Anti-terrorism and rights in Canada: policy discourse on the 'delicate balance'.

A DELICATE BALANCE was the title of the November 1983 Special Senate Committee (Pitfield) Report on Security Intelligence in Canada. According to committee chair, Michael Pitfield and colleagues:

   the need to balance collective security--the safety of the state
   and its Institutions from threats of espionage, terrorism and
   subversion--with individual rights to privacy, to dissent, to be
   politically active and to hold and express unpopular or radical
   opinions is a challenge to be faced (and) perhaps the most
   important ... matter ... to be considered when dealing with ...
   the establishment of a security intelligence system.

Many critics at the time concluded that the legislative compromise of Bill C-9 which created the Canadian Security Intelligence Service (CSIS) in 1984 had not met all the tests of balance which the Pitfield Committee had recommended. The Senate Committee concluded the following:

   There is a very basic tension between the concepts of
   collective and individual security, and it must be addressed at
   virtually every stage in the formation and operation of a
   security intelligence agency. To a significant degree, ....
   individual rights depend upon maintenance of collective
   security. Both ends are desirable, but they also make
   competing demands on the institutions of a democratic state.
   Either end, by itself, could be easily attained, but at great
   expense to the other. The crucial task is to arrive at an
   appropriate balance of the two. The raison d'etre of a security
   intelligence agency is the preservation of a free and democratic
   state in which individual liberty can be maintained. Thus, the
   degree to which such an agency impinges unjustifiably on
   freedom is a measure of its failure.

The Canadian compromise of the 1980s was to allow for an 'efficient' security intelligence service but to balance this with clear mechanisms for accountability. And in some ways, the creation of both an Inspector General (the Minister's 'eyes and ears' in CSIS) and the Security Intelligence Review Committee (SIRC--a post-audit oversight committee made up of five governmental and opposition recommended appointees which could instigate investigations on their own or based on complaints, including queries from the public) became Canadian contributions to the world of security intelligence and its governance.

Despite some early tensions, and initial operational concerns critiqued by the Security Intelligence Review Committee (SIRC), by the 'five-year' official review, Parliament concluded that CSIS was "In Flux, But Not In Crisis" and the Government (in response), simply that the agency was "On Course". Those conclusions set the tone for the rest of the 1980s and throughout the 1990s.

Then came 11 September 2001. The aftermath of those acts of terrorism on the United States has had a profound and unsettling effect on the so-called balance of rights and security in countries such as Canada in the months which immediately followed.

As with the original (C-157 and C-9) bills to create CSIS, the post-11 September, 2001 legislative efforts on anti-terrorism in Canada faced the same Dilemma--rights vs security. Most indications from the policy discourse around anti-terrorism efforts--including continuing efforts to amend relevant legislation--whether by civil libertarians, the Canadian Bar Association, the federal privacy commissioner, media or NGO's such as Amnesty International--are that the delicate balance has not been maintained: in September 1lth's aftermath, security has won out over rights in Canada. This article seeks to do two things: first, to trace the debates around rights vs. security in the early 1990's creation of CSIS and second, to look at this same debate around anti-terrorism and public order/safety post 11 September in Canada.

FINDING THE BALANCE: CSIS AND POLICY DISCOURSE ON SECURITY AND RIGHTS IN THE 1980s

At the center of earlier debates about how Canada ought to deal with issues of security and intelligence and the maintenance of basic human rights were two fundamental issues--accountability and efficiency. Peter Self has argued that the central question in public administration is how to find the appropriate balance between these two values. (1) In the case of a governmental structure such as CSIS, with its potentially intrusive investigatory capacity, the issues are even more fundamental. Finding the appropriate balance between accountability and efficiency for a spy agency in a democracy is no easy task. It is also one that engaged a wide variety of Canadian citizens and organizations.

The policy discussions on security and rights during the late 1960's, 1970's and early 1980's focused on six central questions. These were:

* Necessity;

* The security of the collectivity and individual rights;

* Mandate/functions;

* Powers (plus immunities/protections);

* Structure and location (including management and control); and

* Accountability: maintaining and review.

Trying to find appropriate public policy responses to these questions has been problematic--in Canada and other jurisdictions. Each is briefly looked at separately.

NECESSITY

The premise of a perceived need for "a distinctive security intelligence capacity" is two-fold: (a) that there are threats to Canadian security and (b) that the Canadian state has the duty to protect itself from these threats.

Threats to Canadian Security

Both the 1968 Mackenzie Royal Commission On Security and the 1981 McDonald Commission Of Inquiry Concerning Certain Activities Of The RCMP concluded that there were threats to the security of Canada. McDonald summarized three types of threats:

(1.) Activities of foreign intelligence agencies: This threat required that information was necessary on terrorist techniques, recruitment methods of foreign agents (2) and world conditions. (3)

(2.) Terrorism: This threat required intelligence/ security services for special events such as Olympic Games, World Expositions, G-7 Meetings, Summit Meetings, etc. or crisis such as hijackings, kidnappings, bombings, 'Squamish 5', etc.

