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between the government of Iraq and al Qaeda, and some members of his
Administration claimed links between Saddam and September 11. After an
exhaustive study, the 9/11 Commission found ‘no evidence [of ] a collaborative
operational relationship’ between Iraq and al Qaeda.41 Still, President Bush
continued to maintain that the war was justified: ‘We removed a declared
enemy of America who had the capability of producing weapons of mass murder
and could have passed that capability to terrorists bent on acquiring them. In the
world after September the 11th, that was a risk we could not afford to take.’42
Whether the Iraq war foreshadows a longer term policy change toward pre-
emptive uses of force by the United States remains to be seen.

An enhanced domestic role for the military
Fundamental changes have also been made in the organization of the military
in relation to domestic security. After September 11, the military presence in
the homeland increased literally overnight. The President approved orders
for the Air Force to shoot down civilian airliners in the event of a hijacking,
National Guard troops were deployed at the nation’s airports, and more
United States forces were deployed for security at the Salt Lake City
Olympic Games in February 2002 than were then deployed fighting the
Taliban in Afghanistan.43
The 30 September 2001 Qaudrennial Defense Review Report ‘restores the
defence of the United States as the Department’s primary mission’,44 and the
National Strategy for Homeland Security in July 2002 called for ‘a concerted
national effort to prevent terrorist attacks within the United States, reduce
America’s vulnerability to terrorism, and minimize the damage and recover
from attacks that do occur’.45 On 1 October 2002 a new combatant com-
mand, the United States Northern Command (NORTHCOM) became the
first military entity with responsibility for military activities inside the United
States since the Civil War.46 NORTHCOM will provide support to civilian


40
Report on the US Intelligence Community’s Prewar Intelligence Assessments on Iraq,
9 July 2004, at 14, available at: http://intelligence.senate.gov/iraqreport2/pdf.
41
National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission
Report, 335 (22 July 2004).
42
Richard W. Stevenson and Jodi Wilgorin, ‘Bush Forcefully Defends War, Citing Safety of
US and World’, New York Times, 11 July 2004.
43
Gene Healy,‘Deployed in the USA – The Creeping Militarization of the Home Front
Policy’ No. 503, The Cato Institute, 17 Dec. 2003, 1 at 5.
44
Quoted in Operational Law Handbook (Charlottsville, VA, International and Operational
Law Department, The Judge Advocate General’s Legal Center and School, 2004), 355.
45
Available at http://www.whitehouse.gov/homeland. 46 See www.northcom.mil.
UNITED STATES RESPONSES TO SEPTEMBER 11 503

authorities for managing the consequences of natural and terrorism-related
disasters, but it will also ‘deter, prevent and defeat external threats against the
American homeland’.47 It remains unclear what forces will be assigned to
NORTHCOM, and what roles NORTHCOM will play in homeland security.
Still, a recent Judge Advocate’s Corps Operations Law Handbook states that
the ‘role of the military in domestic operations has changed drastically’48
since September 11. But just what is that military role? Will uniformed
military be patrolling our streets, conducting surveillance and detaining
citizens?
Among the nations of the world, the United States has been proudly
unique in entrusting law enforcement to civilian forces, managed and con-
trolled by civilians. Our federal system has helped cement control over and,
thus, accountability for law enforcement activities and decisions at the lowest
levels of government, closest to the operations being conducted. At the same
time, our revolutionary and constitutional heritage, fed by experiences in
England and with English military in the colonies, led to the creation of a
sharp separation of civilian and military spheres in government, and to the
unequivocal subordination of the military to civilian authority.
For more than 200 years, our laws and traditions have made military
presence in the homeland exceptional. Still, the domestic use of troops has
been a feature of government in this country since President Washington
called out the militia to put down the Whiskey Rebellion in 1794. Since then,
federal troops have been activated a number of times to help keep the peace,
to aid local governments in natural disasters, and to enforce federal and state
laws. State militia has been deployed even more often, especially in the first
three decades of the twentieth century. Yet current concerns about the
ongoing threat of terrorist attacks in the homeland, worsened by the spectre
of weapons of mass destruction (WMD) threats, cause civilian authorities to
consider what once would have been unthinkable – uniformed military
enforcing the laws and undertaking military operations on our streets and
in our neighbourhoods. To be sure, no other government entity has the
training, equipment, and resources to bring force to bear when an attack
occurs. Likewise, if the National Guard is counted, no other part of govern-
ment is so widely dispersed to be available throughout the nation if its
services are needed. But are military personnel capable of refining their role
to be engaged in law enforcement at home, among the people they are
charged to protect?
Express constitutional authority for such use is found in Article I, x 8,
which provides, ‘The Congress shall have the power . . . to provide for calling
forth the Militia to execute the Laws of the Union, suppress Insurrections and


47 48
Ibid. Operational Law Handbook, at 355.
WILLIAM C. BANKS
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repel Invasions’.49 Additional authority may be drawn from Article IV, x 4,
which imposes on the federal government the obligation to protect each of
the states ‘against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic
Violence’.50 The President may also have authority to deploy troops in
defence of the homeland from his Article II powers to faithfully execute the
laws51 and to act as Commander-in-Chief of the armed forces.52 However,
the Framers intended that part-time state-based militias would principally
perform the homeland defence tasks. Experience with the militias has been
uneven, but these small professional and state-governed forces largely suf-
ficed except for wartime build-ups until the Cold War led to the development
of a sizeable peacetime military establishment.
The most concrete manifestation of the American tradition of keeping the
military out of domestic civilian affairs lies in the Posse Comitatus Act of
1878, which in its current form states:
Whoever, except in cases and under circumstances expressly authorized by
the Constitution or Act of Congress, willfully uses any part of the Army or the
Air Force as a posse comitatus or otherwise to execute the laws shall be fined
not more than $10,000 or imprisoned not more than two years, or both.53

Although the Posse Comitatus Act (PCA) supplies a general statutory pro-
hibition against domestic use of troops to enforce the laws, the constitutional
authorities of the President and a number of statutory exceptions undercut or
at least counterbalance the rule. Some of the exceptions specifically apply to
various forms of WMD attacks by terrorists, and, following appropriate
inter-agency coordination, permit Defense Department personnel and equip-
ment to be engaged in containing, disabling, or disposing of the weapons
involved in an attack. In certain emergency circumstances, military personnel
are permitted to perform law enforcement functions, where civilian authorities
are not capable of taking appropriate action. Other statutes anticipate civil
disorder or other emergencies and permit deployment of military units in
various circumstances, certainly including in response to a terrorist attack. In
addition, the President arguably may deploy military personnel to perform
civilian law enforcement pursuant to his constitutional authorities.
The PCA remains as much a symbol of our nation’s subordination of
military to civilian control, and to the distaste for military involvement in
domestic law enforcement, as it is a set of legal strictures. As conditions and
threats have changed, however, so has the principle of posse comitatus.
Construed literally, the PCA could compromise homeland defence or hinder
a response to widespread disorder in society. Interpreted too generously, the

49
US Const., Art. I, x 8, cl. 15. 50 Ibid., Art. IV, x 4. 51
Ibid., Art. II, x 3.
52
Ibid., Art. II, x 2, cl. 1. 53 18 U.S.C. x 1385 (2000).
UNITED STATES RESPONSES TO SEPTEMBER 11 505

exceptions can give rise to regrettable excesses, such as those documented at
Kent State University in 1970.54

III. Conclusions
They that can give up essential liberty to obtain a little temporary safety
deserve neither liberty nor safety.55

The rule of law in general and the United States Constitution in particular have
served as societal anchors during national security crises. Our independent and
life-tenured judiciary has been asked before, as it is being asked now, to uphold
rule of law principles and core constitutional protections in challenges to central
pieces of the post-September 11 legal regime. The Military Order and the
military commissions, the Guantanamo Bay detention camp, and the detention
as enemy combatants of United States citizens taken together constitute an
argument for a separate track, outside the rule of law and constitutional protec-
tions, for those adjudged by the administration not to be worthy of the protec-
tions our system otherwise provides. The extent to which the Supreme Court
decisions in late June 2004 are interpreted as a partial acquiescence in the
separate track will establish an important cornerstone of the new normal.
Did the Court affirm or at least acquiesce in the separate track? In an
apparent response to the warning voiced by Justice Scalia in the Rasul
Guantanamo Bay cases that the ruling will open the floodgates to enemies
captured in battles around the world, the Pentagon announced that it was
creating a Combatant Status Review Tribunal, staffed by military officers,
where detainees could challenge their combatant status. Although detainees
could have the assistance of a ‘personal representative’ assigned by the
government, they would not be entitled to a lawyer and they would have to
overcome a ‘rebuttable presumption in favor of the government’s evi-
dence’.56 At least in the Pentagon’s view, these proceedings comply with the

