Canada has not been immune from terrorist activity or the damage caused by it. Between 1973 and 2003 in Canada, it has been estimated there were 6 hijackings, 2 airplane bombings, 73 disruptive hoaxes, 9 hostage takings or kidnappings, 4 letter bombs, 170 bombs, firebombs and arsons, 59 threats, 35 attacks on individuals, 45 acts of vandalism, 14 plots and foiled attacks, and 32 instances of support for terrorist activity.¹ These acts were carried out by groups and individuals as part of different types of political and social action campaigns and activities in different parts of Canada. Most of these actions, however, were not trans-national in character and none had the impact of the September 2001 attack on the United States.

Prior to 2001, Canada had entered into a number of international agreements related to the prevention, detection, and punishment of terrorist activity within its borders and throughout the world. As well, during the 1990’s, much policy development had taken place within government with respect to national security and counterterrorism strategies. Canada had not, however, taken all the legislative steps seen as required to fully respect its international obligations. This changed dramatically with the September 11, 2001 terrorist attacks on the United States.

These attacks, which took advantage of the easy travel and openness that is characteristic of twenty-first century democratic societies in order to launch terrorist acts against them, were devastating. They showed that the strengths of these societies were also their most obvious weaknesses. Their openness, technology, and ease of mobility provided the weapons used to attack them. The consequences of these attacks were immediate — economies were undermined, travel was curtailed, borders were closely controlled, the adequacy of law enforcement and intelligence institutions was seriously questioned, suspicions of particular ethno-cultural groups were aroused, and the ability of democratic institutions to adequately respond to the terrorist threat was put into doubt.

It was within this context that the international community took action. Numerous international agreements intended to prevent and counter terrorist activity had already been negotiated, ratified and put into place. The September 11 events brought a sense of urgency to taking further effective actions of many kinds against the emerging threat of terrorist activity. Canada was no exception to this worldwide trend.

Partly in response to a United Nations Security Council obligation placed on member states of the UN, Parliament adopted the Anti-terrorism Act. Rather than enacting temporary, emergency legislation, Parliament amended existing Acts and adopted a number of new legislative measures. Among the Acts amended were the Criminal Code, the Canada Evidence Act, the National Defence Act, the Canadian Security Intelligence Service Act and the Official Secrets Act. This was complex legislation, dealing with difficult issues in a highly charged atmosphere characterized by much fear and uncertainty about the unknown.

The Anti-terrorism Act attempted to balance divergent interests and requirements throughout all of its provisions, starting with the Preamble and ending with a clause requiring a parliamentary review of its provisions and operation. The legislation was intended to strengthen Canada’s capacity to prevent terrorist activity before it occurs, and to disrupt, disable, and dismantle terrorist groups before they can act. The Act was adopted to comply with Canada’s international obligations. The goal was to achieve these objectives in a manner consistent with constitutionally guaranteed rights and freedoms.

Parliament recognized in adopting this legislation that it has a role in this area beyond that of law-making alone. One of the functions traditionally performed by legislatures and legislators is to ensure that legislation is applied in a manner consistent with constitutionally guaranteed rights and freedoms. This is done by conducting reviews and oversight of laws and programs authorized by Parliament itself. This is especially important in relation to activities intended to combat terrorist activity where pre-emptive, preventive, and punitive steps have to be taken in a manner respectful of rights and freedoms, due process, and natural justice. What appear to be irreconcilable imperatives and principles may not in reality be that far apart from one another. This is where Parliament can have an impact in making such assessments of actions authorized under the legislation it has adopted.

Recognizing this as an essential function for it to carry out in relation to measures intended to counter terrorist activity, Parliament included section 145 in the Anti-terrorism Act. This clause required a comprehensive parliamentary review of the provisions and operation of the Act to be carried out three years after it received royal assent. This review was to have been completed within a year after it had been undertaken, subject to any extensions authorized by Parliament.

The statutorily required review of the Anti-terrorism Act was started in December 2004 by the Subcommittee on Public Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. However, Parliament was dissolved in November, 2005 before the review could be completed. This task was then taken up by this Subcommittee.

In continuing the review started by its predecessor, the Subcommittee, established on May 29, 2006 by the Standing Committee on Public Safety and National Security, has considered the evidence and submissions already received, as well as reviewed more recent information that has come to its attention. The predecessor to this Subcommittee held 22 meetings over more than 47 hours, during which it heard from 82 witnesses. It also received 44 briefs. The Subcommittee itself held 22 meetings over 36 hours during which it heard from 5 witnesses, and developed its interim and final reports. It also received 6 briefs. A list of the witnesses heard by the predecessor Subcommittee and by this Subcommittee can be found at Appendix A. A list of briefs received by the predecessor Subcommittee, as well as additional ones received by this Subcommittee, can be found at Appendix B.

The Subcommittee has already tabled an Interim Report (in October 2006) dealing with investigative hearings and recognizances with conditions (preventive arrests), both of which were subject to a sunset clause, meaning that they would expire unless extended by resolutions of both Houses of Parliament. The Subcommittee recommended that the relevant provisions be extended for a further five years and subjected to another parliamentary review at that time. The government subsequently introduced a resolution to extend the measures for three years.  However, the House of Commons on February 27, 2007 voted not to extend the measures, so they have now expired.

This document, the Subcommittee’s final report, contains the remaining results of its comprehensive review of the provisions and operation of the Anti-terrorism Act. Based in large part on the work of the predecessor Subcommittee, of which most members of this Subcommittee were also members, the report sets out findings and recommendations intended to suggest the changes deemed necessary to improve the Anti-terrorism Act and related legislation. Evidence, representations and briefs were received from both governmental and non-governmental witnesses. All proposals were seriously considered. The report, however, sets out the suggestions the Subcommittee has accepted and the implementation of which is being recommended.

The report is organized as follows: Each chapter has a background section in which the current law is explained. The next part of each chapter deals with issues of concern to those making submissions to the Subcommittee, or otherwise sets out the rationale for the decided recommendations. The final part of certain chapters contains other recommended legislative amendments which, based on its own analysis of the Anti-terrorism Act, the Subcommittee believes are required to clarify and simplify some parts of this complex legislation.