Backgrounder

Parliamentary Review of The Anti-Terrorism Act

The Government of Canada enacted the Anti-terrorism Act in 2001 to combat terrorism and terrorist activities at home and abroad. The legislation creates measures to deter, disable, identify, prosecute, convict and punish terrorist groups; provides new investigative tools to law enforcement and national security agencies; and ensures that Canadian values of respect and fairness are preserved and hatred is addressed through stronger laws against hate crimes and propaganda.

The legislation also includes rigorous safeguards to ensure that the fundamental rights and freedoms of Canadians are upheld. One such safeguard is the requirement for the Parliament of Canada to begin a review of both the provisions and the operation of the legislation within three years after its having received Royal Assent.

Outlined below are the main provisions of the Anti-terrorism Act.

IDENTIFY, PROSECUTE, CONVICT AND PUNISH TERRORIST ACTIVITY

The Anti-terrorism Act implements Canada ’s international obligations in the fight against terrorism. In particular, the Act implemented our obligations under the following conventions:

• The Suppression of Terrorist Financing Convention relates to the freezing of terrorist property by prohibiting dealing in any property of a person engaged in terrorist activities and prohibiting making available funds and financial or other related services to terrorists. The Anti-terrorism Act fulfilled Canada’s obligations under this convention and allows a Federal Court judge to order the seizure and forfeiture of property used in or related to terrorist activity.

• The Suppression of Terrorist Bombings Convention contains provisions relating to the targeting of public places, government or infrastructure facilities or transportation systems with explosives or other lethal devices, including chemical or biological agents.

Through the Anti-Terrorism Act, Canada implemented and was able to ratify the Convention on the Safety of United Nations and Associated Personnel, which relates to ensuring the safety of UN personnel, including peacekeepers, from attacks against their person, official premises, private accommodation and modes of transport.

The Anti-terrorism Act amended the Criminal Code to establish provisions aimed at disabling and dismantling the activities of terrorist groups and those who support them. These include:

• defining “terrorist activity” in the Criminal Code as an action that takes place either within or outside of Canada that:
  • is an offence under one of the UN anti-terrorism conventions and protocols; or
  • is taken for political, religious or ideological purposes and intimidates the public concerning its security, or compels a government to do something, by intentionally killing, seriously harming or endangering a person, causing substantial property damage that is likely to seriously harm people or by seriously interfering with or disrupting an essential service, facility or system

An interpretive clause clarifies that an expression of political, religious or ideological beliefs alone is not a "terrorist activity," unless it is part of a larger conduct that meets all of the requirements of the definition of "terrorist activity." (i.e., conduct that is committed for a political, religious or ideological purpose, is intended to intimidate the public or compel a government, and intentionally causes death or serious physical harm to people.)

• permitting the designation of groups whose activities meet the definition of terrorist activity as “terrorist groups.”

This definition and designation framework forms the basis for offences in the Criminal Code that make it a crime to:

• knowingly instruct anyone to carry out a terrorist activity on behalf of a terrorist group
  (a “leadership” offence), and;

• knowingly harbour or conceal a terrorist.

INVESTIGATIVE TOOLS

The Anti-terrorism Act provided new investigative tools to security, intelligence and law enforcement agencies to ensure that the prosecution of terrorist offences can be undertaken efficiently and effectively. Measures include:

• The investigatory power already in the Criminal Code that makes it easier to use electronic surveillance against criminal organizations were applied to terrorist groups. This includes eliminating the need to demonstrate that electronic surveillance is a last resort in the investigation of terrorists. The period of validity of a wiretap authorization was extended from 60 days to up to one year when police are investigating a terrorist group offence. A Superior Court judge still has to approve the use of electronic surveillance to ensure that these powers are used appropriately. Further, the requirement to notify a target after surveillance has taken place can be delayed for up to three years.

• The Criminal Code was amended to require individuals with information relevant to an ongoing investigation of a terrorist crime to appear before a judge to provide that information. This requires the consent of the Attorney General. This measure is intended to increase the ability of law enforcement to effectively investigate and obtain evidence about terrorist organizations, subject to legal safeguards to protect the witness. For example, information given by a witness cannot be used against the witness in any current or future criminal proceedings (except for perjury or similar proceedings).

• The Anti-terrorism Act includes a “recognizance with provisions” power to impose conditions of release where appropriate on suspected terrorists. This provision allows a peace officer to arrest without warrant and bring a person before a judge to impose reasonable supervisory conditions if there are reasonable grounds to suspect that the person is about to commit a terrorism activity. This also requires the consent of the Attorney General.

• The Security of Information Act amendments address national security concerns, including threats of espionage by foreign powers and terrorist groups, and the intimidation or coercion of ethnocultural communities in Canada .

