Debating the Anti-Terrorism Legislation: Cessons Learned

by Alex Mazer

Bill C-36, Canada's anti-terrorism bill, was drafted under extraordinary circum- 2003 CanLIIDocs 258 stances, and was the subject of an extraordinary debate within and without Parlia- ment. This article describes the legislative process and broader societal debate surrounding Bill C-36. Furthermore, it argues that three central Tessons can be Learned from studying the discussions of the Bill: that the legislative process should be "internationalized" to correspond with increasingly international Law and policy; that parliamentary committees can and should be empowered to play an important role in formulating policy; and that emergency legislation poses grave dangers and should be made as temporary as possible.

ill C-36, the Anti-Terrorism Act, was the The Legislative Process Govenunent's legislative response to the terrorist Battacks of 11 September 2001, and Canada's Bill C-36 was introduced in the House by Justice Minis- domestic contribution to an international legal effort to ter Anne McLellan on 15 October 2001. It was the result of suppress terrorism. In the aftermath of September 11, the intensified, accelerated work by Department of Justice United States, the United Kingdom, France, Germany, officiais. Assistant Deputy Minister Richard Mosley, and Australia, inter alla, all passed bills with purported speaking at a conference on the objectives similar to those of C-36. Bill, described the behind-the-scenes process by which Bill C-36 was complex, cross-jurisdictional, and un- the legislation came into being. Immediately after 11 precedented. It received more public attention than al- September, Mosley said, the department conducted a re- most any bai in recent memory. It was tabled in the wake view of all Canadian legislation of relevance1 to terrorism of one of the most calamitous events in North American — an "already formidable body of law," in Mosley's history. It was drafted and studied under considerable words. On 18 September, Minister McLellan spoke in the time constraints and political pressures. Perhaps most House about moving forward with amendments to im- significantly, it proposed changes that touched on some plement the two international conventions on Bombing our deepest societal values and most profound philo- and the Suppression of Terrorist Financing, while also sophical ideas — individual human rights, racial and reli- making reference to changes to the Canada Evidence Act gious inclusion, national security, and liberty of the and the Official Secrets Act. At this point, Mosley sug- person. gests, the Bill was still in its early stages within the De- partment, where drafters were struggling with "conceptual issues" such as how — or indeed whether — to define terrorism. The Department continued to debate Alex Mazer was a Parliamentary Intern in 2001-2002. He worked for (Liberal, Mount-Royal) and lames Moore (Canadian the question of definition, among other things, up until Alliance, Port Moody-Coquitlam-Port Coquitlam). This is a revised 13 October, at which point the Bill had to be printed to ta- version of his essay which was awarded the Alf Hales prize for best ble in the House. However, says Mosley, "we recognized essay by an Intern in 2001-2002.

SUMMER 2003 / CANADIAN PARLIAMENTARY REVIEW 21 that this was not going to be anywhere near the end of the concerns. In other words, the overriding timbre of debate and that it would then have to be addressed in a witness testimony — echoed, with slight variations and broader public context and also, of course, within Parlia- temporal shifts, in the wider public debate — was this: we ment." In drafting the bill, the Department was working need a counter-terrorism bill, but C-36 goes too far. under significant time constraints. The most formai — if First, let us address the Bill's raison d'être. Most wit- not the most important — of these was mandated by nesses described the C-36 as a response to a terrorist United Nations Security Council Resolution 1373 of 28 threat, to a new kind of transnational menace; Justice September 2001. This resolution lays out what member Minister McLellan, for one, described terrorist as a "spe- states must do to prevent terrorism, and binds states to cial threat to our way of life." It is this threat — or, more report back within 90 days of the resolution's adoption. precisely, the recent evolution of this threat — that pro- In other words, Canada's anti-terrorism law had to be vided the justificatory basis for the Bill. passed by the end of December 2001. In consideration of In his testimony to the Senate Committee on October this deadline, the Bill was tabled two weeks before the 24, 2001, St. Andrews University terrorism expert Paul planned date of 1 November. Wilkinson described the 11 September attacks as a "terri- The Bill was brought before the House of Commons ble watershed" in the evolution of terrorism — the dawn 2003 CanLIIDocs 258 Standing Committee on Justice and Human Rights on 18 of an era of "mass terrorism." First, the scale of the terror- October 2001, following approximately 8 hours of Sec- ist threat is now larger and more international in charac- ond Reading debate and a vote expressing support for ter. "Terrorism," said Wilkinson, "is no longer to be the Bill by a margin of 208-8 (with the NDP caucus op- adequately understood as a law-and-order threat...It has posed). The day before saw the striking of a Senate Spe- become a strategic threat to the well-being of the interna- cial Committee on Bill C-36, where the Bill would be sent tional community and to the human rights of large num- for a rarely employed procedure called pre-study. bers of people." Second, the intent underlying the Pre-study is intended to allow the Senate an opportunity terrorist threat has changed. No longer, in the minds of to scrutinize the legislation in concert with the House of terrorists, is the lethality of terrorist attacks subordinate Commons, effectively both assisting the House commit- to the fear they sow in the people who watch; the "new" tee in its consideration of amendments and granting the terrorist is less interested in instilling emotions of terror Senate a head start in its own scrutiny of the bill. in a society than he is "hell-bent on killing large numbers On the afternoon of 18 October, only hours after Bill of people." C-36 had passed Second Reading in the House of Com- University of Ottawa law professor Joseph Magnet de- mons, Anne McLellan appeared before the House com- scribed three long-term trends in the evolution of mod- mittee to defend the legislation. Between 18 October and ern terrorism: first, a decreasing number of terrorist 22 November, the day the committee tabled its report incidents; second, an increasing lethality of each inci- with amendments, the Justice committee would hear tes- dent; and third, the adoption of a "war paradigm" by ter- timony on the Bill from approximately 80 individuals. rorist networks, in place of "coercive diplomacy." The The Senate committee, meanwhile, began to hear wit- crux of the third trend is that, in the new paradigm, ter- nesses on 17 October 2001 and submitted its pre-study re- rorists do not make demands, as they did in the hostage port on 1 November. After receiving the takings and hijackings of the 1980s. Rather, in Magnet's post-amendment Bill from the House, it resumed hear- words, "modern terrorism is an act that would be a war ings on 3 December and issued its second and final report crime if war have been declared."2 on 10 December. Over the course of its study of the bill, Irwin Cotler, McGill professor, and member of the the Senate committee heard testimony from approxi- House Justice Committee, outlined further dimensions mately 60 witnesses. As parliamentary committees held of the new terrorism in a speech at the University of To- hearings a larger debate was happening in the public ronto. Among these are included: "the increasing inci- square, drawing participation from the gamut of social dence of terrorism associated with or driven by political, commentators, including newspaper columnists, social ideological, or religious extremism; the growth and scïentists, jurists, NGOs, religious and cultural organiza- threat of economic and cyber terrorism; the teaching of tions, grassroots activists, and many others. contempt and demonizing of the 'other'; a standing in- The Bill's Content citement against the demonized target; the dangers of microproliferation; the potential use of weapons of mass The overall committee process can be characterized by destruction; and the increased vulnerability of open and expressions of support for the principle of the Bill cou- technologically advanced democratic societies like Can- 3 pled with the articulation of a panoply of civil libertarian ada to this genre of terror."

