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Copyright (c) 2003 Saskatchewan Law Review
Saskatchewan Law Review
2003
66 Sask. L. Rev. 419
LENGTH: 19013 words
ARTICLE: In Support of Canada's Anti-Terrorism Act: A Comparison of Canadian, British, and American
Anti-Terrorism Law
David Jenkins *
* Attorney at Law (W.Va., Ohio), M.A. (Hist.), M.A. (Pol. Sci.), J.D., LL.M., D.C.L. Candidate, McGill
University Institute of Comparative Law. The original version of this article was submitted as a report to B'Nai
Brith of Canada. However, the views expressed herein do not necessarily represent those of the organization or
any of its staff.
SUMMARY:
... I. INTRODUCTIONWhile North Americans may have once thought that they were geographically isolated from
political troubles throughout the world and therefore secure from terrorist attacks or activities related to them, the events
of September 11 have suddenly and tragically shown otherwise. ... In response to increasing activity by Islamic
militants, however, the British government commissioned reports in 1996 and 1998, which concluded that even with the
peace process in Northern Ireland, nation-wide legislation would be necessary to counter the growing threat of
international terrorism. ... First, intent to cause property damage now constitutes a terrorist activity only when it risks
death or bodily harm, endangers life, or threatens public health and safety. ... The British Terrorism Act sets forth a
definition of "terrorism" that is very similar to that of "terrorist activity" in the Canadian Act. ... Canada's
Anti-Terrorism Act defines a "terrorist group" as "an entity that has as one of its purposes or activities facilitating or
carrying out any terrorist activity," and includes any "listed entity" identified by the government. ... Canada's
Anti-Terrorism Act makes it an offence to directly or indirectly provide, collect, possess, or use property in support of
terrorist activity or a terrorist group. ...
HIGHLIGHT: This article compares Canada's Anti-Terrorism Act to similar British and American legislation,
arguing that it is a tempered and positive contribution to the fight against international terrorism. Because terrorism
undermines both the values of liberal democracy and international law, an effective legal response requires
transnational measures. Accordingly, the shared security concerns and legal culture of Canada, the United Kingdom,
and the United States establish a broader context in which to consider their respective anti-terrorism measures and
promote informal cooperative efforts. The anti-terrorism laws of these three countries similarly define and target
terrorist offences, establish special investigatory powers for law enforcement, and attack hate crimes. Examination of
these particular statutory provisions suggests that they form complimentary legal frameworks for fighting terrorism, to
which Canada's Anti-Terrorism Act is a well-drafted and effective contribution.
TEXT:
[*419] I. INTRODUCTION
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While North Americans may have once thought that they were geographically isolated from political troubles
throughout the world and therefore secure from terrorist attacks or activities related to them, the events of September 11
have suddenly and tragically shown otherwise. In a world increasingly connected through communication,
transportation, and trade, Canadians and Americans must now confront international terrorism at home. The reality is
that extremist groups are willing and able to operate in North America. While the United States is admittedly the most
likely target for attack in North America due to its historically strong support of Israel as well as its [*420] economic
and military prominence, n1 international terrorism remains a problem for Canada, as well. n2 Consequently, three
arguments support the need for Canadian anti-terrorism measures. First, the "Millennium Bombing" plot and the two
World Trade Center attacks, along with other investigations, are dramatic proof that terrorist groups operate within both
Canada and the United States. n3 The "Canadian link" to these incidents shows that a Canadian response to terrorism
is just as critical and necessary as American measures in preventing further attacks in the United States, as well as
elsewhere in the world. n4 Second, the unpredictable nature of terrorism makes it very conceivable for attacks to occur
on Canadian soil and against Canadian targets. Considering Canada's recognition of the state of Israel and its
participation in the conflict in Afghanistan following September 11, one cannot dismiss the possibility that a terrorist
group might seek retribution against Canada or its citizens. n5 Furthermore, the second attack on the World Trade
Center affected people of many different nationalities other than that of the United States. Twenty-five Canadians died
in the tragedy of September 11, and unknown numbers of Canadians had family members or friends [*421] somehow
affected. n6 The bombing on October 12, 2002, of a resort nightclub in Bali, killing over 180 people, highlights the
growing threat to civilians of all nationalities. n7 Canadian anti-terrorism efforts therefore protect Canadians, who are
just as vulnerable to attack throughout the world. Third, the secrecy surrounding well-organized operations of terrorist
groups in Canada not only increases the unpredictability of attacks, but hinders regular law enforcement efforts in
investigating credible terrorist threats and preventing their eruption into violence. Because of these factors, Canada has
taken positive and firm steps, without overreacting, to investigate, punish, and prevent terrorism, by enacting the
Anti-Terrorism Act. n8
This article suggests that the creation and consideration of anti-terrorism law should be a comparative exercise that
takes into account measures in Canada, the United Kingdom, and the United States. In supporting Bill C-36, n9 the
Department of Justice indicated that the proposed law would identify and punish terrorists, increase investigative
powers of law enforcement, and address root causes of terrorism through hate crime laws. n10 These three aspects are
a good basis upon which to compare specific provisions of the anti-terrorism laws of Canada, the United Kingdom, and
the United States. In this way, not only will the similarities and differences of these individual laws become more
apparent, but so will their relative contributions in forming a total, cooperative anti-terrorism package. Part II
summarizes the anti-terrorism legislation in these three countries, giving a convenient overview and establishing the
context for a comparative analysis. It asserts that these three nations share security concerns, understandings about
rights, and common law values that make comparison of their anti-terrorism laws useful for improving and better
harmonizing them. Part III then examines how these countries similarly tackle the conceptual challenges of defining
terrorism according to its threat of harm, its ideological motivations, and its global presence. The anti-terrorism laws of
all three also give the executive branch authority to designate those organizations that [*422] engage in terrorism,
allowing the government to target and dismantle terrorists' support and financial networks. Part IV looks at measures
especially intended to prevent terrorism through investigative measures or hate crime provisions. Canada's
anti-terrorism statute narrows the power of preventive arrest as found in British law, while also providing for a special
investigative hearing allowing compelled testimony. Finally, Canada and the United Kingdom expand their laws against
hate crimes in an attempt to prevent terrorism by fighting root causes of prejudice. Of course, many of these measures
raise concerns about civil liberties. While this article recognizes specific points of concern in regard to Canada's
Anti-Terrorism Act and the Canadian Charter of Rights and Freedoms, n11 it does not discuss them in detail. It
instead generally compares national legislative schemes and invites further commentary upon rights issues. Immigration
controls and detention, likewise important to questions of rights, are also not discussed due to an emphasis upon
criminal, investigation, and financing provisions. With these points in mind, this article concludes that a comparative
approach focusing on Canada, the United Kingdom, and the United States creates a broader and better context in which
anti-terrorism measures should be considered. This approach does more than suggest that Canada's Anti-Terrorism Act
is part of a common, policy-driven reaction to terrorism. It views questions of security and rights as a normative
endeavour. Canada's legislation is accordingly an important contribution to a cooperative, transnational anti-terrorism
effort that promotes international law and safeguards the values of liberal democracy.
II. OVERVIEW OF LEGISLATION AND THE COMPARATIVE APPROACH
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A. GENERAL OVERVIEW OF CANADIAN, BRITISH, AND AMERICAN ANTI-TERRORISM LAW
The Canadian Parliament reacted relatively promptly to the attack of September 11 by passing the Anti-Terrorism Act.
n12 Introduced as Bill C-36, the Act passed Parliament after some considerable legislative scrutiny and public criticism,
receiving Royal Assent on December 18, 2001. n13 The Act defines terrorism, creates new terrorist offences, and
takes preventive measures against terrorist activities before they result [*423] in violence. n14 In issuing a comment
upon Bill C-36 soon after its introduction before Parliament, the Department of Justice outlined the proposed measures
as following a three-tier approach. The Act intends to (1) identify, prosecute, convict and punish terrorists, (2) grant
more investigative powers to both law enforcement and national security agencies, and (3) attack terrorism at its
foundations by strengthening provisions related to hate crimes and the dissemination of hate propaganda. n15 The
Anti-Terrorism Act rests upon these three pillars in creating a comprehensive anti-terrorism scheme for Canada, while
this article uses them as a basis for comparison with similar British and American legislation. Before making a closer
examination of their provisions, however, a general overview of Canadian, British, and American anti-terrorism laws is
helpful.
The Canadian Anti-Terrorism Act amends the Criminal Code n16 to include several new offences. These offences
hinge upon the commission of "terrorist activity," defined as an action within or without Canada that is a violation of
any one of ten listed United Nations anti-terrorism conventions. n17 This also includes action that [*424] is taken
"for a political, religious or ideological purpose, objective or cause" and threatens the public or government by killing,
seriously harming or endangering a person, causing substantial property damage that is likely to seriously harm people,
or by interfering with or disrupting an essential service, facility or system. n18 The Act also makes it a crime to
fundraise for or assist designated terrorist groups and launder money on their behalf. n19 New investigative powers for
law enforcement allow the preventive arrest of suspected terrorists and the compulsory testimony of individuals in an
ongoing terrorism investigation. n20 Safeguards include an interpretive clause emphasizing that legitimate
demonstrations and protests do not constitute "terrorist activity" and a sunset clause allowing the expiration of the
compulsory testimony and preventive arrest provisions. n21 Finally, the Act addresses root causes of terrorism by
prohibiting hate propaganda on Internet sites and criminal mischief against a place of religious worship. n22
The United Kingdom has similar anti-terrorism laws, which have developed over time resulting from that country's
long-standing problem with terrorism connected to Northern Ireland. n23 Recent legislation of this kind has included
the Prevention of Terrorism (Temporary Provisions) Act 1989, n24 the Northern Ireland (Emergency Provisions) Act
1996, n25 and the Criminal Justice (Terrorism and Conspiracy) Act 1998. n26 In response to increasing activity by
Islamic militants, however, the British government commissioned reports in 1996 and 1998, which concluded that even
with the peace process in Northern Ireland, nation-wide legislation would be necessary to counter the growing threat of
international terrorism. n27 The resulting [*425] legislation was the Terrorism Act 2000, n28 which broadly
defines terrorism as threatening or harmful actions having religious, ideological, or political motivations intended to
intimidate the public or influence the government. n29 The Terrorism Act prohibits participation in, fundraising and
money laundering on behalf of designated terrorist organizations. n30 Law enforcement receives stronger investigative
powers to cordon areas, to stop and search vehicles or individuals, and preventively arrest a suspected terrorist. n31
After September 11, the government introduced a new bill before Parliament to amend and strengthen the Terrorism
Act, which became law as the Anti-terrorism, Crime and Security Act 2001. n32 The Act strengthens immigration
controls, attacks terrorist assets, and expands hate crime laws. n33 These two Acts signify three developments in
British anti-terrorism measures. First, they consolidate most of Britain's anti-terrorism laws into a clearer and more
unified legislative scheme in regard to financial controls, offences, and investigative powers. Second, notwithstanding
some innovations and reforms, they build upon and maintain continuity with anti-terrorism policy and laws decades old.
Third, they recognize the threat of international terrorism as overtaking the lingering but diminishing dangers related to
the domestic situation in Northern Ireland.