54
Following President Nixon’s announcement on 30 April 1970, that US combat forces had
been deployed in Cambodia, student anti-war protests erupted on a number of college
campuses. The Governor of Ohio called out Ohio National Guard troops equipped with
loaded weapons to keep order at Kent State University. When a large group of students
gathered for a rally there on 4 May, the Guard troops tried to disperse them, at one point
firing into the crowd, killing four students and wounding nine others. See Gilligan v.
Morgan, 413 US 1 (1973) (dismissing a suit, on political question grounds, that sought to
restrain a state governor and National Guard leaders from future violations of students’
rights of free speech, assembly and due process).
55
Benjamin Franklin, Letter to Josiah Quincy, 11 Sept. 1773, John Bartlett, Familiar
Quotations No. 3929 (10th ed., Boston, Little, Brown, 1919).
56
Memorandum from the Deputy Secretary of Defense to the Secretary of the Navy, Order
Establishing Combatant Status Review Tribunal, available at http://www.defenselink.mil/
news/July2004/d20040707review/pdf.
WILLIAM C. BANKS
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rules the Supreme Court said are required for detaining citizens in the United
States, and thus also satisfy any obligations to foreign detainees. According to
the Supreme Court’s Rasul decision, however, the Guantanamo detainees
met the requirement of the habeas corpus statute of being in ‘custody in
violation of the Constitution or laws or treaties of the United States’ because
they are detained in territory subject to the long-term, exclusive jurisdiction
and control of the United States, without access to counsel, and without being
charged with any wrongdoing.57 The Defense Department has thus sought to
sustain the separate track, even in the face of apparently inconsistent com-
mands from the Supreme Court. Additional litigation will be required to
ascertain the scope of the right to counsel prescribed by the Court in Rasul.
Similarly, the apparent victory for Yaser Hamdi may be more symbolic
than real. The neutral decision-maker prescribed by Justice O’Connor’s
plurality opinion in Hamdi could be a military commission rather than a
civilian court. In addition, hearsay evidence and other evidentiary rules
favourable to the government might be permitted, including the affidavit
initially relied on to justify holding Hamdi, and the reversal of the normal
presumption requiring Hamdi to prove that he is not an enemy combatant.
Thus, Hamdi is allowed to see the evidence against him, but that may consist
only of the sketchy and uncorroborated affidavit originally filed. And Hamdi
has to prove that those allegations are false, even though finding witnesses to
support his story under current circumstances in Afghanistan may be next to
impossible. Although he must be released when the fighting there is over, the
government may claim that the ‘war on terrorism’ is fought on many fronts
simultaneously, including Afghanistan, for the foreseeable future.
Even the procedural ruling in the Padilla case portends an easing of the
government’s practical burdens in dealing with detainees in the war on
terrorism. The effect of the Court’s decision is to permit the government to
‘forum shop’ – to choose its forum by detaining persons where it can expect
favourable conditions for litigation. Jose Padilla should expect less favourable
outcomes from the court of appeals that includes South Carolina than the one
in New York. Similarly, the government will likely either stop sending detai-
nees to Cuba or will have such success with its Combatant Review tribunals
that forum shopping will not be necessary. If the panels do not work out
favourably for the government, the Rasul decision will afford those detainees
the right to sue in any district court in the United States.
Since the November 2001 Military Order creating the military commis-
sions for non-citizens, the Department of Defense has issued more detailed
rules prescribing commission procedures. To a large extent the procedures
improve the prospects for justice for those subject to trial by military


57
Rasul v. Bush, 2693.
UNITED STATES RESPONSES TO SEPTEMBER 11 507

commission, although the commissions still provide considerably lesser
protections for the accused than either United States civilian or regular
military courts. Proceedings may be closed to outside scrutiny in the interest
of ‘national security’, defence counsel will have their client consultations
subject to government monitoring, and defence counsel may be denied access
to potentially exculpatory evidence if the government asserts that it is ‘neces-
sary to protect the interests of the United States’.58
It remains to be seen whether the Supreme Court’s decisions in June 2004
will limit significantly the government’s detention and treatment of prisoners
in the war on terrorism. It is as likely as not that the limited judicial role
required by the Rasul and Hamdi decision will be played out as outlined here
with little if any inconvenience to the government. The alternative possibility
is that the due process balancing that Justice O’Connor invoked to limit the
government’s detention of Yaser Hamdi will be extended to other detainees,
including non-citizens, and to conditions of confinement as well as the
detention decision itself. The Iraqi prisoner abuse scandal first reported
early in 2004 and the graphic images of torture and humiliation of prisoners
by United States military and civilian personnel at Abu Ghraib prison near
Baghdad has become the proverbial tip of an iceberg of detainee abuse in a
range of locations around the world, including Guantanamo. In the face of
shockingly candid efforts by government lawyers to construe narrowly legal
proscriptions against torture (to constitute torture, ‘physical pain must be
equivalent in intensity to . . . organ failure’;59 interrogation activities ‘may be
cruel, inhuman, or degrading, but still not produce pain and suffering of the
requisite intensity’60 to violate the law), ongoing investigations concerning
the responsibility for abusive treatment may produce criminal charges and
civil cases against those responsible. It is also possible that the due process
protections applied for Yaser Hamdi could be extended to others, including
non-citizens, detained and subject to coercive interrogation by United States
officials.
Surely one aspect of the balancing employed by the Court in Hamdi – the
harm to the detainee who is not in fact an enemy combatant – remains
constant across citizens and non-citizens. The government’s interests in
Hamdi, preventing captured detainees from returning to the battlefield, is
the same interest that produced the rules set out in the Geneva Conventions
that permit tribunals to sort facts to determine which persons may be treated


58
Department of Defense, Military Commission Order No. 1 (21 March 2002).
59
Department of Justice, Office of Legal Counsel, Memorandum for Alberto R. Gonzeles,
Counsel to the President, Re: Standards of Conduct for Interrogation Under 18 U.S.C. xx
2340–2340A, 1 Aug. 2002, at 1, available at: http://www.gwu.edu/nsarchiv/NSAEBB127/
02.08.01.pdf.
60
Ibid.
WILLIAM C. BANKS
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as prisoners of war. In other settings, then, including those of Jose Padilla and
non-citizens similarly detained, due process may require some meaningful
and impartial assessment of each detainee’s guilt or innocence as a combat-
ant. The standard by which a tribunal will assess the evidence for and against
the classification of a detainee as a combatant may well be the most important
determinant of the outcomes of individual cases. If the ‘some evidence’
standard urged by the government in the Hamdi case is not acceptable, but
the more protective ‘beyond a reasonable doubt’ standard of the United
States criminal law is not required, fashioning the substitute standard will
be of critical importance for future challenges brought by detainees.
The fifth and final annual report of the Advisory Panel to Assess Domestic
Response Capabilities for Terrorism Involving Weapons of Mass Destruction
(the Gilmore Commission)61 recognized alternative visions of America’s
future relative to the threat of terrorism. Ranging from a version of do-nothing
complacence at one extreme, to a ‘fortress America’ at the other extreme,
the Gilmore Commission rejected the extremes and a reactive strategy in
favour of what it calls ‘the New Normalcy’.62 The essence of this strategy is to
plan so effectively for terrorism that the fear is dispelled. Terrorism is
treated primarily as a criminal action.63 However, while the panel opines
that ‘America’s New Normalcy in January of 2009 should reflect . . . empower-
ment of individual freedoms’,64 the New Normalcy also includes sharing
information and intelligence ‘to the broadest possible audience rapidly’ and
it calls for strengthened roles for military domestically. According to the
Commission, this win/win outcome may be achievable by overcoming the
traditional assumption that security and civil liberties are in tension.65
Assuming the classically conservative view that security is the most fundamen-
tal civil liberty, the Commission reminds us that our constitutional Framers
chose to devolve governmental power and protect civil liberties, based on their
experience that ‘civil liberties and security are mutually reinforcing’.66
Explaining away the threat to liberty simply by defining security as the first
liberty fails to confront a looming crisis in constitutional values. The Gilmore
Commission views our common security as serving the inalienable rights of
life, liberty, and the pursuit of happiness. While those are well and good, that
list comes from the Declaration of Independence, an unenforceable prelude
to the rights protections of the Constitution. The First Amendment expres-
sive freedoms, Fourth Amendment privacy, and Fifth and Fourteenth
Amendment due process and equal protection are enforceable rights, and
steps taken by government to enhance our security must not violate
those protections. To be sure, terrorism can threaten the most fundamental