(3.) Domestic Subversion: Routine monitoring to provide advance warnings of threats to Canadian security such as the FLQ, etc.

The response of the Trudeau government to Justice McDonald's report was Bill C-157--a new proposed law on security and intelligence. C-157 garnered considerable opposition, from groups as varied as civil liberties associations, ethnic groups and the Canadian Bar Association. Within months, the government established a Senate Committee on Security and Intelligence which held hearings in late 1983. The Committee was chaired by Senator Michael Pitfield, former senior bureaucrat/Clerk to the Privy Council. Seventy-six individuals and organizations--from former Solicitors General, provincial governments, Canadian Police associations, Civil Liberties organizations, Bar Associations and ethnic organizations--appeared before the Committee. As well, 25 additional briefs were submitted to the Standing Committee of the Canadian Senate on the Canadian Security and Intelligence Service. These came from the Canadian Labour Congress, Canadian Union of Public Employees, Human Rights organizations, other provincial governments, and other associations and individuals. All participants recognized some necessity for a security and intelligence capacity.

Not all participants accepted all the conditions as supporting the necessity argument, however. Civil Liberties groups were prepared to accept the necessity of securing Canadian interests from foreign agents and terrorism, but had difficulty with how to find an appropriate balance between security/intelligence needs and democratic rights when it came to the problem of domestic subversion.

In a May 1984 brief to the Pitfield Committee, the B.C. Civil Liberties Association felt that such matters could be left under "normal policing," with some special unit of the police to deal with foreign agents and terrorism. Also in the brief was a concern with the desirability of premising a Security Service on domestic subversion threats. The McDonald Commission Of Inquiry Concerning Certain Activities Of The RCMP, whose investigation had precipitated this particular discussion of a discrete security/intelligence agency, pointed out advantages of a separate Security Service, yet argued that the "need for security has to be balanced against other values" and such a service has to be justified to the public: if there is to be a Security Service, especially one with intrusive investigative powers, both the government and the public must have a clear understanding of the need for it." (4) The B.C. Civil Liberties Association argued there was no need to determine the answer by a cost-benefit analysis: the need for a Security Service "must be demonstrable." (5)

The Canadian State's Duty to Protect Itself from Threats

This duty was not new in the 1980's. In the 1960's the Royal Commission On Security chaired by Max Mackenzie, had concluded that Canada had a duty "to protect its secrets from espionage, its information from unauthorized disclosure, its institutions from subversion, and its policies from clandestine influence." Mackenzie recommended a separate Security Service, but this was not proceeded with at this time. Security and Intelligence remained a part of the RCMP--at least until RCMP 'wrongdoings' precipitated the McDonald Report recommendations that a new civilian service be established at the start of the 1980's.

The result of this initial Canadian discussion was that on 18 May 1983, a bill to establish a Canadian Security and Intelligence Service, C-157, was introduced. This came about because of the "encouraged overzealousness" of the Security Branch is responding to the duty to protect Canada from subversion --particularly as a result of the FLQ in Quebec, and the October Crisis in 1970, which resulted in the implementation of the War Measures' Act. (6) It was supported by contentions that the RCMP Security Service failure resulted in the need for a War Measures Act 'overkill.' This over zealousness involved members of the Security Branch in "wrongdoings." The disclosure that the Security Branch was involved in breaking and entering, illegal mail openings and wiretap, as well as barn burnings, etc., forced the Government to respond.

First it established the McDonald Commission Of Inquiry Concerning Certain Activities Of The RCMP. McDonald reported, in 1981, with recommendations substantially to change the nature of security/intelligence operations in Canada. McDonald uncovered that the RCMP had infiltrated the Parti Quebecois and New Democratic Party's "Waffle movement," and that it had been engaged in other illegal activities. Civil liberty associations' submissions to McDonald concluded that "there were pressures on the police to ignore the niceties of lawful behavior, ... to regard police illegalities as merely 'technically' illegal." (7) They also noted that the RCMP internal disciplinary action might result from failure to obey an order and that the RCMP paid the fines/salaries of convicted members while suspended/imprisoned, thereby tolerating illegal behavior. This was all because of an "overemphasis on national security" versus "the protection of democratic values." While Security Service may have--as Mackenzie noted--special skills in ferreting out information, they were not similarly adept in evaluating its significance--particularly where it develops a "world view in the organization which may give too much weight to perceived threats." The tendency to overuse the Official Secrets Act and other emergency powers was also problematic; illegal activity often resulted.

THE SECURITY OF THE COLLECTIVITY AND INDIVIDUAL RIGHTS

The (1982) Canadian Charter of Rights and Freedoms--itself a product of constitutional discourse on rights and other issues in the early 1980's (8)--reminded Canadians that rights and freedoms were not absolute: Section 1 stated that the Chatter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law, as can be demonstrably justified in a free and democratic society."