Prior to September 11, the three major pieces of anti-terrorism legislation in the United States were themselves
responses to highly publicized and tragic terrorist attacks. The first two statutes followed the 1985 hijacking of the
Mediterranean cruise ship, Achille Lauro, by terrorists connected with the Palestine Liberation Organization (PLO),
which resulted in the murder of Leon Klinghoffer, a disabled American citizen and Jew. n34 Congress thereafter
passed the Omnibus Diplomatic Security and Antiterrorism Act of 1986, n35 which extended [*426] federal court
jurisdiction over those committing terrorist acts against American citizens anywhere in the world. The second Act, the
Anti-Terrorism Act of 1987, n36 took sterner measures but specifically targeted the PLO. These laws were limited in
scope and effect. An important development in American anti-terrorism law occurred through an unobtrusive provision
of the Federal Courts Administration Act of 1992, n37 which defined international terrorism as acts intended to
intimidate a civilian population or coerce a government. n38 The bombings of the World Trade Center in 1993 by
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Islamic militants and the Oklahoma City Federal Building in 1995 by domestic right-wing extremists led to the
Antiterrorism and Effective Death Penalty Act of 1996. n39 Like its predecessors, this Act made incremental changes
instead of effecting a comprehensive re-synthesis of anti-terrorism law. n40 Among other things, it forbade fundraising
by terrorist organizations designated by the Secretary of State and financial transactions with state sponsors of terrorism.
n41 The AEDPA also clarified the definition of terrorism based upon its intent to intimidate or retaliate against the
government. n42
After September 11, Congress quickly passed the Patriot Act. n43 This Act
expands law enforcement personnel's authority in the areas of electronic intelligence gathering, foreign
intelligence surveillance, detention and removal of aliens engaging in terrorist activity, substantive
criminal law and criminal procedure, financial infrastructure, and general emergency authorization. n44
[*427] This Act dramatically tightens immigration controls, prohibits harboring and supporting terrorists, and targets
terrorist property. n45 Even with these strong additions, the Patriot Act builds upon existing legislation in the
piecemeal fashion of the past and is not a comprehensive restructuring of the American anti-terrorism framework. n46
B. A COMPARATIVE AND COOPERATIVE APPROACH TO ANTI-TERRORISM LAW
British and American anti-terrorism legislation widens the context within which to evaluate Canada's Anti-Terrorism
Act. Comparison of the three anti-terrorism frameworks is appropriate for three reasons. First, the threat of international
terrorism raises common security concerns for all three nations. n47 The operation and financing of terrorist groups
both within and across their borders demonstrate a need for concerted action in identifying, investigating, and
preventing terrorist activities. n48 The threat is a wider global one requiring international efforts at all levels. n49
Twelve international anti-terrorism [*428] conventions, along with several resolutions of the United Nations Security
Council, highlight the international concern over terrorism. n50 The Security Council, for instance, expressed its
concern in 1999 that "international terrorism...endangers the lives and well-being of individuals worldwide as well as
the peace and security of all States." n51 Terrorism further "threaten[s] the social and economic development of all
States and undermine[s] global stability and prosperity." n52 The threat of terrorism, therefore, is a common one
among the international community, requiring not only direct action at the level of international law, but also indirect
collaboration through common security policies and domestic anti-terrorism efforts. n53 The law is a particularly
important means of indirect cooperation. n54 As the Security Council has suggested to its Counter-Terrorism
Committee, the fight against terrorism can progress through a "best-practice" approach and the "preparation of model
laws as appropriate." n55 The consideration of "best practice" in regard to anti-terrorism measures is an effective way
to promote concerted action against terrorism through the harmonization of domestic laws, as "it is generally easier to
take steps at home than it is to promote international action." n56 While there are many possible strategies for fighting
terrorism,
they all recognize the need for a harmonized international response. The fight against terrorism mandates
State action; however, conflicting legislative initiatives, differing legal systems, varying conceptions of
terrorism, and restricting [*429] notions of State sovereignty are hindering effective antiterrorist
measures. Terrorism currently pressures States to bond in a new way. n57
In this spirit, comparison of anti-terrorism legislation in Canada, the United Kingdom, and the United States suggests
that their laws contribute to a harmonized, cooperative, and effective response that promotes international law. n58
A second reason for comparison is that it can be useful when drafting or considering anti-terrorism measures, since
the governments of Canada, the United Kingdom, and the United States all must balance security concerns with their
mutual dedication to human rights. n59 Governments must be diligent in reacting with decisive firmness against
terrorism without acting irrationally or out of panic. n60 The Canadian Charter, n61 the British adherence to the
Convention for the Protection of Human Rights and Fundamental Freedoms n62 and the Human Rights Act 1998,
n63 and the American Bill of Rights n64 require that these three countries carefully tailor their anti-terrorism laws to
respect rights while at the same time adequately defending the liberal democratic system that supports such rights. This
careful balance, without succumbing to weakness or reactionary oppression, is what allows the democratic state to
remain secure, healthy, and retain the "higher moral ground." n65 The balance of security and rights is not a "zero-sum
game," however, but is instead a more complex process of seeking solutions and a suitable state of [*430] being that
defends the dignity of the individual within a democracy's overarching value system. n66
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Finally, security and rights concerns exist within a common law tradition shared by Canada, the United Kingdom,
and the United States. n67 This tradition encompasses similar principles of constitutionalism and rights, and constructs
a broader systemic context in which courts can adjudicate the anti-terrorism laws of their respective jurisdictions.
Comparison of these laws draws upon multiple experiences and perspectives, guiding their drafting and implementation,
and offering assurances that the laws should be representative of and compatible with free and democratic societies.
n68 The operation of anti-terrorism laws in any one of these three common law countries can give insight into the
advisability and application of similar laws within the others. n69 In summary, the consideration of anti-terrorism
measures in the law should not be unduly constrained by a domestically oriented mindset, but should instead take place
within a broader transnational context.
III. DEFINING TERRORISM AND IDENTIFYING TERRORIST ORGANIZATIONS
Canadian, British, and American anti-terrorism laws anchor upon their definitions of terrorism, which underlay other
criminal, financial, and investigative provisions. This part compares the legal definitions of terrorism in Canada, the
United Kingdom, and the United States and what authority their governments have in designating groups as engaging in
or supporting such activities. n70 It then examines the procedures used for designating organizations as involved in
terrorist activities, and the offences of association and financing connected to them.
A. DEFINING TERRORISM
The rule of law requires a clear definition of terrorism that narrowly delineates when extraordinary legal measures are to
be taken and [*431] what activities will be prohibited. n71 Because terrorism involves violence or spreading fear of
harm, it encompasses existing criminal offences such as murder or assault. n72 However, to create a specific terrorism
offence incorporating an ideological element recognizes it as a unique criminal phenomenon having international and
politically systemic implications beyond the actual harmful act in question. n73 Terrorism, however, is an activity
sometimes considered elusive to precise legal definition. n74 As American Supreme Court Justice Potter Stewart once
remarked about obscenity, it is difficult to define, but one knows it when he or she sees it. n75 Another cliche, "one
man's terrorist is another man's freedom fighter" also suggests a subjective perspective to understanding the term. n76
It is these two difficulties that have perhaps most complicated and impeded the fight against terrorism in international
law. n77 In domestic law, however, terrorism resists legal definition with no greater difficulty than other problematic
concepts, such as obscenity. n78 The nature of terrorism itself justifies a distinct offence, as it is a particular kind of
violence with repercussions for stable, democratic government. n79 The terrorist engages in more [*432] than
anti-social behaviour--he or she is acting in a manner calculated to promote social and political change through violent,
undemocratic means. n80 As Michael Reisman writes:
One should resist jumping to conclusions of the irrationality of terrorists, especially in the cross-cultural
environments in which terrorism takes place. The means-end rationality and means-end morality of the
terrorists may be quite different from that of the target, but be cogent nonetheless. n81
Separate and distinct violent offences motivated by shared ideology indirectly contribute to a common enterprise to
destabilize society and subvert the democratic process. n82 Furthermore, terrorism is a highly "irregular technique of
armed conflict" n83 often organized and waged within and against the civilian population at large, thus distinguishing
it from regular crimes. n84 A legal definition of terrorism that recognizes its underlying motivations allows the state to
counter its potentially destabilizing effects upon society and government, and combat it with the similarly fixed,
ideological purpose of defending democratic norms through the rule of law. n85 These ideals inform the content of
that definition itself by targeting the aspect of terrorism antithetical to the liberal democratic state, which is the
terrorists' use of violence to threaten and intimidate the public and government in order to impose their motivating
ideology. n86 The definitions of [*433] terrorism in Canada, the United Kingdom, and the United States
accordingly share three aspects meant to address the special nature of international terrorism. The definitions address
particular harms, include motivation as an essential element, and provide for extraterritorial jurisdiction.
1. Harms
The Anti-Terrorism Act defines "terrorist activity" in two ways. First, such activity includes any "act or omission that is
committed in or outside Canada and that, if committed in Canada" is an offence under ten designated international
conventions for the prevention of terrorism. n87 The second part of the definition includes acts or omissions in or
outside of Canada committed "in whole or in part for a political, religious or ideological purpose, objective or cause."
n88 Such acts must be done
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in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to
its security, including economic security, or compelling a person, a government or a domestic or an
international organization to do or refrain from doing any act, whether the public or the person,
government or organization is inside or outside Canada. n89
These acts must intentionally cause harm by resulting in or attempting to cause death or bodily harm, serious risk to
public health or safety, property damage that might result in such harm, or disruption of essential services, facilities, or
systems. n90 This definition of terrorism extends to inchoate offences, as well as acts that actually cause harm. n91
The concept of harm also extends to public health and safety, [*434] as well as essential services, facilities, and
systems. n92 This includes economic security, thereby broadening the context in which harm is evaluated. n93 By
including these types of harm in the definition of terrorism, the Act can prevent and punish those activities intended to
cause mass and indiscriminate harm, or to destabilize society through attacks on its organizational, institutional, or
economic well-being. n94
The British Terrorism Act similarly defines terrorism as "the use or threat of action where...the use or threat is
designed to influence the government or to intimidate the public or a section of the public, and...is made for the purpose
of advancing a political, religious or ideological cause." n95 The definition requires similar elements of harm as in
Canada, including committing violence against a person, endangering life, or posing a risk to public safety or health.
n96 It includes serious damage to property, but is broader than the Canadian requirement in that such property damage
need not likely result in personal or public harm. n97 Attacks upon public services and economic harms will likely fall
under the rubric of risk to public health or safety. n98
The American definition of "international terrorism" differs from the Canadian and British versions in that it does
not list specialized harms, although it does require the purpose of intimidating or influencing the government and
public. n99 Instead, it generally covers actions that "involve violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed
within the jurisdiction of the United States or of any State." n100 Property damage [*435] alone is not prohibited by
this section, and a terrorism offence remains predicated upon another regular provision of the criminal code. n101
Although this definition lacks an element of ideological motivation, a required nexus between the terrorist act and
international activity mitigates the danger of overbreadth. n102 Such activities must "occur primarily outside the
territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate
or seek asylum." n103 This definition excludes incidents occurring solely within the borders, although those incidents
might be covered under domestic terrorism provisions. n104
2. Motivations
The core of the definition of terrorist activity in Canada's Anti-Terrorism Act is its inclusion of motivational elements.
An offender must not only have the requisite intent to cause the proscribed harm, but he or she must also act for a
"political, religious or ideological purpose, objective or cause." n105 This motivational aspect recognizes the unique
nature of terrorism as having implications and effects beyond the circumstances of isolated or singular crimes.
Terrorism is a phenomenon having an ideological and political dimension, and seeks to achieve its ends by terrorizing a
public and government through violence or creating the apprehension of harm. n106 The Anti-Terrorism Act tackles
the definitional challenge head-on by addressing both of these aspects of terrorism. Some commentators have suggested
that motivational elements invite Charter challenges, add an unnecessary and troublesome burden for prosecutors, or
represent an increased but unhelpful criminal response as a surface solution to [*436] deeper problems. n107
According to the approach of these commentators, it might be better to punish terrorism simply by focusing on the
underlying criminal activity. n108 While inclusion of motivational elements is out of the ordinary, it is necessary to
address terrorism as a peculiar criminal phenomenon undermining the normative foundations of liberal democracy.
n109 Assuming the motivational elements are more difficult to prove, however, they thus serve as an added safeguard in
charging an offence subject to increased investigative powers. It can also help prevent a terrorism conviction for actions
otherwise having no political or ideological purpose.
