RESPONDING TO GLOBAL PROBLEMS LOCALLY: UNDERSTANDING AND EVALUATING THE PROCESS BEHIND CANADA'S DOMESTIC RESPONSE TO TERRORISM DANIEL ALATI A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS GRADUATE PROGRAM IN LAW YORK UNIVERSITY TORONTO, ONTARIO AUGUST 2010 Library and Archives Bibliotheque et 1*1 Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington OttawaONK1A0N4 OttawaONK1A0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-80606-7 Our file Notre reference ISBN: 978-0-494-80606-7 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distribute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission. In compliance with the Canadian Conformement a la loi canadienne sur la Privacy Act some supporting forms protection de la vie privee, quelques may have been removed from this formulaires secondaires ont ete enleves de thesis. cette these. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. 1+1 Canada Thesis Table of Contents Introduction 1 Methodology 5 Literature Review 9 Global Responses to Transnational Organised Crime Introduction 9 The U.S. and Their Role in Influencing Global Policy Pertaining to T.O.C 10 The Role of Developed Nations in Influencing Global Policy Pertaining to T.O.C 14 The Post-Cold War Years: Shifting Security Priorities Lead to a Conceptualization of T.O.C. as a Global Security Threat 18 Reasons for and Consequences of the Rapid Proliferation of Anti-T.O.C. Measures and Rhetoric 22 Global Responses to Transnational Terrorism Introduction 26 The United Nations, its Security Council and General Assembly, and their Role in Precipitating a Global Response to Terrorism 27 The Conceptualization of Terrorism as a Global Security Threat 32 September 11, 2001 and the Impetus it Provided for the Rapid Proliferation of Measures to Combat Transnational Terrorism 35 Conclusion 38 Chapter One: Historical Background 40 Introduction 40 After 9/11: The Immediate Aftermath of the Attacks and the Passage of the Anti-Terrorism Act 42 Challenge to the Constitutionality of the Investigative Hearing Provision 48 Investigative Hearing and Bail with Recognizance Provisions Undergo Additional Scrutiny 52 Other Problematic Aspects of Canada's Anti-Terrorism Response are Scrutinized 55 Landmark Decision on Security Certificates: the Charkaoui Case 59 Investigative Hearing and Bail with Recognizance Provisions Expire 61 House and Senate Committees Release Further Recommendations and the Government Issues a Response 63 The Government Issues its Legislative Response - The Introduction of Bills C-3 and S-3 71 V The Government Tries Again to Re-Instate the Investigative Hearing and Bail with Recognizance Provisions and is met with Fierce Opposition 78 The Tabling of Bill C-17: The Investigative Hearing and Bail with Recognizance Provisions are Re-Introduced Again 82 Chapter Two: Findings 84 Introduction 84 International Pressures are explicitly stated 85 Domestic Context Influences: Impact of the Domestic Political System 88 Domestic Context Influences: The Impact of Court Decisions 91 Domestic Context Influences: The Impact of Domestic Events 95 Government Complacency Evidence of Post-9/11 Cool Down Period? 97 Comparison Between Canada's Response to Terrorism and the Global Responses to Transnational Organised Crime and Transnational Terrorism 103 Chapter Three: Implications and Directions for Future Research 109 Implications of the Findings Pertaining to Canada's Response to Terrorism 109 Implications of the International Pressures Finding 110 Implications of the Domestic Political System Finding 111 Implications of the Impact of Court Decisions Finding 114 Implications of the Impact of Domestic Events Finding 116 Sum of the Implications of Domestic Context Findings: Why Civil Rights Abuses Play Out Uniquely in a Canadian Context and How These Abuses can be Interpreted as a Victory for the Terrorists 117 What Happens When, Not If, Another Terrorist Attack Occurs? 121 Final Conclusions and Directions for Future Research 125 Appendix One - Criminal Code Provisions Pertaining to Bail with Recognizance and Investigative Hearing Provisions of the Anti-Terrorism Act 134 Appendix Two - Definition Pertaining to Terrorism in the Criminal Code of Canada 141 References 144 1 Although transnational organised crime and transnational terrorism are separate and distinct forms of illicit activity, the two often overlap - as is the case when smuggled arms are provided to terrorist groups or, conversely, when terrorist groups launder their money - and share similarities that allow for an interesting comparative study. Both are complex phenomena that encompass a wide array of illicit activities that transcend national borders, creating inherently global problems that require global responses. These problems are exacerbated by forces of globalisation, such as advances in technology and increased flow of money across national borders, which make both transnational organised crime and transnational terrorism easier to engage in and harder to detect. As such, the study of these two phenomena presents an interesting case study for international law because it raises fundamental questions pertaining to the ability of states to develop and implement domestic measures to combat problems that are inherently global in nature. In responding to both transnational organised crime and transnational terrorism, states face heavy pressures stemming from the harmonization of the global responses to these problems. They are compelled to respond to the severity and global reach of these problems, yet they must still be cognisant of the realities of their own unique domestic contexts. The important international law issue that is then examined by investigating states' responses to transnational organised crime and transnational terrorism pertains to the process through which states respond domestically to the pressures provided by a harmonized, global response to an issue. This examination illuminates the tensions that occur in the domestic context of states feeling the pressures of harmonization, the compromises that states make to mitigate these tensions and, finally, the points of resistance to these 2 pressures of harmonization that are evident in the respective domestic context of each state. This research work investigates this important international law issue specifically in regards to Canada's response to terrorism. It illuminates the process through which Canada has developed domestic instruments to combat terrorism that are mindful of its international obligations but are also influenced by the fact that Canada has a distinct political system, one that has recently led to a string of minority governments and political instability, and a distinct legal culture that highly values the rights enshrined in the Charter of Rights and Freedoms. It uses the global responses to transnational organised crime and transnational terrorism as a useful comparative. The similarities between transnational terrorism and transnational organised crime testify to the utility of this comparative base. Moreover, as this research work's literature review will illustrate, strong international pressures are evident in the responses to transnational organised crime and transnational terrorism. Once again, the comparative between transnational organised crime and transnational terrorism is useful here because the literature on T.O.C. and the harmonization of responses to it is longer and more expansive than that pertaining to terrorism. The literature pertaining to terrorism details similar harmonization pressures, yet it is much less expansive in its scope and is understandably focused on the incredible events that occurred and the measures that were adopted in the wake of 9/11. As such, tracing the pressures provided by harmonization processes that occurred in response to T.O.C. will be useful for comparing whether, and to what extent, this harmonization has occurred in response to 3 transnational terrorism and whether, and to what extent, Canada has been influenced by this harmonization in adopting its own domestic measures to combat terrorism. Analyzing Canada's response to terrorism in this manner furthers two important purposes.