The 1983 Pitfieid Senate Committee On Security And Intelligence summed the policy dilemma around creating CSIS most clearly: "The need to balance collective security--safety of the state and its institutions from threats of espionage, terrorism and subversion--with individual right to privacy to dissent, to be politically active and to hold and express unpopular or radical opinions is a challenge" regarding a security service. This tension "must be addressed at virtually every stage of the formation and operation of a security intelligence agency." (9)

The Pitfield Committee's conclusion was that "the raison d'etre of a security intelligence agency is the preservation of a free and democratic state in which individual liberty can be maintained." (10) In that, the Committee was supported by the McDonald Commission: "Canada must both meet the requirements of security and the requirements of democracy: we must never forget that the fundamental purpose of the former is to secure the later." Much of the policy discourse on creating CSIS was less certain. In pointing out the disadvantages, the B.C. Civil Liberties Association, for example, noted that "there is no reason to think that the history of other security services will not be substantially repeated here, and this must give us pause in two particulars: (1) the tendency of such agencies to exaggerate threats; and (2) the fact that personnel of dubious virtue and judgement often find homes--sometimes in high places--there." (11) The result was often spectacularly bad advice and flagrant violations of civil liberties. John Sawatsky noted that subversion combined with espionage/terrorism in the security branch of the RCMP proved the point.

The key policy dilemma remained how to find the "appropriate balance" between these two needs. Regarding the establishment of a separate security service, the dilemma was heightened as it involved such dimensions as "intrusive investigatory powers." The question, as posed by civil libertarians, is "are the risks worth the benefits?" In Canada, Mackenzie, McDonald, Pitfield and the Liberal Government of Pierre Tradeau believed they were. (12)

As a result of 'events,' such as those uncovered by McDonald, the Canadian Government concluded that it needed to restructure security intelligence activity in Canada, partly because the current arrangement (involving the RCMP) brought 'normal' policing and the administration of justice into general disrepute. Its 18 May 1983 introduction of Bill C-157 raised a variety of other policy concerns--particularly with regard to mandate, powers, structure and accountability. Bill C-157 received strong opposition from a variety of interested groups and individuals, resulted in Senate hearings-the Special Committee of the Senate on Canadian Security Intelligence-which began on 30 June 1982. This Pitfieid Committee held hearings until 13 October 1983. On 3 November 1983, it issued its report A Delicate Balance: A Security Intelligence Service In A Democratic Society. On 18 January 1984, the Government introduced a new bill, Bill C-9--a revised version of this bill became law in Spring 1984 creating the Canadian Security Intelligence Service (CSIS).

As an example of public policy making, the period from the introduction of Bill C-157 to the Pitfield Committee hearings and report to Bill C-9 took only eight months--clearly an issue on the governmental agenda. The differences between the two bills and the commentary are very illustrative of the debate over trying to find that balance on each of the four remaing central issues: mandate, power, structure and authority.

MANDATE/FUNCTIONS

As envisioned by Bill C-157, the primary mandate was contained in Section 14 (1)--the collection, analysis and retention functions. Section 14 (1) stated that "The Service shall collect, by investigation or otherwise, and analyze and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise, the Government of Canada."

As the Pitfield Committee concluded, on the face of it, this subsection "is unobjectionable." Yet it raised a very important question: "What constitutes the "threats to the security of Canada"? Section 2 of Bill C-157 set out the meaning of such 'threats':

1. Espionage or sabotage against Canada or any state allied or associated with Canada, or supporting activities;

2. Foreign influenced activities within/relative to Canada that are detrimental to Canada's interests (or any ally/associate), that are clandestine or deceptive or involve a threat to nay person;

3. Activities within/relative to Canada directed toward or in support of the threat or use of acts of violence against persons or property for the purpose of achieving a political objective;

4. Acts directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow of the constitutionally established system of government in Canada.

Immediately, these sections raised issues over how the agency's mandate was to be defined--broadly or narrowly. Section 14 (2) of Bill C-157 implied broadly: "Nothing in this Act restricts the service from remaining informed about the political, economic and social environment within Canada, and matters affecting that environment."

McDonald had recommended (prior to Bill C-157) that the mandate include a restriction on agency work--that it "should be limited to what is strictly necessary for the purpose of protecting the security of Canada." Pitfield's Committee heard this critique and responded--partially. Bill C-9 maintained the definitions of 'threats' included in Bill C-157, but added that these did "not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of these activities referred to in paragraph ... (see a-d above)." The section of Bill C-9 (12:1) on Duties and Functions allowed CSIS to collect, analyze and retain, but only "to the extent that is strictly necessary." Section 12 (2) also restricted CSIS from "remaining informed except through public sources of information." Civil libertarians found these changes represented "improvements" but concluded that the definitions were "fearfully broad and open, and textured in a number of ways."13 For example, Section 2 of Bill C-9 set out espionage but nowhere was this term defined in the CSIS Act. (14) In the end it could be broadly interpreted--as in Webster's Dictionary--as "any close watching, observing secretly spying." This meant that in terms of the issue of finding balance, it could be abused. McDonald had been in favor of incorporating the definition from Section 46 2(b) and Section 52 of the Criminal Code or Section 3 of the Official Secrets Act.