The motivational elements in the Anti-Terrorism Act's definition of terrorism, according to some critics, could lead
to the criminalization of beliefs protected by s. 2(b) of the Charter. n110 However, the Act only targets beliefs in so
far as they are related to overt criminal actions, an idea that already exists in the Criminal Code's provisions on hate
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crimes and aggravating factors. n111 Even if the motivational elements would cause the definition of terrorism to
violate s. 2(b), it should be a reasonable limitation under s. 1, as it protects liberal democratic values. n112 Regarding
implications for strikes and work stoppages, Attorney General and Minister of Justice Anne McLellan stressed that the
definition of terrorism has a particular "context." n113 She went on to state that
what one is dealing with here is those who would use terror. Blocking a bridge is not a terrorist activity.
It is not motivated by terror. It is not the use of terror. An illegal strike is not. When one goes to the
streets, even in an illegal work stoppage, it is not motivated by terror. While it may be disruptive for
some period of time and may lead to charges, both criminal and civil, under provincial and perhaps
federal law, it is not what this definition strikes at. n114
[*437] Responding to concerns, the government amended Bill C-36 by narrowing the definition of terrorist activity to
eliminate the possibility of its inclusion of violence, intimidation, or disruption of services arising from illegal strikes or
other expressions of political dissent. n115 First, intent to cause property damage now constitutes a terrorist activity
only when it risks death or bodily harm, endangers life, or threatens public health and safety. n116 Also, whereas Bill
C-36 originally excepted from the definition of terrorism those disruptions of services resulting from "lawful" advocacy,
protest, dissent, or work stoppage, the final version eliminated the term "lawful" so as not to include those disruptions
accompanying democratically legitimate, albeit unlawful, expressions of dissent. n117 Finally, the amendments to Bill
C-36 added an interpretive clause that states: "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." n118 This clause seeks to ensure that law
enforcement cannot target beliefs alone, as they are protected by the Charter, and that courts cannot effectively
criminalize them in an overly broad interpretation of the definition of terrorist activity. n119
The British Terrorism Act sets forth a definition of "terrorism" that is very similar to that of "terrorist activity" in
the Canadian Act. n120 The Terrorism Act defines "terrorism" as the use or threat of action that "is made for the
purpose of advancing a political, religious or [*438] ideological cause." n121 Furthermore, such action or threat "is
designed to influence the government or to intimidate the public or a section of the public." n122 The British definition
raises the same concerns about protest and labour activities that led to the interpretive clause in Canada's Anti-Terrorism
Act. n123 The 1998 Consultation Paper suggested that although such democratically justifiable activities were
politically motivated, they were not intended to be covered by a definition of terrorism, like that later adopted in the
Terrorism Act. n124 Since the British legislation has no interpretive clause making clear its context, however, its
meaning and scope will be even more dependent upon the courts. n125
The United States Code gives a definition of "international terrorism" that prohibits acts intended to intimidate or
coerce a civilian population or government, or affect government actions by mass destruction, assassination and
kidnappings. n126 This definition matches the Canadian and British ones in identifying terrorism by its intended
intimidation of the public and government. However, it does not contain any element regarding the political, religious,
or ideological motivations of the perpetrator. The lack of this element arguably weakens the definition by failing to give
full recognition to terrorism as a politically motivated threat to democracy. It might also make a prosecutor's job easier
by eliminating another subjective element to be proven, and become too broad by allowing terrorism charges for crimes
lacking any real ideological motivations.
3. Extraterritoriality
Finally, Canada's Anti-Terrorism Act has extraterritorial application. "Terrorist activity" includes those proscribed acts
or omissions committed inside or outside of Canada. n127 Also, terrorism is punishable "whether the public or the
person, government or organization [to be intimidated or coerced] is inside or outside Canada." n128 The Act
therefore recognizes terrorism as an international activity and threat by defining it according to international
conventions that provide a common standard among nations, as well as by extending Canadian criminal jurisdiction
over terrorism wherever it might occur. n129 The [*439] Anti- Terrorism Act treats terrorism as an international
crime of universal jurisdiction, not just a problem or security concern of one particular nation. n130
Britain's Terrorism Act takes the same approach, stating clearly that such actions comprehend those taken outside
of the United Kingdom and include terrorism against the public or government of another country. n131 It further
makes it an offence to incite terrorism overseas. n132 Like Canada, the United Kingdom recognizes that terrorism is a
global security threat often perpetrated by actors organizing and operating at an international level. n133 A report
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issued by the Foreign and Commonwealth Office summarized the challenge posed by international terrorism. It stated
that
today's terrorism differs from the past in its fluidity and global reach. Terrorists no longer have to gather
together to conspire: they can contact each other across international boundaries using modern
communications systems, they can transfer funds through international financial institutions, and
otherwise exploit the increasing globalisation of the international system. n134
The paper concluded that "the fight against terrorism needs close international cooperation and coordination." n135
Such a policy requires a definition of terrorism that encompasses its international dimension and an application of
criminal laws that will punish it regardless of where it is committed, planned, or organized.
Whereas the Canadian and British legislation has blanket domestic and extraterritorial application, the American
definition of international terrorism requires, as an element, an international [*440] connection regarding where it
occurs, its means of accomplishment, its target, or the location of the perpetrators. n136 The United States Code, title
18, § 2332b, also establishes extraterritorial jurisdiction of the law over certain terrorist offences transcending national
boundaries, in which the perpetrator kills, maims, kidnaps, or causes serious bodily injury to a person within the United
States in violation of state or federal law. n137 The offence includes the creation of a substantial risk of serious injury
by damaging or destroying any structure, conveyance, or other real or personal property within the country. This section
therefore only reaches international acts causing domestic harm and is predicated upon existing criminal provisions.
Title 18, § 2331, in contrast, does reach terrorist activities outside of the United States, as long as they are intended to
intimidate the public or coerce a government. American anti-terrorism laws therefore cover those international actions
causing domestic harm, without the need to show any intent to intimidate the public or coerce the government. As under
Canadian and British law, however, these motivational elements are necessary to prosecute terrorism committed outside
the United States. The extraterritorial jurisdiction in all three national schemes treats terrorism as the global, not just
domestic or regional, problem that it is. n138
B. DESIGNATION OF TERRORIST ORGANIZATIONS
Canadian, British, and American law allows the government to designate or list entities as engaging in terrorist
activities. Designating or listing these entities attacks terrorism's sponsorship and support structures, going beyond
individual perpetrators. n139 Because of the complexity and decentralization of many terrorist networks, they "must
be degraded over time, through suffocation and starvation." n140 The government can better undermine terrorists'
financing and organization by targeting entities contributing to them. However, executive designation of terrorist
organizations raises concerns about arbitrary decision making and the stigmatization of unpopular political opinions.
Procedural requirements and judicial review address these concerns, while designation itself serves the rule of law.
Listing [*441] facilitates uniform application of terrorism laws, preventing selective and inconsistent application.
Proscription also gives the public clear, advance notice about those organizations carrying out unlawful activities.
Canada's Anti-Terrorism Act defines a "terrorist group" as "an entity that has as one of its purposes or activities
facilitating or carrying out any terrorist activity," and includes any "listed entity" identified by the government. n141
This list is compiled by the Governor in Council and is made up of those entities, under the recommendation of the
Solicitor General, that have "knowingly carried out, attempted to carry out, participated in or facilitated a terrorist
activity." n142 Listed entities need not directly participate in terrorist activities, however, as they may be "knowingly
acting on behalf of, at the direction of or in association with" other terrorist groups. n143 The listing provisions
therefore catch subsidiary or associated organizations that indirectly advance or contribute to terrorism. In the United
Kingdom, the Terrorism Act includes an appended schedule of proscribed entities and gives the Secretary of State
authority to modify it. n144 Entities on the schedule are those that are "concerned in terrorism," meaning that they
commit or participate in, prepare for, promote or encourage, or are otherwise connected to it. n145 Canadian and
British listing procedures nevertheless restrain government discretion. Canada's Anti-Terrorism Act requires that the
Solicitor General and Governor in Council recommend and designate, respectively, an entity for listing only upon
"reasonable grounds." n146 Under the British ultra vires doctrine, courts will also hold such designations to a
reasonableness standard. n147 Both pieces of legislation expressly allow judicial review of listing decisions. n148
In the United States, the United States Code authorizes the Secretary of State to designate an organization as a
"foreign terrorist organization" if he or she finds that it is foreign, threatens the security of the United States or its
nationals, and engages in "terrorist activity." n149 This is any activity "unlawful under the laws of the place where it is
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committed (or which, if committed in the United States, would be unlawful [*442] under the laws of the United
States or any State)" and specifically includes certain enumerated acts. n150 This definition differs from that of
"international terrorism," as it lacks the motivational element to intimidate the public or coerce the government. n151
This disparity creates two different conceptions of terrorist conduct; the standard used in listing to undermine terrorism
operations and organization does not match the standard for the crime that is to be prevented. However, "terrorist
activity" encompasses "material support to any individual, organization, or government in conducting a terrorist activity
at any time," thereby reaching groups indirectly involved. n152 Seven days before making a designation, the Secretary
of State must notify in writing the Speaker and Minority Leader of the House of Representatives, the President pro
tempore, Majority Leader and Minority Leader of the Senate, and members of relevant committees of the designation
decision and the reasons for it. n153 Congress can disapprove of a designation, rendering it of no effect. n154 Unlike
Canadian and British law, the United States Code restricts trade and assistance to "any country if the Secretary of State
determines that the government of that country has repeatedly provided support for acts of international terrorism."
n155 These states further become ineligible for military support. n156 In this way, the law puts political pressure on
the executive to decide whether a state supports terrorism, and reduces its discretion in foreign affairs by mandating
uniform penalties for states supporting terrorism.
C. OFFENCES CONNECTED TO LISTED ENTITIES
The designation of an entity as a terrorist organization in Canadian, British, and American law triggers other statutory
provisions that [*443] target their affiliations and financial transactions. The restriction of certain types of association
cuts into the personnel resources of such entities. Prohibitions on fundraising and financial transactions starve them of
crucial monetary support. Both types of offences recognize that terrorism is often the result of well-planned, structured,
and organized criminal activity.
1. Association
Canada's Anti-Terrorism Act makes it a crime for anyone to "knowingly participate in or contribute 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." n157 To participate in or contribute to group activities includes such things as recruiting
members, offering skills and services, entering or remaining in a country at the behest of a terrorist group, or making
oneself available for the commission of a terrorist offence within or outside Canada upon instruction from a group
member. n158 It further makes it an offence to instruct someone to perform activities designed to benefit a group's
ability to facilitate or carry out terrorism. n159 One concern presented by criminalizing group participation is the
possible infringement of rights of association. n160 The Anti-Terrorism Act, however, requires some overt act in
support of unlawful group terrorist activities, and does not proscribe mere membership in a listed entity. n161 This
approach is very similar to s. 467.1(1)(a) of the Criminal Code, which prohibits participation in the activities of a
criminal organization. n162 The Act would therefore seem not to violate rights of association under s. 2(d) of the
Charter, which does not protect violent activities. n163
[*444] However, a possibly troubling provision of the Anti-Terrorism Act is s. 83.18(4). This section allows a
court, when determining whether a person has participated in such activities, to consider his or her use of words,
symbols or other means of representing the group, association with group members, receipt of benefits from the group,
or repetitive engagement in activities at the instruction of the group. As such, it could risk inappropriate scrutiny of
mere association and political expression not connected to unlawful activities. n164 This section might have been
better presented along with an interpretive clause emphasizing its limited evidentiary role, or alternatively dropped
altogether in favour of reliance upon normal rules of evidence.