22 CANADIAN PARLIAMENTARY REVIEW /SUMMER 2003 The majority of committee witnesses accepted these or ideological purpose, objective, or cause." This stipula- assessments of the new terrorist threat, and thus ac- tion — that motivation should be a determining factor in cepted the necessity of some kind of counter-terrorist what is to be considered terrorism — also drew consider- legislative response. Even Alan Borovoy, General Coun- able criticism. Terrorism without such motivations sel for the Canada Civil Liberties Association and the would still be terrorism, critics said. The Canadian Bar de-facto dean of Canadian civil libertarians, argued that Association, among others, warned that the inclusion of "no reasonable person can quarrel with the goal of this motivational elements in the definition could result in bill." The more germane question from the perspective the deliberate singling out of specific groups. "Terrorists of witnesses as well as many intervenors in the broader are the target of the bill," the Association said, "not par- public discussion was whether the threat of transna- ticular religious ideological groups."' University of To- tional terrorism justified the specific law-enforcement ronto law professor Kent Roach went further, projecting measures contained in the legislation — or, put differ- that the "criminalization" of political, ideological, or reli- ently, whether the Bill effectively achieved what the Ca- gious motivations could constitute a violation of the nadian Bar Association termed the "delicate balance Charter of Rights and Freedoms. 5 between collective security and individual liberties." A second area of civil libertarian concern related to the 2003 CanLIIDocs 258 Central to the achievement this "balance" was deemed Bill's provisions as regards "preventative arrest" and to be the amendment or removal of several areas of the "investigative hearings." Preventive arrest allows for Bill that were regarded as offensive to civil liberties. The the arrest and detention for up to 72 hours of individuals first pertains to the Bill's definition of "terrorist activity," suspected to be on the verge of committing a terrorist ac- the predominant concern being its overbreadth. The def- tivity. The main preoccupation of critics was that despite inition included acts that are intended "to cause serious assurances by police that such measures would only be interference with or serious disruption of an essential employed under exceptional circumstances, the powers service, facility, or system, whether public or private, associated with preventative arrest could be abused by other than as a result of lawful advocacy, protest, dissent law enforcement officiais. It was suggested that the Bill or stoppage of work...." Critics charged that this could should therefore include institutional safeguards to include acts of civil disobedience, Aboriginal blockades, check police power and protect against the misuse of pre- boycotts, wildcat strikes, revolutionary actions directed ventative arrest. Investigative hearings allow judges to against oppressive governments, and confrontational compel individuals to appear before courts as material protest activities, among others. The inclusion of the witnesses and to prosecute them should they refuse to do word "lawful" in the definition drew particular criticism so. Among the concerns here was that the allowance of for, the argument goes, just because an activity (a strike, such hearings would compromise the constitutionally for instance) is illegal does not mean it is terrorism. protected "right to silence." This right, testified the Another concern was that the definition did not differ- Criminal Lawyers' Association, "is the last bastion entiate between actions taken against democracies and against an ever more omnipotent government." actions taken against dictatorships, thus preventing Can- A third rights-based criticism of the bill was that it ada from supporting foreign groups who use violence to risked compromising both access to information and pri- combat tyrannical regimes. The reasoning here is that vacy rights. This criticism emanated from a section of the the legitimacy of an activity depends in part on the gov- bill allowing the Minister of Justice to issue certificates erning power against which it is directed. As expressed prohibiting the release of certain pieces of information in by Alan Borovoy in an op-ed submission to the Globe and the interests of international relations, national security, Mail, "So long as civilians are not the deliberate targets of or national defence. Privacy Commissioner George such violence, why should not be allowed to Radwanski complained that the provision could be used support it? Force is often the only way people can free to "nullif y the Privacy Act by ministerial fiat" because the themselves of dictatorial regimes."6 Several of the Bill's Act would not apply to the information whose disclosure critics drew parallels with the illegal and often violent ac- would be prohibited by the ministerial certificate. In tions used by the African National Congress and other other words, the Privacy Commissioner would no longer liberation movements to overcome apartheid in South be able to review the information, effectively removing Africa. They expressed concern that, in the South Afri- the mandate of the Commissioner. Information Com- can context, a law such as C-36 would have branded Nel- missioner John Reid told the Senate committee that the son Mandela and his collaborators as terrorists. Bill would give the minister "an unfettered, The Bill defines "terrorist activity" as an act that is unreview able right to cloak information in secrecy for in- committed "in whole or in part for a political, religious, definite periods of time." According to Reid, the bill