The BC Civil Liberties Association also concluded that additions to the end of these definitions of threats did "nothing to narrow the mandate," unless the legislation ended the sentence with dissent. (15) In the end, the BCCLA was "prepared to acknowledge that it was impossible to frame legislation to service the objectives of a Security Service which will not be open to serious abuse." The question therefore was whether potential abuses were worth the potential abuses which brought the questions back to "Is it worth it" and "How do you find the right balance?"

POWERS (AND IMMUNITIES)

Section 22 of the original Bill C-157 set out the powers of CSIS: with a warrant, it allowed CSIS to "intercept any communication, or obtain any information, record, document or thing and for that purpose, authorizes those (CSIS) persons: (a) to enter any place or open or obtain access to any thing; (b) to search for, remove or return, or other wise take, extract from or record in any other manner, the information, record or document or thing or (c) to install, maintain, or remove any thing."

Civil libertarians noted the judicial check and the necessity for the warrant to specify the type of communication to be intercepted; to identify the person (if known) whose communication was to be intercepted; the period of time the warrant would be in force; and any other judicial conditions. As Pitfield acknowledged, these intrusive investigative techniques: allowed electronic surveillance, wiretapping, surreptitious entry, and mail opening, plus access to personal information in the government's possession, with the authority of a warrant.

Civil libertarians were against such broad powers. While the Pitfield Committee was in favor of broad powers, it was against Bill C-157's warranted Safeguards--as having "unreasonably low standards;" warrants could be issued "too easily." It preferred the Criminal Code Part IV (1) provisions regarding electronic surveillance--i.e., try other investigative procedures first and if unsuccessful and urgency exists and there was 'a grave threat to national security' then there was the possibility of warrants with fixed limits rather than leaving it solely up to judges. They also favored use of the Federal Court to prevent "judge shopping", and the requirement that every warrant application include details of previous applications on the same subject.

The Government's new Bill C-9 responded--though again, only partially: under Part II, Judicial Control, for example, Section 21 (5) limited warrants to one year. Opponents of this provision noted that Part IV (1) of the Criminal Code was superseded regarding interception of a communication (if warranted). Section 21 of Bill C-157 also said that regarding the protection of CSIS employees, the Director/CSIS employees "are justified in taking such reasonable actions as are reasonably necessary to enable them to perform the duties and functions of CSIS."

Bill C-9, amended via the Pitfield Committee recommendations, changed this so that the Director/Employees "have in the performance of their duties and functions the same protections under the law as peace officers have in performing their duties and functions as peace officers." Bill C-9 stated that "Where unlawful conduct is apparent, the Director must report this to the Minister" (as in Bill C-157).

STRUCTURE AND LOCATION

In 1968, Mackenzie noted the "fundamental differences between security and law enforcement." He concluded a separation of structure was therefore necessary. In 1981, McDonald did likewise. Here perhaps two issues stood out in the policy discussions: (a) location and (b) structural form.

(a) The location issue became known as the "civilianization debate". Many in the civil liberties community were in favor of leaving the security function with the 'police'. All but one of the Senate Committee supported the Bill C-157 conclusion that it should be a civilian agency. The Committee felt that security "training" was very different than training for policing and that it was also necessary to keep the police autonomous for political control; yet autonomy was against the need for a strict process of control/review of any security agency.

Pitfield concluded "that civilianization will not be a panacea" and that there would be problems of transition--yet on 'balance' it was preferred, plus the RCMP would keep a small branch for security liaison. [Early Security Intelligence Review Committee (SIRC) reports suggested that this RCMP-CSIS liaison was often problematic, especially in the early years of CSIS; the 2002 discussions on FBI-CIA liaison in the United States in the period leading up to the events of 11 September 2001, suggest that this is not an uncommon organizational issue.] The emphasis in Pitfield's Report was that the problems of the RCMP Security Service was not of personnel in the RCMP but of "an unsatisfactory institutional framework," and "an undesirable mixture of police and security functions." (16)

The structure intended by Bill C-157 and the implementation with Bill C-9 was for the establishment of the Civilian Canadian Security Intelligence Service consisting of a Director and Employees with the principal office in the National Capital Region and with Minister-appointed offices elsewhere in Canada. The Director was to be appointed by the Government in Council (cabinet) for five years during good behavior, allowed for reappointment, with no Director to serve more than ten years. The salary of the Director was to be see by the Governor-in-Council, plus travel and living expenses for duties.

(b) With regard to the management of CSIS, in Bill C-157, the Minister was not empowered to override the Director regarding information disclosure/gathering--or with regard to what was to be given to the Government. In Bill C-9, the Minister could issue directives, provided that a copy of these directives was provided to the Security Intelligence Review Committee (SIRC). This was contained in Section 8 (4): the Governor-in-Council may make regulations (a) governing the exercise of powers and the performance of duties and functions of the Director (b) in relation to employees, governing their conduct and discipline (plus grievances). The Director/Employees were required to swear oaths of allegiance/secrecy.