The British Terrorism Act goes even further than Canada's law, providing that "[a] person commits an offence if he
belongs or professes to belong to a proscribed organisation." n165 A person violates this section through mere
association with a listed group, even without lending support to its terrorist activities. n166 This prohibition of
membership seeks not just to regulate the conduct of an organization, but to eliminate it altogether. The Terrorism Act
goes so far as to forbid the public wearing of clothes or the display of other articles arousing suspicion that a person is a
member or supporter of a listed organization. n167 The Act further forbids fundraising for the organization, arranging
meetings in support of it or addressed by one of its members, or speaking at a meeting in its support. n168 These
extremely broad provisions raise serious concerns over rights to expression, assembly, and association protected under
the European Convention on Human Rights. n169
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American law targets group activities in a more limited manner than that of Canada and the United Kingdom.
n170 The United States Code makes it an offence to "knowingly provide material support or resources to a foreign
terrorist organization, or attempt or conspire [*445] to do so." n171 The "material support or resources"
contemplated by this provision are the same prohibited in assistance to terrorist acts in general. n172 Such supports
means
currency or monetary instruments or financial securities, financial services, lodging, training, expert
advice or assistance, safehouses, false documentation or identification, communications equipment,
facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets,
except medicine or religious materials. n173
This definition is more specific than Canadian or British legislation in the types of assistance prohibited to groups, and
focuses upon material contributions. It therefore avoids violating the rights of association, expression, and assembly
protected by the First Amendment. n174
All three national legislative schemes exist on a spectrum in regard to offences based upon association with
proscribed organizations. The British approach goes furthest in attacking terrorist support structures by prohibiting any
association or visible expression of support, and risks violating rights of association, expression, and assembly. On the
opposite end is the United States, which restricts only the giving of material support to terrorist organizations. The
Canadian Anti-Terrorism Act takes a middle position by leaning towards the British approach in targeting more indirect
support, but without an outright ban on membership. This seems to be the most effectively balanced approach to
undermining organizationally complex terrorist organizations.
[*446] 2. Financing
Canada, the United Kingdom, and the United States share similar measures aimed at financing. As said by the Solicitor
General of Canada, Lawrence MacAulay, "To defeat terrorists, we also need to choke off their money supply." n175
Accordingly, one of the main purposes of designating a group as a supporter of terrorism is to recognize and target its
role in raising funds and conducting transactions, sometimes under the guise of charitable work, on behalf of terrorist
causes. n176 The disruption and eradication of these support networks is both a long-term strategy to eliminate
terrorism altogether and a method to better prevent it. n177
Canada's Anti-Terrorism Act makes it an offence to directly or indirectly provide, collect, possess, or use property
in support of terrorist activity or a terrorist group. n178 The Anti-Terrorism Act freezes terrorist property, by
prohibiting anyone from conducting financial transactions with proscribed entities, and requiring the disclosure of
information regarding their property and transactions. n179 This property is subject to forfeiture upon order of a
federal court before which the Attorney General has brought an application. n180 British law contains similar
provisions, prohibiting not only fundraising, but also the use or possession of property for terrorist purposes. n181
Money laundering for proscribed entities is prohibited, and a person must disclose any knowledge about such property
offences when it "comes to his attention in the course of a trade, profession, business or employment" n182 or "in the
course of business in the regulated sector." n183 Property of a person convicted under these provisions, of a proscribed
entity, or used in terrorism is subject to forfeiture upon court order. n184 [*447] The Treasury may also freeze
funds and prevent their availability to foreign governments or nationals taking actions detrimental to the British
economy, or threatening the life or property of a British national. n185 In the United States, the law forbids giving
material support to designated foreign terrorist organizations, which includes "currency or monetary instruments or
financial securities, [and] financial services." n186 A financial institution becoming aware that it has possession or
control over any funds in which a listed organization has an interest has a duty to report the funds to the Secretary of
State and maintain control over them. n187 Title III of the Patriot Act n188 takes further measures, including
forfeiture, in order to "prevent, detect, and prosecute international money laundering and the financing of terrorism."
n189 The Secretary of the Treasury can order financial institutions to keep records and report on any jurisdiction,
institution, transaction, or account identified as a "primary money laundering concern." n190 Title III of the Patriot
Act also amends pre-existing law so that the United States Code now allows the forfeiture of property laundered for or
otherwise used in terrorism, just as with other specified crimes. n191
IV. PREVENTING TERRORISM THROUGH INVESTIGATION AND HATE CRIMES
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Canadian and British anti-terrorism legislation increases the authority of law enforcement or other government
authorities, such as immigration officials, to detain suspected terrorists or compel testimony as part of an investigation.
These measures depart from standard practices in their countries on the basis that terrorism is a serious threat that is
often difficult to investigate. n192 Another strategy that Canadian and British anti-terrorism laws employ is to
strengthen hate crime laws in an attempt to address terrorism at its source, that is, the incitement and encouragement of
prejudice. The risks of terrorism in costs to human lives and property are exceptionally severe as to justify reasonable
preventive measures in combatting [*448] it. n193 The United States, however, has no special provisions for
preventive arrest in its anti-terrorism legislation, although compelled investigative testimony has long existed in regular
criminal procedure in the form of grand juries. For these reasons, this section focuses on preventive measures in
Canadian and British anti-terrorism law.
A. SPECIAL INVESTIGATIVE POWERS
Canada's Anti-Terrorism Act establishes an investigative hearing for gathering information in the course of a terrorism
investigation. n194 With consent from the Attorney General, a peace officer may apply ex parte to a judge to request
an order for the gathering of information. n195 A judge may then issue an order if he or she has reasonable grounds to
believe that a terrorism offence has been or will be committed, and that the person named has information about the
offence or a suspect. n196 The person must appear for examination and produce any items indicated, but if he or she
disobeys the order, a warrant may issue for his or her arrest and production for testimony. n197 At the scheduled
hearing, the person is entitled to representation by legal counsel, but may not refuse to answer a question or produce an
item on the basis that it is incriminating. n198 However, no answer given or thing produced, nor any evidence derived
from them, may be received as evidence against the person in a subsequent criminal proceeding. n199 Should a person
already be charged with a terrorism offence, s. 11(c) of the Charter would prevent compelled testimony in a related
investigation. In regard to a person not so charged, however, the Act comports with s. 13 of the Charter, requiring only
that the witness' incriminating evidence not be used against him in a later proceeding. In this way, the Anti-Terrorism
Act mirrors s. 5 of the Canada Evidence Act, n200 and resembles, for example, inquest proceedings.
[*449] Canada's Anti-Terrorism Act also allows preventive arrest. A peace officer, with the consent of the
Attorney General, may lay an information before a provincial court for the arrest of a person or his or her placement on
recognizance with conditions. n201 The officer may only do so if he or she believes on reasonable grounds that a
terrorist activity will be carried out and that such measures are necessary to prevent it. n202 An officer may make an
arrest without a warrant in the event that grounds for an information exist but circumstances disallow the officer from
laying it, and he or she reasonably suspects that arrest is necessary to prevent terrorism. n203 This arrest power is
similar to that in s. 495(1)(a) of the Criminal Code, which allows a peace officer to arrest without warrant a suspect
whom he or she believes is about to commit an indictable offence. n204 In such a case, the officer must bring the
person before a provincial judge and lay an information within twenty-four hours or as soon as possible thereafter.
n205 This is consistent with the general time limit for appearance set forth in the Criminal Code. n206 The judge may
schedule a later hearing on the matter, which must take place within forty-eight hours if the court allows the interim
detention of the person for good cause. n207 At the hearing, the judge may impose conditions of recognizance upon
the person for a time period not to exceed twelve months. n208 The judge may also commit him or her to prison upon
failure or refusal to enter into the recognizance. n209 Similar recognizance provisions already exist in the Criminal
Code for individuals posing a threat of harm. n210 As the preventive arrest provisions closely mirror existing ones in
the Criminal Code, and are subject to judicial oversight allowing detention only for good cause, they should meet the
Charter's guarantees against arbitrary detention. n211
[*450] The British Terrorism Act establishes measures for preventive arrest that are very similar to those in
Canada. Under the Act, "[a] constable may arrest without a warrant a person whom he reasonably suspects to be a
terrorist." n212 The authorities may detain the arrested person for up to forty-eight hours on their own authority.
n213 During this time, a review officer must periodically evaluate whether continued detention is necessary to obtain or
preserve evidence, conduct deportation proceedings, or file criminal charges. n214 Before the end of the
forty-eight-hour period, or within six hours of its expiration, a police officer may apply to the appropriate judicial
authority for a warrant authorizing continued detention. n215 If it reasonably seems necessary to obtain or preserve
evidence, and the investigation is proceeding diligently and expeditiously, the court may authorize further detention not
to exceed seven days from the time of arrest. n216 These arrest powers are considerably broader than those in Canada.
Whereas a first judicial appearance must occur in Canada within twenty-four hours, British authorities may detain a
person for forty-eight hours. n217 Furthermore, the British seven-day detention period with judicial warrant far
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exceeds the seventy-two-hour limit in Canada, and earlier British provisions for preventive arrest have run afoul of the
European Convention. n218
The Canadian Anti-Terrorism Act contains two other political safeguards to prevent abuse of its investigative
hearing and preventive [*451] arrest provisions. n219 First, the federal and provincial attorneys general must
prepare annual reports detailing the use not only of compelled testimony, but also of the preventive arrest provisions
based upon informations and warrants. n220 The Solicitor General of Canada and the responsible provincial ministers
must also annually report on warrantless arrests. n221 The statute additionally includes a sunset clause, under which
the investigative hearing and preventive arrest provisions automatically expire after five years, although they are subject
to renewal. n222 This will ensure that exceptional, emergency measures do not become "normalized." n223 This
limited sunset clause is more suitable than a blanket one for the entire statute, since much of the statute implements
Canada's obligations under the international terrorism conventions. n224
B. HATE CRIMES
Canada and the United Kingdom also take steps to prevent terrorism at its roots through hate crime provisions directed
against religious prejudice. These provisions are designed to stop hateful rhetoric and actions that are not only
immediately harmful to the well-being and security of minority groups, but also threaten to enflame prejudices that
contribute to terrorism. n225 Canada's Anti-Terrorism Act punishes mischief to any building used primarily for
religious worship or any object of worship located thereon when such action is motivated by "bias, prejudice or hate
based on religion, race, colour or national or [*452] ethnic origin." n226 This provision not only punishes acts of
hatred by those sympathetic to terrorist causes, but also protects religious and racial minorities from retaliation for
terrorism. Sites of religious worship are particularly prone to hate-inspired incidents, which alarmingly increased
against people of Middle Eastern ethnicity in Canada and the United States after September 11. n227 Attacks against
Jews and synagogues in Western Europe also escalated after Israel's commencement of anti-terrorism military
operations in the West Bank. n228 These incidents illustrate how vulnerable houses of worship can be to acts of hate
that threaten to inflame racial, ethnic, or religious tensions and, in some instances, incite more serious acts of terrorism.
Britain's Anti-terrorism, Crime and Security Act also has a new hate crime provision of "religious hatred," defined as
hatred against "a group of persons defined by reference to religious belief or lack of religious belief." n229 Religious
hatred, along with racial hatred, is now an aggravating factor for existing offences. n230 This is similar to Canadian
criminal law, where hatred "based on race, national or ethnic origin, language, colour, religion, sex, age, mental or
physical disability, sexual orientation, or any other similar factor" also exists as an aggravating sentencing factor. n231
The other hate crime provision in Canada's Anti-Terrorism Act restrains the dissemination of hate material over the
Internet. n232 A judge, having reasonable grounds upon information to believe that an Internet posting is hate
propaganda, may order a hearing to determine whether it should be removed. n233 Upon notification of the
proceedings, the person responsible for posting the material may appear at the hearing with counsel, but the court may
proceed ex parte if he or she fails to appear. n234 If a judge determines that the material is hate propaganda, he or she
may order its deletion from the system. n235 This section compliments similar provisions in the Criminal Code that
allow the seizure of hate propaganda, n236 defined [*453] as "any writing, sign or visible representation that
advocates or promotes genocide or the communication of which by any person would constitute an offence under s.
319." n237 Section 319 prohibits the public incitement or promotion of hatred against any "identifiable group," while
the advocacy of genocide is itself an offence under s. 318. n238 The Anti-Terrorism Act therefore does not present any
novel or controversial addition to the criminal law in this regard, but instead expands existing provisions to cover the
spread of hate material over the Internet. This prohibition is likely an infringement of expression rights under s. 2(b) of
the Charter, as it is with the dissemination of hate propaganda, but would likewise seem reasonable under s. 1 as
promoting multiculturalism and tolerance. n239 The British Anti-terrorism, Crime and Security Act amends the Public
Order Act 1986 to make it an offence to spread or incite hatred against a group of persons "defined by reference to
colour, race, nationality (including citizenship) or ethnic or national origins." n240 Incitement is unlawful whether
through written material, broadcasts, recordings, or even words. n241 These Canadian and British laws share the
purpose of preventing terrorism by addressing some of its root causes.
