National Security Law and Anti-Terrorism Law

This commentary by Professor Kent Roach is cross-posted from the Jurist Forum.

The arrest of twelve adults and five youths on terrorism charges in Toronto has resulted in world-wide attention on Canada’s anti-terrorism efforts. The allegations are shocking. They include claims that the men tried to purchase three tons of ammonium nitrate to use in truck bombs and that they trained to prepare for terrorism north of Toronto. ...

The men have been charged with a variety of crimes under the Anti-Terrorism Act that was added with considerable controversy to Canada’s Criminal Code in late 2001. Only one other person, Mohammad Momin Khawaja, has been charged under the new law. He was charged in March, 2004 and his trial has yet to be held. The result is that the new Anti-Terrorism Act remains untested.

Read the full posting on the Jurist Forum website.

This morning’s news brings Maher Arar back to the front pages, this time with revelations that the Canadian Security Intelligence Service (CSIS), and not just the RCMP in collaboration with immigration and security authorities in the United States, had advance knowledge that he would be tortured. If true it is an important disclosure, and calls are rightly being made for an investigation of CSIS’ role in all of this. Indeed, this new angle on the Arar case harks back to accusations of CSIS involvement in the case of another Canadian, Muayyed Nurreddin, who claims that CSIS officials set him up to be abused abroad. Two other Canadians, Abdullah Almalki and Ahmad El Maati, have made similar accusations of collusion by Canadian government authorities in their arrests, interrogation, and torture. Each of these cases is slightly different and each points to different branches of security services on both sides of the Canada – U.S. border. Each one, of course, deserves independent investigation and a legal remedy for wrongs done to the individuals concerned.

Senator Jerahmiel Grafstein (Lib.) has recently introduced into Parliament a proposed amendment to the anti-terrorism provisions of the Criminal Code, Bill S-210, which is now before the Senate's Legal and Constitutional Affairs Committee. The Bill is a short and straightforward one, which provides:

Section 83.01 of the Criminal Code is amended by adding the following after subsection (1.1):

(1.2) For greater certainty, a suicide bombing comes within paragraphs (a) and (b) of the definition "terrorist activity" in subsection (1).

Although the point seems an obvious one, and, indeed, has been objected to by a number of MP's and senators on the grounds that it defines an act that is already covered by the Code's definition of "terrorist activity", the proposed amendment has merit. Criminal law has a public education and labelling function which will be advanced by this definitional statement. In addition, given that Canadian courts often look to international law and its institutional pronouncements on questions of interpretation, the amendment is necessary in order to avoid the interpretive pitfalls into which international human rights and United Nations bodies have fallen.

My brief to the Senate committee is attached.
Download SuicideBombingS210.pdf