61 62 63 64
Available at http://www.rand.org. Ibid., at 13. Ibid. Ibid., at iv.
65
Ibid., at 22. 66 Ibid.
UNITED STATES RESPONSES TO SEPTEMBER 11 509

liberty – the right to life, and government must be afforded considerable
discretion to take measures reasonably determined to protect our lives. At
the same time, measures taken in furtherance of security must be assessed,
like other laws, in light of their effects on other fundamental protected
liberties.
To its credit, the Gilmore Commission acknowledges that broadening
investigative and law enforcement powers in the service of security have the
potential to chill freedom of speech and to invade personal privacy. The
Commission also recognizes the dangers to liberty implicit in expanding a
military presence domestically, and it recommends creation of an independ-
ent civil liberties oversight board to advise Congress and the President
concerning changes to legal rules for fighting terrorism that are likely to
have civil liberties implications, whether or not intended.67
Against the backdrop of the war on terrorism and the war against Iraq,
President Bush has made reauthorization of the Patriot Act and removal or
extension of its sunset provisions a regular theme in his campaign. President
Bush made his Patriot Act appeal in Buffalo, New York, where the so-called
Lackawanna Six were arrested and convicted last year for providing ‘material
support’ to terrorism.68 The President claimed that successes in the war on
terrorism like that represented by the Lackawanna Six could not have
occurred without the Patriot Act and its expanded investigative authorities.
Although it is true that the above described amendments to FISA in the
Patriot Act made it easier for investigators to obtain secret orders to listen
in on the suspects’ phone and email conversations, the break that made local
investigators aware of these Yemeni-Americans came in the old fashioned
way – from an anonymous letter left at a local FBI office. The ‘material
support’ crime that carries such lengthy prison sentences that the six indicted
suspects each took guilty pleas in return for slightly lesser prison sentences
was not part of the Patriot Act, and was enacted in 1996, after the first World
Trade Center and Oklahoma City bombings. Ironically, the Patriot Act
amendment to ‘material support’, adding a crime for ‘expert advice or
assistance’, was struck down as unconstitutional by a California federal
court in January 2004, based on the court’s conclusion that the prohibition
was unconstitutionally vague.69 Similarly, a material support prosecution of a
Saudi student in Idaho for maintaining a website that urges ‘jihad’ against the


67
Ibid., at 23.
68
Matthew Purdy and Lowell Bergman, ‘Where the Trail Led: Between Evidence and
Suspicion; Unclear Danger: Inside the Lackawanna Terror Case’, New York Times,
12 October 2003, sec. 1, 1.
69
Humanitarian Law Project v. Ashcroft, 2004 WL 112760 (C.D. Cal. 22 Jan. 2004); see also
Timothy Egan, ‘Computer Student on Trial Over Muslim Web Site Work: Case Hinges on
Use of Antiterrorism Law’, New York Times, 27 April 2004, A16.
WILLIAM C. BANKS
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United States failed when a jury acquitted the student, finding insufficient
evidence that the student intended to aid al Qaeda.70
Just as measures to enhance investigative authorities may have compro-
mised civil liberties, the doctrine of pre-emption is potentially a recipe for
disaster. If every nation practised military pre-emption of its enemies, war
would become the norm across much of the globe. The United States war on
Iraq is merely an example of how misguided the application of the doctrine of
pre-emption can be. The continuing insurgency in Iraq and the resurgence of
the Taliban in Afghanistan suggest that the military response may inspire
more terrorists while it disrupts others. Continuing rumblings about the
threat to the United States posed by nuclear weapons programmes in Iran
and North Korea render the possibility of further pre-emptive military action
more than merely hypothetical. The fact that Congress asked so few questions
about the evidence to back up the Administration’s claims and then voted
such a sweeping authorization for war against Iraq in October 2002 does not
reflect positively on the Congress. The fact that the pre-emption approach
permits a sort of shoot first, talk later approach is all the more reason to
consider alternative schemes for responding to the threats of terrorism.
Similarly, the merging of national security and law enforcement spheres of
governance in the United States is serving to inculcate in the citizenry the idea
that emergency conditions that arose on September 11 have become routine,
and that adding the national security emblem to terrorism-related law
enforcement renders extraordinary measures legitimate. Unlike emergencies
with a known duration, the unknowable boundaries of the war on terrorism
supply licence to institutionalize these changes in governance. We all should
pause before making that commitment.


70
Patrick Orr, ‘Sami Al-Hussayen Not Guilty of Aiding Terrorist Groups’, Idaho Statesman,
11 June 2004.
23

Canada’s response to terrorism
KENT ROACH




Canada’s response to terrorism has been dramatically affected by 9/11.
Canadians died in the horrific attacks on the World Trade Center, but so
did the citizens of many other countries. What was unique about Canada’s
response to 9/11 was the border it shares with the United States. The border
meant that Canada felt the repercussions of the swift American response to
the attacks in an immediate and profound manner. For example, when the
United States closed its air space that terrible day, it was Canada that accepted
over 200 airplanes destined for the United States, including one plane that
was erroneously believed to have been hijacked. Canada also was affected by
erroneous claims that some of the terrorists had entered the United States
through Canada, as indeed had occurred before and may likely occur again
given the millions who cross the border each day.1 Canada was also singled
out in the USA Patriot Act2 which contained a whole section entitled
‘Defending the Northern Border’ providing for increased border guards
and scrutiny of those entering the United States. Important components of
Canada’s anti-terrorism and immigration policies have been established in
border agreements with the United States. Canada has drafted broad new
anti-terrorism laws and developed a new public safety department of govern-
ment with an eye to American perceptions that Canada might provide a safe
haven for terrorists.
Canada was not immune from terrorism before 9/11. In response to
´
kidnappings by two cells of the Front de Liberation du Quebec in 1970
(known as the 1970 October crisis), it invoked extraordinary emergency

1
See my September 11: Consequences for Canada (Montreal, McGill-Queens University
Press, 2003), ch. 1 for a fuller account of the dramatic consequences of the September 11
terrorist attacks for Canada.
2
Uniting and Strengthening America by Providing Appropriate Tools to Intercept and
Obstruct Terrorism (USA Patriot Act) Act of 2001 H. R. 3162 Title 4 Subsection A
‘Protecting the Northern Border’. Even while recognizing that 500 million people cross
its borders every year, the 9/11 Commission has more recently recommended increased
border controls that would require Canadians and Americans alike to be subject to
biometric identification at the border: The National Commission on Terrorist Attacks
Upon the United States, The 9/11 Commission Report (New York, St Martins, 2004), at 12.4.

511
KENT ROACH
512

powers to declare that organization to be illegal and to detain suspected
supporters and associates of that organization without ordinary legal safe-
guards. It is also prosecuting under the regular criminal law two men accused
of participating in the 1985 bombing of an Air India aircraft, an event that
killed 329 people in one of the world’s most deadly acts of terrorism before
9/11. In the first part of this chapter I examine Canada’s new Anti-Terrorism
Act (ATA) that was quickly enacted in the months after September 11 and
compare it to Canada’s previous response to terrorism. I focus on the breadth
of the definition of terrorism in the new law, its reliance on executive
proscription of groups, its authorization of novel investigative powers and
its status as permanent legislation. I also note that with a few exceptions, the
new law has not been used.
One of the reasons why Canada’s new anti-terrorism law has largely sat on
the shelf is that Canadian authorities have focused on using immigration law
as a means to detain suspected international terrorists. Although the ATA
departs from some traditional criminal law principles, it still has require-
ments such as proof beyond a reasonable doubt of a prohibited act with fault,
a three-day limit on preventive arrest and the ability of trial judges to stay
proceedings if secret evidence will result in an unfair trial. In contrast, the
administrative law apparatus of the Immigration and Refugee Protection
Act3 (IRPA) allows preventive detention and the removal of non-citizens
on the basis of secret evidence not disclosed to the deportee. In the second
part of this chapter, I examine how Canada’s immigration law has been used
to detain and deport suspected terrorists in a manner that challenges due
process and equality values. I also examine how Canada’s immigration policy
with respect to refugees has been influenced by anti-terrorism concerns and
relations with the United States.
In the last part of the chapter, I examine the likely effectiveness of
Canadian anti-terrorism law and policy and a new and promising direction
in Canada’s approach to security. In late 2003–2004 Canada created a new
Department for Public Safety and Emergency Preparedness and articulated a
national security policy that has the potential to facilitate a more rational and
effective approach not only to the risks of terrorism, but other harms relating
to disease, nuclear and chemical accidents and the safety of food and water. It
also finally enacted the Public Safety Act4 which features administrative
regulations designed to secure sites and substances vulnerable to terrorism.
These new elements of Canada’s security policy have the potential to be more
effective than reliance on the criminal law and immigration law and may
present less of a threat to due process and equality values.