V. CONCLUSION
International terrorism has unfortunately emerged as a serious threat throughout much of the world, with North America
being no exception. While the causes and possible solutions to terrorism are several, the law presents one avenue both to
prevent and punish terrorism. In democratic nations, the law is an especially important tool in the fight against
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terrorism. It restrains the state from overreacting, while at the same time allowing a strong response that protects and
reaffirms the normative values of liberal democracy. The rule of law demands vigilance against, as well as a decisive
balance between, state oppression and state weakness. One of terrorism's dangers lies in provoking these extremes,
which pose existential threats to constitutional order. Fortunately, terrorism's ultimate goal of subversion is one that is
within control. The possible solutions to terrorism naturally pose difficult and challenging questions about the complex
interconnection between rights and security concerns. However, reasonable and effective anti-terrorism measures in the
law are not only achievable, but are also necessary to counter terrorism and maintain democratic values.
[*454] Canada, the United Kingdom, and the United States, along with many other nations, have adopted special
laws to fight terrorism. While cooperation throughout the international community is required, these three nations have
a common legal heritage that establishes a broader systemic context within which to consider anti-terrorism legislation,
both in its impact upon individual rights and its effective implementation. Their particular anti-terrorism laws also share
substantive and procedural principles in defining, investigating, and preventing terrorism. For these reasons, it is
appropriate for each of them to carefully consider the others' anti-terrorism laws and improve its own to become as
effective and respectful of rights as possible, while contributing to a more harmonized cooperative effort. Such
comparison does not mean that Canada, the United Kingdom, or the United States must unthinkingly imitate a partner's
approach or sacrifice its own constitutional values. Rather, through serious consideration of each other's anti-terrorism
measures, each nation draws upon wider experiences and ideas based upon similar underlying concepts that exist within
a broader, shared normative context. This approach to fighting terrorism not only permits, but depends upon, the
cross-fertilization of Canadian, British, and American strategies and their flexible adaptation to particular domestic
circumstances. In this way, these three common law countries can better construct an international, cooperative
framework of anti-terrorism law, which implements best practices tailored to national needs.
Canada's Anti-Terrorism Act responds to terrorism in a manner that is both firm and conscientious of Charter
rights, and contributes to a common anti-terrorism campaign along with its international partners. Although the Act
clearly borrows upon ideas already incorporated into American and especially British law, it is generally more
restrained and takes additional precautions to protect liberties. The Anti-Terrorism Act modifies these existing strategies
in an attempt to improve them and adapt them to Canadian concerns, and introduces such original notions as special
investigative hearings and interpretive clauses. While the Act has attracted much criticism, it attempts to accommodate
valid concerns in a response to terrorism that is neither overreactionary nor weak and ineffective. Nevertheless,
reasoned debate on the Anti-Terrorism Act and other similar measures is not only healthy and constructive on the
domestic level, but ultimately impacts the exchange of ideas that occurs between Canada, the United Kingdom, and the
United States. In this sense, ongoing public discussion of anti-terrorism measures of whatever sort is itself a necessary
action against international terrorism. Such discussion from a comparative perspective calls to mind and reaffirms a
common commitment to democracy, rights, and the rule of law, and serves notice to terrorists that they have not
prevailed against these values.
FOOTNOTES:
n1 Paul R. Pillar, Terrorism and U.S. Foreign Policy (Washington, D.C.: Brookings Institution Press) at
56-61.
n2 See Stewart Bell "Islamic Extremists No. 1 Security Threat, CSIS Chief Says" National Post (4 May
2000) A4.
n3 On February 26, 1993, a bomb exploded in one of the World Trade Center towers in New York City,
killing six people and injuring over one thousand others. Several of the perpetrators were later arrested and
convicted. See "4 Convicted in Bombing of New York Trade Center" International Herald Tribune (6 March
1994) A1; "A Surge of Threats to Americans as U.S. Brings Terrorists to Justice" International Herald Tribune
(14 November 1997) A1. In 1999, American officers arrested Ahmed Ressam at the Canada-United States
border when he tried to smuggle across a bomb with the intent to detonate it at the Los Angeles International
Airport shortly before New Year celebrations. Ressam was part of a Canadian-based terrorist network. See Bell,
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66 Sask. L. Rev. 419, *
supra note 2; William Marsden & Nicolas Van Praet "Mystery Surrounds 'Raouf'" The [Montreal] Gazette (16
February 2002) B1.
n4 The presence of terrorist activity in Canada is well reported. See e.g. Stewart Bell "Terrorists Use
Canada as Staging Ground: CSIS" National Post (3 May 2000) A1; Colin Freeze & Tu Thanh Ha "Watch List
Has Canadian Link" The Globe and Mail (11 October 2001) A4; Rick Ouston "Bin Laden's Man in Canada" The
[Montreal] Gazette (10 October 2001) A10; "Plotter Jailed for 24 Years" The [Montreal] Gazette (17 January
2002) A1; Colin Nickerson "US Wary of 'Time Bombs' Waiting to Strike from North" The Boston Globe (4
February 2002) A12.
n5 See Ingrid Peritz, Campbell Clark & Colin Freeze "Bomb Plot Rattles Jews" The Globe and Mail (1
December 2001) A6; Stewart Bell & Steven Edwards "Terrorist Plots for Canada Revealed" National Post (17
January 2002) A1; Stewart Bell "Terror Tape Lists Canada Target" National Post (13 November 2002) A1.
n6 Dale Anne Freed & Andrew Chung "Remember Them" Toronto Star (17 November 2001) K2.
n7 At least three-quarters of the victims were foreigners, many of whom were Australian: Alan Sipress &
Ellen Nakashima "Death Toll in Bali Attack Rises to 188" The Washington Post (14 October 2002) A1.
n8 S.C. 2001, c. 41.
n9 An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of
Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in
order to combat terrorism, 1st Sess., 37th Parl., 2001.
n10 Canada, Department of Justice, News Release: Backgrounder, "Highlights of Anti-Terrorism Act" (15
October 2001), online: Canada Department of Justice
<http://canada.justice.gc.ca/en/news/nr/2001/doc_27787.html> ["Highlights"].
n11 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[Charter].
n12 Supra note 8.
n13 For some of the criticism voiced during the consideration of Bill C-36, see Estanislao Oziewics "Critics
Find Little Merit in Terror Bill" The Globe and Mail (10 November 2001) A11, and Rick Mofina "Terror Bill
Puts Rights at Risk, Lawyers Warn" The [Montreal] Gazette (14 October 2001) A13.
n14 In her appearance before the House of Commons Justice and Human Rights Committee, Minister of
Justice, Anne McClellan, defended the dual purposes of Bill C-36, commenting:
The insidious nature of terrorism has dictated the need for new measures. These measures must
have a preventive focus because punishing terrorist crimes after they occur is not enough. We
must be able to disable organizations before they are able to put hijackers on planes or threaten
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66 Sask. L. Rev. 419, *
our sense of security as we have seen in recent days with the scare of anthrax. We must have
mechanisms in place to go after terrorist organizations and put them out of business.
Canada, Department of Justice, News Release, "Notes for the Minister of Justice's Appearance before the House
of Commons Justice and Human Rights Committee" (18 October 2001), online: Canada Department of Justice
<http://canada.justice.gc.ca/en/news/sp/2001/doc_27832.html> ["Notes for the Minister of Justice, 18 October"].
n15 "Highlights," supra note 10.
n16 R.S.C. 1985, c. C-46.
n17 Anti-Terrorism Act, supra note 8, s. 83.01(1)(a). The listed treaties are: (1) Convention for the
Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970; (2) Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971;
(3) Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973;
(4) International Convention against the Taking of Hostages, adopted by the General Assembly of the United
Nations on December 17, 1979; (5) Convention on the Physical Protection of Nuclear Material, Vienna and
New York, March 3, 1980; (6) Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving
International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation, signed at Montreal on February 24, 1988; (7) Convention for the Suppression of
Unlawful Acts against the Safety of Maritime Navigation, Rome, March 10, 1988; (8) Protocol for the
Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, Rome,
March 10, 1988; (9) International Convention for the Suppression of Terrorist Bombings, adopted by the
General Assembly of the United Nations on December 15, 1997; and (10) International Convention for the
Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on
December 9, 1999.
n18 Anti-Terrorism Act, supra note 8, s. 83.01(1)(b).
n19 Ibid., ss. 83.02-04, 83.08, 83.1, 83.18, 83.21.
n20 Ibid., ss. 83.28, 83.3.
n21 Ibid., ss. 83.31-83.32.
n22 Criminal Code, supra note 16, ss. 320.1, 430(4.1), as am. by Anti-Terrorism Act, supra note 8, s.
83.33(2).
n23 Yonah Alexander, "Terrorism in the Twenty-First Century: Threats and Responses" (1999-2000) 12
DePaul Bus. L.J. 59 at 63; Clive Walker, "Constitutional Governance and Special Powers against Terrorism:
Lessons from the United Kingdom's Prevention of Terrorism Acts" (1997) 35 Colum. J. Transnat'l L. 1 at 2-3.
n24 (U.K.), 1989, c. 4.
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66 Sask. L. Rev. 419, *
n25 (U.K.), 1996, c. 22.
n26 (U.K.), 1998, c. 40.
n27 U.K., H.C., "Inquiry into Legislation against Terrorism," Cm 3420 in Sessional Papers (1996); U.K.,
H.C., "Legislation against Terrorism: A Consultation Paper," Cm 4178 in Sessional Papers (1998), ss. 1.1-1.2,
online: The Stationary Office <http://www.official-documents.co.uk/document/cm41/4178/4178.htm> select:
"Next" ["Consultation Paper"]; Walker, supra note 23 at 6, 7.
n28 (U.K.), 2000, c. 11 (received Royal Assent on July 20, 2000) [Terrorism Act]. See J.J. Rowe, "The
Terrorism Act 2000" [2001] Crim. L. Rev. 527 at 527.
n29 Supra note 28, ss. 1(1)-(2).
n30 Ibid., ss. 11-19.
n31 Ibid., ss. 33, 36, 41, 43. Some provisions continue to apply only to Northern Ireland. Also, the Act
continues in force special judicial procedures for terrorism trials in Northern Ireland that lower evidentiary
standards and restrict trial by jury.
n32 (U.K.), 2001, c. 24 [Anti-terrorism, Crime and Security Act].
n33 Ibid., ss. 1, 5, 37, 39, Part 4.
n34 For a summary of the Achille Lauro affair, see Philip B. Heymann, Terrorism and America: A
Commonsense Strategy for a Democratic Society (Cambridge, Mass.: MIT Press, 1998) at 20-23.
n35 Pub. L. No. 99-399, 100 Stat. 853. See also Roberta Smith, "America Tries to Come to Terms with
Terrorism: The United States Anti-Terrorism and Effective Death Penalty Act of 1996 v. British Anti-Terrorism
Law and International Response" (1997) 5 Cardozo J. Int'l. & Comp. L. 249 at 256-57.
n36 Pub. L. No. 100-204, 101 Stat. 1406. This statute barred fundraising for the PLO in the United States,
sought to shut down their offices, and criminalized activities taken in support of the organization. Pursuant to
this Act, the United States government attempted to close the PLO permanent observer mission at the United
Nations in New York City, but a federal district court kept it open by finding no clear congressional intent to
contravene the United Nations Headquarters Agreement. See United States v. Palestine Liberation Organization,
695 F.Supp. 1456 (S.D.N.Y. 1988).
n37 Pub. L. No. 102-572, 106 Stat. 4506 at 4521.
n38 Ibid., s. 1003(a)(3), codified at 18 U.S.C. § 2331(1)(A), as am. by the USA Patriot Act, Pub L. No.
