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THE SENATE OF LE SÉNAT DU CANADA CANADA FUNDAMENTAL JUSTICE IN EXTRAORDINARY TIMES: MAIN REPORT OF THE SPECIAL SENATE COMMITTEE ON THE ANTI-TERRORISM ACT Special Senate Committee on the Anti-terrorism Act Chair The Honourable David P. Smith, P.C. Deputy Chair The Honourable Pierre Claude Nolin February 2007 Ce document est disponible en français. * * * This report and the Committee’s proceedings are available online at www.senate-senat.ca/anti-t.asp Hard copies of these documents are also available by contacting the Senate Committees Directorate at (613) 990-0088 or at [email protected]. MEMBERSHIP The Honourable David P. Smith, P.C., Chair The Honourable Pierre Claude Nolin, Deputy Chair and The Honourable Senators: Raynell Andreychuk Mobina S.B. Jaffer Joseph A. Day Serge Joyal, P.C. Joyce Fairbairn, P.C. Noël A. Kinsella Joan Fraser *Marjory Lebreton, P.C. (or Gerald Comeau) *Céline Hervieux-Payette, P.C. (or Claudette Tardif) * Ex Officio Members In the First Session of the Thirty-eighth Parliament, the Committee was chaired by the Honourable Senator Joyce Fairbairn, P.C. The Deputy Chairs were the Honourable Senator John Lynch-Staunton (December 2004 to June 2005), the Honourable Senator James Kelleher, P.C. (June 2005 to October 2005) and the Honourable Senator Raynell Andreychuk (October 2005 to November 2005). In addition, the Honourable Senators Jack Austin, P.C., Sharon Carstairs, P.C., Maria Chaput, Ione Christensen, Anne C. Cools, Pierre De Bané, P.C., Mac Harb, Daniel Hays, P.C., Elizabeth Hubley, Janis G. Johnson, James Kelleher, P.C., Rose-Marie Losier-Cool, John Lynch-Staunton, Terry M. Mercer, Lorna Milne, Grant Mitchell, Jim Munson, Marcel Prud’homme, P.C., William Rompkey, P.C., Nancy Ruth, Terry Stratton, and Rod A.A. Zimmer have participated in this study since it began in December 2004. Research Staff: Jennifer Bird, Library of Parliament Benjamin Dolin, Library of Parliament Wade Riordan Raaflaub, Library of Parliament Heather Lank Adam Thompson Clerks of the Committee ORDER OF REFERENCE Extract from the Journals of the Senate of Tuesday, May 2, 2006: The Honourable Senator Comeau moved, seconded by the Honourable Senator Tkachuk: … After debate, With leave of the Senate and pursuant to rule 30, the motion was modified to read as follows: That a Special Committee of the Senate be appointed to undertake a comprehensive review of the provisions and operation of the Anti-terrorism Act, (S.C. 2001, c.41) pursuant to Section 145 of the said Act; That, notwithstanding rule 85(1)(b), the special committee comprise nine members namely the Honourable Senators Kinsella, Andreychuk, Nolin, Day, Fairbairn, P.C., Fraser, Jaffer, Smith, P.C., and Joyal, P.C., and that four members constitute a quorum; That the committee have power to send for persons, papers and records, to examine witnesses, to report from time to time and to print such papers and evidence from day to day as may be ordered by the committee; That, notwithstanding rule 92(1), the committee be empowered to hold occasional meetings in camera for the purpose of hearing witnesses and gathering specialized or sensitive information; That the committee be authorized to permit coverage by electronic media of its public proceedings with the least possible disruption of its hearings; That the papers and evidence received and taken on the subject by the Special Senate Committee on the Anti- terrorism Act during the First Session of the Thirty-eighth Parliament be referred to the Committee; That the committee submit its final report no later than October 5, 2006, and that the committee retain all powers necessary to publicize its findings until December 15, 2006; and That the committee be permitted, notwithstanding usual practices, to deposit its report with the Clerk of the Senate, if the Senate is not then sitting, and that any report so deposited be deemed to have been tabled in the Chamber. The question being put on the motion, as modified, it was adopted. Extract from the Journals of the Senate of Wednesday, September 27, 2006: The Honourable Senator Smith, P.C., moved, seconded by the Honourable Senator Watt: That, notwithstanding the Order of the Senate adopted on Tuesday, May 2, 2006, the date for the presentation of the final report of the Special Senate Committee on the Anti-terrorism Act be extended from October 5, 2006 to December 22, 2006. After debate, The question being put on the motion, it was adopted. Extract from the Journals of the Senate of Thursday, December 14, 2006: Resuming debate on the motion of the Honourable Senator Joyal, P.C., for the Honourable Senator Smith, P.C., seconded by the Honourable Senator Robichaud, P.C.: That, notwithstanding the Orders of the Senate adopted on Tuesday, May 2, 2006, and on Wednesday, September 27, 2006, the date for the Special Senate Committee on the Anti-terrorism Act to submit its final report be extended from December 22, 2006, to March 31, 2007; and That the Committee be empowered, in accordance with rule 95(3), to meet on weekdays in January 2007, even though the Senate may then be adjourned for a period exceeding one week. After debate, The question being put on the motion, it was adopted. Paul C. Bélisle Clerk of the Senate (This Order of Reference is similar to the Committee’s Order of Reference during the First Session of the Thirty-eighth session.) TABLE OF CONTENTS I. Introduction………………………………………………………………….1 II. Definition of “Terrorist Activity”……….