The <em>Anti-terrorism Act</em>

THE ATA IN PERSPECTIVE

Some of the following links are to non-Government of Canada Web sites. Links to other Web sites not under the control of the Department of Justice are provided solely for the convenience of users. The Department is not responsible for the accuracy, the currency and the reliability of the content. The Department does not offer any guarantee in that regard and is not responsible for the information found through these links, nor does it endorse the sites and their content.

Users should be aware that information on sites of organizations or other entities that are not subject to the Official Languages Act and to which the Department of Justice links, is available only in the language(s) used by the sites in question.

I. Introduction

Adopted by Parliament following the attacks of September 11, 2001, the Anti-terrorism Act (ATA) amended the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and a number of other Acts. It also enacted the Charities Registration (Security Information) Act. It is not a stand-alone Act, but rather an amending statute.

The ATA reflects a commitment to the safety of all Canadians and strengthens our ability to meet our international obligations, while respecting Canadian values and the rights enshrined in the Canadian Charter of Rights and Freedoms (Charter). Canada's enactment of the ATA paralleled actions taken by our international partners. However, it was a made-in-Canada solution to address terrorism.

II. Background

The nature of terrorism

Before September 11, 2001, terrorism was regarded as having important security implications for Canada and for other countries around the world. Canadians had been the victims of terrorist attacks -- most notably the 1985 bombing of an Air India flight from Toronto. Further, on December 14, 1999, while seeking to enter the United States, Ahmed Ressam, a resident of Montreal, was arrested in Port Angeles, Washington, carrying bomb-making material that he had assembled in Canada.

The horrific terrorist attacks of September 11, 2001 ushered in a new appreciation of the threat of terrorism. Canadians were among the approximately 3,000 victims of these attacks. Whereas the international community had earlier joined together to negotiate treaties addressing in-flight safety, aircraft hijackings and acts of aviation sabotage, to see the tragic results of a coordinated plan to commandeer and use commercial aircraft to commit suicidal attacks against thousands of innocent civilians was something frightfully new.

Evaluation of Pre-existing Legislation

A core responsibility of the Government of Canada is to provide for the security of Canadians. With this in mind, following the attacks of September 11, 2001, the Government undertook an evaluation of the existing state of federal legislation.   

The Criminal Code had been amended periodically as required to implement UN counter-terrorism instruments that had been adopted since 1970. Law enforcement relied upon the normal processes of investigation, prosecution and conviction under the Criminal Code to address terrorism.

After September 11, the Government determined that it was necessary to include specific terrorism offences and other provisions in the Criminal Code, largely to focus on preventing acts of terrorism and to address specifically the true operational nature of terrorism.

Persons who undertake different stages of terrorist activities often have no knowledge of the ultimate objective. Terrorist plans may be contingent upon some other event that may or may not occur. It may be difficult or impossible to demonstrate a clear link between the assistance provided and a particular terrorist activity, or that the person or group who provided the assistance knew anything other than the general nature of the activity at the time they were assisting. Osama Bin Laden¹ explained the particular workings of the September 11, 2001 operation as follows:

The brothers, who conducted the operation, all they knew was that they have a martyrdom operation and we asked each of them to go to America but they didn't know anything about the operation, not even one letter. But they were trained and we did not reveal the operation to them until they are there and just before they boarded the planes...those who were trained to fly didn't know the others. One group of people did not know the other group.

The Official Secrets Act focussed on conduct like espionage, which was harmful to, or likely to harm, Canada. It targeted only foreign entities and did not take account of new realities, including non-state actors and new threats like cyber-terrorism.

The Canada Evidence Act contained a regime to address the disclosure of information in the course of legal proceedings when it would be injurious to international relations, national defence or security. Improvements to this regime that would, among other things, promote controlled disclosure in certain cases and offer assurances to other countries that the Government is able to protect information they provide from disclosure when they do not consent to its disclosure, had been identified.

The Proceeds of Crime (Money Laundering) Act existed, but did not cover terrorist financing per se. Among other things, it required financial intermediaries to meet customer identification and record-keeping standards and to report suspicious transactions relevant to the identification of money laundering. The Act also provided for the establishment of the (Financial Transactions and Reports Analysis Centre of Canada) (FINTRAC) as Canada's financial intelligence unit. At this time, FINTRAC was just about to commence operations. FINTRAC's primary functions were to receive reports made under the Act, to analyze those reports for information relevant to money laundering and to provide key identifying information to Canadian law enforcement agencies.