107-56, 115 Stat. 272 (2001), § 802 [Patriot Act].
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66 Sask. L. Rev. 419, *
n39 Pub. L. No. 104-132, 110 Stat. 1214 (1997) [AEDPA].
n40 Smith, supra note 35 at 260-62.
n41 AEDPA, supra note 39, ss. 302-03.
n42 Ibid., s. 702(a).
n43 Supra note 38.
n44 Mary Ellen Tsekos, "Legislative Focus: Patriot Act" (2001) 9 Human Rights Brief 35 at 35, online:
Human Rights Brief <http://www.wcl.american.edu/hrbrief/09/1focus.cfm>.
n45 Supra note 38, § § 411-12, 801, 803.
n46 As of 1997, Smith, supra note 35 at 283-84, finds that "the United States has dealt with terrorism on a
less formalized basis than Britain. Rather than legislating specific anti-terrorism law, the United States, for the
most part, has incorporated anti-terrorism measures into other laws." While the AEDPA and Patriot Act were
specifically anti-terrorism statutes, they were still not comprehensive and did not categorically overhaul or
replace existing measures. See also Jacqueline Ann Carberry, "Terrorism: A Global Phenomenon Mandating a
Unified International Response" (1999) 6 Ind. J. Global Legal Stud. 685 at 695. Thus, American anti-terrorism
laws have been "reactive rather than proactive": Mark S. Zaid, "Combatting International Terrorism into the 21st
Century" (1996) 2 ILSA J. Int'l & Comp. L. 661 at 661.
n47 International terrorism, as the name suggests, is a problem for many nations around the world. See e.g.
Heymann, supra note 34 at 100-101, and Peter Chalk, West European Terrorism and Counter-Terrorism: The
Evolving Dynamic (London: MacMillan Press, 1996) at 74-78, 99-101.
n48 These activities are a considerable threat to both Canada and the United Kingdom, as well as to the
United States. See e.g. Stewart Bell "Hezbollah Raising Funds in Canada: Mideast Academic" National Post (4
December 2000) A4; Levon Sevunts "Montreal 'Terror Hub'" The [Montreal] Gazette (29 January 2002) A1;
Alan Freeman "London Bomb Plot Uncovered" The Globe and Mail (17 December 2001) A4; Hans Kundnani
"Terror Investigation Focuses on London Islamic Center" The Wall Street Journal (29 October 2001) A19.
n49 A fact sheet distributed by the Canadian Department of Justice shows that the Anti-Terrorism Act was
proposed with this cooperative approach in mind. "Canada's proposed Anti-Terrorism Act is consistent with the
anti-terrorism laws of our international partners and is an important part of our commitment to disable and
dismantle the global threat of terrorism": Canada, Department of Justice, News Release: Factsheet, "Canada's
Proposed Anti-Terrorism Act: Working with Our International Partners" (15 October 2001), online: Canada
Department of Justice <http://www.canada.justice.gc.ca/en/news/nr/2001/doc_27791.html> ["International
Partners"]. It also recognized the "similarities between Canada's proposed legislation and those of the USA and
United Kingdom": ibid.
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66 Sask. L. Rev. 419, *
n50 There are twelve international conventions relating to the suppression of terrorism. In addition to the
ten listed supra note 17, there are the Convention on Offences and Certain Other Acts Committed on Board
Aircraft, signed at Tokyo on September 14, 1963, and the Convention on the Marking of Plastic Explosives for
the Purpose of Detection, signed at Montreal on March 1, 1991.
n51 SC Res. 1269, UN SCOR, 4053d Mtg., UN Doc. S/RES/1269 (1999).
n52 SC Res. 1377, UN SCOR, 4413th Mtg., UN Doc. S/RES/1377 (2001).
n53 Jutta Brunnee, "Terrorism and Legal Change: An International Law Lesson" in Ronald J. Daniels,
Patrick Macklem & Kent Roach, eds., The Security of Freedom: Essays on Canada's Anti-Terrorism Bill
(Toronto: University of Toronto Press, 2001) [Security of Freedom] 341 at 341.
n54 Zaid, supra note 46 at 661, writes: "Terrorism and the law are inexplicably interconnected, and the law
is one of our most important weapons available to fight terrorists." He identifies legal measures as one of three
possible governmental responses to terrorism, along with military strikes and diplomacy: ibid. at 662. See also
Walker, supra note 23 at 4.
n55 SC Res. 1377, supra note 52.
n56 Alexander, supra note 23 at 88-89. See also Smith, supra note 35 at 254-55; W. Michael Reisman,
"International Legal Responses to Terrorism" (1999) 22 Hous. J. Int'l L. 3 at 5 (Symposium: Legal Reponses to
International Terrorism).
n57 Carberry, supra note 46 at 719.
n58 This approach seems consistent with Irwin Cotler's suggestion that one must "'think outside the box'
and invoke an international criminal justice model having regard to both the nature of the threat and the
proportionality of the response": "Thinking Outside the Box: Foundational Principles for a Counter-Terrorism
Law and Policy" in Security of Freedom, supra note 53, 111 at 116. This perspective replaces a more limited
focus on a traditional, domestically oriented criminal law and due process model, which alone may be
"inadequate, if not inappropriate": ibid.
n59 Walker, supra note 23 at 4-5; Alexander, supra note 23 at 95; Emanuel Gross, "Legal Aspects of
Tackling Terrorism: The Balance between the Right of a Democracy to Defend Itself and the Protection of
Human Rights" (2001) 6 UCLA J. Int'l L. & Foreign Aff. 89 at 91, 101; Carberry, supra note 46 at 691; Chalk,
supra note 47 at 94, 96-97.
n60 Oren Gross, "Cutting down Trees: Law-Making under the Shadow of Great Calamities" in Security of
Freedom, supra note 53, 39 at 43; David Schneiderman, "Terrorism and the Risk Society" in Security of
Freedom, supra note 53, 63 at 69.
n61 Supra note 11.
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66 Sask. L. Rev. 419, *
n62 4 November 1950, 213 U.N.T.S. 221 at 223, Eur. T.S. 5 [European Convention].
n63 (U.K.), 1998, c. 42.
n64 U.S. Const. amends. I-X.
n65 O. Gross, supra note 60 at 43; Chalk, supra note 47 at 98-99.
n66 Mariana Valverde, "Governing Security, Governing through Security" in Security of Freedom, supra
note 53, 83 at 83-84.
n67 Although the Canadian province of Quebec has the civil law system, and the American state of
Louisiana a mixed one, the anti-terrorism legislation in both countries is on the federal level based upon the
common law. Scotland, too, is a mixed jurisdiction, while the rest of the United Kingdom follows the common
law.
n68 Cotler, supra note 58 at 117.
n69 Ibid. at 118.
n70 Canada uses the term "terrorist activity," while the United Kingdom uses "terrorism" and the United
States employs differing definitions of terrorism. Throughout this article, however, all of these terms will be
used as conceptual equivalents, despite having precise and varying meanings in law.
n71 Reisman, supra note 56 at 9; Kent Roach, "The New Terrorism Offences and the Criminal Law" in
Security of Freedom, supra note 53, 151 at 154 ["New Terrorism Offences"], for instance, calls the definition of
terrorism in the Anti-Terrorism Act, supra note 8, s. 83.01, its "most important provision."
n72 The New Shorter Oxford English Dictionary on Historical Principles, 4th ed., vol. 2, defines
"terrorism" as "the systematic employment of violence and intimidation to coerce a government or community,
esp. into acceding to specific political demands." See also Roach, supra note 71 at 152-53.
n73 Zaid, supra note 46 at 665. See Patrick Macklem, "Canada's Obligations at International Criminal Law"
in Security of Freedom, supra note 53, 353 at 355-58, 362, but see Roach, supra note 71 at 152-54, for the
suggestion that normal criminal law is adequate to punish terrorism; Heymann, supra note 34 at 7-8, 9-11;
Reisman, supra note 56 at 6-7.
n74 Wesley K. Wark, "Intelligence Requirements and Anti-Terrorism Legislation" in Security of Freedom,
supra note 53, 287 at 288; Alexander, supra note 23 at 61.
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66 Sask. L. Rev. 419, *
n75 Jacobellis v. Ohio, 378 U.S. 184 at 197 (1964), 84 S. Ct. 1676.
n76 Cotler, supra note 58 at 113, writes that this phrase "has not only undermined intellectual inquiry, but
its moral relativism...has blunted the justificatory basis for a clear and principled counter-terrorism law." See
also Carberry, supra note 46 at 711; Don Stuart, "The Dangers of Quick Fix Legislation in the Criminal Law:
The Anti-Terrorism Bill C-36 Should Be Withdrawn" in Security of Freedom, supra note 53, 205 at 212; Chalk,
supra note 47 at 9.
n77 Carberry, supra note 46 at 710-11; Chalk, supra note 47 at 10; Reisman, supra note 56 at 7-8.
n78 Chalk, supra note 47 at 9; Alexander, supra note 23 at 64-65; Zaid, supra note 46 at 665.
n79 Cotler, supra note 58 at 115. Although finding Canada's Anti-Terrorism Act too broad, David
Schneiderman & Brenda Cossman, "Political Association and the Anti-Terrorism Bill" in Security of Freedom,
supra note 53, 173 at 174, recognize the possibility that "some associations simply are so destructive of the aims
and objectives of the larger association--the liberal democratic state--that these groups simply cannot be
tolerated."
n80 See O. Gross, supra note 60 at 41-42; Pillar, supra note 1 at 49; Alexander, supra note 23 at 68-70. It is
for this reason, as well as the protection of innocent lives, that the law must enforce the "underlying
principle...that terrorism from whatever quarter for whatever purpose, is unacceptable": Cotler, supra note 58 at
113. Cotler further writes, ibid., "that there must be a Zero Tolerance Principle for transnational terrorism, just as
there is a Zero Tolerance Principle for racism."
n81 Reisman, supra note 56 at 11.
n82 O. Gross, supra note 60 at 42, suggests that the threat of terrorism is too weak to directly endanger the
existence of the state. Rather, its real danger lies in "its tendency to push a democratic regime to react to
perceived threats by employing authoritarian measures." Gross is right, of course, in regard to a state's
overreaction. However, a tempered and carefully considered, but firm, response is necessary to prevent the other
danger that can also subvert democracy, which is the "elimination of inhibitions against using force and violence
in order to accomplish political, social and economic goals": ibid.
n83 Reisman, supra note 56 at 11-12.
n84 Ibid.; Heymann, supra note 34 at 8-9.
n85 Chalk, supra note 47 at 113-15; see Walker, supra note 23 at 7-10.
n86 See Chalk, supra note 47 at 96, who writes:
It is important to remember that for the terrorist there is no law save that of his/her own peculiar
and idiosyncratic code of conduct. Indeed, law is regarded as the essential embodiment and
symbol of the system that needs to be overthrown....This being said, terrorism can be viewed as a
peculiar type of minority tyranny which denies the possibility of any rights that are separate from
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66 Sask. L. Rev. 419, *
or beyond its own particular brand of politics. This is the true antithesis of the liberal way of life
and the prevention of such a state of affairs is, and must be, the essential purpose of its criminal
penal system [footnote omitted].
n87 Supra note 8, s. 83.01(1)(a)(i)-(x).
n88 Ibid., s. 83.01(1)(b)(i)(A).
n89 Ibid., s. 83.01(1)(b)(i)(B).
n90 Ibid., ss. 83.01(1)(b)(ii)(A)-(E).
n91 Ibid., s. 83.01(1)(b)(ii). The definition also contemplates lesser offences such as conspiracy to commit,
attempt to commit, being an accessory to, and counselling terrorist activities. But see Roach, supra note 71 at
160, who finds inchoate terrorist offences as potentially "extending the chain of criminal liability to an
unprecedented degree." This is because many terrorist offences covered by the Anti-Terrorism Act are
themselves already preparatory in nature, meaning that prosecutors and judges could broadly interpret the Act to
prohibit "attempting attempts, attempting conspiracies or counseling counseling": ibid. [footnote omitted].