3 4
S. C. 2001 c.27. S. C. 2004 c.15.
CANADA’S RESPONSE TO TERRORISM 513

I. The criminal law response: Canada’s
new Anti-Terrorism Act
Barely a month after 9/11, the federal government introduced a massive anti-
terrorism bill that for the first time created and defined crimes of terrorism under
Canada’s Criminal Code. The bill’s definition of terrorism was clearly inspired by
the United Kingdom’s Terrorism Act 2000 in requiring proof of religious,
ideological or political motive and the commission of a broad range of harms
that went well beyond violence against civilians. In some respects the Canadian
bill was even broader. As first introduced, it would have defined as acts of
terrorism politically motivated acts that intentionally caused a serious disruption
of any public or private essential service. Such acts had to be designed to
intimidate a segment of the public with regard to its security, but this could
include its ‘economic security’. Alternatively they had to be designed to compel a
government, an international organization or any person to act. The only
exemption from this sweeping prohibition was for ‘lawful advocacy, protest,
dissent or stoppage of work’. This broad definition of terrorism inspired wide-
spread concerns among many civil society groups that the Act would brand
many illegal protests and strikes as terrorism.5 This concern led to amendments
before the bill became law that dropped the requirement that exempted protests
must be lawful and provided that the expression of religious, political or
ideological thought or opinions would not normally be considered terrorism.6
Although the amendments narrowed the definition of terrorism, the
remaining definition of terrorism is still much broader than the functional
definition of terrorism that was used during the 1970 October crisis. In 1970,
groups that advocated ‘the use of force or the commission of crime as a means
of or as an aid in accomplishing governmental change within Canada’ were
declared to be unlawful associations under emergency regulations.7 Another
important difference was that the ATA was enacted as permanent legislation
as opposed to the emergency orders of the October crisis. In response to
criticisms, the bill was amended to require a Parliamentary review of its

5
For essays largely critical of the proposed bill and this aspect of the definition of terrorism
in particular, see R. Daniels, P. Macklem and K. Roach, The Security of Freedom: Essays
on Canada’s Anti-Terrorism Bill (University of Toronto Press, 2001). See also ‘Special
Issue’ (2003) 14 National Journal of Constitutional Law 1ff. For an account of how various
groups including unions, churches, charities, Muslim groups and Aboriginal people criti-
cized the bill and the impact these criticisms made on the legislative process see Roach,
Consequences for Canada, ch. 3.
6
Section 83.01(1.1) of the Criminal Code provides: ‘For greater certainty, the expression of
a political, religious or ideological thought, belief or opinion does not come within
paragraph (b) of the definition ‘‘terrorist activity’’ in subsection 1 unless it constitutes an
act or omission that satisfies the criteria of that paragraph.’
7
Public Order Regulations 1970 SOR/70–444 s. 3.
KENT ROACH
514

provisions and operations to commence late in 2004. Two of its most con-
troversial provisions relating to preventive arrest and investigative hearings
were also subject to a renewable sunset after five years. Nevertheless the
permanent nature of the Act increases the risks that investigative and trial
powers introduced to combat terrorism will eventually spread to other parts
of the criminal law. The distinction between the broad definition of terrorism
and phenomena such as organized crime can be an illusive one.8 The fact that
the legislation was designed as permanent legislation to be consistent with
the Canadian Charter of Rights and Freedoms and did not require any
emergency derogation from protected rights may also make it more likely
that new powers in the ATA may eventually be extended to apply to other
serious crimes.
The ATA was built on the premise that the ordinary criminal law was
inadequate to deal with the threat of terrorism after 11 September 2001. Both
with respect to the murder of a cabinet minister during the 1970 October
crisis and the bombing of Air India, Canada relied on the ordinary criminal
law which prohibited participation in crimes such as murders and bombings,
as well as conspiracies and attempts to commit such crimes. The ordinary
criminal law functioned under the traditional principle that motive was not
relevant and that a political or religious motive could not excuse the crime. In
contrast, the ATA requires proof that terrorist crimes were committed for
religious or political motives. Although this was defended as a means to
restrict the ambit of crimes of terrorism, it also requires the religion and
politics of terrorist suspects to be investigated by the police and to become a
central issue in any terrorist trials.
The ATA was defended as a necessary means to prevent terrorism. It
criminalized a broad array of activities in advance of the actual commission
of a terrorist act, including the provision of finances, property and other
forms of assistance to terrorist groups, participation in the activities of a
terrorist group, and instructing the carrying out of activities for terrorist
groups. There is not always a requirement of a proximate nexus to any
planned act of terrorism. In addition, offences under the former Official
Secrets Act were extended to apply to giving information to terrorist groups
and foreign governments.9 The financing provisions of the ATA were
required to implement Canada’s obligations under the 1999 Convention for
the Suppression of the Financing of Terrorism, but in my view the non-
financing offences relating to participation, preparation and harbouring
terrorists were not required to apprehend and punish those such as the
September 11 terrorists. The problem on September 11 was intelligence

8
Andrew Ashworth, Human Rights, Serious Crime and Criminal Procedure (London, Sweet
and Maxwell, 2002), at 30, 95.
9
Security of Information Act R. S. 1985 c.0–5 as amended by S. C. 2001 c.41 s. 25
CANADA’S RESPONSE TO TERRORISM 515

gathering and coordination and the enforcement of the criminal law and not
the ambit of the criminal law.10 This raises the dilemma that much of the
uncertain contours of the new criminal law against terrorism may be either
cosmetic or overbroad. On one reading, the new terrorism offences may only
duplicate existing provisions concerning inchoate crimes and participation in
crime. If they go beyond the existing provisions, however, concerns about the
extent of the criminal law and in particular guilt by association and status
based crimes can be raised.
Another important feature of the ATA is that it applies to a broad range of
acts committed inside or outside of Canada. This was done to make clear that
Canada was implementing various international conventions concerning
specific forms of terrorism. The extra-territorial application of the new
terrorism laws also builds on precedents relating to war crimes and aircraft
hijackings. People can be prosecuted in Canada for sending financial and
other support to struggles fought in foreign lands. In noting the difficulty of
defining terrorism, the Supreme Court of Canada has noted that ‘Nelson
Mandela’s African National Congress was, during the apartheid era, routinely
labeled as a terrorist organization, not only by the South African government
but by much of the international community’.11 The only exemptions from
the scope of international terrorism targeted by the law are for armed conflict
conducted according to customary or conventional international law or the
official activities of a state military force ‘to the extent that those activities are
governed by other rules of international law’.12 This would not necessarily
apply to all resistance efforts against repressive regimes. Difficult issues may
emerge should people in Canada be charged with sending financial or other
forms of support to liberation struggles in foreign lands.
The first and so far only charges under the ATA were laid by the Royal
Canadian Mounted Police (RCMP) on 31 March 2004. Charges of knowingly
participating in the activities of a terrorist group and facilitating a terrorist
activity were laid against Mohammad Momin Khawaja.13 The Canadian-born


10
Kent Roach, ‘The Dangers of a Charter-Proof and Crime-Based Response to Terrorism’
and ‘The New Terrorism Offences and Criminal Law’ in Daniels et al. (eds.), Security of
Freedom. See also Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror
(Toronto, Penguin, 2004), at 51. For arguments that the new offences were required, see
Richard Mosley, ‘Preventing Terrorism: Bill C-36, The Anti-terrorism Act’ in D. Daubney
et al. (eds.), Terrorism, Law and Democracy: How is Canada Changing After September 11
(Montreal, Les Editions Themis, 2002).
11
Suresh v. Canada [2002] 1 S.C.R. 3 at para 95. 12 ATA s. 83.01(1)(b).
13
The participation offence provides: ‘Everyone who knowingly facilitates in or contributes
to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the
ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an
indictable offence and liable to imprisonment for a term not exceeding ten years’
(Criminal Code, s. 83.18). The facilitation offence provides: ‘Everyone who knowingly
KENT ROACH
516

citizen is alleged to have participated in the activities of a terrorist group and
facilitated terrorist activity in and around Ottawa, Canada and London,
England in late 2003 and early 2004. Officials have linked his arrest with nine
men in the London area and the seizure of a large amount of ammonium
nitrate stored near Heathrow Airport. Some subsequent reports have suggested
that charges against Mr Khawaja might not have been possible without the
ATA. If true, this suggests that something short of a conspiracy to bomb may be
the basis for the charge.14 The fact that Mr Khawaja is a Canadian citizen
precluded the use of the IRPA against him.
Like the emergency regulations enacted during the October crisis, as well as
the use of terrorist lists by the United Nations, a central feature of the ATA is
the ability of the cabinet of elected ministers to designate groups and even
persons as terrorists.15 So far 38 groups have been listed. Executive designa-
tion of a group as terrorist is designed to be conclusive proof in a criminal
trial that the group is in fact a terrorist group.16 Over 450 groups and
individuals have been listed as terrorists under regulations enacted under
the United Nations Act.17 These lists are distributed to financial institutions
and within government. Executive designation of terrorist groups and indi-
viduals is a common feature of many international and national anti-terrorism
schemes. Nevertheless, it can be criticized as a challenge to judicial powers to
decide in a particular case who is a terrorist. A person or group listed as
terrorist receives no prior notice of the listing decision and a limited right of
judicial review after the decision has been made. In Canada, at least one person,
Liban Hussein, was wrongfully listed as a terrorist, an error that was corrected
by the government after more than six months.18
There is a limited form of ex post judicial review of whether the Cabinet’s
listing decision was reasonable, but it is unlikely that such reviews would be

