Did September 11 change everything? Struggling to preserve Canadian values in the face of terrorism.

• Author: Roach, Kent W.

The author critically examines the challenges of the terrorist attacks on September 11, 2001 to Canadian law, courts, sovereignty, and democracy. He compares these challenges to Canada's acceptance of nuclear arms in the wake of the Cuban Missile Crisis of 1962, an event that caused George Grant in his Lament for a Nation to declare Canadian sovereignty and a distinctive Canadian democracy to be dead. The Anti-terrorism Act is examined in comparison to other expansions of the criminal law in response to tragic crimes, as well as against the increased emphasis in Canada and the United States on crime as a political issue. The author differentiates between respecting non-discrimination as a value in die criminal law and accepting victims' rights as a reason for limiting the rights of the accused. He also examines the dangers of relying on the criminal law to prevent terrorism and evaluates alternative administrative measures, including some contemplated in the proposed Public Safety Act.

The challenges of September 11 for Canadian courts are related to American-style debates over judicial activism. The author argues that the recent decisions of the Supreme Court in Burns and Rafay and Suresh suggest possible judicial reactions to future challenges of anti-terrorism measures. The author also argues that debate after September 11--while maintaining an appropriate degree of openness to dissent--did hot pay sufficient attention to the importance of respecfing international law in the treatment of detainees or anti-discrimination principles with respect to the possible profiling of particular minority groups. The struggle to maintain a distinctive and moderate Canadian approach to anti-terrorism measures can, in the author's view, be assisted by rejecting the idea that September 11 changed everything.

L'auteur pose un regard critique sur les defis qu'ont apportes attaques terroristes du 11 septembre 2001 pour le droit, les cours, la souverainete et la democratie au Canada. Il compare ces defis avec l'acceptation du Canada de l'armement nucleaire lors de la crise des missiles de Cuba en 1962, un evenement qui a pousse Georges Grant dans son Lainent for a Nation a declarer la mort de la souverainete et de la democratie canadienne. Il examine la Loi antiterroriste en la comparant avec d'autres reponses du droit penal a des crimes tragiques ainsi que l'importance accrue qu'ont pris les debats politiques sur le crime au Canada et aux Etats-Unis. L'auteur distingue le respect de la non-discrimination en tant que valeur en droit penal et l'acceptation des droits des victimes en tant que raison pour limiter les droits de l'accuse. De plus, il examine les dangers de se fier sur le droit penal pour prevenir le teirorisme et evalue des mesures administratives alternatives, notamment certaines de celles proposees dans la Loi sur la Securite Publique.

Les defis du 11 septembre pour les cours du Canada sont relies a un debat de type americain sur l'activisme judiciaire. L'auteur soutient que les recentes decisions de la Cour supreme dans Burns et Rafay et Suresh suggerent des reactions judiciaires possibles aux futurs defis des mesures d'anti-terrorisme. Tout en gardant une certaine ouverture a la dissidence, l'auteur soutient egalement que le debat apres le 11 septembre ne s'est pas suffisamment penche sur l'importance de respecter le droit international a l'egard du traitement des detenus ou des principes de non-discrimination quant au portrait de certains groupes minoritaires. La lutte pour maintenir une approche canadienne distincte et modetee vis-a-vis les mesures anti-terroristes peut, selon l'auteur, etse assiste par le rejet de l'idee que le 11 septembre a tout change.

Introduction I. The Challenge of Democratic Crime Control A. The Criminalization of Motive B. The Distinct Challenges of Non-Discrimination and Victims' Rights C. Democratic Law Reform for a Democratic Criminal Code D. The Challenge of Preventing Terrorism II. The Challenge of Anti-terrorism to Independent Courts A. The Supreme Court B. The Federal Court C. Trial Courts III. The Challenge of Preserving Canadian Sovereignty IV. The Challenge of Preserving a Tolerant Democracy V. The Challenge of Preserving a Multicultural Democracy Conclusion Introduction