n92 Anti-Terrorism Act, supra note 8, ss. 83.01(1)(b)(ii)(A)-(E).
n93 Ibid., s. 83.01(1)(b)(i)(B).
n94 Roach, supra note 71 at 155-56. Because of concerns that this could include protests and work
stoppages, the Anti-Terrorism Act includes an interpretive clause at s. 83.01(b)(ii)(E); see text accompanying
notes 115-19, below.
n95 Terrorism Act, supra note 28, ss. 1(1)(b)-(c); see also Rowe, supra note 28 at 532. The definition seems
to also include inchoate offences, as the language focuses upon the intent to commit such acts: Terrorism Act,
supra note 28, ss. 1(2)(a)-(c).
n96 Ibid.
n97 Ibid., s. 1(2)(d); see Anti-Terrorism Act, supra note 8, s. 83.01(1)(b)(ii)(D); Roach, supra note 71 at
157.
n98 U.K. Home Office, Organised and International Crime Directorate, Home Office Circular 03/2001,
"Terrorism Act 2000" (March 2001) at s. 1.1, online: U.K. Home Office
<http://www.homeoffice.gov.uk/docs/hoc0301.html>; Roach, supra note 71 at 159.
n99 18 U.S.C. § § 2331(1)(A)-(B); Patriot Act, supra note 38, s. 801, amends 18 U.S.C. § 1993 to create
a new offence of causing damage or disruption to a mass transportation system, but it is not premised upon any
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66 Sask. L. Rev. 419, *
special definition of terrorism. Hereafter, citations to American anti-terrorism provisions will be to the United
States Code, unless specific attention is to be drawn to the source statute.
n100 18 U.S.C. § 2331(1)(a); 18 U.S.C. § 2331(5)(C), added by the Patriot Act, supra note 38, s. 802,
gives a separate definition of "domestic terrorism" almost identical to that of "international terrorism" except
that the acts "occur primarily within the territorial jurisdiction of the United States." This article, however,
focuses upon international terrorism, although much of the discussion will remain relevant for domestic
terrorism, as well.
n101 Roach, supra note 71 at 154.
n102 Roach, ibid., takes the view that the American definition, because it is based on predicate offences, is
narrower in scope than the Canadian Anti-Terrorism Act. However, the American definition allows a terrorist
prosecution under the whole extent of the federal and state criminal codes. It may consequently weaken the
sensitivity to charging a terrorist offence, as it could lose its exceptional character. The Canadian definition has
more certain and limited criteria for just what qualifies as a terrorist activity, and arguably should also seem a
more exceptional recourse.
n103 18 U.S.C. § 2331(1)(c).
n104 See supra note 100.
n105 Anti-Terrorism Act, supra note 8, s. 83.01(1)(b)(i)(A).
n106 Chalk, supra note 47 at 12, 17.
n107 Cotler, supra note 58 at 123; Kent Roach, "The Dangers of a Charter-Proof and Crime-Based
Response to Terrorism" in Security of Freedom, supra note 53, 131 at 132-33, 138 ["Dangers of a
Charter-Proof"]; Roach, "New Terrorism Offences," supra note 71 at 152.
n108 Zaid, supra note 46 at 665.
n109 See Roach, "New Terrorism Offences," supra note 71 at 155-56.
n110 See ibid. at 152, 156; Charter, supra note 11, ss. 2(a)-(b).
n111 Criminal Code, supra note 16, ss. 318-19, 718.2(a)(i).
n112 See R. v. Keegstra, [1990] 3 S.C.R. 697, 117 N.R. 1 [Keegstra].
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66 Sask. L. Rev. 419, *
n113 Canada, House of Commons, Standing Committee on Justice and Human Rights, Evidence (on Bill
C-36), 37th Parl., 1st Sess., 29th Mtg. (18 October 2001) at 1620, per McLellan, online: Parliament of Canada
<http://www.parl.gc.ca/InfocomDoc/37/1/JUST/Meetings/Evidence/justev29-e.htm> ["Evidence"].
n114 Ibid. at 1625.
n115 Roach, "New Terrorism Offences," supra note 71 at 159. For these concerns, see Schneiderman &
Cossman, supra note 79 at 177-78.
n116 Anti-Terrorism Act, supra note 8, s. 83.01(1)(b)(ii)(D).
n117 Canada, Department of Justice, News Release: Backgrounder, "Amendments to the Anti-Terrorism
Act" (20 November 2001), online: Department of Justice
<http://canada.justice.gc.ca/en/news/nr/2001/doc_27904.html> ["Amendments"]; Canada, Department of
Justice, News Release: Fact Sheet, "Strengthening the Safeguards with Amendments to the Proposed
Anti-Terrorism Act" (20 November 2001), online: Department of Justice
<http://canada.justice.gc.ca/en/news/nr/2001/doc_27906.html>.
n118 Anti-Terrorism Act, supra note 8, s. 83.01(1.1); Roach, "New Terrorism Offences," supra note 71 at
158.
n119 Anti-Terrorism Act, supra note 8; O. Gross, supra note 60 at 44-47, suggests that emergencies and
exceptional legislation meant to address them lead to a "dichotomized dialectic" between what is normal and
not. The other dichotomy is between insiders and outsiders resulting in a "disproportionately heavier burden on
political outsiders, minorities, critics of the government, trade unionists, defense lawyers and even critical
insiders": ibid. at 47. The interpretive clause of the Anti-Terrorism Act seeks to address this valid concern.
Roach, "New Terrorism Offences," supra note 71 at 156, fears that motivational elements will criminalize
protected rights of expression and equality. However, the Act's necessary link between beliefs and violent
actions intended to intimidate the public or government should allay fears of an ideological witch-hunt.
n120 Terrorism Act, supra note 28, s. 1; see Anti-Terrorism Act, supra note 8, s. 83.01(1).
n121 Terrorism Act, supra note 28, s. 1(1)(c).
n122 Ibid., s. 1(1)(b).
n123 See Rowe, supra note 28 at 532.
n124 "Consultation Paper," supra note 27, s. 3.18.
n125 Rowe, supra note 28 at 532.
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66 Sask. L. Rev. 419, *
n126 18 U.S.C. § 2331(1)(B).
n127 Anti-Terrorism Act, supra note 8, ss. 83.01(1)(a)-(b).
n128 Ibid., s. 83.01(1)(b)(i)(B).
n129 See Cotler, supra note 58 at 116; Schneiderman & Cossman, supra note 79 at 182-83, criticize the
Act's extraterritorial jurisdiction as infringing on a citizen's rights to support or associate with foreign political
movements, some of which may rely on force to oppose repressive regimes. However, the Act only prevents
those associations connected with the statutorily defined crime of terrorism. Violence against civilians or activity
which would be criminal if committed within Canada should not be tolerated merely because it occurs beyond
the borders, nor should ostensibly laudable ends justify it as means.
n130 See "International Partners," supra note 49.
n131 Terrorism Act, supra note 28, ss. 1(4)(a)-(d).
n132 Ibid., ss. 59-61 make it an offence if one "incites another person to commit an act of terrorism wholly
or partly outside the United Kingdom" that would otherwise be a designated offence if committed in England
and Wales, Northern Ireland, and Scotland.
n133 Janice Gross Stein, "Network Wars" in Security of Freedom, supra note 53, 73 at 75, has used the
phrase "global networks of terror" to describe the problem.
n134 U.K., Foreign & Commonwealth Office, Britain and the Fight against International Terrorism
(London: Foreign & Commonwealth Office, 2000) at 2, online: Foreign & Commonwealth Office
<http://files.fco.gov.uk/info/briefs/intterrorism.pdf>.
n135 Ibid. at 3; see "Consultation Paper," supra note 27, s. 2.
n136 18 U.S.C. § 2331(1)(C).
n137 18 U.S.C. § § 2332b(a), (e).
n138 This approach is consistent with the statement by Macklem, supra note 73 at 353, that "the principle
of universal jurisdiction authorizes--indeed requires--a state to prosecute and punish individuals for certain
actions that amount to international criminal behaviour."
n139 Stein, supra note 133 at 76-77, gives a summary of al-Qa'eda operations as a prime example of the
global and organizational presence that characterizes many international terrorist groups.
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66 Sask. L. Rev. 419, *
n140 Ibid. at 80.
n141 Supra note 8, s. 83.01(1).
n142 Ibid., s. 83.05(1)(a).
n143 Ibid., s. 83.05(1)(b).
n144 Supra note 28, ss. 3(1)(a), 3(3), Sch. 2.
n145 Ibid., s. 3(5).
n146 Supra note 8, ss. 83.05(1)(a)-(b).
n147 Terrorism Act, supra note 28, s. 3(4); see O. Hood Phillips, Paul Jackson & Patricia Leopold,
Constitutional and Administrative Law, 8th ed. (London: Sweet & Maxwell, 2001) at paras. 31.001-31.020.
n148 Anti-Terrorism Act, supra note 8, ss. 83.05(2)-(8); Terrorism Act, supra note 28, ss. 4-6.
n149 8 U.S.C. § 1189(a)(1); Pillar, supra note 1 at 158.
n150 8 U.S.C. § 1182(a)(3)(B)(ii). These acts include hijacking and sabotage, kidnapping and threatening
individuals, assassination, and the use of weapons of mass destruction, explosives, or firearms with intent to
endanger the safety of individuals or cause substantial property damage. This definition is also used in
determining the admissibility of aliens.
n151 See 18 U.S.C. § 2331(A).
n152 8 U.S.C. § 1182(a)(3)(B)(iii). This extends to planning or preparing activities, gathering target
information, soliciting funds, and recruiting membership.
n153 8 U.S.C. § 1189(a)(2).
n154 8 U.S.C. § 1189(a)(2)(B)(ii).
n155 22 U.S.C. § 2371(a). Listed states include Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. 22
U.S.C. § § 2371(c)-(d) allow the President to rescind a designation or allow a limited waiver of the resulting
statutory penalties to a designated state after advising Congress.
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66 Sask. L. Rev. 419, *
n156 22 U.S.C. § 2780; 22 U.S.C. § § 2780(f)-(g) also permit the President to rescind a designation or
allow a waiver for purposes of this section. 22 U.S.C. § 2378(a)(1) further directs the President to "withhold
assistance...to the government of any country that provides lethal military equipment to a country the
government of which the Secretary of State has determined is a terrorist government."
n157 Supra note 8, s. 83.18(1).
n158 Ibid., s. 83.18(3).
n159 Ibid., s. 83.21(1).
n160 Charter, supra note 11, s. 2(d).
n161 "Notes for the Minister of Justice, 18 October," supra note 14; But see Roach, "New Terrorism
Offences," supra note 71 at 161, for concerns that s. 83.18(1) is potentially overbroad in its scope and should
include more precise enumeration of prohibited acts.
n162 Criminal Code, supra note 16, s. 2 defines a "criminal organization" as having the same meaning as in
s. 467.1(1), which is
a group, however organized, that (a) is composed of three or more persons in or outside Canada;
and (b) has as one of its main purposes or main activities the facilitation or commission of one or
more serious offences that, if committed, would likely result in the direct or indirect receipt of a
material benefit, including a financial benefit, by the group or by any of the persons who
constitute the group.
n163 See Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4th) 1, 281 N.R.
1, 2002 SCC 1.
n164 Kevin E. Davis, "Cutting off the Flow of Funds to Terrorists: Whose Funds? Which Funds? Who
Decides?" in Security of Freedom, supra note 53 at 305-06.
n165 Supra note 28, s. 11(1).
n166 An accused can plead that he or she joined the organization before its proscription and has since taken
no part in any of its activities: ibid., s. 11(2). The clear prohibition against membership alone in a proscribed
organization makes the British provision broader than the Canadian one, and not narrower as claimed by Roach,
"New Terrorism Offences," supra note 71 at 161. In Canada, the accused must have acted to somehow facilitate
an organization's unlawful activities, even if only indirectly.
n167 Supra note 28, s. 13(1).
n168 Ibid., ss. 12(1)-(3); ibid., s. 12(5)(a) defines a meeting as three or more persons.
