Canada's Anti-Terrorism Act to Be Reviewed

This article was originally published in Maclean’s magazine on October 25, 2004. Partner content is not updated.

IN THE FEVERED DAYS following Sept. 11, 2001, media reports that some of the hijackers had entered the U.S. from Canada briefly raised fears that a Canadian connection would be a big part of the story of America's worst terror attacks.

Canada's Anti-Terrorism Act to Be Reviewed

IN THE FEVERED DAYS following Sept. 11, 2001, media reports that some of the hijackers had entered the U.S. from Canada briefly raised fears that a Canadian connection would be a big part of the story of America's worst terror attacks. Even after those reports turned out to be false, the notion lingered that Canada, with its generous refugee policies, might be an easy staging ground for terrorists targeting the U.S. Partly to fight that nagging perception, Ottawa embraced the role of a partner in the war on terror in North America - a partnership that became even more key to maintaining decent relations with Washington after Canada refused to take part in the American-led invasion of Iraq. So when Tom Ridge, the U.S. secretary of homeland security, visited Ottawa last week to meet with Deputy Prime Minister Anne McLellan, more was at stake than the raft of border-security measures they announced. And the same goes for this week's planned visit by U.S. Attorney General John Ashcroft, who is to join McLellan at an Ottawa conference on policing.

Back-to-back courtesy calls by George W. Bush's top cabinet lieutenants on the domestic security agenda highlight how combatting TERRORISM has emerged as a dominant theme in Canada-U.S. relations. The message federal Liberals hope to send: even if trade disputes fester on wheat, lumber and cattle, at least we have this file well in hand. But after showing off her rapport with her two U.S. counterparts, McLellan, who is also minister of public safety and emergency preparedness, may soon be on the defensive. She will have to stickhandle a mandatory three-year review of the Anti-Terrorism Act, by a parliamentary committee, likely starting by mid-December. The law, a Canadian version of sorts of the controversial U.S. Patriot Act, was passed in late 2001 to shore up the ability of federal authorities to battle the new terror threat. "This legislation was enacted close on the heels of Sept. 11," says Greg DelBigio, a Vancouver lawyer who helped draft the Canadian Bar Association's critical response to the bill three years ago. "The opportunity for public debate was more limited then than it is now."

DelBigio's point is that those who are leery of the law might feel more free to slam it than they were in those tense post-9/11 days. Critics say the act jeopardizes civil liberties. Some also want the review broadened to consider other related concerns, notably federal refugee policy. The bar association is working on the stance it will take on the review of the law, and was not yet ready to comment. But during the spring election, the influential lawyers' umbrella group said the anti-terrorism measures Ottawa took after Sept. 11 "dramatically expand state powers at the expense of due process and individual rights and freedoms." The association also warned about "the resulting invasions of privacy and fundamental rights that have been creeping into Canadian law over the past few years."

The two most controversial measures in the act are so-called preventive arrests and investigative hearings. The arrest power allows police to detain a suspect without a warrant if they deem it necessary to stop a terrorist action. The power to compel individuals to testify at secret hearings is designed to make sure authorities can collect vital information on terrorist activities. While government is required to report annually on how these two extraordinary tools are used, it has done so only once since the law was passed, reporting that neither power was exercised in 2002. No report for 2003 has yet been released, prompting criticism from civil liberties advocates. But federal officials said the report for 2003 is being "fine-tuned" and should be made public soon. So far, only one use of the investigative-hearing power has come to light, in a Supreme Court challenge brought by a reluctant witness who was being forced to testify about the 1985 Air India bombing (the court ruled last June that the provision does not violate the Constitution).

At least one of the most contentious powers associated with fighting terrorism is not in the law coming up for review. Some immigration and refugee lawyers are outraged by a process that allows the arrest and jailing of non-citizens believed to be a threat to national security under what are called security certificates. Several men are now being held as Ottawa prepares to deport them. While a federal judge must review the government's grounds for using the process, evidence and precise allegations can be kept secret from the suspects, which, their lawyers argue, makes it impossible to properly refute the charges. But McLellan staunchly defended the practice when asked about it at a news conference with Ridge.

Another controversial immigration policy is expected to block many would-be refugees from entering Canada through the U.S. Asylum-seekers will be required to apply to remain in the first safe country they reach, meaning those who arrive first in the U.S. would no longer be allowed to move on to Canada, where the refugee process is seen as more welcoming. Ridge said the U.S. expects to implement this new policy soon.

One part of anti-terrorism law that Ottawa is already committed to reviewing is the widely criticized section of the Security of Information Act that was used early this year to search a journalist's home and office. The RCMP was hunting for clues to the source of leaked information to an Ottawa Citizen reporter who had written about the case of Maher Arar, whose deportation to Syria by U.S. authorities in now the subject of an inquiry. But the provisions in the act invoked to justify that search have been around for decades - a reminder that while everything touching on national security is now viewed in relation to Sept. 11, the underlying concerns about the balance between civil liberties and state powers are timeless.

Maclean's October 25, 2004