facilitates a terrorist activity is guilty of an indictable offence and liable to imprisonment
for a term not exceeding fourteen years’ (s. 83.19). The definition of a terrorist activity
includes attempts, conspiracies, counselling and threats to commit a terrorist activity. The
RCMP stresses that their focus is on individuals, not Canada’s large Muslim community.
‘RCMP lay terrorist charges’ Globe and Mail, 31 March 2004; ‘Ottawa man’s arrest tied to
terror raids in Britain’ Globe and Mail, 3 April 2004.
14
Five people in the United Kingdom have been charged with conspiracy to cause an
explosion likely to endanger life or cause serious injury to property, an offence punishable
by up to life imprisonment. ‘British court hears of potential bomb targets’ Globe and Mail,
17 April 2004.
15
Criminal Code s. 83.05.
16
But for an argument that this would violate the presumption of innocence, see David
Paciocco ‘Constitutional Casualties of September 11’ (2002) 16 Supreme Court Law Rev.
(2d) 199.
17
United Nations Suppression of Terrorism Regs. SOR 2001–360 2 Oct 2001.
18
E. Alexandra Dosman, ‘For the Record: Designating ‘‘Listed Entities’’ For the Purposes of
Terrorist Financing Offences at Canadian Law’ (2004) 62 University of Toronto Faculty
Law Review 1 at 15–19.
CANADA’S RESPONSE TO TERRORISM 517

successful or remove the stigma of being officially listed as a terrorist. The
procedure for judicial review is also open to criticism. Hearings can be closed and
the group challenging the listing can be denied access to evidence before the
judge because of national security concerns. In cases of intelligence received from
other governments or international organizations, the applicant can be denied
access to even a summary of evidence.19 In a case decided after September 11 in a
non-terrorist context, the Supreme Court of Canada emphasized the importance
for Canada of assuring foreign governments that their intelligence will be kept
secret because Canada relies heavily on such intelligence.20
The listing decision is in part designed to encourage financial institutions
and individuals to refuse to associate with the listed person or group. The
state effectively encourages third parties such as banks and landlords to
impose their own sanctions on those listed as terrorists. Section 83.08(2) of
the ATA encourages such actions by exempting from civil liability those who
refuse to deal with property provided that they took ‘all reasonable steps to
satisfy themselves that the relevant property was owned or controlled by or on
behalf of a terrorist group’. Section 83.1 requires all Canadians to report
information about a transaction with terrorist property and provides that no
‘criminal or civil proceedings lie against a person for [such] disclosure[s]
made in good faith’. The Proceeds of Crime (Money Laundering) and
Terrorist Financing Act21 also requires reporting about money or property
if there are suspicions of a terrorist connection. All of these financing provi-
sions depart from the traditional criminal law model by conscripting non-
state third parties in the state’s anti-terrorism efforts. About two million
reports about financial transactions are made each year and in the last nine
months in 2003, twenty-nine cases involving $35 million were identified for
investigation into terrorist financing.22
Another important feature of the ATA was its expansion of police powers.
One provision provides for preventive arrest when there are reasonable grounds
to believe that a terrorist activity will be carried out and reasonable suspicion to
believe that detention or the imposition of conditions is necessary to prevent the
carrying out of the terrorist activity. The period of preventive arrest under the
Canadian law is limited to seventy-two hours. At the same time, the effects of a
preventive arrest can last much longer. The suspect can be required by a judge to
enter into a recognizance or peace bond for up to a year with breach of the bond
being punishable by up to two years’ imprisonment and a refusal to agree to a
peace bond punishable by a year’s imprisonment.23 Governments are required to
prepare reports on the use of the measure and in the first three years of the act, no
preventive arrests were made. This may represent restraint on the part of

19
ATA s. 83.05(6)(a), 83.06. 20 Ruby v. Canada [2002] 4 S.C.R. 3 at para 44.
21
S. C. 2000 c.17 as amended by S. C. 2001 c.41.
22
‘$35M funnelled to terror groups’ Toronto Star, 29 March 2004. 23 ATA s. 83.3.
KENT ROACH
518

Canadian police, a preference for keeping terrorist suspects under surveillance or
difficulties identifying terrorist suspects.
A second new investigative power is a power to compel a person to answer
questions relating to terrorist activities. The subject cannot refuse to answer
on the grounds of self-incrimination, but the compelled statements and
evidence derived from them cannot be used in subsequent proceedings
against the person compelled. There is also judicial supervision of the ques-
tions and a right to counsel. An attempt was made to use the investigative
hearing provision during the Air India trial. They were held to be procedural
provisions that, as opposed to the new offences, can be applied to crimes
committed before the enactment of the ATA. An initial hearing was held in
secret without notice to the media or to the accused in the Air India trial. The
person compelled to testify challenged the constitutionality of the procedure.
In Application under s. 83.2824 the Supreme Court upheld the constitutionality
of this novel procedure in a 6:3 decision. Iacobucci and Arbour JJ held for the
majority that the procedure did not violate Section 7 of the Charter given
protections that compelled evidence or evidence derived from that evidence
could not be used against the person in subsequent criminal prosecutions with
the exception of those for perjury. They added that the Charter would prevent
the use of an investigative hearing if the predominant purpose was to deter-
mine penal liability and would prevent the use of compelled testimony and
evidence in subsequent extradition and deportation proceedings even though
this was not specifically provided for in the impugned statute.25 The Court’s
extension of immunity to deportation and extradition hearings add protec-
tions that are especially important in the context of international terrorism.
Two judges dissented on the basis that investigative hearings violated the
institutional independence of the judiciary by requiring judges to preside
over police investigations26 and they, along with a third judge, dissented on
the basis that the use of an investigative hearing in the middle of the Air India
trial constituted an abuse of process because it was an attempt by the
prosecution to gain an unfair advantage. The Court held that the presump-
tion in favour of open courts applied to the conduct of investigative hearings
as opposed to the application for an investigative hearing which would be
held in private. Two judges dissented on the basis that such a presumption
‘would normally defeat the purpose of the proceedings by rendering them
ineffective as an investigative tool’ and would harm the rights of third parties
and the administration of justice.27

24
[2004] 2 S.C.R. 248. 25 Ibid. at para 78–9. 26 Ibid. at para 180.
27
The Court added the caveat that it may very well be that by necessity ‘large parts of judicial
investigative hearings’ and ‘the very existence of these hearings’ might at times have to be
kept secret and it was too early to tell how many hearings there would be and what form
they would take’ (Re Vancouver Sun [2004] 2 S.C.R. 332, at paras 41, 60).
CANADA’S RESPONSE TO TERRORISM 519

Even though upheld as constitutional and subject to a rebuttable presump-
tion of openness and active participation by judges and counsel representing
the individual, investigative hearings represent an undesirable incursion on
the adversarial traditions of criminal justice and one that could spread in an
attempt to combat other serious crimes. It is also questionable whether
investigative hearings are necessary or will be effective. Authorities already
have the power to offer people associated with terrorists incentives to cooperate
such as reductions of possible charges and witness protection.28 The law
assumes that an uncooperative person will suddenly cooperate and tell the
truth simply because they are threatened with contempt of court or a prose-
cution for refusing to cooperate at an investigative hearing. This questionable
assumption poses a dilemma that runs throughout anti-terrorism law. On the
one hand, the law may be too tough should it be applied against those who are
not determined terrorists but who may innocently associate with terrorist
suspects, and against those who belong or associate with radical religious or
political organizations. On the other hand, the law may not be tough enough to
deter or stop committed terrorists prepared to die for their cause. In the third
part of this chapter, I suggest that a necessary strategy with respect to deter-
mined terrorists is to attempt to deny them access to the substances and sites
that are particularly vulnerable to terrorism.
The prior consent of a provincial or federal Attorney General is required
before prosecutions for terrorism offences are commenced or the new powers
of preventive arrest or investigative hearings are used.29 Although this
requirement may prevent some unjustified uses of the ATA, it is nevertheless
significant that the Act will be administered by police officers throughout
Canada. The McDonald Commission concluded that the Royal Canadian
Mounted Police (RCMP) had engaged in illegalities and had trouble distin-
guishing radical dissent from terrorism in the wake of the 1970 October
crisis.30 In 1984, Canada created a new civilian security intelligence agency
that was subject to a special watchdog with broad powers not only to respond
to complaints, but to audit the activities of the agency to ensure that it did not
stray beyond its legitimate mandate or engage in unlawful activities.31 The
commissioner to hear complaints against the RCMP has expressed concerns