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66 Sask. L. Rev. 419, *
n169 The European Convention, supra note 62, art. 10, recognizes freedom of expression, while those of
association and assembly are protected by Article 11. Both sections, however, allow restrictions that are
necessary in a democratic society pursuant to such interests as national security and public safety; see Rowe,
supra note 28 at 528.
n170 Roach, "New Terrorism Offences," supra note 71 at 161.
n171 18 U.S.C. § 2339B(a)(1). Section 2339B(g)(6) defines a "terrorist organization" as one so designated
by the Secretary of State under the Immigration and Nationality Act, 8 U.S.C. § 219; 8 U.S.C. § 1189.
n172 18 U.S.C. § 2339B(g)(4) defines "material support or resources" as having the same meaning as in §
2339A.
n173 18 U.S.C. § 2339A(b).
n174 But see Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000), which held that the
prohibition against providing "training" and "personnel" was unconstitutionally vague. The United States
Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), 89 S. Ct. 1827, for example, found a state law
prohibiting any association with or advocacy of the Ku Klux Klan to violate the First Amendment. See
Heymann, supra note 34 at 98-100. While the Patriot Act, supra note 38, § 411(a)(1)(F), defines "engage in
terrorist activity" to include the solicitation of membership in a designated organization, as well as the giving of
material support and training, such activities do not invoke a criminal penalty. They are, however, criteria for
determining immigration status under § § 411(a)(1)(A)(i) and (iii). Furthermore, anyone determined by the
Secretary of State and Attorney General to be associated with a terrorist organization and intending to engage in
dangerous activities is automatically inadmissible into the United States: ibid., § 411(a)(2).
n175 "Evidence," supra note 113 at 1555.
n176 See e.g. "Terrorism Will Not Be Stopped by Charity Restrictions: Critics" National Post (16 March
2001) A4; Stewart Bell "Palestinian Group Finances Terror, FBI Says" National Post (11 December 2001) A8;
Juliet O'Neill, Jim Bronskill & Rick Mofina "Crackdown on Financial Networks" The [Montreal] Gazette (8
November 2001) B1; Stewart Bell "U.S. Shuts down Texas Charity Linked to Canada" National Post (5
December 2001) A2; "Notes for the Minister of Justice, 18 October," supra note 14.
n177 Cotler, supra note 58 at 118.
n178 Supra note 8, ss. 83.02-83.04.
n179 Ibid., ss. 83.08(1), 83.1(1). Ibid., s. 83.11, identifies the kind of financial institutions required to make
periodic reports about any terrorist group property in their possession or control.
n180 Ibid., s. 83.14.
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66 Sask. L. Rev. 419, *
n181 Terrorism Act, supra note 28, ss. 14-16.
n182 Ibid., s. 19.
n183 Anti-terrorism, Crime and Security Act, supra note 32, Sch. II, Part 3, s. 5(2). "Business in the
regulated sector" is defined in the Anti-terrorism, Crime and Security Act, ibid., adding Schedule 3A to the
Terrorism Act. See also Rowe, supra note 28 at 537-38.
n184 Terrorism Act, supra note 28, s. 26; Anti-terrorism, Crime and Security Act, supra note 32, Sch. 1,
Part 3, s. 6.
n185 Anti-terrorism, Crime and Security Act, ibid., s. 4.
n186 18 U.S.C. § 2339A(b). For the definition of "material support," see ibid.
n187 18 U.S.C. § 2339B(a)(2).
n188 International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, being Title III
of the Patriot Act, supra note 38 [cited to the Patriot Act].
n189 Patriot Act, ibid., § 302(b)(1).
n190 31 U.S.C. § § 5318A(a)(1), 5318A(b).
n191 Patriot Act, supra note 38, § 376, amending 18 U.S.C. § 1956(c)(7)(D); 18 U.S.C. § 1956(a)
defines the crime of money laundering, while § (b)(1) provides that those committing the offence are civilly
liable up to "the value of the property, funds, or monetary instruments involved in the transaction." See also 18
U.S.C. § § 981-982.
n192 Wark, supra note 74 at 288-89. See e.g. "Consultation Paper," supra note 27, s. 7.8.
n193 Wark, supra note 74 at 290-91; Cotler, supra note 58 at 118.
n194 Supra note 8, s. 83.28. There are similar provisions for investigative hearings in other areas of
Canadian law. See Cotler, supra note 58 at 127, and Martin L. Friedland, "Police Powers in Bill C-36" in
Security of Freedom, supra note 53, 269 at 276-77; "Evidence," supra note 113 at 1635.
n195 Anti-Terrorism Act, supra note 8, ss. 83.28(2)-(3).
n196 Ibid., s. 83.28(4).
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66 Sask. L. Rev. 419, *
n197 Ibid., ss. 83.28(5), 83.28(8), 83.29.
n198 Ibid., ss. 83.28(10)-(11).
n199 Ibid., s. 83.28(10). As an additional precaution against abuse of compelled testimony at an
investigative hearing, s. 83.31(1) monitors its use by requiring that the attorneys general of the federal and
provincial governments prepare and publish annual reports.
n200 R.S.C. 1985, c. C-5, s. 5 allows for compelled testimony that might be incriminating, but renders it
inadmissible in later proceedings; see e.g. Ontario's Coroners Act, R.S.O. 1990, c. C. 37, ss. 40, 42. Regarding
compelled testimony in inquest proceedings, see also Batary v. Saskatchewan (A.G.), [1965] S.C.R. 465, 52
D.L.R. (2d) 125 (person charged with murder was not compellable to testify before inquest into the death of the
victim), and R. v. Faber (1975), [1976] 2 S.C.R. 9, 65 D.L.R. (3d) 423 (uncharged suspects are compellable to
testify before inquest).
n201 Anti-Terrorism Act, supra note 8, ss. 83.3(1)-(2).
n202 Ibid., s. 83.3(2).
n203 The officer may also make an arrest on reasonable grounds if a summons, but not arrest warrant, has
already been issued pursuant to an information under ibid., s. 83.3(2). See also ibid., s. 83.3(4).
n204 An arrest must be upon subjectively reasonable and probable grounds, and be objectively justifiable:
R. v. Storrey, [1990] 1 S.C.R. 241, 105 N.R. 81.
n205 Anti-Terrorism Act, supra note 8, ss. 83.3(5)-(6).
n206 Supra note 16, s. 503(1). Provisional release and undertaking under s. 503(2.1) would seem to apply,
as well.
n207 Good cause includes the necessity to ensure the detainee's appearance at a recognizance hearing,
prevent interference with the administration of justice, or prevent terrorist activity: Anti-Terrorism Act, supra
note 8, s. 83.3(7)(b).
n208 Ibid., s. 83.3(8).
n209 Ibid., s. 83.3(9).
n210 Supra note 16, ss. 810, 810.01, 810.1, 810.2; see Friedland, supra note 194 at 279.
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66 Sask. L. Rev. 419, *
n211 Supra note 11, s. 9.
n212 Supra note 28, s. 41. For the purposes of such an arrest, ibid., s. 40, defines a terrorist as someone who
has committed or is otherwise involved with the commission of an offence under ss. 11, 12, 15-18, 54, 56-63;
Rowe, supra note 28 at 532-33.
n213 Terrorism Act, supra note 28, s. 41(3).
n214 Ibid., Sch. 8, Part II, ss. 21, 23. Ibid., Sch. 8, Part II, s. 24 defines the qualifications of a review officer.
Under ibid., Sch. 8, Part II, s. 26, the detainee also has the right to counsel during the review.
n215 Ibid., Sch. 8, Part III, ss. 29(1), 29(4), 30(1), 33.
n216 Ibid., Sch. 8, Part III, ss. 29(2)-(3), 32. If the warrant is for a shorter period, under ibid., Sch. 8, Part
III, s. 36, a law officer may request its extension for a time up to the seven-day limit.
n217 Ibid., s. 41(8).
n218 In the case of Brogan v. United Kingdom (1989), 11 E.H.R.R. 117 [Brogan], the European Court of
Human Rights found that preventive arrest under the Prevention of Terrorism (Temporary Provisions) Act 1989,
supra note 24, for over four days without judicial authorization violated the liberty and security of the person
guaranteed by the European Convention, supra note 62, art. 5. See Fionnuala Ni Aolain, "The Fortification of an
Emergency Regime" (1996) 59 Albany L. Rev. 1353 at 1365-66; Gary T. Trotter, "The Anti-Terrorism Bill and
Preventative Restraints on Liberty" in Security of Freedom, supra note 53, 239 at 248, n. 14; Rowe, supra note
28 at 533, fears that preventive arrest under the Terrorism Act, supra note 28, s. 41, also violates the European
Convention, supra note 62, art. 5. However, the addition of judicial oversight and the short detention period
would seem to satisfy the concerns in Brogan. Although Canada cannot be a signatory to the European
Convention, its standards are nonetheless useful in evaluating Charter requirements.
n219 See "Amendments," supra note 117.
n220 Anti-Terrorism Act, supra note 8, ss. 83.31(1)-(2).
n221 Ibid., s. 83.31(3).
n222 Ibid., ss. 83.32(1)-(4). The Governor General in Council, by resolution passed by Parliament, may
extend the investigative hearing and preventive arrest provisions for up to another five years.
n223 See O. Gross, supra note 60 at 47-51.
n224 Cotler, supra note 58 at 116-17; Canada, Department of Justice, Press Release: Speeches, "Notes for
the Minister of Justice: Appearance before the House of Commons Standing Committee on Justice and Human
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66 Sask. L. Rev. 419, *
Rights" (20 November 2001), online: Canada Department of Justice
<http://www.canada.justice.gc.ca/en/news/sp/2001/doc_27900.html> ["Notes for the Minister of Justice, 20
November"]. These conventions are listed in supra note 17.
n225 See Cotler, supra note 58 at 120. But see Roach, "Dangers of a Charter-Proof," supra note 107 at 140,
who believes that hate crimes, beyond existing recourse to aggravating factors in sentencing, will be ineffectual
and may have indefinite, "unanticipated effects." See also "Highlights," supra note 10; "Notes for the Minister of
Justice, 20 November," supra note 224; Heymann, supra note 34 at 99, writes, "Speeches or writings by
charismatic leaders urging political violence can provide the battering ram of encouragement a potential terrorist
needs to take himself past the wall of social condemnation to a willingness to commit violent acts." Other
violent acts of hate, such as vandalism of property, can have the same effect.
n226 Criminal Code, supra note 16, s. 430(4.1), as am. by Anti-Terrorism Act, supra note 8, s. 83.33(2).
n227 See Alanna Mitchell "Tide of Hate Crimes Rising in Canada" The Globe and Mail (21 September
2001) A5.
n228 See Adam Sage "Attacks Mount on French Synagogues" The [London] Times (2 April 2002) 4.
n229 Anti-terrorism, Crime and Security Act, supra note 32, s. 39(4).
n230 Ibid., s. 39; Racially aggravated offences are covered under the Crime and Disorder Act 1998 (U.K.),
1998, c. 37, ss. 28-33.
n231 Criminal Code, supra note 16, s. 718.2(a)(1).
n232 Ibid., s. 320.1, as am. by Anti-Terrorism Act, supra note 8, s. 83.33(2).
n233 Criminal Code, supra note 16, ss. 320.1(1)-(2).
n234 Ibid., ss. 320.1(3)-(4).
n235 Ibid., s. 320.1(5).
n236 Ibid., ss. 320, 320.1.
n237 Ibid., s. 320(8).
n238 Ibid., ss. 318, 319(1)-(2).
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66 Sask. L. Rev. 419, *
n239 See Keegstra, supra note 112.
n240 Anti-terrorism, Crime and Security Act, supra note 32, s. 37, amending the Public Order Act 1986
(U.K.), 1986, c. 64, s. 17 [Public Order Act].
n241 Public Order Act, ibid., ss. 18-22. Ibid., s. 23, also prohibits the possession of racially inflammatory
material.