SUMMER 2003 / CANADIAN PARLIAMENTARY REVIEW 23

would remove the Commissioner's right to examine in- There was much vacillation on the part of the Govern- formation so as to determine whether secrecy is justified. ment over whether or not to include - or, perhaps more In sum, the Bill did not provide a mechanism by which ei- precisely, whether to allow a debate over - a sunset pro- ther the Privacy Commission or the Information Com- vision. When justice minister McLellan appeared before missioner could oversee the issuance of ministerial the House justice committee, she declared herself open to certificates. the committee's review of ail parts of the bill, also stating A fourth civil libertarian concern was that the bill that the committee was welcome to consider a sunset would unfairly target visible minorities, denying them clause. Meanwhile Prime Minister Chrétien, speaking equal treatment under the law. Some of this concern from Shanghai, said that he would not support a sunset grew out the proliferation of discrimïnatory treatment by clause because the threat of terrorism is permanent, not law enforcement officiais and of acts of racism and vio- temporary, and because putting an expiry date on the lence directed against visible minorities - particularly Bill could interfere with police investigations. Further, Muslims and people of Arab origin - in the aftermath of reported a week later that Chrétien, in the terrorist attacks of 11 September. The danger of dis- a caucus meeting, "challenged arguments from Liberal crimination was evoked most emphatically by the Cana- MPs and that the legislation should be amended to put 2003 CanLIIDocs 258 dian Arab Federation, who testified that "the Muslim time limits on some of the more controversial elements." and Arab communities in Canada view Bill C-36...as a In the end, as mentioned earlier, a five-year sunset clause historically unacceptable, racial, and religious wedge was included in the Bill, but only for the provisions deal- and an excuse to extinguish the civil liberties of ail Cana- ing with investigative hearings and preventive arrest. dians." They went on to say, "We strongly oppose the Aside from a somewhat weakened sunset clause, the misuse of race and religion to hyperventilate an atmo- government did accept several substantive amendments sphere of fear, paranoia and mistrust at the expense of from the House committee's recommendations. First, and in the narre of the Muslim and Arab communities, the definition of terrorist activity was narrowed to ex- with the effect of general deprivation of ail civil liber- clude unlawful, as well as lawful "advocacy, protest, dis- ties." This basic concern was also expressed - albeit less sent, or stoppage of work." Second, an element of mens forcefully - in the testimony of the National Association rea, or guilty intent, was added to the requirements for of Women and the Law, as well as by the Muslim Law- criminal responsibility for a terrorist offence. Third, sev- yers Association. eral safeguards were put in place with regard to the issu- A fifth rights-based concern involved the advocacy of ance of Attorney General certificates, including the a so-called "sunset clause" for some - if not all - of the subjection of such certificates to judicial review. Fourth, Bill, a clause that would guarantee the law's expiry after a a non-discrimination clause was inserted to clarify that specified time period. This was arguably the area of de- "political, religious, or ideological" activity would not in bate that received the most attention in the media and in itself be considered terrorism and that minorities would the public arena. Proponents of a sunset clause argued not be targeted for discriminatory treatment. that the three year parliamentary review provided for in Reports of the Senate Committee the Bill was inadequate because, as a 19 November Globe and Mail editorial, put it "governments are not known But if the government was attentive to some of the for repealing laws they don't need or shouldn't have." House committee's concerns, the recommendations of Among other supporters of a sunset clause in the popular the Senate Special Committee on Bill C-36 fell on deaf press were the editorial boards of the Montreal Gazette, ears. On 1 November 2001, the Senate committee issued the , the Halifax Daily News, and the Calgary its first report. The report, which was adopted unani- Herald,as well as National Post columnist Andrew Coyne, mously by the Senate Chamber of 22 November, ex- Journal columnist Lorne Gunter, Globe colum- pressed serious reservations about the passage of the nist Hugh Winsor, La Presse columnist Yves Boisvert and anti-terror bill in its existing state and made a series of Vancouver Sun columnist Barbara Yaffe. The sunset pro- far-reaching recommendations about how the legisla- vision was also supported by many of the witnesses who tion's problems might be tempered. Included in the rec- testified before parliamentary committees, including the ommendations were the provision for a five-year sunset Canadian Bar Association, who reasoned that "when clause on the entire bill, the appointment of an Officer of governments seek to impose such restraints on funda- Parliament to "monitor the exercise of powers" provided mental rights and freedoms, particularly with limited in the bill and to report annually to both Houses, the time available for study and debate, those restraints must strengthening of safeguards on preventive arrest and be limited in duration." ministerial non-disclosure certificates, and the narrow-

24 CANADIAN PARLIAMENTARY REVIEW /SUMMER 2003

ing of the definition of terrorist activity. Although the re- sentatives from the UN or any other international body port may have had marginal effects on the eventual as to whether the Canadian legislation conformed with decisions of the House committee, its recommendations the international counter-terrorism law and policy re- were ignored by the government. The committee's sec- gime. ond report was far more acquiescent. While the first re- The lack of international input into the committee pro- port warned that "the bill must reflect a careful cess restricted the committee's ability to ground its dis- equilibrium between rights, privileges, and duties ... and cussion of the Bill in the appropriate historical and the needs of ...a state to protect its citizenry," the second political contexts, engendering a deference to spurious report tabled on December 10, 2001 noted witnesses' sug- historical-political parallels. Because Canada has never gestions that "security itself is a pre-condition to liberty." experienced a terrorist attack against its territory, and While the first report contained unanimous recommen- thus had never — prior to the passage of Bill C-36 — imple- dations, the second was divided between Liberal major- mented a dedicated counter-terrorism law and policy, ity observations, which held that "the very nature of [the] the degree to which the bill could be placed in Canadian terrorist threat requires that we provide our law enfonce- historical and political context was lirnited. The result ment and security agencies with certain new tools," and was the frequent allusion, particularly by the Bill's crit- 2003 CanLIIDocs 258 Progressive Conservative Senators' Observations, which ics, to the War Measures Act as an analogous piece of legis- expressed continued support for the recommendations lation, particularly as it was invoked in response to the of the first report and submitted that "significant amend- FLQ kidnappings of 1970. This parallel was certainly un- ments must be brought to [the] Bill before we can be satis- derstandable, given that the October Crisis and the ensu- fied that the civil liberties of Canadians will be ing implementation of the WMA is arguably the closest adequately protected." Canada has corne to an experience with counter-terror- The First Lesson of Bill C-36 ism law and policy. And yet, as Department of Justice of- ficiais and others pointed out at the time, there are too Bill C-36 typified international law and policy. Yet many points of disanalogy — both in terms of the histori- while this fact may have been taken into consideration cal context and in terms of the legislation itself — to justify during the drafting of the legislation by departmental of- to comparison between the WMA and Bill C-36. Perhaps ficiais, who collaborated extensively with their counter- most significantly, Bill C-36 came to the legislative table parts in other countries, it was not reflected in the against the backdrop of the Charter of Rights and Freedoms, parliamentary aspect of the legislative process. In fact, of whereas the WMA was drafted and implemented in the the dozens of witnesses who testified before the House pre-Charter era. In addition, the WMA was intended to and Senate committees, only a handful represented orga- be invoked temporarily in instances of "war, invasion, or nizations with international mandates — including Rights insurrection," whereas Bill C-36 was designed to be per- and Democracy and Amnesty International Canada — manent legislation. and only one — St. Andrews University counter-terrorism The committee's failure to consider appropriate inter- specialist Paul Wilkinson — came from outside Canada. national historical and political counter-terrorism ana- There was no consultation with government officiais logues, twinned with the dearth of such analogues in from nations — such as Spain, India, Indonesia, the Canadian historical and political context, ultirnately en- United Kingdom or Israel — who had had previous expe- gendered an entrapment of the debate over C-36 within rience in responding to the threat of terrorism. There was the ideological polarity of individual rights versus na- no consultation with "allies" in the anti-terror "war" tional security. who had put or were in the process of putting in place The characterization of the debate in terms of a similar domestic anti-terrorism legislation, despite the rights-security dialectic was not wholly inappropriate. frequent — and almost necessarily speculative — discus- However, it did have several important limitations. First, sion of other nations' counter-terrorism regimes by wit- it was a zero-sum analysis, implying that more security nesses and committee members. There was no necessarily meant fewer individual liberties, and vice consultation with American officiais or specialists versa, whereas the legislation's raison d'être was the pro- vis-à-vis the mass detention of individuals — particularly tection of innocent civilians against terrorist attacks, an ethnic minorities — in the United States following the 11 objective that arguably favoured the safeguarding of September attacks, despite the fact that this was raised by fundamental human rights as opposed to the curtailing numerous witnesses and committee members as a poten- of these rights. As international law professor Errol tial lesson on what emergency powers to grant Canadian Mendes put it in his tes timony before the House commit- law enfoncement. There was no consultation with repre- tee, "fair balancing...is not just security versus human