New offences were created to improve and modernize the "spying" provisions of the Act, taking into account new realities, including new players and new threats. These offences will focus upon those situations in which it is appropriate for Canada to protect its institutions and citizenry from information-related conduct that is harmful or likely to be harmful to Canada.

The Anti-terrorism Act includes specific offences dealing with unauthorized communication, or purported communication, of special operational information (for example, the identity of confidential sources, covert agents or targets of CSIS) by persons permanently bound to secrecy.

• The Canada Evidence Act was amended to address the judicial balancing of interests when the disclosure of information in judicial or other proceedings would encroach upon a specified public interest or be injurious to international relations or national defence or national security.

• The National Defence Act was amended to clarify the mandate of the Communications Security Establishment (CSE), under strict controls, to:
  • intercept the communications of foreign targets abroad; and
  • undertake security checks of government computer networks to protect them from terrorist activity.

The permission of the Minister of National Defence is required to authorize any interception of private communications of foreign targets abroad in order to ensure that the privacy of individual Canadians is protected.

• The Proceeds of Crime (Money Laundering) Act was amended to authorize the Financial Transactions and Reports and Analysis Centre (FINTRAC) to detect financial transactions that may constitute threats to the security of Canada and to disclose this information to the Canadian Security Intelligence Service (CSIS) and other law enforcement agencies.

• The DNA warrant scheme and data bank were extended to include terrorist offences in the list of “primary designated offences” for which DNA samples can be taken and stored.

• The definition and designation schemes are used in the Charities Registration (Security Information) Act to remove or deny charitable status (under the Income Tax Act) to those who support terrorist groups.

• The Charities Registration (Security Information) Act was created to demonstrate Canada's commitment to participating in concerted international efforts to deny support to those who engage in terrorist activities, to protect the integrity of the registration system for charities under the Income Tax Act and to maintain the confidence of Canadian taxpayers that the benefits of charitable registration are made available only to organizations that operate exclusively for charitable purposes.

STRONGER LAWS AGAINST HATE CRIMES AND PROPAGANDA

The Anti-terrorism Act contains provisions that address hatred and propaganda, reaffirm Canadian values and ensure that Canada ’s respect for justice and diversity is reinforced. These measures include:

• Criminal Code provisions that allow the courts to order the deletion of publicly available hate propaganda from computer systems such as an Internet site. Individuals who post the material have an opportunity to convince the court that the material is not hate propaganda. The provision applies to hate propaganda that is located on Canadian computer systems, regardless of where the owner of the material is located or whether he or she can be identified.

• Criminal Code provisions that create a new offence of mischief motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin, committed against a place of religious worship or associated religious property, including cemeteries. This offence carries a maximum penalty of 10 years when prosecuted on indictment, or to a maximum penalty of eighteen months on summary conviction.

• Canadian Human Rights Act provisions to clarify that the prohibition against spreading repeated hate messages by telephonic communications includes all telecommunications technologies.

COMPREHENSIVE SAFEGUARDS

The Anti-terrorism Act contains measures to protect both human security and human rights under the Canadian Charter of Rights and Freedoms. These safeguards include:

• the Attorney General and the Minister of Public Safety and Emergency Preparedness Canada, provincial Attorneys General and Ministers responsible for policing are required to report annually to Parliament on the use of preventive arrest and investigative hearing provisions in the Anti-terrorism Act.

• a Parliamentary review of the anti-terrorism legislation as a whole to begin within three years after enactment of the Anti-terrorism Act.

• provisions in the Act dealing with preventive arrest and investigative hearing powers will sunset after five years unless a resolution is passed by both the House of Commons and Senate to extend either or both of these powers for up to five more years. Proceedings that have already started prior to the sunset date will be grandfathered so that they could be completed, if the powers are not extended;

• the scope of the Criminal Code provisions is clearly defined so that they are targeted at terrorists and terrorist groups. The Anti-terrorism Act is directed against terrorists and not against any one community, group or faith. Political activism and protests are also protected through the precise definition of “terrorist activity”.

• Attorney General certificates prohibiting the release of information are subject to review by a judge of the Federal Court of Appeal. In addition, the existing provisions and process for the collection, use and protection of information are preserved under the Privacy Act and the Personal Information Protection and Electronic Documents Act.

• the burden of proof is on the state to establish that there was knowledge or intent on the part of the accused "for the purpose of facilitating or carrying out terrorist activity."

• the process of adding a group to the list of terrorists incorporates a number of protections including provisions for removal from the list, judicial review and safeguards to address cases of mistaken identity. As well, the list must be reviewed every two years by the Minister of Public Safety and Emergency Preparedness, a process most recently completed on November 17, 2004 .

• the Attorney General’s consent is required to prosecute all of the new terrorism offences.

• the Minister of Defence’s authorization is required for the Communications and Security Establishment to intercept foreign communications targeted against a non-Canadian abroad that may have a Canadian connection.

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Department of Justice
December 2004