28
Two people based in Canada with reported links to al Qaeda, Ahmed Ressam and
Mohammed Jabarah, are now in American custody and said to be cooperating with
American authorities. See Stewart Bell, Cold Terror (Toronto, Wiley, 2004).
29
ATA s. 83.24, 83.28(3), 83.3(1). The Security Offences Act RSC 1985 c.S-7 allows the
federal Attorney General and the federal police to pre-empt provincial authorities with
respect to offences involving threats to national security.
30
Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted
Police, Second and Third Reports (Ottawa, Queens Printer, 1981).
31
Canadian Security Intelligence Service Act R. S. 1985 c. C-23. A different review body
oversees the legality of the actions of the Communications Security Establishment which
KENT ROACH
520

that she has not been given additional resources and powers to deal with the
new mandate of the RCMP to administer the ATA.32 Another complicating
factor is that police were given expanded powers in 2001 to commit acts that
would otherwise be crimes provided that they are authorized by senior police
officers.33 The Canadian government has announced its intention to create
‘an independent arms’ length review mechanism for the RCMP’s activities
with respect to national security’ and has given a public inquiry a mandate to
recommend such a scheme. These are welcome commitments, but at present
the RCMP remains subject to less extensive review than Canada’s civilian
security intelligence agency.
The ATA included a new offence of hate motivated mischief against
religious property and expanded powers to remove hate literature from the
Internet. These provisions were defended on the basis of the connection
between racial and religious hatred and terrorism. Although the government
was prepared to proclaim its commitment to the anti-discrimination princi-
ple when it extended the criminal law, it was not prepared to introduce an
anti-discrimination clause in the ATA that would bind state officials.34 Such
a clause might provide symbolic reassurance to those in Canada’s multi-
cultural community who have expressed concerns that they will be subject
to heightened scrutiny because they may have the same origins and religion
as some terrorists. Concerns have been raised about over-inclusive targeting
of people by officials or financial institutions because of factors such as an
Arabic name. The remedies available for discriminatory profiling of an
innocent person are very limited.35 It will be interesting to see if such a clause
is added as part of a comprehensive review of the provisions and operation of
the ATA by a Parliamentary committee, a process that must be completed by
the end of 2005.36 At the same time, however, an anti-discrimination clause
by itself will not be self-executing and concerns about how the new law is



can intercept private communications from foreign sources without judicial authoriza-
tion. National Defence Act Part VI as amended by S. C. 2001 c.41.
32
Shirley Heafey ‘Civilian Oversight in a Changed World’ and A. Borovoy ‘Watching the
Watchers: Democratic Oversight’ in Daubney et al. (eds.), Terrorism, Law and Democracy.
33
Criminal Code s. 25.1.
34
Those who advocated such a clause included Irwin Cotler, a noted human rights lawyer
subsequently appointed as Canada’s Minister of Justice. See his ‘Thinking Outside the
Box: Foundational Principles for a Counter-Terrorism Law and Policy’ in Daniels et al.
(eds.), Security of Freedom.
35
Sujit Choudhry and Kent Roach, ‘Racial and Ethnic Profiling: Statutory Discretion,
Constitutional Remedies and Democratic Accountability’ (2003) 41 Osgoode Hall L. J. 1;
Reem Bahdi, ‘No Exit: Racial Profiling and Canada’s War Against Terrorism’ (2003)
41 Osgoode Hall L. J. 293.
36
ATA s. 145.
CANADA’S RESPONSE TO TERRORISM 521

administered remain high, especially in Canada’s Arab and Muslim
communities.37

II. Immigration as the focus of Canada’s anti-terrorism efforts
Although most of the post-9/11 debate has focused on the ATA, it is Canada’s
immigration laws under the Immigration and Refugee Protection Act (IRPA)
that have been used most frequently against suspected terrorists. In some
respects this follows patterns of reliance on immigration laws in both the
United States38 and the United Kingdom. Immigration law has been attrac-
tive to the authorities because it allows procedural shortcuts and a degree of
secrecy that would not be tolerated under even an expanded criminal law.

A. Grounds of exclusion
Under the IRPA ‘engaging in terrorism’ or ‘being a member of an organiza-
tion that there are reasonable grounds to believe engages, has engaged or will
engage’ in acts of terrorism are grounds to make a non-citizen inadmissible to
Canada for security reasons.39 Terrorism is not, however, defined under
IRPA. In the 2002 case of Suresh v. Canada, the Supreme Court implicitly
rejected the broad definition of terrorism found in the ATA and used by lower
courts. The Court defined terrorism for the purpose of immigration law as
any ‘act intended to cause death or serious injury to a civilian, or to any
person not taking an active part in the hostilities in a situation of armed
conflict, when the purpose of such act by its nature or context is to intimidate
a population or to compel a government or an international organization to
do or abstain from doing any act’. The Court described this definition of
terrorism, taken in part from the 1999 International Convention on the
Suppression of the Financing of Terrorism, as ‘the essence of what the
world understands by ‘‘terrorism’’’.40 The Court adopted this definition of


37
As part of a new national security policy, the government has established an advisory
cross-cultural round-table on security. Canada, Securing an Open Society: Canada’s
National Security Policy, April 2004, at 2.
38
The United States’ extraordinary rendition of Canadian citizen Maher Arar to Syria via
Jordan is the focus of a major public inquiry in Canada headed by a respected judge. Arar,
who was returning to Canada via New York, was detained in the United States, trans-
ported to Syria where he was detained for almost a year before being released. The inquiry
will examine the role of Canadian officials in this matter. Neither Syria nor the United
States will participate. The inquiry also has a mandate to make recommendations about an
arm’s-length review mechanism for the national security activities of the RCMP. See
www.ararcommission.ca.
39
Immigration and Refugee Protection Act S. C. 2001 c.27 s. 34.
40
Suresh v. Canada, [2002] 1 S.C.R. 3 at para 98.
KENT ROACH
522

terrorism in the course of rejecting challenges that the law was unconstitu-
tionally vague and unjustifiably restricted freedom of expression and freedom
of association. It also left open the possibility that Parliament might chose to
alter its definition of terrorism, perhaps by bringing the broader ATA defini-
tion into immigration law.
The fact that at present terrorism is defined more narrowly in IRPA than
in the ATA has not, however, limited the utility of immigration law as
anti-terrorism law. One reason may be that an alternative ground for the
declaration of inadmissibility is that of ‘a danger to the security of Canada’.
The Supreme Court has indicated that after September 11 this term must be
interpreted broadly and is not limited to direct threats to Canada.41Another
reason is that detention or removal under IRPA can be achieved without the
need to prove beyond a reasonable doubt that a person has committed a
crime. Although the ATA stops short of making membership in a terrorist
group a crime, Section 34 of the IRPA allows a non-citizen to be declared
inadmissible on security grounds for being a member of an organization that
there are reasonable grounds to believe either engages, has engaged or will
engage in terrorism.42 In addition, membership in a terrorist organization
can be proven under Canadian immigration law on the basis of a bona fide
belief in a serious possibility based on credible evidence.43 This standard is
less onerous for the government than even the civil standard of proof on a
balance of probabilities, let alone the criminal law standard of proof beyond a
reasonable doubt.

B. Investigative detention
Procedures used under Canadian immigration law for preventive or investi-
gative detention are more draconian than those available under the ATA. As
discussed above, the ATA provides for preventive arrest for a seventy-two

41
The Court stated that ‘it may once have made sense to suggest that terrorism in one
country did not necessarily implicate other countries. But after the year 2001, that
approach is no longer valid’ (Suresh, at para 87). The Court went on to stress the global
nature of terrorism and Canada’s interest in international cooperation. It also stated that
‘preventive or precautionary state action may be justified; not only an immediate threat
but also possible future risks must be considered’ (at para 88).
42
IRPA s. 34(1)(f) provides that: ‘A permanent resident or a foreign national is inadmissible
on security grounds for . . . being a member of an organization that there are reasonable
grounds to believe engages, has engaged or will engage in acts . . . [of] terrorism’. The
Supreme Court of Canada has read down this provision to allow a refugee applicant
‘to establish that his or her continued residence in Canada will not be detrimental to
Canada, notwithstanding proof that the person is associated with or a member of a
terrorist organization. This permits a refugee to establish that the alleged association
with the terrorist group was innocent’ (Suresh at para 110).
43
Chiau v. Canada [2001] 2 F. C. 207 (C. A.). See also IRPA s. 33.
CANADA’S RESPONSE TO TERRORISM 523

hour period, but with the possibility of peace bonds being imposed for a
longer period. In contrast, the IRPA authorizes a much broader form of pre-
ventive detention on reasonable grounds that a non-citizen, including a perman-
ent resident, is inadmissible and a danger to the public. As under the ATA, there
would be review within forty-eight hours, but not by a judge but an official
within the Immigration Division. Continued detention can be authorized on the
basis that ‘the Minister is taking necessary steps to inquire into a reasonable
suspicion that they are inadmissible on grounds of security or for violating
human or international rights’.44 This is a form of investigative detention not
contemplated under the ATA. There is no limit on this period of detention, but
the reasons for the detention must be reviewed every thirty days.45
The above powers of investigative detention were used in August 2003 in
Canada with respect to twenty-one non-citizens from Pakistan who were
arrested for typical Immigration Act violations relating to misleading statements
and a fraudulent school being used as a means to obtain student visas.
Nevertheless, the arrests were headline news in Canada largely because of a
sensational ‘backgrounder’ prepared by a Public Service and Anti-Terrorism
Unit, composed of Mounties and immigration officials. The news release stated
that the young men were: ‘from, or have connections to, the Punjab province in
Pakistan that is noted for Sunni extremism . . . They appear to reside in clusters
of 4 or 5 young males and appear to change residences in clusters and/or
interchange addresses with other clusters . . . All targets were in Canada prior
to 5 September 2001 . . . . A confirmed associate of the group . . . provided an
offer of employment from Global Relief Foundation . . . [which] has been iden-
tified by the United Nations as a fundraising group that provides financial
support to terrorist groups, including Al Qaeda . . . One of the targeted apart-
ments is reported to have aeroplane schematics posted on the wall, as well as
pictures of guns’. And then the allegation that was the lead in the newspapers:
‘One of the subjects is currently enrolled in flight school to qualify as a multi-
engine commercial pilot. His flight path for training purposes flies over the
Pickering Nuclear Plant.’46
Not surprisingly given the dramatic nature of this extraordinary press
release, the initial detention of nineteen men (the same number involved in
the September 11 attacks) was highly publicized and initially raised many
security concerns. The men were entitled to prompt administrative hearings,
but most of them were detained under Section 58(1)(c) of IRPA on the
grounds that ‘the Minister is taking necessary steps to inquire into a reason-
able suspicion that they are inadmissible on grounds of security or for
violating human or international rights’.47 The aftermath of these

