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

THE ATA IN PERSPECTIVE

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V. Canada Evidence Act

The ATA made changes to sections 37 and 38 of the Canada Evidence Act (CEA) to address the judicial balancing of interests when the disclosure of information in proceedings would encroach on a specified public interest and, in particular, would be injurious to international relations, national defence or national security.

Section 37 of the CEA was expanded to set out in some detail the process by which the court determines issues relating to the disclosure or non-disclosure of information encroaching upon a specified public interest and provides various options for judges. Section 37.21 was repealed by S.C. 2004, c. 12 as a corrective measure.

In particular, the ATA substantially reformed section 38 of the CEA. Section 38 sets out a mini-code of procedure, establishing pre-trial, trial and appellate procedures to assist all parties and persons involved in proceedings in which there is a possibility that information injurious to international relations or national defence or national security would be disclosed. Special rules apply in a proceeding under Part III of the National Defence Act.

Elements that the ATA added to the section 38 regime include:

• the requirement to provide notice to the Attorney General of Canada in circumstances where it is foreseeable that the disclosure of information in connection with or in the course of proceedings could be injurious to international relations or national defence or national security;
• providing various options for judges to promote the public interest in disclosures and in protecting such information, such as the use of summaries or agreed statements of facts;
• providing for the possibility that the Attorney General of Canada can personally issue a certificate to prohibit the disclosure of information but only after an order or decision that would result in its disclosure; and
• the ability of the Attorney General of Canada to issue a fiat to establish exclusive authority in the Attorney General of Canada to conduct a prosecution.

The reforms built on the former scheme, but they were intended to improve it. They were designed to introduce greater flexibility into the system. They offer the opportunity for evidentiary issues to be resolved early on in the proceedings. They improve the federal government's ability to protect from disclosure, and for parties to use, information relating to international relations or national defence or national security in proceedings, in a manner that is consistent with the parties' fair trial rights.

Attorney General Certificates

Section 38 of the Canada Evidence Act was amended to provide the Attorney General of Canada with the ability to personally issue a certificate prohibiting the disclosure of information in order to protect information obtained in confidence from or in relation to a foreign entity, or to protect national defence or national security. The certificate can only be issued after an order or a decision that would result in the disclosure of the information has been made. Disclosure of the information is then prohibited in accordance with the terms of the certificate, notwithstanding any other provision of the CEA. The Federal Court of Appeal can review the certificate to determine whether the information to which it applies relates to the information categories described above. The judge can confirm, cancel or vary the certificate. The decision of that judge is final and not subject to review or appeal.   

The purpose of these certificates is to prohibit, where necessary, the disclosure of certain highly sensitive information. For example, the Attorney General's certificate assures other countries that the government is able to protect their information from disclosure in connection with proceedings.

A number of safeguards apply to the use of an Attorney General certificate. They include:

• the certificate can only be personally issued by the Attorney General of Canada;
• the certificate may only be issued after an order or decision that would result in the disclosure of the information has been made under the CEA or any other Act of Parliament;
• the certificate may only be issued in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the SOIA or for the purpose of protecting national defence or national security;
• the certificate is to be published in the Canada Gazette without delay;
• any party to a proceeding may apply to the Federal Court of Appeal for an order varying or cancelling the certificate;
• the judge reviewing the certificate has the right to confirm, vary or cancel the certificate;
• the life of the certificate is fifteen years, unless it is re-issued by the Attorney General of Canada; and
• the notice of variation or cancellation of the certificate must be published in the Canada Gazette as soon as possible after the decision of the judge.

Protection of right to a fair trial

The CEA amendments provide that the person presiding at a criminal proceeding may make any order, other than disclosure of the information, that he or she considers appropriate in the circumstances. For example, the judge may stop the proceedings if the judge takes the view that the accused would not otherwise get a fair trial. To date, no Attorney General certificate has been issued although a number of section 38 cases have come before the Federal Court of Canada since the coming into force of the legislation.