The changes in structure between Bill C-157 and Bill C-9 related most to the Director/Minister relationship. Pitfield agreed that Bill C-157 "would give too much unchecked power to the Director with dismissal as the only sanction," plus it would remove the Minister from CSIS operations. It was felt necessary to have a Ministerial override. The BC Civil Liberties Association noted that Bill C-157 "arguably eliminated Ministerial responsibility for the actions of the Director of CSIS." Bill C-9 put the ultimate responsibility in the hands of the Solicitor General which was an improvement.

ACCOUNTABILITY

Pitfield concluded that monitoring and reviewing was of "great importance"--vital to monitoring both the effectiveness and the propriety of agency activities. Bill C-9 was a slight improvement over Bill C-157 regarding such review; even civil libertarian groups, in general, found them reasonable. Problem number one remained, however: the mandate of CSIS was too broad.

Bill C-157 broke new ground in oversight of a security intelligence agency. The Bill established two review institutions: an Inspector General's Office (IG): and a Security Intelligence Review Committee (SIRC). Both were new ideas for security organizations generally. Pitfield wholeheartedly agreed with the accountability concepts: he called these innovations "among the most positive aspects of the proposed legislation." Indeed these lay at the heart of the Committee's efforts to achieve balance.

Inspector General

This position was to be appointed by cabinet, responsible to the Deputy Minister. The duties of this position were to:

* Monitor compliance of CSIS with its operational policies;

* To review operational activities of CSIS;

* To submit certificates (twelve month reports of the Director) to the Review Committee, that the Inspector General was 'satisfied" with the report, and that no unreasonable/unnecessary exercise of power was undertaken. The Inspector General was to be "the Minister's 'eyes and ears' in the Service" not a functionary of CSIS, and to maintain an appropriate degree of ministerial responsibility.

THE SECURITY INTELLIGENCE REVIEW COMMITTEE (SIRC)

Pitfield concluded that "SIRC would be the final element in the balance between mandate and powers on the one hand and the control and review on the other." SIRC was seen as having a crucial review function regarding the Act--in a variety of forms--e.g., regarding warrants and judges; operations and Inspector General Certificates; Ministerial directives; and a post audit on CSIS.

SIRC was to be made up of three members under Bill C-157--appointed by Cabinet from the Canadian Privy Council (in general former Cabinet members)--after consultation with Opposition/other Official Party ( any party over twelve sitting Members of Parliament) leaders. A five-year term--per diem pay (set by the Cabinet) and such staff as it required (with Treasury Board approval). All members of the SIRC were required to take an oath of secrecy. As Privy Councilors, they already had 'agreed' to such conditions. SIRC functions included a broad review capacity.

SIRC Functions

I. To review generally the performance by CSIS of its duties and functions, and specifically to:

* review the Reports of the Director and Certificates of the Inspector General;

* review the directives of the Minister;

* review CSIS operations regarding information gathering/monitoring;

* review any report, comment or complaint to SIRC;

* monitor any request to CSIS;

* review regulations;

* compile statistics on the operations of CSIS.

II. To arrange for reviews/conduct investigations regarding:

* Complaints;

* Reports under the Citizenship and Immigration Acts;

* Matters brought to SIRC under the Canadian Human Rights Act.

The procedures for SIRC were to be determined by SIRC. Bill C-9 allowed for a membership of 5: all had to be Privy Councilors. Other party leaders were to be consulted, so that initial and recent membership has included Conservatives, Liberals, New Democrats and others. SIRC has access to CSIS information or information held by the Inspector General; no information may be withheld. Anyone can complain to the SIRC (if they have not already done so with the Director), and if the SIRC is satisfied the complaint is not "trivial, frivolous, vexatious or made in bad faith," it will be investigated. Any SIRC member can act alone regarding complaints or investigations.

LESSONS ON THE 1980s POLICY DISCOURSE

The annual reports of SIRC underscored a number of issues in the early operations on CSIS which reflected the policy disagreements at its inception. Many of these related to efficiency; some focused on accountability. On the former, relations between the RCMP and CSIS were problematic for a number of years. There were also clear administrative problems, for example, between Headquarters and regional offices. This was apparent in early Air India bombing investigations and led to the resignation of the first Director of CSIS. As required in the C-9 legislation, there was a Parliamentary review of the Act, and of CSIS and SIRC, after its first five years. The five-year Parliamentary Review Committee concluded that the spy agency was still In Flux, But Not In Crisis, the title of its report. As noted in introduction, the Mulroney Conservative Government, after considering the Parliamentary review, responded with its own conclusion, also summed up by the title of the Solicitor General's report: its conclusion was that the agency was On Course.

Both reports and the early SIRC annual reviews remain useful reading for anyone wishing to understand the policy discourse--and lessons--on the basic issues set out in Pitfield and the creation of CSIS. The core dilemma of both policy and administration--balancing the competing needs of collective vs individual protections and rights--was central in the 1960's, 1970's and early 1980's. These would reappear after 11 September 2001.