SUMMER 2003 I CANADIAN PARLIAlvIENTARY REVIEW 25 rights, but one set of human rights against another set."' an anti-terrorism legislation. Similarly, the British Co- Second, it effectively excluded other conceptual parame- lumbia Civil Liberties Association stated in its testimony ters from the discussion. To give an example, in some in- that "the restrictions on basic rights and freedoms must stances the debate could have altematively been framed be no greater than are reasonably necessary to address as a dialectic between increased "security" (through, say, the problems at hand."" However, instead of establish- the use of racial profiling in order to keep suspected ter- ing its critique of the Bill on an awareness of the nature of rorists from getting into Canada) and equality (the equal the "problems at hand," the Association declared that treatment of all people under the law, including non-resi- "the onus is clearly on the government, and in particular dents and non-citizens). Third, it tended to essentialize right now on this committee, to demonstrate where exist- the participants in the debate as being pro-civil liberties if ing institutions of law enforcement are inadequate to they opposed the legislation and having little regard for protect our rights and freedoms." In other words, it civil liberties if they supported it. should have been incumbent upon the government and More disconcerting about the rights-security dichot- the committee to justify the need for the Bill. One could omy, however, was that it tended to be constructed on argue that it is also incumbent upon the civil libertarian purely ideological foundations, with limited grounding community to "build in" to their critiques and under- 2003 CanLIIDocs 258 in history and little knowledge of circumstances beyond standing of the phenomenon of global terrorism. On the Canada's borders. These shaky foundations were re- other hand, there is a more salient lesson here. While it is flected in much of the commentary — both supporting perhaps true that civil libertarians were limited in their and dissenting — surrounding the Bill. ability to establish that the new measures were unneces- Those supporting increases to security tended to be sary, the more disturbing fact is that the government, dismissive of its potential costs, instead underlining — al- through the parliamentary committees and in the beit conjecturally — the costs of not increasing security. broader debate, was also limited in its ability to demon- According to National Post columnist Andrew Coyne, strate that the new law was necessary. A principal rea- "By refusing to part with our freedoms, we are therefore son for this, I believe, was the near-total omission from condemning a certain number of innocent people to the parliamentary legislative process of an international death."9 Yet Coyne provides no substantiation to justify perspective, a perspective that could have shed light on this ill-conceived calculus, aside from glibly remarking, both the nature of the international terrorist threat and "Were we to live in a police state, or even a mildly auto- the justness of various domestic and international coun- cratie one such as Singapore, there would very probably ter-terrorism laws and policies. be fewer murders in Canada." Similarly, a series of Post When questioned about the usefulness of inviting in- editorials in November declared confidently that "our ternational witnesses to committee hearings, parliamen- social contract must be an-tended" in response to the ter- tarians gave mixed responses. Progressive Conservative rorist threat, but also eschewed any sort of historical or MP Peter MacKay indicated that it would have been par- international comparative justification, aside from the ticularly helpful to hear from officials from the UK or the asserting that the detention of 1,200 people, post 11 Sep- Middle East. He said that at the time, he did some read- tember, in the United States was "not as terrifying" for ing about the laws that other countries had passed, but the detained "as being killed by terrorists" (as if it were a didn't feel he would have been able to conduct a thor- 12 one-or-the-other choice for the individuals being de- ough comparative analysis. MP Vic tained). "This country is at war," one of the editorials Toews also stated that the inclusion of an international went on, "and in war individuals should expect to make perspective would have been useful, underlining the sacrifices." These types of crude ideological stances do special utility of Paul Wilkinson's contribution, but con- not lend themselves to thoughtful debate. ceded that he hadn't considered the idea at the time of the On the other Bide, although there was a significantly hearings.' NDP MP Bill Blaikie, too, expressed luke- greater tendency to place restrictions on liberty in histori- warm support for the suggestion, but pointed out that the usefulness of potential witnesses is difficult to ascer- cal context, the typical analysis was to emphasize the 14 need to adhere to civil libertarian principles, while tain before hearing their testimony. Blaikie also indi- largely avoiding a discussion of the contemporary inter- cated that the time constraints imposed upon the national political context in which the Bill was drafted. In committee process may have impeded the committee's its testimony before the House committee, the Criminal ability to consult non-domestic intervenors. House of Lawyers' Association declared that "freedom is our most Commons Justice committee chair pointed precious treasure"' but did not address the question of out that, while the committee did not hear from interna- what restrictions to freedom might result in not crafting tional witnesses directly, it did receive a "grid" from the

