a potential terrorist attack.  However even in the face of guilt, the individual freedoms of the innocent have been trampled and disregarded.  The State had options available to compel the family to talk about Momin; it is beyond the State however to temporarily freeze all rights and freedoms in self-determined special circumstances.

Democracy is a balance between security and freedom. Human security is the first human right. However, total security is prison - total freedom is anarchy. The balance is contextual and our post-September 11 awareness of vulnerability justifies a shift.[9]  However, we must be careful to protect the innocent, and ensure the rights and freedoms of all people in Canada are protected.  Restrictive bills such as the Anti-Terrorism bill seems to substantiate the underlying message in George Orwell’s famous book 1984. Orwell described that a Leader looks for a “permanent war” to instill fear into the masses.  In a state of fear, people are willing to surrender their rights, but they must believe that the enemy is everywhere and is lurking at every corner with the consequence of not giving up their rights resulting in possible death. The anti-terrorism bill preys on this fear, and perpetuates the States control over the individual.  Although the Khawaja case is in the early stages, already we as the public are aware of the misgivings.  Violence can come in many forms and approaches, usually the citizen’s look to the State to prevent such attacks, however if the state crosses the line between protector and bully, it perpetuates the war like relationship between the person and state and may encourage future violence.



[1] F.L Morton and Rainer Knopff, The Charter Revolution and the Court Party (Peterborough: Broadview Press, 2000), 13.

[2] Ibid.,

[3] Reference Re s. 94(2) of the Motor Vehicle Act (B.C), [1985] 2 S.C.R. 486

[4]Canada. Bill C-36, 37th Parliament, 1st session, An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism, 2001

[5] Hunter v. Southam, [1984] 2 SCR 145.

[6] Kent Roach, The New Terrorism Offences and the Criminal Law, 168.

[7] Colin Freeze, Globe and Mail, April 17, 2004

[8] Ibid

[9] Stephen Owen, Anti-Terrorism Laws, available from; http://www.creativeresistance.ca/toolkit/anti-terrorism-laws.htm