OFF-BALANCE? SECURITY, ANTI-TERRORISM AND RIGHTS IN CANADA AFTER 11 SEPTEMBER

On 15 October 2001, just thirty-four days after the 11 September 2001, terrorist attacks in the United States, the Government of Canada introduced Bill C-36--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--aka The Anti Terrorism Act. There were four central objectives of Bill C-36:

* stop terrorists from getting into Canada and protect Canadians from terrorist acts;

* bring forward tools to identify, prosecute, convict and punish terrorists;

* prevent the Canada-U.S. border from being held hostage by terrorists and impacting on the Canadian economy; and

* work with the international community to bring terrorists to justice and address the root causes of such hatred. (17)

Safety and security, rather than the more careful concerns of a balance between security and rights evident in the early 1980's, was the order of the day. As noted by Ministers, the bill "will give law enforcement and national security agencies new investigative tools to gather knowledge about and prosecute terrorists and terrorist groups, as well as protect Canadians from terrorist attacks," including:

* making it easier to use electronic surveillance against terrorist groups;

* creating new offences targeting unlawful disclosure of certain information of national interest;

* amending the Canada Evidence Act to guard certain information of national interest from disclosure during courtroom or other judicial proceedings;

* amending the National Defence Act to continue and clarify the mandate of the Communications Security Establishment (CSE) to collect foreign communications;

* within carefully defined limits, allowing the arrest, detention and imposition of conditions of release of suspected terrorists to prevent terrorist acts and save lives;

* requiring individuals who have information related to a terrorist group or offence to appear before a judge to provide that information; and

* extending the DNA warrant scheme and data bank to include terrorist crimes. (18)

Despite assurances from the Minister of Justice--that "the measures we are introducing strike the right balance between civil liberties and national security, and signal our resolve to ensure Canadians will not be paralyzed by acts of terrorism"--Canada's new Anti-Terrorism Act clearly tipped the delicate balance between rights and security toward security. Despite the assurances that "the proposed Anti-terrorism Act includes rigorous checks and balances in order to uphold the rights and freedoms of Canadians," the only recognition on the rights side were to amend the Criminal Code to add 'on-line hate' and 'mischief against places of religious worship/religions property' and to amend the Canadian Human Rights Act to prohibit 'spreading repeated hate messages' by any communications technology. To counter anticipated criticisms "the scope of the Criminal Code provisions (were) clearly defined to ensure they only apply to terrorists and terrorist groups." (19) A 'three year Parliamentary review' of the legislation was added as well. (20)

Even before the introduction of Bill C-36--and related legislative efforts C-35 and C-42--civil libertarians anticipated a "trampling of civil rights" in the post 11 September 'war on terrorism.' BC Civil Liberties Association President John Dixon, for example, reminded Canadians of the McCarthy era attack on "civil rights--presumptions of innocence, privacy, and freedoms of conscience, association and speech." For Dixon, there was the likelihood that intelligence gathering through the over-riding of privacy rights would alter 'the balance to be struck between principle and need. ..." "That depends both upon the importance of the principle and the likelihood that some sacrifice of it will yield significant results." His conclusion: "trampling on civil rights will not lead to a genuine victory against terrorism." (21) Editorial writers came to the same conclusion; the Vancouver Sun's David Beers, for example, bemoaned attacks on free speech following 11 September, arguing that the "you're either with us or you're against us" strategy made one wonder "whether any of it served to bring us closer to defeating the enemy out there, or whether it really was about manufacturing an enemy within." (22)

That rights-centered concern continued following introduction of Bill C-36: within days, there were widespread calls for amendments to the speedily drafted legislation. One of the biggest issues was the definition of terrorism which seemed to include both illegal strikes and civil disobedience, ("an act or omission ... intended to endanger a person's life ... [and] to cause serious interference with or serious disruption of an essential service" and an unlawful act committed for "ideological purpose" that causes "serious disruption of an essential service, facility or system"). (23) This was far more than the U.S. definition of terrorism: "premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine agents." Beyond this, critics objected to others powers and controls:

* the power of detention--to allow holding a suspect without charge, with judicial approval, for 72 hours;

* the power to detain, without charge, with judicial approval, for up to one year, if the person does not agree to reasonable restrictions on their behavior as a condition of release:

* the possibility of up to ten years imprisonment for "legally" 'participating or contributing' to activities of a known terrorist group;

* the requirement to testify at 'investigative hearings';

* allowing the Solicitor-General the power to create a "List of Terrorists" on "reasonable grounds" only--and then not require the government to even notify individuals or groups that they are on the list;

As one editorial noted, "balancing freedom and security is always complex.... We've seen legitimate dissent suppressed in the name of public safety.... Some revision (to C36) is needed before the law is passed. It's a free and democratic society we seek to protect and those values aren't adequately served by this draft of the law." (24)

