Patrick Grady
Canada Has Legally Disarmed Against Terrorism
November 6, 2009

Canada's anti-terrorism regime has disappeared like the Cheshire Cat, leaving behind only its smile. The process started in the fall of 2006 and the winter of 2007 with three key decisions. The first was the Ontario Superior Court's striking down of the legal definition of terrorist activity in the Anti-Terrorism Act; the second was the Supreme Court's decision that security certificates infringe section 7 of the Charter of Rights and Freedoms and needed to be opened up to provide "special advocates" for the accused; and the third was Parliament's refusal to extend the investigative hearing and preventive arrest powers in the Anti-Terrorist Act. It was only a question of time before Canada's remaining legal defences against terrorism also began to vanish. And so they have.

Momin Khawaja, the first individual charged under the Anti-Terrorism Act in 2004, was tried for his participation in a London bomb plot. The Crown had sought two life sentences plus an additional 44-58 years due to the gravity of the offence. But he was only convicted on five charges of financing and facilitating terrorism and two Criminal Code offences. While the Crown proved that he had helped to make a remote control detonator for a bomb, it failed to prove to the Court's satisfaction that he knew that it would be used in London (perhaps rather than, say, in Afghanistan against Canadian troops?). His sentence was consequently relatively light, 10 1/2 years in prison, plus time served, and he will be eligible for parole after only five years. Arguably if the definition of terrorism had not been struck down by the Court, the Crown might have been able to get a conviction on the more serious attempted bombing offence alleged, which would have carried a sentence more befitting his crime of plotting to blow up scores of people. However, at least the Crown is appealing, but don't hold your breath for a longer sentence.

Five convictions were obtained in the Toronto 18 bomb plot under the Anti-Terrorism Act, but this is not as great of a legal feat as it seems. The available evidence from an informer and tapes were sufficiently strong to elicit guilty pleas from four of the defendants (and one more convicted following trial). This leaves six others still facing charges after charges were dropped or stayed against seven others. Mark one up for law enforcement. They did an excellent job on this case and wrapped it up in a nice package with a bow for the prosecutors. Don't expect that this will always be possible in the future.

The final legal tool to fade out was the security certificate, which had provided a mechanism, albeit a tediously slow one, for the Government to deport or detain security threats who weren't Canadian citizens. It's an unfortunate fact that the most dangerous terrorists do not necessarily have a criminal record and have not committed any crime in Canada so they cannot be arrested and charged. Their first crime may be a bomb attack against their fellow Canadians. A security certificate may be the only way to protect the public.

Following the establishment of "special advocates" and the requirements of greater disclosure of intelligence information to satisfy the Supreme Court's judgment, it became virtually impossible to resist challenges to an outstanding security certificates without compromising the integrity of intelligence sources and methods. And, this being so, it was not long before the lawyers jumped into the breach to take advantage of the new rules. This time were able to use the new procedures to raise questions about the reliability of some of the evidence used in securing the security certificate against Adil Charkaou. It should not be surprising that they were able to do so given that the information providing the evidence came from intelligence rather than domestic law enforcement, which must respect all the Charter protections. Since CSIS was understandably reluctant to disclose more and to compromise its informants and relations with other intelligence agencies on which it depends, the Government withdrew the evidence rather than disclose further. Consequently, in late September this year, a Federal Court Judge quashed the security certificate on Mr. Charkaoui. This pretty much ended the security certificate's life as a useful tool to detain or deport terrorist threats. It should not be long before the remaining six people charged under security certificate legislation have all restrictions also lifted and are free to go about their business.

Commissioner William Elliott says the RCMP are ready to try to put more terrorism cases before the courts instead of only disrupting the plots and leaving the terrorists free. He believes that "law enforcement and criminal prosecutions will be the new paradigm of national security in democratic nations the world over." But, given the current weakened state of anti-terrorism law, he may only be whistling in the wind.

Against the dimming legal backdrop, Public Safety Minister Peter Van Loan does not look so paranoid when he expresses his fears about the government’s capacity to combat terrorism in light of what he euphemistically calls “an increasingly complex legal environment.”

Why not tighten up our Anti-Terrorism Laws and make sure they are not undermined by the Charter?

Patrick Grady is an economist with and the author of Royal Canadian Jihad, a novel about terrorism in Canada.