It has been suggested that "September 11 changes everything, for all of us." Canada was certainly not immune from the effects of the terrible terrorist attacks of that fateful day. Amid concerns about our own security and our relations with the Americans, we quickly enacted Bill C-36, the Anti-terrorism Act. (2) It introduced new and potentially dangerous legal concepts such as investigative hearings, preventive arrests, broad motive-based crimes based on participation in or contribution to terrorist groups at home or abroad, as well as new powers to list terrorist groups, take their property, and deprive suspected terrorists of sensitive security information in their trials and appeals. Chief Justice McLachlin has recognized that the "unique horror of Sept. 11" will place challenges on courts "to maintain our freedoms and our democracy and the rule of law, while maintaining security." (3) Former foreign affairs minister Lloyd Axworthy has expressed concerns that September 11 may have started a "slippery slope" that will erode "Canada's ability to speak with an independent and considered voice." (4) The famous picture of Canadian troops rather roughly handing off detainees at Kandahar Airport to the Americans for possible detention in the open-air cages of Camp X-Ray in Guantanamo Bay, Cuba may symbolize the shift in matters such as civil liberties, respect for international law, and integration with the United States. The challenges presented by September 11 to Canadian law, courts, sovereignty, and democracy are great.

I will attempt to situate the challenges of September 11 into a larger picture of recent challenges for Canadian law, courts, sovereignty, and democracy. Although the challenges of September 11 are particularly dramatic and intense, I will argue that they are not fundamentally different from those we have faced in the recent past. The demand for criminal-law reform to respond to horrific crimes is a constant, of which the threat of mass terrorism post-September 11 is only a particularly intense example. The last decade has seen an expansion and toughening of Canadian criminal law as a more or less direct response to a number of well-publicized murders, including the massacre of fourteen women at the Ecole Polytechnique in Montreal and murders in conflicts involving biker gangs. As in the United States, a number of interest groups representing women, crime victims, various minorities, and the police have successfully lobbied for changes to the criminal law. Some Canadian political parties have also attempted to make crime a top political issue as it has become in the United States. (5) Before September 11, we were in the habit of expanding out criminal law in a symbolic attempt to recognize tragic crimes and in a desperate and frequently vain quest for safety, an increased sense of security, and an understandable desire to express concern for those victimized by crime.

Similarly, the difficult position that Canadian courts will find themselves in when making decisions in the anti-terrorism context is part of the larger phenomenon of Canadian courts' being put on trial over the last decade and held up to increased public and political scrutiny and at rimes impatience with their decisions. Concerns have been voiced that Canadian courts have caught the "American disease" (6) of judicial activism and an American-style debate on judicial activism has been played out in Canada on both the right and the left. (7) The increased pressure placed on our courts by governments and the public, the majority of which would apparently prefer that their Supreme Court be elected, (8) makes it vitally important that courts exercise their role independently and fearlessly. At the same time, however, this increased pressure, as well as some recent deferential developments in jurisprudence on the Canadian Charter of Rights and Freedoms, (9) should make us uneasy with the idea that legislation that is "Charter-proof", in the sense that it will not be struck down by the courts, is necessarily wise, just, or required.

Well before September 11, we were being buffeted by the forces of globalization and continental integration. Canadian nationalists had long expressed fears about the preservation of Canadian sovereignty, but these increased in the wake of the 1988 Free Trade Agreement. (10) There are real concerns that Canada has not done enough since September 11 to preserve a sovereign foreign policy with its traditional post-war commitments to peacekeeping and respect for international law.

Well before September 11, our democracy risked the challenge of a politics that was less tolerant of dissent and the rights of minorities, especially when they were linked with the emotive issues of crime and/or immigration. Ever since the protests against the World Trade Organization in Seattle, similar Canadian protests against globalization and poverty have been greeted with an intimidating police presence and other security measures. (11) Many expressed legitimate fears that Bill C-36 as first introduced could be used against illegal protests that disrupted essential public or private services. Concerns were also expressed that security powers would be used in a manner that targeted or profiled those who were perceived to be of the same race or religion as the September 11 terrorists. Concerns about systemic discrimination in the criminal justice system are not, however, new. There was evidence of the profiling and over-incarceration of Aboriginal people and African-Canadians long before September 11. (12) Combined with the linkages between immigration and crime that were made both before and after September...