26 CANADIAN PARLIAMENTARY REVIEW /SUMMER 2003 Department of Justice that compared Bill C-36 with the Finance 17Committee wannabes; they believe in the subject counterterrorism legislation of other nations.' matter." Also, several of the committee members had But even given the time constraints imposed on the considerable expertise in the criminal law areas touched C-36 legislative process, there exists at least one novel on by the Bill: is former Attorney General of technique by which the committees could have solicited Manitoba, Andy Scott is former Solicitor General of Can- international input without having to travel or to bring in ada, Peter MacKay is a former Nova Scotia Crown Prose- witnesses from abroad. The committees could have in- cutor and Stephen Owen is former Deputy Attorney vited foreign diplomatic representatives to relate the ex- General of British Columbia. Perhaps most significantly, perience of their home countries in combating terrorism. Irwin Cotler, an eminent international human rights law- In its recent pan-Canadian consultations leading up to yer and McGill law professor, was able to augment the the G-8 Summit in Kananaskis, the Standing Committee committee's ability to operate on a sophisticated on Foreign Affairs and International Trade heard testi- policymaking level. According to Globe and Mail colum- mony from representatives of seven African embassies nist Hugh Winsor, Cotler set "a new benchmark...for and high commissions on the New Partnership for Afri- how far a Liberal backbencher can go to confront his gov- ernment on its highest priority legislation and get away can Development, a centrepiece of the 2002 G-8 agenda. 18 2003 CanLIIDocs 258 with it." Cotler supported the bill in principle and was The Second Lesson: The Danger of Low Expectations able to achieve several of the amendments he advocated through continua! negotiation with the Department of While most students of the Canadian Parliament agree Justice and the executive. that "Parliament now plays a marginal role in lawmak- The second condition emanated from the circum- ing," there is some disagreement as to what that role stances under which the legislation was drafted. In a should be. This disagreement finds particular expres- way, the committee had been given a kind of legislative sion in the scholarly debate over whether House of Com- double green light, in that both the Prime Minister and mons and Senate committees should serve more as the Department of Justice had declared themselves ame- policymaking bodies or as forums for public discussion. nable to changes in the Bill. According to Andy Scott, Professor Jonathan Malloy observes that while the gov- these circumstances precipitated important differences ernment and most interest groups view the committee in how the committee would go about its deliberations. process in ternis of its value as a public forum, committee "Normally, one problem with legislation," said Scott, "is members themselves tend to concentrate on the act of that someone wrote it. So there is a defensive instinct. making policy.' He goes on to argue that the expecta- Amendments can be seen as an affront to the drafters. tions on the part of committee members that they should But C-36 was drafted so quickly that the government undertake a major policymaking role are ultimately det- took the position: 'We may not have it quite right; take a rimental and that they must be brought into line with the And the Justice Committee was tasked with look at it.' 19 structural constraints of the Westminster style system — cleaning up the bill." namely, strong partisanship and concentration of power in the executive. If the C-36 experience shows that parliamentary com- mittees can, under certain conditions, play a significant The C-36 experience provides some insight — although policy-making role, it also underlines their extremely im- it is of limited generalizability — into the proper role of portant function as forums for public discussion. For as committees. Notably, it shows that parliamentary com- was indicated at the outset of this study, the challenge of mittees can play an important role in the formulation of developing a counter-terrorism law and policy response policy. This is evidenced by the number of substantive to the 11 September terrorist attacks engendered a high amendments put forward by the House of Commons level debate in the public square and it was the work of committee and ultimately accepted by the government, Commons and Senate committees that served as the in spite of both the time constraints imposed on the com- linchpin of this debate. The legislation received exten- mittee and the highly complex nature of the legislation it- sive coverage in the popular press and the majority of self. That said, two special conditions dictated the this coverage made reference to committee proceedings. committee's ability to play a policymaking role. The first The University of Toronto even organized a two-day was the committee's unique composition. The fact that conference on the Bill, deliberately scheduled in to coin- justice committee members tend to have a special per- cide with the House committee's deliberations. On the sonal concern for the issues they deal with caused the occasion of the conference constitutional lawyer Kent government to have a higher degree of respect for the Roach praised the level of societal debate the Bill had committee's work. "Government members are attracted generated, declaring, "the best thing that has happened to this type of committee," said Andy Scott, "this isn't the

SUMMER 2003 / CANADIAN PARLIAMENTARY REVIEW 27

since 9/11 is not C-36; it is the increasingly robust demo- satisfied: "The Bill was changed, but not as much as we cratic process that has surrounded the introduction of the wanted." bill. It is the process...that best honours our traditions".2° What are we to make of these mixed reviews of the ef- While the experience of Bill C-36 demonstrates how fectiveness of Parliament? Two general conclusions can committee proceedings can give rise to vigorous debate be drawn: one regarding House committees, and one in in the public square, some of this debate reflected back on relation to the Senate. As regards the House committee Parliament and pondered the effectiveness and demo- process, the C-36 experience casts doubt on Malloy's the- cratic legitimacy of parliamentary institutions. Interest- sis that the "unrealistically" high expectations of com- ingly, the conclusions drawn, at least in the popular mittee members are "ultimately detrimental." Bill C-36 press, were highly ambivalent. National Post columnist shows that committees can play substantial policy-mak- Andrew Coyne declared on 21 November 2001, after the ing roles — even on the government's highest priority leg- Justice Committee passed its amendments, "Glory be: islation — given the presence of expert committee the system works."21 The Vancouver Sun entitled its 22 members and the openness of government to amend- November 2001 editorial, "Ottawa did the right thing," ment. One might be tempted to draw the conclusion that submitting that the government's amendments were "a C-36 was the exception and not the rule, and that parlia- case in point" that "every once in a while, Parliament mentarians keen on making policy should not expect an 2003 CanLIIDocs 258 works as it should."' Meanwhile, on 28 November, after iteration of C-36-like conditions in normal committee the government-invoked closure on debate in the House, work. But this conclusion, however pragmatic, is dan- Coyne published another column, entitled "The death of gerously acquiescent and is inimical to the advocacy of Parliament," in which he proclaimed that "the Commons hopeful reforms to the committee process. Rather than has become a formality, an anachronism." In a 29 No- reinforce Malloy's call to lower expectations, the C-36 ex- vember 2001 column, the Ottawa Citizen's Susan perience should raise the ante, not only for the high level Delacourt wrote that while the committee hearings were of public discussion committees have the potential to fa- "rushed but relevant" and the amendment process was cilitate but also for the ability of committees to do sub- "not perfect" but "substantial," the decision to invoke stantive policy work. Rather than discarding the lessons closure revealed, regrettably, that it was "business as offered by C-36 because the Bill's exceptionalisms, com- usual in Parliament once again." As for the Senate, Globe mittees should seek to reiterate the two special condi- and Mail columnist Edward Greenspon suggested that it tions that enabled the Justice Committee to play a had "made a useful contribution," and rather than criti- policy-formulating role: that is, to recruit parliamentari- cizing the government's dismissal of the Senate commit- ans with diverse areas of expertise in law and policy, and tee's recommendations he submitted that it was proof to encourage openness to amendment on the part of the justice minister Anne McLellan had "earned her political government. As a final aside, we should be careful not to stripes."23 Meanwhile, An Ottawa Citizen opinion piece hold up Bill C-36 as an exemplary committee process. by Trent University professor Andrew Potter stated that For while the House committee may have done good "the Senate is a dusty old rockpile, but it produced a gem work under the circumstances, the lack of international during its remarkable pre-study."24 perspective in the committee's deliberations and the con- Parliamentarians also offered mixed reviews of the stricted timeframe for study of the Bill were not favour- committee process. Justice committee chair Andy Scott able to good lawmaking. called it "by far my best experience on a parliamentary As regards the Senate, the largely placid reactions of committee as a committee member." Conservative Sena- commentators to the government's inattentiveness to the tor Lowell Murray said that although the C-36 experi- Senate's pre-study report begs the question: why was ence "proved the value of pre-study," it was yet another there such outrage at the government's decision to in- example of the government's inattentiveness to the Sen- voke closure in the Commons and so little at its eschew- ate. "We produced a good report," he said, "it's too bad ing of the Senate's recommendations? The answer may the government didn't listen." Conservative MP Peter be partly related to the Senate's lack of democratic legiti- MacKay was only partially satisfied with the process: macy. That is, because Senators are the political appoint- "The committee was successful in producing legislation ees of prime ministers, their input — however germane, that the government wanted, but whether it was success- however insightful — is widely considered to be irrele- ful in striking the right balance between liberty and secu- vant. The overarching public sentiment on the Senate's rity remains to be seen." However, said MacKay, "the role in contemplating Bill C-36 seemed to be one of pessi- committee did have very broad representation of stake- mism: that perhaps the Senate committee had produced holders." NDP MP Bill Blaikie was also only partially a good report, but no one ever expected that the govern-

