Debating the Anti-Terrorism Legislation: Cessons Learned
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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 University of Toronto 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 Irwin Cotler (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.