On March 15, 2007, counsel for Mohammed Momim Khawaja, and individual charged with ATA offences, launched a constitutional challenge to subsection 38.11(2) of the CEA.  In a decision released April 30, 2007, the Chief Justice of the Federal Court of Canada upheld the constitutional validity of the subsection, noting as follows:

“In summary, section 38, including subsection 38.11(2), achieves a nuanced approach that respects the interests of the state to maintain the secrecy of sensitive information while affording mechanisms which respect the rights of the accused, including the right to full answer and defence, the right to disclosure and the right to a fair trial in the underlying criminal proceeding.  I find that subsection 38.11(2) accords with section 7 and 11(d) of the Charter. No section 1 analysis is therefore required.”¹

VI. Proceeds of Crime (Money Laundering) and Terrorist Financing Act

The ATA amended the Proceeds of Crime (Money Laundering) Act (PCMLA) to expand the mandate of the (Financial Transactions and Reports Analysis Centre of Canada) (FINTRAC), Canada's financial intelligence unit, to include the detection and deterrence of terrorist financing. The ATA provided FINTRAC with the legislative framework to permit it to assist in combating and in detecting terrorist financing and to enable Canada to broadly comply with the FATF Special Recommendations on Terrorist Financing. In addition, amendments provided law enforcement authorities and the Canadian Security Intelligence Service (CSIS) with information about suspected terrorist financing activities. To reflect these changes, the PCMLA was re-named as the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA).

FINTRAC was given authority to receive information in respect of terrorist financing provided voluntarily by law enforcement agencies, foreign financial intelligence units, and the general public. Under the statute, FINTRAC was empowered to enter into agreements to access databases maintained by federal or provincial governments for purposes related to law enforcement and national security.

On June 12, 2002, regulations were brought into force to require financial institutions and other financial intermediaries to report suspicions of terrorist financing and terrorist property.

Information relating to FINTRAC’s disclosures to law enforcement and intelligence agencies, relating to terrorist financing can be found in FINTRAC’s annual reports.

VII. Amendments to other Acts

Access to Information Act, Privacy Act and the Personal Information Protection and Electronic Documents Act

Access to Information Act, Privacy Act and the Personal Information Protection and Electronic Documents Act

The ATA also amended the Access to Information Act, the Personal Information Protection and Electronic Documents Act and the Privacy Act to ensure that requests for access to information and personal information pursuant to these Acts do not lead to disclosure of information in respect of which the Attorney General of Canada had personally issued a certificate under section 38 of the CEA. To be effective, the certificate must be able to be applied in such proceedings in the face of an order or decision that would result in the disclosure of this very sensitive information.

National Defence Act

The ATA also amended the National Defence Act by adding provisions continuing the existence of the Communications Security Establishment (CSE) in legislation. The amendments formally authorize CSE to engage in three broad areas of activity:

• to acquire and provide foreign signals intelligence (SIGINT) in accordance with the Government of Canada's intelligence priorities;
• to provide advice, guidance and services to help ensure the protection of electronic information and infrastructures of importance to the Government of Canada (IT Security); and
• to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties.

Safeguards to ensure that the privacy of Canadians is respected are built into the Act. The legislation states that CSE is prohibited from directing its SIGINT and IT Security activities at Canadians or any person in Canada, and must put in place satisfactory measures that protect the privacy of Canadians in the course of using and retaining intercepted information. More specifically, subject to strict conditions, the National Defence Act, as amended by the ATA, empowers the Minister of National Defence to authorize interceptions of private communications for the sole purposes of obtaining foreign intelligence or for protecting Government of Canada computer systems or networks. These functions are particularly important in the context of action against sophisticated foreign terrorist activities.

The amendments also provide that a Commissioner of the CSE will be appointed to review CSE's activities to ensure that they comply with the law, to investigate any complaints and to inform the Minister of National Defence and the Attorney General of Canada of any activities that the Commissioner believes do not comply with the law. The reviews are listed in the Commissioner's annual report to the Minister of National Defence.

Canadian Human Rights Act

The Canadian Human Rights Act was amended to clarify that communication of hate messages using new technologies, such as the Internet, is a discriminatory practice. In combination with the above-mentioned Criminal Code amendments dealing with hate, the ATA bolstered the legislative framework against hate speech and intolerance against ethnic and religious groups in our society.

Canadian Security Intelligence Service Act

A technical amendment was made to the definition of "threats to the security of Canada" found in the Canadian Security Intelligence Service Act (CSIS Act) since the definition of "terrorist activity" in the Criminal Code amendments in the ATA refers to a "political, religious or ideological objective". The CSIS Act was amended to mirror that phrase and thereby avoid the possibility of an unintended narrowing of the CSIS Act definition.

^[1] (2007), 280 D.L.R. (4th) 32 (FC), para. 59, upheld on appeal: 2007 FCA 388, application for leave to appeal to the Supreme Court refused April 3, 2008.

Updated to April 4, 2008.

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