After much pressure, the Government agreed to consider amendments in early November 2001. The discourse during this period was in both directions--though mostly the calls were for major changes to rebalance the rights side of the equation: the Canadian Police Association called for even greater investigative tools to wiretap, guard the borders and catch people with fake ID, and rejected a call for a five year sunset clause, claiming that sensitive work on ongoing terrorist investigations could be "put on hold in the months leading up to a vote on the sunset clause"; while civil rights groups charged the bill gave far to much power to authorities and threatened basic rights and freedoms. (25)

A positive Governmental response on some of the rights concerns was largely predicated on the recommendation of Canada's Senate that a five year sunset clause be included. In a unanimous Senate bipartisan committee report, the senators noted that "Bill C-36 gives powers that, if abused by the executive or security establishments of this country, could have severe implications for democracy in Canada." As a result, the Senate committee recommended that "new police powers of detention, investigation and surveillance be rescinded in five years unless specifically extended by Parliament." (26) This view was supported by civil libertarians and groups like the Canadian Bar Association. (27)

Confronting dissent from the senate and even within his own Cabinet' as well as a "national backlash" Prime Minister Jean Chretien indicated he was 'flexible' in terms of considering several amendments to the "hastily-conceived and ill-defined act", C-36. (28) One BC lawyer, constitutional law expert James Aldridge, in appearing before the House justice committee, argued that "people and groups could have all their assets stripped away without there even having been a charge, a trial or a finding of guilt." For him, Bill C-36 was simply "a law that strips away basic legal protections" because of fear, and "as surely as night followed day, will be misused." (29) Amnesty International Canada felt that while it "recognizes the right, indeed the obligation, of governments to provide to their citizens meaningful protection in the face of potential human rights abuses, including attacks of the nature of those that took place on September 1lth," however "peaceful forms of dissent, widely recognized as legitimate and supported and defended by groups such as Amnesty International, could conceivably fall under the unacceptably broad definition of "terrorism" found in Bill C-36. The proposed legislation applies not only to acts motivated by political belief, ideology or religion that cause or lead to deaths or serious threats to public safety--human rights abuses that clearly must be addressed with utmost seriousness--but also to acts motivated by political belief, ideology or religion that disrupt an essential service, facility or system whether or not this disruption is intended or is likely to endanger lives and public safety." (30)

For Amnesty International Canada, "the only protection that the Bill provides for peaceful protest is that it excludes 'lawful' acts of dissent that do not endanger lives or cause a serious risk to public health or safety." Yet, "even 'unlawful' forms of dissent should not be characterized as 'terrorism' unless they endanger lives or public safety. The line between 'lawful' and 'unlawful' is too fine and often too arbitrary to say that one is acceptable, perhaps even commendable, and the other is 'terrorism'," said Alex Neve, Secretary General of the English speaking branch of Amnesty International Canada.

   Protesters often stray beyond the bounds of what is
   strictly lawful through acts of trespass or civil disobedience.
   Should Canada respond to such acts as 'terrorism'?
   Absolutely not.... By asserting that acts of political protest
   can be considered 'terrorist' acts, even when lives and public
   safety are not endangered, the Canadian government plays into
   the hands of governments that ruthlessly suppress human
   rights. ... Not only does Bill C-36 have the potential to
   stigmatize legitimate human rights defenders in other
   countries, it could create a chill on Canadian organizations
   trying to assist these defenders when they most need our
   help. (31)

In their brief to the Commons committee, Amnesty International Canada presented five case histories of human rights defenders abroad who could conceivably be considered terrorists under Bill C-36 because they led disruptive strikes, anti-logging blockages and civil disobedience campaigns declared to be unlawful by their respective governments. These activists included recipients of international human rights prizes and prisoners of conscience currently being defended by Amnesty International. Amnesty International Canada's recommendation to the government was that "Bill C-36 be amended to cover only acts that result in or are likely to lead to deaths, serious bodily harm or grave threats to public health and safety." (32)

The human rights organization also noted some positive elements in Bill C-36 such as "the commitment to launch judicial proceedings against individuals accused of serious human rights abuses such as attacks on civilians" and" the provisions ... which would strengthen Canada's laws dealing with hate crimes and propaganda." (33)

Bill C-36 was amended and passed by the House of Commons on 28 November 2001; Justice Minister Anne McLellan's Edmonton constituency office was the subject of a protesting sit-in during parliamentary consideration of C-36. (34) The Anti Terrorism Act was passed by Senate and received Royal Assent on 18 December 2001. The key amendments introduced on 20 November 2001, included the following 'responses' to rights criticisms:

* a sunset clause--in addition to a three-year Parliamentary review, the government agreed to add a sunset provision to both preventive arrest and investigative hearing provisions. These would expire after 5 years unless renewed by Parliament;

* an Annual Report to Parliament--a new provision which would require the federal Attorney--and Solicitor-General, and their provincial equivalents, to report annually to Parliament on any use of either preventive arrest or investigative hearings;

* a new Definition of Terrorist Activity--'to ensure that protest activity, whether lawful or unlawful, would not be considered a terrorist activity unless it was intended to cause death, serious bodily harm, endangerment of life or serious risk to public health or safety;' a separate interpretive clause was added for greater clarity regarding the protection of political, religious or ideological beliefs/expression;

* a Review Mechanism for A.G. Certificates--rather than being issued 'at any time', these could only be issued after an order by the Federal Court in a proceeding; they were to be published in the Canadian Gazette and could last for no more than 15 years. FOI provisions were to be the rule vs the exception.