28 CANADIAN PARLIAMENTARY REVIEW /SUMMER 2003

ment would act on it. This pessimism is regrettable: the "impossible to do a proper review of [the] bill in the short Senate committee heard many of the same witnesses and time that you have."' was arguably composed of as many experts as the House Three important questions arise from this. First, was committee, yet produced a significantly different set of the government's decision to so severely constrict delib- recommendations. Clearly this diversity of opinion has eration really necessary? Second, what are the dangers of value, and we should not be so quick to dismiss the Sen- rushing legislation in this marner? Third, what can be ate's findings as irrelevant simply because its members done to mitigate these dangers? are not democratically elected. On the first question it is clear that while the govem- Third Lesson: The Perils of Emergency Legislation ment was perhaps justified in accelerating the legislative process generally, the restrictions it imposed on debate — Bill C-36 was legislated under severe time constraints. particularly the motion for time allocation — were unnec- The Bill was drafted in mere weeks by the Department of essary. Part of the govemment's rationale for closing Justice and was given Royal Assent only two months af- down debate was that it was bound by a deadline by ter being tabled in the House. It received nine hours of which to comply with UN resolution 1373, drafted on 28 debate over three consecutive days during Second Read- September 2001, which called on states to submit 2003 CanLIIDocs 258 ing, 11 hours of debate over three consecutive days dur- anti-terror legislation by 27 December 2001. Yet the Bill ing Report Stage, and two hours of debate during Third received Royal Assent on 18 December, ten days before Reading. After five hours of Report Stage debate, the the deadline, meaning the government could have con- govemment put forward a motion of time allocation, ceivably allowed for several more days of debate. What curtailing the Report Stage debate to one further sitting is more, the UN deadline was flexible to the calendars of day and the Third Reading debate to one sitting day as domestic legislatures: Resolution 1373 states, "the Com- well. The motion, according to Justice Minister Anne mittee acknowledges the complexity of the legislation McLellan, was put forward after it "became clear to the and areas of activity covered by resolution 1373, and government House leader that opposition members notes that national parliamentary procedures will need would not co-operate in the expeditious passage" of the to be complied with." Bill. The decision to shut down debate was widely criti- But even if the govemment used the UN deadline as a cized in the popular press. A National Post editorial de- fig leaf for its desire to pass anti-terror legislation as clared that the government's invocation of time quickly as possible, it appears on the surface that the leg- allocation "undermine[d]...its seriousness of purpose." islative process surrounding Bill C-36 was less hastened Meanwhile Globe and Mail columnist Hugh Winsor sub- than the lawmaking that brought its American counter- mitted that McLellan's and House Leader 's part into being. The American Civil Liberties Union de- justifications for moving closure were "either misleading scribed the US process as "an offence to the thoughtful or procedurally specious." Ottawa Citizen columrtist Su- legislative procedures necessary to protect the Constitu- san Delacourt called the government's decision tion and the Bill of Rights at a time when the rights of so many Americans are being jeopardized."26 According to The committee process was also significantly acceler- the ACLU, the US Senate was presented with the legisla- ated. The House and Senate committees may have heard tion "in a take-it-or-leave-it fashion with little opportu- from a significant number of witnesses, but their hear- nity for input or review." Further, it indicated that no ings were squeezed into a very short time period. Com- conference committee had been struck to reconcile the mittee members interviewed in conjunction with this differences in opinion on the Bill between the Senate and study indicated that a Bill of C-36's complexity would the House of Representatives. Although it is beyond the normally have been allotted more time for consideration scope of this inquiry, a comparison between the legisla- by committee. Said Andy Scott: "If we had done this in tive processes surrounding the Canadian and American less extreme circumstances, we would have taken quite a counterterrorism bills could be a useful area of future re- bit longer." As well, several of the witnesses who testi- search. fied before the parliamentary committees indicated that In response to the second question, the simple answer they would have liked to have had more time to execute a is that it depends on the nature of the legislation. Clearly, thorough study of the Bill and all its ramifications. War- rushing legislation is less dangerous if the bill in question ren Allmand, President of the Montreal human rights or- is minor and technical than if it is far-reaching and ganization Rights and Democracy and former Solicitor transformative. From this point of view, the quick study General of Canada, stated in his testimony that it was of Bill C-36 — not only because of its complexity but also because of its philosophical profundity — posed particu-

