Does Bill C-36, Canada’s Anti-Terrorism
Act, infringe on the rights of Canadians?
Douglas Rutherford, an Ontario Superior Court judge, took a strike at the Act this October, removing the component of Bill C-36 dealing with religious, ideological or political motivation, claiming it infringed on the Charter of Human Rights and Freedoms that ensures freedoms of religions, thoughts and beliefs in Canada.
Enacted after 9/11 to protect Canadian citizens from terrorism by giving the government extended privileges of surveillance and detention, the Anti-Terrorism bill now sits in a precarious position after another of its clauses was declared an infringement of the Charter of Human Rights and Freedoms and, in turn, democracy in Canada.
Christian Wilke, a Carleton University political science professor who specializes in human rights violations and law and terrorism, believes that Rutherford’s strike to the Anti-Terrorism legislation actually expands the scope of the legislation.
“The component that was struck down was crucial, and the fact is, with the broader legislation [the former clause] was actually limiting actions. Now all acts that are intended to do a certain number of things are [about] terrorism or terrorist activity.”
Wilke says that using the Anti-Terrorism Act without the motive clause could infringe on democratic movements, jeopardizing Canada’s legal and democratic rights systems. “[The Anti-Terrorism Act] is just so vague that it can relate to quite a number of activities that we like to think of as really harmless and possibly even essential to a democracy.”
Wilke is not the only one who believes this. Payam Akhavan, a McGill law professor and former legal advisor to the United Nations, also believes that striking down the motive clause of the Anti-Terrorism Law expands the legislation, allowing more violent acts to be viewed as terrorist acts.
“The Ontario court struck down a part of the anti-terrorism act on the grounds that motive is irrelevant to the commission of the crime. it doesn’t matter what the purpose is, so long as you had the intention to commit the crime and that was ruled as unconstitutional-though, ironically, it actually expanded the scope of the legislation.”
Mark Holland, vice chair of the Canadian Safety and Security Committee and Liberal MP for Ajax and Pickering, believes the removal of the motivation clause of the Anti-Terrorism Law will not void the legislation.
“I think that the motivation was a part of, but not necessarily a key portion of, the Anti-Terrorism Act, so I think it begs for review.”
Holland says it is common to run into such challenges with legislation when it is put together quickly to respond to the public’s outcry. “I don’t think that’s a bad thing. It’s one of the reasons the courts are there, to look at the legislation in place and to ensure that it is indeed constitutional and doesn’t violate charter rights.”
Wilke says that the terrorism act without the motive clause is vague enough to render it nonfunctional. He says people will not go on to use the Anti-Terrorism Act, which was just struck down because it seems an unfeasible tool. It is possible to salvage the Act with a new bill with a new definition of legal terrorism in Canadian Criminal law that is more similar to the international definition of terrorism.
Holland also believes that the bill needs revision to remain constitutional.
“I think there are elements that have to be questioned. I understand that it’s not an easy line to draw. One wants to ensure safety and security, and, at the same time, one wants to protect fundamental freedoms, and the line has to be drawn very carefully,” said Holland.
“In my opinion, the line hasn’t been drawn in an appropriate place.”
Holland particularly disagrees with security certificates, which allow the Canadian government to detain immigrants indefinitely without trial if they are deemed a threat to national security.
“I don’t think [there should be] an exception to the rules of justice that we apply in the nation. I think that the presumption of innocence until someone is proven guilty is fundamental to our system of justice, and the suspension of the normal ways we conduct our judicial process is unacceptable.”
Holland also says the Act needs to be properly re-worded and Parliament, along with the Canadian Security and Safety Committee, will be reviewing the Anti-Terrorism Act in the coming months to make necessary changes.
Holland confirmed that if the Anti-Terrorism Act were to infringe on fundamental freedoms, then terrorism would be meeting its objectives.
“I believe that the day we lose the principles upon which our democracy has flourished because we have fear of terrorists, then, of course, they’ve won,” he said.
“That’s their objective, to instill terror and to change the ways that we live out of fear of them and to bend to their will.”
It is a harsh reality that terrorism will manifest itself in one way or another in North America. The goal should be to react responsibly to make meaningful improvements to security without infringing on human rights and jeopardizing democracy, says Holland.
Ron Sklar, an associate law professor at McGill specializing in criminal law, believes that post 9/11, certain actions have been implemented ensuring protection against potential terrorist acts in Canada, but that the terrorist acts themselves are impossible to curtail.
“I don’t believe that terrorists, and, in particular, suicide terrorists can be deterred by any such legislation. I seriously doubt that any statutes that will provide for increased punishment of terrorist activities will stop terrorism.”
Sklar believes that the Anti-Terrorism Act, once modified to fit the Canadian Charter of Rights and Freedoms, can only serve to apprehend terrorist suspects, but not prevent the crimes themselves.
Akhavan believes that to ensure protection of Canadian citizens from terrorism there needs to be outreach programs to help individuals who are contemplating terrorist actions from psychological reasons, anger or fear.
Should a terrorist act be committed in Canada, Akhavan thinks Canada’s identity as a multicultural country open to diverse religions and races will be replaced with paranoia, prejudice and discrimination.