…………………………………..9 III. Racial, Religious and Ethnic Profiling…….…………………………..……18 IV. Procedural Fairness: The Need for a Special Advocate………...…………..30 V. Listing of Terrorist Entities……………………………………….………...43 VI. Financing and Provision of Services in Relation to Terrorism………...…...50 VII. Denial or Revocation of Charitable Status under the Income Tax Act………………………………………………….………….58 VIII. Non-Disclosure of Information under the Canada Evidence Act…….…….62 IX. Investigative Hearings and Recognizances with Conditions/Preventive Arrest……………………………………………….69 X. Electronic Surveillance and Interception of Private Communications………………………………………...………….74 XI. Issues Relating to the Privacy of Canadians and Information Sharing………………………………………………...………80 XII. Secrecy and Disclosure under the Security of Information Act….…………93 XIII. Detention and Deportation under Security Certificates…………..………...100 XIV. Oversight and Review of Canada’s National Security and Anti-terrorism Framework……………………………………...…………..114 APPENDIX 1 – List of Recommendations…………………………………………123 APPENDIX 2 – List of Witnesses……………………….……………….…………130 FUNDAMENTAL JUSTICE IN EXTRAORDINARY TIMES: MAIN REPORT OF THE SPECIAL SENATE COMMITTEE ON THE ANTI-TERRORISM ACT INTRODUCTION In the fall of 2001, in the aftermath of the attacks in New York, Pennsylvania and Washington, D.C., the Parliament of Canada passed the Anti-terrorism Act. Rarely has such a complex omnibus bill proceeded so rapidly through the legislative process. Given the perceived necessity to respond quickly and comprehensively to the threat of terrorism, a majority of parliamentarians were willing to support this key element of the government’s anti-terrorism plan. Parliament accordingly expedited both the study and passage of the Act. However, the legislation also required that a comprehensive review of the provisions and operation of the Anti-terrorism Act be undertaken “We should be trying to find the balance within three years of royal assent. It between collective security and individual liberties.” was felt that this requirement would (Imam Salam Elmenyawi, Muslim Council) allow Parliament to assess both the provisions of the Act and their effect on Canadians after an appropriate period of time. It is this review that our Committee has undertaken. This Report sets out our views and recommendations. The government has an “Legislation designed to meet this objective obligation to ensure the security of [of security] must be tempered, must respect Canadians and to protect the civil human rights, and must ultimately strike a proper balance between the two.” liberties that are the basis of our (Ed Cashman, democratic society. Both of these Public Service Alliance of Canada) obligations are of fundamental importance, and Canada has committed to fulfilling them in international conventions and agreements such as the Charter of the United Nations, the Universal Declaration of Human Rights, and the Vienna Declaration. Security of the person and various rights and freedoms are also guaranteed by our Constitution and by the rule of law. 1 It is clear, both in international “[A]n integrated approach to human rights and our own domestic law, that all and security or anti-terrorism has the best chance of preventing the human rights rights are of equal value, and that one violations that are so damaging to right cannot be sacrificed in the name individuals, the fabric of our society and the of preserving another. However, when foundation of our democracy.” dealing with the threat of international (Jean-Louis Roy, Rights and Democracy) terrorism, how best to protect and preserve our rights, obligations and values becomes a complex question for Canadian society and its lawmakers to answer. Our government and courts have already been struggling with this challenge, as demonstrated in the context of the Commission of Inquiry into the Actions of Canadian Officials in relation to Maher Arar and by the constitutional challenges to the Immigration and Refugee Protection Act’s security certificate process, which were heard by the Supreme Court of Canada in June 2006. As stated by former Supreme Court of Canada Justices Frank Iacobucci and Louise Arbour in a challenge to the Anti-terrorism Act’s investigative hearing provisions, “a response to terrorism within the rule of law preserves and enhances the cherished liberties that are essential to democracy.”1 This is the goal of our counter-terrorism legislation. Much thought must therefore be given to constructing an appropriate framework, capable of ensuring that physical security is protected and civil liberties respected.

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