SUMMER 2003 / CANADIAN PARLIAMENTARY REVIEW 29 lar dangers. In other words, the task of scrutinizing Bill First, Gross says, governments have a tendency to C-36 demanded not only the understanding of the novel over-react in making legislation under emergency cir- legal mechanisms contained in the legislation, but also a cumstances, under threat, in a climate of fear, panic, ha- coming to terms with the difficult philosophical ques- tred, and other intense emotions. Iri doing so, they risk tions inherent in the Bill — questions about how much we engendering a transplanting the terrorism from "below" value liberty, how much we value security, and what into an institutionalized terror from "above," and by le- each of these concepts means and how they are related. gitimating the use of power and force as means of resolv- These are not questions Canadians ask themselves on a ing disputes, they risk losing the moral authority that regular basis, so a thoughtful assessment of them de- they possess over terrorist organizations. Second, emer- mands time for reflection and time to distance ourselves gency legislation tends to be extended beyond the from the calamitous events that precipitated the legisla- timeframe for which it is originally intended to apply. tion. Certainly some bills such as C-36, by virtue of their The State of Israel, for instance, has been under a continu- content, require more time or deliberation than others. ous declared emergency regime since 1948. The Civil Au- But the problem is that the content of the bill is not the thorities (Special Powers) Act (Northern Ireland), which was only factor in determining how long a bill will be de- originally intended to expire after one year, was subse- bated; political priorities also have a rote, and sometimes quently extended to last for five years, and was finally 2003 CanLIIDocs 258 these priorities serve to invert the notion that profound transformed into permanent legislation. Third, the lon- legislation should be studied for longer. When this au- ger that emergency legislation lasts, the more likely it is thor asked NDP MP Bill Blaikie whether the process of to infiltrate and have lasting effects on the "normal" legal lawmaking had changed over the past 20 years, he re- system. Gross illustrates this phenomenon through an plied, "Not really. When it's really important we spend examination of the recent history of the curtailment of less time on it; when it's not important we spend more the right to silence in Northem Ireland and the United time on it. The government uses the fact that legislation Kingdom. Fourth, emergency legislation normalizes the is important to shorten the process." This raises interest- powers contained in the legislation and tends to increase ing questions — although they are tangential to the subject the threshold of what is considered sufficient as a re- matter here — about whether there is, in fact, any relation sponse to future emergencies. Fifth, the structures and between the nature of the content of legislation and institutions put in place to implement emergency legisla- amount of time spent debating it. Again, these questions tion may remain and continue to exert an effect even after are beyond the scope of this paper, but their answers the legislation itself expires. Sixth, emergency legislation could provide meaningful insight into the true influence is often justified by means of a discourse of spurious of committees in the Canadian Westminster system, a "bright-line" distinctions (us-them, permanent-tempo- system in which, despite several rounds of reforms to the rary) that crumble under critical examination. Gross committee system, the executive continues to have a co- goes on to point out other dangers of emergency legisla- ercive impact on committee work. tion, but the fundamental point is this: we should not un- The dangers of rush legislation, then, are most pro- der-estimate (although we often do) the fallout from nounced when the legislation is far-reaching and emergency legislation, for the differences between transformative — as Bill C-36 was. And, positing Bill "emergency" and "normal" legislation are not as clear as Blaikie's rule of thumb, we could also hypothesize that we might think. rush legislation becomes more likely in the face of major This brings us to the third question, that is: what can be political pressures, which certainly loomed large, both done to mitigate these dangers? Gross calls for "rational, domestically and internationally, in the case of Bill C-36. cairn, and reasoned discourse." Certainly this is a laud- If we establish that "emergencies," broadly defined, can able goal, and one worth highlighting again and again in result in the among the most exigent of political pres- exigent political climates. But what happens when very sures and if we consider that the powers conferred by character of the political climate precludes "rational, emergency laws tend to be far-reaching and cairn, and reasoned" debate? What happens when exec- transformative in nature, what we are talking about in utive-driven political pressure severely circumscribes a the case of Bill C-36 is not the dangers of "rush" legisla- committee's legislative timetable (a particular risk in tion per se, but more precisely the pitfalls of "emer- Westminster-style systems such as our own)? The an- gency" legislation. According to Oren Gross, an Israeli swer lies first in the recognition by government that a jurist who has written extensively on emergency law- legislative process was indeed more hastened than making, these dangers are manifold.' would be desired under normal circumstances. This rec- ognition — the same recognition that was offered by the

30 CANADIAN PARLIAMENTARY REVIEW /SUMMER 2003 Department of Justice to the parliamentary committees two primary arguments against the inclusion of a sunset studying Bill C-36 - is also in effect an acknowledgement provision - that the threat of terrorism was permanent of the inherent dangers of emergency lawmaking, and is and not temporary, and that the sudden expiry of the leg- thus the appropriate philosophical premise - if not justi- islation would interfere with on-going police investiga- fication - for maximizing the strength of mechanisms for tions - were highly problematic. First, even if we agree oversight and review within the legislation. Bill C-36, that global terrorism constitutes a permanent, immuta- particularly in its post-amendment form, contained sev- ble threat - which, considering that the lack of adequate eral such devices, including: animal parliamentary over- intelligence makes it quite difficult to assess the extend of sight by House of Commons and Senate committees; the current threat, is a problematic assertion to say the annual reports to Parliament by the federal and provin- least - the fact that a problem will persist does not invali- cial attorneys general and solicitors general; a three-year date the re-thinking of our response to that problem. Just parliamentary review; oversight by Privacy and Infor- because the difficulties facing First Nations peoples in mation commissioners; the subjection to judicial review Canada are not going to disappear is not a valid argu- of ministerial certificates preventing the disclosure of ment against repealing the Indian Act if we feel it is harm- certain information for purposes of international rela- ful legislation. Second, the worry that the sunsetting of 2003 CanLIIDocs 258 tions, national defence, or national security; the subjec- the legislation would interfere with police investigations tion of orders to preventive detention to juridical review is perhaps a legitimate concern, but it is largely a techni- within 24 hours and the requirement that such orders be cal matter that could be solved through cooperation be- consented to by the Attorney General; and, of course, the tween government and law enforcement officials. The possibility of challenging the Bill's constitutionality un- introduction of the new police powers and procedures der the Charter of Rights and Freedoms. ushered in with the passage of Bill C-36 surely also posed But are such oversight mechanisms - however plenti- technical challenges for the law enforcement commu- ful, however robust - sufficient antidotes for the wide- nity, but these challenges were never held up as reasons spread dangers of emergency lawmaking? The answer to oppose the legislation. Third, although it was argued here, I believe, is a firm "no." First, as Gross points out, that the Bill could not be sunsetted because some parts of even when limitations on the application of new powers it involved the domestic implementation of conventions are built in to emergency legislation, these tend to wither to which Canada is bound by international law, these away over time. Second, although the legislation can be sections of the Bill could have been exempted from a sun- challenged before the courts on the grounds that it vio- set provision. lates the Charter, Charter jurisprudence is not necessarily A sunset clause would give legislative expression to immune from the wider impact of the legislation. That is, the civil libertarian principle that freedoms are much the "creeping" effect that emergency legislation can have more difficult to gain than to lose, while acknowledging on judicial precedents could make courts less likely to the concern, frequently expressed during committee rule the legislation unconstitutional. Third, no amount hearings, that the burden of proof in establishing that the of after-the-fact safeguarding can compensate for the legislation is necessary should lie with the government. limitations inherent in a legislative process that was con- A sunset provision would allow the Department of Jus- strained and pressure-laden in the first place. Fourth, al- tice to re-draft the bill in an atmosphere of cairn, and though the Bill does provide for review of the legislation would grant parliamentary committees the time to carry by Parliament after a period of three years, there is no out an adequate study of the new bill, including the in- guarantee that this safeguard will provide the in-depth corporation into committee hearings of the international scrutiny and the prolonged debate that are needed. dimension of counter-terrorism law and policy that, as What is required, rather, is a forced re-drafting and re- was argued earlier in this study, was absent during the consideration of the Bill, with the benefit of hindsight, initial legislative process. An extended time period for under different political and historical circumstances. study of the Bill would also allow for committee travel, As the Senate Special Committee on Bill C-36 stated in its either internationally, so as to deepen understanding of first report, "Now is a time of heightened anxiety, fear, the political and historical context in which global terror- and confusion and ...it is important that departures from ism exists, or within Canada, to hear citizens - particu- our legal norms be reconsidered at a time that will allow larly visible minorities - describe the impact of the new for sober reflection and a full evaluation of the effect of counter-terrorism powers on their lives. It would also these new measures."28 help dissolve the polarization of the debate between civil This "sober reflection" could have only been guaran- libertarians, on the one hand, and those attentive to col- teed with the provision for a genuine sunset clause. The lective security on the other. With the new law repealed,

