Debating the anti-terrorism legislation: lessons learned.

• Author: Mazer, Alex
• Position: Legislative process and societal debate surrounding Bill C-36

Bill C-36, Canada's anti-terrorism bill, was drafted under extraordinary circumstances, and was the subject of an extraordinary debate within and without Parliament. This article describes the legislative process and broader societal debate surrounding Bill C-36. Furthermore, it argues that three central lessons 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.

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Bill C-36, the Anti-Terrorism Act, was the Government's legislative response to the terrorist attacks of 11 September 2001, and Canada's domestic contribution to an international legal effort to suppress terrorism. In the aftermath of September 11, the United States, the United Kingdom, France, Germany, and Australia, inter alia, all passed bills with purported objectives similar to those of C-36.

Bill C-36 was complex, cross-jurisdictional, and unprecedented. It received more public attention than almost any bill in recent memory. It was tabled in the wake of one of the most calamitous events in North American history. It was drafted and studied under considerable time constraints and political pressures. Perhaps most significantly, it proposed changes that touched on some our deepest societal values and most profound philosophical ideas--individual human rights, racial and religious inclusion, national security, and liberty of the person.

The Legislative Process

Bill C-36 was introduced in the House by Justice Minister Anne McLellan on 15 October 2001. It was the result of intensified, accelerated work by Department of Justice officials. Assistant Deputy Minister Richard Mosley, speaking at a University of Toronto conference on the Bill, described the behind-the-scenes process by which the legislation came into being. Immediately after 11 September, Mosley said, the department conducted a review of all Canadian legislation of relevance to terrorism--an "already formidable body of law," (1) in Mosley's words. On 18 September, Minister McLellan spoke in the House about moving forward with amendments to implement the two international conventions on Bombing and the Suppression of Terrorist Financing, while also making reference to changes to the Canada Evidence Act and the Official Secrets Act. At this point, Mosley suggests, the Bill was still in its early stages within the Department, where drafters were struggling with "conceptual issues" such as how--or indeed whether--to define terrorism. The Department continued to debate the question of definition, among other things, up until 13 October, at which point the Bill had to be printed to table in the House. However, says Mosley, "we recognized that this was not going to be anywhere near the end of the debate and that it would then have to be addressed in a broader public context and also, of course, within Parliament." In drafting the bill, the Department was working under significant time constraints. The most formal--if not the most important--of these was mandated by United Nations Security Council Resolution 1373 of 28 September 2001. This resolution lays out what member states must do to prevent terrorism, and binds states to report back within 90 days of the resolution's adoption. In other words, Canada's anti-terrorism law had to be passed by the end of December 2001. In consideration of this deadline, the Bill was tabled two weeks before the planned date of 1 November.

The Bill was brought before the House of Commons Standing Committee on Justice and Human Rights on 18 October 2001, following approximately 8 hours of Second Reading debate and a vote expressing support for the Bill by a margin of 208-8 (with the NDP caucus opposed). The day before saw the striking of a Senate Special Committee on Bill C-36, where the Bill would be sent for a rarely employed procedure called pre-study. Pre-study is intended to allow the Senate an opportunity to scrutinize the legislation in concert with the House of Commons, effectively both assisting the House committee in its consideration of amendments and granting the Senate a head start in its own scrutiny of the bill.

On the afternoon of 18 October, only hours after Bill C-36 had passed Second Reading in the House of Commons, Anne McLellan appeared before the House committee to defend the legislation. Between 18 October and 22 November, the day the committee tabled its report with amendments, the Justice committee would hear testimony on the Bill from approximately 80 individuals. The Senate committee, meanwhile, began to hear witnesses on 17 October 2001 and submitted its pre-study report on 1 November. After receiving the post-amendment Bill from the House, it resumed hearings on 3 December and issued its second and final report on 10 December. Over the course of its study of the bill, the Senate committee heard testimony from approximately 60 witnesses. As parliamentary committees held hearings a larger debate was happening in the public square, drawing participation from the gamut of social commentators, including newspaper columnists, social scientists, jurists, NGOs, religious and cultural organizations, grassroots activists, and many others.

The Bill's Content

The overall committee process can be characterized by expressions of support for the principle of the Bill coupled with the articulation of a panoply of civil libertarian concerns. In other words, the overriding timbre of witness testimony--echoed, with slight variations and temporal shifts, in the wider public debate--was this: we need a counter-terrorism bill, but C-36 goes too far.

First, let us address the Bill's raison d'etre. Most witnesses described the C-36 as a response to a terrorist threat, to a new kind of transnational menace; Justice Minister McLellan, for one, described terrorist as a "special threat to our way of life." It is this threat--or, more precisely, the recent evolution of this threat--that provided the justificatory basis for the Bill.

In his testimony to the Senate Committee on October 24, 2001, St. Andrews University terrorism expert Paul Wilkinson described the 11 September attacks as a "terrible watershed" in the evolution of terrorism--the dawn of an era of "mass terrorism." First, the scale of the terrorist threat is now larger and more international in character. "Terrorism," said Wilkinson, "is no longer to be adequately understood as a law-and-order threat ... It has become a strategic threat to the well-being of the international community and to the human rights of large numbers of people." Second, the intent underlying the terrorist threat has changed. No longer, in the minds of terrorists, is the lethality of terrorist attacks subordinate to the fear they sow in the people who watch; the "new" terrorist is less interested in instilling emotions of terror in a society than he is "hell-bent on killing large numbers of people."

University of Ottawa law professor Joseph Magnet described three long-term trends in the evolution of modern terrorism: first, a decreasing number of terrorist incidents; second, an increasing lethality of each incident; and third, the adoption of a "war paradigm" by terrorist networks, in place of "coercive diplomacy." The crux of the third trend is that, in the new paradigm, terrorists do not make demands, as they did in the hostage takings and hijackings of the 1980s. Rather, in Magnet's words, "modern terrorism is an act that would be a war crime if war have been declared." (2)

Irwin Cotler, McGill professor, and member of the House Justice Committee, outlined further dimensions of the new terrorism in a speech at the University of Toronto. Among these are included: "the increasing incidence of terrorism associated with or driven by political, ideological, or religious extremism; the growth and threat of economic and cyber terrorism; the teaching of contempt and demonizing of the 'other'; a standing incitement against the demonized target; the dangers of microproliferation; the potential use of weapons of mass destruction; and the increased vulnerability of open and technologically advanced democratic societies like Canada to this genre of terror." (3)

The majority of committee witnesses accepted these assessments of the new terrorist threat, and thus accepted the necessity of some kind of counter-terrorist legislative response. Even Alan Borovoy, General Counsel for the Canada Civil Liberties Association and the de-facto dean of Canadian civil libertarians, argued that "no reasonable person can quarrel with the goal of this bill." (4) The more germane question from the perspective of witnesses as well as many intervenors in the broader public discussion was whether the threat of transnational terrorism justified the specific law-enforcement measures contained in the legislation--or, put differently, whether the Bill effectively achieved what the Canadian Bar Association termed the "delicate balance between collective security and individual liberties." (5)

Central to the achievement this "balance" was deemed to be the amendment or removal of several areas of the Bill that were regarded as offensive to civil liberties. The first pertains to the Bill's definition of "terrorist activity," the predominant concern being its overbreadth. The definition included acts that are intended "to cause serious interference with or serious disruption of an essential service, facility, or system, whether public or private, other than as a result of lawful advocacy, protest, dissent or stoppage of work. ... "Critics charged that this could include acts of civil disobedience, Aboriginal blockades, boycotts, wildcat strikes, revolutionary actions directed against oppressive governments, and...