All decisions on charitable registration were subject to appeal in open court, and thus only information that could be disclosed publicly could be used in reaching these decisions. Bill C-16 (An Act respecting the registration of charities and security information and to amend the Income Tax Act) was before Parliament, having been introduced on March 15, 2001. It proposed to enact the Charities Registration (Security Information) Act to provide a means to prevent organizations that engage in terrorism or activities in support of terrorism from benefiting from the tax privileges granted to registered charities under that Act. It did not define "terrorism" or "terrorist activity".

The Communications Security Establishment operated as Canada's civilian national cryptologic agency mandated to provide and protect information for the Government of Canada, but its mandate had not been set out in legislation.

On the international front, Canada was a party to all twelve major international legal instruments dealing with terrorism and related issues that existed prior to the 2001 attacks, with the exception of the International Convention for the Suppression of Terrorist Bombings (1997) and the International Convention for the Suppression of the Financing of Terrorism (1999). Canada had signed these two treaties, but legislation to implement them was required before Canada could become a party to them. In addition, Canada had signed the Convention on the Safety of United Nations and Associated Personnel, but required implementing legislation before being able to ratify this treaty.

The response to terrorism from the international community following September 11th, 2001 was swift and strong. On September 28, 2001, the United Nations Security Council adopted Resolution 1373, which, among other things, required all UN member states to

• prevent and suppress the financing of terrorist acts; criminalize the wilful provision or collection of funds to be used for terrorist acts;
• suppress the recruitment of terrorist groups; and
• deny safe haven to those who finance, plan, support or commit terrorist acts.

In October 2001, the Financial Action Task Force on Money Laundering (FATF) adopted Special Recommendations on Terrorist Financing. These recommendations contain provisions relating to:

• the ratification of relevant UN instruments;
• the criminalization of terrorism-related offences;
• freezing and confiscation of terrorist assets;
• reporting on suspicious transactions linked to terrorism;
• providing assistance to other countries in terrorist financing investigations;
• ensuring that non-profit organisations are not misused to finance terrorism;
• imposing anti-money-laundering requirements on alternative remittance systems; and
• strengthening customer identification measures in international and domestic wire transfers.

Introduction of Bill C-36 and Parliamentary consideration

On September 18, 2001, in debating a motion in the House of Commons concerning the issue of possible future anti-terrorism legislation for Canada, the Honourable Anne McLellan, then Minister of Justice, stressed that:

...we must remember that we are in a struggle against terrorism, not against any one community or faith. We must reaffirm Canada's fundamental values, the equality of every race, every colour, every religion and every ethnic origin. Canada's strength lies in its ability to accept difference and to recognize our common humanity. Let us continue to nurture our respect for justice and our respect for diversity. We have always governed ourselves by the rule of law, abiding by its even-handed guidance even in the face of brutal actions that belie all that civil society stands for. We must continue to do so.

On October 15, 2001, the Minister introduced Bill C-36 (the Anti-terrorism Act). The Preamble to the Bill observed that Canadians and people everywhere are entitled to live their lives in peace, but that terrorism constitutes a substantial threat to international peace and security as well as to Canada and to Canadian institutions. It recognized that Canada must act in concert with other nations in combating the scourge of terrorism, but acknowledged that terrorism is also a matter of national concern. It emphasized a commitment to take comprehensive measures to protect Canadians against terrorist activity, while continuing to respect and promote the Charter and its values.

As the Minister was to observe on October 29, 2001 in her testimony before the Special Senate Committee on the Subject Matter of Bill C-36:

The new face of international terrorism is one that seeks to hold free and democratic nations hostage. So that this does not happen, it is our responsibility and our obligation to act in concert with other nations because, if we do not, if we choose to sit on the sidelines rather than change our laws and improve our investigative tools, we risk being part of the problem rather than being part of the solution.

At the outset, the Government signalled its openness to suggestions for refining the Bill and it listened to concerns that were raised. On November 20, 2001, the Government proposed extensive amendments to clarify and strengthen provisions of the Bill, which were ultimately approved by Parliament.

Committees from both the House of Commons and the Senate heard from many witnesses during the course of their deliberations. Indeed, the Senate took the unusual step of striking a Special Committee, which provided its recommendations before the House of Commons Committee undertook its clause-by-clause deliberations. Another Senate Committee thereafter examined the Bill, as amended, following its approval by the House of Commons.

^[1] These remarks are taken from a the transcript of a videotape found in Afghanistan and released by the U.S. Department of Defense on December 13, 2001.

Updated to April 1, 2008.

Previous Page | Table of Contents | Next Page