SUMMER 2003 / CANADIAN PARLIAMENTARY REVIEW 31 those concerned with the effect of counter-terrorism on 6. Alan Borovoy, "Does the antiterror bill go too far?" Globe and civil liberties would not be essentialized as antagonists in Mail, 20 November 2001. the struggle to uproot terrorism, but rather considered as 7. House of Commons Standing Committee on Justice and partners in the deliberative process of crafting court- Human Rights, Evidence, 31 October 2001. ter-terrorism policy that is effective in achieving its 8. Ibid., 6 November 2001. avowed goal, but that is also protective of essential free- 9. Andrew Coyne, "The Calculus of Liberty", National Post, 19 doms and fair to minorities. At the same time, propo- November 2001. nents of counter-terrorism legislation would not be 10. House of Commons Standing Committee on Justice and falsely identified as being indifferent to civil liberties. Human Rights, Evidence, 31 October 2001. A renewed debate would also allow for a discussion of 11. Ibid., 30 October 2001. the broader economic and political circumstances - the 12. Interview with the author, 18 June 2002. so-called "root causes" - undergirding the rise of global 13. Interview with the author, 19 June 2002. terrorism, a theme that was alrnost entirely absent, 14. Interview with the author, 20 June 2002. within the parliamentary process as well as within the 15. Interview with the author, 10 June 2002. mainstream media, in the debate surrounding Bill C-36.

16. Jonathan Malloy. "Reconciling expectations and reality in 2003 CanLIIDocs 258 Such a discussion could pave the way for a more compre- House of Commons committees: The case of the 1989 GST hensive, human security-based counter-terrorism law inquiry", Canadian Public Administration, Vil. 39 number 3, and policy - one that considers the eradication of global pp. 314-335). poverty, the protection of human rights, the upholding of 17. Interview with the author, 10 June 2002. democratic norms (by Western as well as non-Western 18. Hugh Winsor, The Power Game, The Globe and Mail, 15 states), the curbing of global diseases, and the adherence November 2001. to international law to be objectives commensurate with 19. Interview with the author, 10 June 2002. the elimination of global terrorism. 20. Kent Roach, "The Dangers of a Charter-Proof and Most importantly, for a procedural point of view, a Crime-Based Response to Terrorism", in The Security of sunset clause would recognize the inherent incongruity Freedom: Essays on Canada's Anti-Terrorist Bill op. cit. p. 131. of permanent "emergency" legislation. For one cannot, 21. Andrew Coyne, "A much less d angerous bill", National Post, on the one hand, justify the rushed passage of a piece of 21 November 2001. legislation on the basis that it is an emergency response to 22. "Ottawa did the right thing", Vancouver Sun, 22 November extraordinary circumstances, and, on the other hand, jus- 2001. tify the permanence of the same legislation on the 23. Edward Greenspon, "Stripes for McLellan, a Bronx cheer for grounds it is to be sustained response to a threat that is senators", 6 December 2001. now a part of our "ordinary" global reality. 24. Andrew Potter, "The power of one: An elected Senate could Notes be the answer to the prime minister's style of dictatorial democracy", Ottawa Citizen, 27 November 2001. 25. 1. Ronald J. Daniels et al, eds, The Security of Freedom: Essays on House of Commons Standing Committee on Justice and Human Rights, Evidence, Canada's Anti-terrorism Bill, University of Toronto Press, 8 November 2001. Toronto, 2001, p. 437. 26. American Civil Liberties Union, letter to U.S. Senators (23 2. House of Commons Standing Committee on Justice and October 2001), www.aclu.org. Human Rights, Evidence, 31 October 2001. 27. For an thorough discussion of the risks of emergency 3. Irwin Cotler, "Thinking Outside the Box: Foundational legislation, see Oren Gross, 2001, "Cutting Down Trees: Principles of a Counter-Terrorism Law and Policy" in Law-Making Under the Shadow of Great Calamities", The Security of Freedom: Essays on Canada's Anti-Terrorism Bill, op. Ronald J. Daniels et al eds., op. cit., p. 114. cit. Pp. 39-61. 4. House of Commons Standing Committee on Justice and 28. Senate Special Committee on Bill C-36, 1 Human Rights, Evidence, 24 October 2001. First Report, November 2001. 5. Ibid., 31 October 2001.

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