44
IRPA s. 58 (1) (c). 45 IRPA s. 57(2).
46
Project Thread Backgrounder: Reasons for Detention Pursuant to 58(1)(c), undated.
47
IRPA s. 58(1) (c).
KENT ROACH
524

detentions suggest that the front page news about a suspected al Qaeda cell
with designs on a nuclear plant was grossly unfair. Many of the men have been
released after adjudicators determined that they were not a security threat.
Those who have been deported or detained have also been found not to be
security threats. Ten of the men are making refugee applications on the basis
that the publicity surrounding the case has made them liable to detention
under Pakistan’s harsh anti-terrorism laws.48 The whole incident has caused
widespread resentment among Canada’s Muslim and Arab communities with
some criticizing the apprehension of the men as the actions of a police state
and others suggesting that it is an example of profiling that victimizes the
innocent.


C. Security certificates and secret proceedings
Security certificates were introduced in Canadian immigration law in the
early 1990’s and about twenty-seven security certificates have been signed by
the Ministers of Immigration and the Solicitor General declaring that a
permanent resident or foreign national is inadmissible on security grounds.
The security certificate is subject to judicial review in the Federal Court to
determine its reasonableness, but it pre-empts other proceedings, including
applications for refugee status. The procedure for reviewing security certifi-
cates is extraordinary because it involves the judge being required to hear the
evidence in the absence of the person named in the certificate and their
counsel if, in the judge’s opinion, the disclosure of information would be
injurious to national security or the safety of any person. Such information
can be used by the judge in determining the reasonableness of the certificate,
but it cannot even be included in a summary of other evidence that can be
provided to the person named.49 The Supreme Court of Canada upheld a
somewhat similar procedure in an earlier Act, but stressed the importance of
providing at least a summary of the evidence to the person named in the
certificate.50 Somewhat similar procedures are available under the ATA with


48
‘Detained students seek refugee status’ Toronto Star, 11 October 2003.
49
Section 78 (e) of IRPA provides that at the government’s request ‘the judge shall hear all or
part of the information or evidence in the absence of the permanent resident or the foreign
national named in the certificate and their counsel if, in the opinion of the judge, its
disclosure would be injurious to national security or to the safety of any person’.
Section 78(h) provides that ‘the judge shall provide the permanent resident or the foreign
national with a summary of the information or evidence that enables them to be reason-
ably informed of the circumstances giving rise to the certificate, but that does not include
anything that in the opinion of the judge would be injurious to national security or to the
safety of any person if disclosed’.
50
Chiarelli v. Canada [1992] 1 S. C. R. 711.
CANADA’S RESPONSE TO TERRORISM 525

respect to preserving the confidentiality of information obtained in confi-
dence from a foreign entity or for protecting national defence or national
security. An important exception under the ATA, however, is that the crim-
inal trial judge has the right to make any order, including a stay of the entire
criminal proceedings, that he or she ‘considers appropriate in the circum-
stances to protect the right of the accused to a fair trial’.51 Such orders are not
contemplated under Canadian immigration law. Indeed if the judge upholds
the security certificate as reasonable, the person named is subject to removal
without appeal and without being eligible to make a claim for refugee
protection.52
The incursions that are made on standards of due process or adjudicative
fairness in the name of keeping information affecting national security
confidential but usable in security certificate proceedings are well-
demonstrated by a 2002 speech given by a judge of the Federal Court, a
specialized court in Canada that has jurisdiction over many security
matters. He commented:
We do not like this process of having to sit alone hearing only one party and
looking at the materials produced by only one party and having to try to
figure out for ourselves what is wrong with the case that is being presented
before us and having to try for ourselves to see how witnesses that appear
before us ought to be cross-examined.53
The judge ended his speech with an extraordinary confession: ‘I sometimes
feel a little bit like a fig leaf.’54 He also suggested a more proportionate
alternative to the present system, one based on the British system of allowing
lawyers with security clearances to have access to confidential information
and play the role of the adversary in the national security context.55
Unfortunately, this suggestion has yet to be taken up.
Those subject to a security certificate may be subject to indefinite deten-
tion until the certificate has been reviewed by the judge and if upheld, they
have been removed from Canada on the basis that they are ‘a danger to
national security or the safety of any person or are unlikely to appear at a

51
CEA s. 38.14. 52 IRPA s. 81.
53
James Hugessen ‘Watching the Watchers: Democratic Oversight’ in D. Daubney et al
(eds.), Terrorism, Law and Democracy, at 384.
54
Ibid., at 386.
55
Under a previous Act, a review of security certificates issued against permanent residents
was conducted by the independent review body for Canada’s security intelligence agency
and security cleared counsel for that agency played an adversarial role in challenging the
security certificate. See Murray Rankin, ‘The Security Intelligence Review Committee:
Reconciling National Security with Procedural Fairness’ (1990) 3 Canadian Journal of
Administrative Law and Practice 173. The European Court of Human Rights wrongly
assumed in Chahal v. UK. (1996) 23 E. H. H. R. 413 that such a special advocate procedure
was also used in Canada’s Federal Court.
KENT ROACH
526

proceeding or for removal’.56 One refugee, Mahmoud Jaballah, alleged to
have terrorist ties with the Egyptian al Jihad, has been detained since August
2001 on a security certificate ordering his deportation to Egypt.57 Judges have
rejected the idea that those detained under immigration law for national
security reasons should have the same rights as those detained pending
criminal trials.58
In terms of the eventual removal of a person on the basis that he or she is a
threat to national security or a member of a terrorist organization, the
Supreme Court has held that the right not to be deprived of life, liberty or
security of the person except in accordance with the principles of funda-
mental justice in Section 7 of the Canadian Charter will in most cases prohibit
the deportation of a person to a country where there is a substantial risk of
torture.59 Interestingly, however, the Court did not articulate an absolute rule
or indicate what exceptional circumstances might justify deportation to face
torture or address the situation of those who may be subject to continued
detention because their removal would not be constitutional. The Canadian
courts have also refused to stay deportations to allow United Nations
Committees such as the Human Rights Committee and the Committee
Against Torture to hear complaints that they will be tortured if deported
from Canada.60
Unlike the United Kingdom, Canada has not enacted legislation specifi-
cally derogating from fair trial rights to allow the indefinite detention of

56
The complex detention provisions, which also make it easier to detain a foreign national as
opposed to a permanent resident, are found in ss. 82–4 of IRPA.
57
A judge who found an abuse of process because of the Minister’s delay in deciding whether
a person subject to a security certificate was at risk if deported made an analogy to
detention at Guantanamo Bay. ‘Judge sorry for delay in terrorist suspect’s case’ National
Post, 12 April 2003; Re Jaballah 2003 F. C. T. 640. The judge eventually upheld the security
certificate without the Minister’s decision but this was overturned by an appeal court.
‘Detainee granted new hearing’ Toronto Star, 14 July 2004. Mr Jaballah had previously
been detained under a security certificate from March to November 1999 before that
certificate was quashed.
58
Jaballah, 2004 F. C. 299 at para 47.
59
Although a refugee applicant facing the risk of torture is entitled to heightened due process
in terms of written reasons from the Minister for the deportation, the Minister’s decisions
as to whether a person faces a substantial risk of torture or is a threat to the security of
Canada will only be overturned by the courts if they are patently unreasonable.
60
Ahani v. Canada (2002) 58 O. R.(3d) 107. The United Nations Human Rights Committee
subsequently indicated that the deportation of Ahani before it had decided the complaint
violated Canada’s obligations under the International Covenant on Civil and Political
Rights and reaffirmed the absolute prohibition on torture under international law. Ahani
v. Canada Communication No.1051/2002: Canada 15/06/2004 CCPR/C/80/D/1051/2002.
See generally Kent Roach, ‘Constitutional, Remedial and International Dialogues About
Rights: The Canadian Experience’ (2005) 40 Texas International Law Journal
(forthcoming).
CANADA’S RESPONSE TO TERRORISM 527

suspected terrorists who cannot be deported because of concerns that they
might face torture.61 At the same time, the existing Canadian legislation
places no limits on the time that a person subject to a security certificate
may be detained. The government is arguing in at least one case that a person
should be deported to Egypt even if that results in torture or, alternatively,
that ‘the threat to national security is so great that this man can never be
released’.62

D. Changes in refugee policy
In December 2001 Canada and the United States agreed to implement a ‘safe
third country agreement’ as part of a smart border agreement to increase
security and ease the flow of goods and people at the border. When imple-
mented the agreement will preclude most refugees who reach the United
States from making a refugee application to Canada. Unless other measures
are taken to increase refugee applications, this may significantly reduce the
number of refugees Canada considers in any year. The agreement responds to
perceptions that Canada’s refugee policy is too liberal and generous. A recent
report by the research division of the United States Library of Congress has
concluded that ‘Canada’s immigration laws are arguably the foremost factor
in making Canada hospitable to terrorists’. Although the report noted that
the IRPA had decreased appeal rights and facilitated the use of detention, it
also criticized it in part because its reference to the protection of refugees was
‘an indication of the prevailing concern for or priority placed upon civil
liberties in Canada’.63

E. Summary
The above sketch cannot do justice to the complexities of Canadian immig-
ration law, but it does provide some basis for understanding why the
Canadian government has been attracted to using the IRPA as opposed to
the ATA as the main means to deal with suspected international terrorists. It
is regrettable that most academic and civil society concerns focused on the
ATA while provisions of IRPA that present an even greater threat to the values
of due process and equality have largely escaped criticism. As my colleague
Audrey Macklin has suggested ‘laws that arouse deep concerns about civil


61
Anti-terrorism Act, 2001 Part 4.
62
‘Must deport Jaballah, court told’ Toronto Star, 17 August 2004.
63
Library of Congress Research Division, Nations Hospitable to Organized Crime and
Terrorism, October 2003 at 152, 153 and 147. Note that the methodology and orientation
of the report has been criticized by many in Canada. ‘US terror study ‘‘crude’’ ‘‘inexpert’’’,
Toronto Star, 17 February 2004.
KENT ROACH
528

liberties when applied to citizens are standard fare in the immigration
context’.64
At the same time, there is little demand in Canada for more liberal
immigration laws. Although the Supreme Court of Canada has held in a
landmark equality rights case that non-citizens are a ‘discrete and insular
minority’ vulnerable to discrimination by the majority,65 it has also accepted
that non-citizens do not have a right to remain in Canada and can be treated
more harshly under immigration law than under the criminal law.66 The
IRPA indeed subjects non-citizens to considerably lower standards of adju-
dicative fairness than under even the enhanced criminal law of the ATA. It is
in this context that the Canadian government has chosen to rely more on
immigration law than the new criminal law to deal with suspected inter-
national terrorists.

III. Canada’s evolving anti-terrorism policy: a new
emphasis on public safety and security
There are reasons to doubt the effectiveness of ATA as an instrument to deter
acts of terrorism. Even before its enactment, most acts of terrorism were
already punished as serious crimes such as murder, hijacking and the use of
explosives. The ATA may marginally increase the severity and certainty of
punishment, but determined terrorists are not rational actors amenable to
deterrence. The ATA will probably be most useful when it is directed at third
parties, such as financial institutions, that could provide services to terrorists.
These entities may well be encouraged to cease dealing with suspected
terrorists. At the same time, there may be problems of overdeterrence
and inflicting harms on the innocent if errors are made in determining who
is a terrorist.
Reliance on immigration law in an attempt to decrease the risk of terrorism
can also be both overinclusive and underinclusive. Policies such as the safe
third country agreement will turn away many more legitimate refugees than
deflect terrorists. The type of long-term and preventive detention that is
allowed under Canadian immigration law may be successful in incapacitating
suspected terrorists, albeit without a clear finding of guilt. Nevertheless,
many of those detained will eventually be deported from Canada. Given the
international nature of terrorism, it is not clear that deflection or deportation
of suspected terrorists to other countries will actually increase security. It may
simply displace the problem of global terrorism. In addition, the immigration


64
Audrey Macklin, ‘Borderline Security’ in Daniels et al. (eds.), Security of Freedom, at 393.
65
Andrews v. Law Society of British Columbia, [1989] 1 S. C. R. 143.
66
Canada v. Chiarelli, [1992] 1 S. C. R. 711.
CANADA’S RESPONSE TO TERRORISM 529

law approach that Canada has relied upon cannot be used against terrorist
suspects who are Canadian citizens.
Reliance on military force such as Canada’s participation in the war against
the Taliban regime in Afghanistan may play some role in disrupting terrorist
cells and state sponsors for terrorism. Nevertheless, the war has not incapa-
citated al Qaeda with its decentralized cell structure. Reliance on war will also
result in loss of innocent lives and may have costs in terms of human rights.
Canadian troops in Afghanistan participated in the transfer of some prisoners
to Guantanamo Bay where they have been kept in what Lord Steyn has
criticized as a ‘legal black hole’.67 A Canadian citizen, Omar Khadr is detained
at Guantanamo Bay and alleged to have killed an American medic in combat
on the Afghanistan/Pakistan border. As a result of the United States Supreme
Court’s decision in Rasul v. Bush, Khadr is seeking habeas corpus review
before the American courts. He is also suing the Canadian government
alleging a failure to provide consular access.68 Should Khadr be charged, it
is possible that he may be tried and face the death penalty before an American
military tribunal even though he was sixteen years of age at the time of the
alleged offence. Canada did not join the United States, the United Kingdom,
Australia and other countries in the invasion of Iraq, a use of war that seems
to have increased rather than decreased terrorism.
What then ought Canada and other countries do to respond to the very
real risk of terrorism? Clearly doing nothing is not an option because of the
dire consequences of even one successful act of biological, chemical or
nuclear terrorism or the poisoning of food or water supplies. In my view,
Canada ought to have placed greater emphasis on administrative and
environmental controls that would help secure sites and substances that can be
used to commit acts of terrorism. Some of these controls, including increased
protection and surveillance of critical infrastructure such as pipelines, electri-
city lines, and seaports and airports, as well as increased control over dan-
gerous materials such as explosives and toxins, are included in the Public
Safety Act69 which, after being introduced four times in Parliament, was finally
enacted into law in May 2004. It is unfortunate that defining as crimes of
terrorism much that was already illegal before 9/11 was a priority for the
Canadian government while administrative measures to reduce the damage
that could be caused by terrorists were not. At the same time, the criminal law
approach taken in ATA, as well as the immigration law approach, was
partially encouraged by the terms of United Nations Security Council

67
Johan Steyn, ‘Guantanamo Bay: The Legal Black Hole’ (2004) 53 International and
Comparative Law Quarterly 1.
68
Khadr v. Canada, [2004] F. C. J. no. 1391. The family of the deceased American service-
man are suing Khadr and his family in American civil courts.
69
S. C. 2004 c.15.
KENT ROACH
530

Resolution 1373 which called for criminalization of financing and participa-
tion in terrorism and better border controls.
An administrative and environmental approach designed to prevent ter-
rorists from gaining access to substances such as explosives, chemical or
nuclear materials or sites vulnerable to terrorism such as airplanes and
nuclear plants might have a number of benefits. These are softer strategies
that do not rely upon punishment and detention to the same extent as
criminal and immigration law. They also work as a fail safe should it prove
impossible to deter, incapacitate or identify all the terrorists. Measures such
as more effective screening of all passengers and baggage on aircraft through
technology may also limit the damage to values such as liberty, privacy and
equality. Technology can be used to screen all passengers and not just those
who fit into a profile of a terrorist. To be sure, technology such as the use of
biometrics could have a negative impact on privacy. When applied to large-
scale populations, it will also produce a considerable number of false positives
and false negatives. It will not be possible to screen all passengers of mass
transit, but it should be possible to provide better controls on explosives and
other materials that can be used for bombs.
Some environmental measures such as better monitoring of public health and
the safety of food and water have the important additional benefit of providing
protections against diseases and accidental contamination of food and water, as
well as terrorism. Better security for computer systems would protect them not
only from a cyber-terrorism attack, but also from random attacks by hackers.
Better emergency preparedness also serves a similar all risks function as it better
prepares society to deal with a wide range of natural and man-made disasters
such as earthquakes and black outs. The Public Safety Act70 contains provisions
that allow Ministers of Transport, the Environment, Health and Defence to take
temporary measures in a wide range of emergencies, not just with respect to
terrorism. The American National Research Council has concluded in a post-
9/11 report, that we should invest in strategies that will make us safer not only
from terrorist attacks, but from disaster, disease and accidents.71 Such strategies
also present less of a risk, both for the targets and for society, of targeting the
wrong people.
The Canadian government has recently taken steps towards such a com-
prehensive all risks approach to national security. In response not only to


70
The Act allows for emergency directions when necessary to deal with immediate risks to
safety, security, health and the environment in relation to: aeronautics (part 1), environ-
mental protection (part 3), health (part 6), food and drugs (part 9), hazardous products

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