* a re-Definition of Facilitation--offences related to facilitating terrorism were to be clarified by an interpretive section on such activity;

* Technical Amendments--to clarify the intent of the Act and some technical changes; (35)

Bill C-36 had garnered substantial criticism from trade unions such as the CLC and the CAW, civil liberties organizations such as the Canadian Human Rights Commission, Amnesty International and the BC Civil Liberties Association, ethnic organizations such as the Canadian Arab Federation, the National Association of Japanese Canadians and the Canadian Race Relations Foundation, privacy advocates and freedom of information officials from federal and provincial jurisdictions, religions groups such as the Mennonite Central Committee, university associations such as the Canadian Association of University Teachers, peace activists, environmentalists, anti globalization entities, pro choice advocates and Canadian nationalists. (36) All commented on the incorrectness of the Government's tilt away from a balance between rights protection on the one hand and perceived security needs after 11 September on the other. The only real shift from the early 1980's debate was that the later focus was no longer on necessity. Despite the fact that the 1980's debate had simply been on the creation of a civilian security and intelligence agency, all other areas of the 1980s policy discourse continued in 2001-2002:

1. on security of the collectivity versus individual rights;

2. mandate and functions for various authorities;

3. powers;

4. structure and location of this emergency authority; and centrally,

5. accountability.

All the concerns of the early 1980s had reappeared. The only difference was that the new anti-terrorism plan's legislative framework in the 21st century was across most departments and a broad cross-section of amended legislation.

Overlapping the initial Canadian anti-terrorism legislation, C-36, was another important piece of the Government's Anti-Terrorism Plan: Bill C-42--the Public Security Act. If the Chretien Government tipped its original C-36 legislative proposals too far in the direction of security over rights, then C-42 represented a complete unbalancing. C-42, the second Anti-terrorism Bill, was introduced in November, 2001--before final approval of C-36. From the Government's perspective, this second Bill, the Public Security Act, was "an appropriate continuation of the legislative amendments tabled in Bill C-36 and introduces new amendments to the National Defence Act (NDA), etc." Some of the highlights of the Bill include measures to ensure the Canadian Forces have the authority to:

a. protect their computer systems networks and the information they contain from attack or manipulation. The unique role of the Canadian Forces and their ability to operate with their allies requires that they have the authority to protect their networks.

b. Modernization of the definition of "emergency" to reflect the new security environment that would include clear reference to circumstances of armed conflict short of formally declared war.

c. A number of important powers under the National Defence Act, such as the authority to generate forces to deal with terrorist threats, are tied to the existence of an emergency.

d. The authority to establish temporary "military security zones" to protect Canadian Forces and visiting forces personnel and equipment that are located off Defence establishments. Military security zones may also be established to protect property, places and things that the Canadian Forces have been directed to protect.

e. The establishment of a panel of military reserve judges to increase the flexibility of the Military Justice System to respond to increased demands for judicial services flowing from sudden changes in the operational tempo of the CF.

f. The Bill includes job protection measures for reservists in the event that they must be called out compulsorily by the Government in an emergency such as armed conflict or war. At the conclusion of a period of compulsory call out, employers would be required to reinstate reservists in equivalent employment. This amendment ensures that reservists do not have to choose between possibly losing their livelihoods and breaking the law that requires them to serve when called.

g. The new legislation will also amend the procedures that are followed when Provinces request military assistance and align it with existing mechanisms that permit the Canadian Forces to provide assistance to civilian law enforcement, which involve Federal Government input. Requests for aid of the civil power will continue to be made directly to the Chief of Defence Staff (CDS). However, the NDA amendments would allow the Minister of National Defence to provide direction to the CDS to ensure that the Government of Can ads is able to manage simultaneous or multiple requests for assistance during an emergency. (37)

According to the Minister of National Defence, "proper security measures are necessary to safeguard our freedom and democracy. This legislation is an appropriate response to the security threat facing Canada. The Bill introduces legislation that will help the Government of Canada, the Department of National Defence and the Canadian Forces improve their ability to protect Canadians from terrorism and its effect." (38)

If Bill C-36 garnered criticism for the range of its provisions, C-42 was seen as unsupportable on narrower grounds--though ones seen as just as fundamental re: rights vs security. Backbench governmental criticisms, opposition questioning and the same array of fights-centered entities all suggested that one of its central intents was to allow the Minister of National Defence to declare the June 2002, G-8 summit site at Kananaskis, Alberta as 'a military zone' to prevent protests. This, despite the fact that C-42 involved amendments to the following Acts:

   AERONAUTICS ACT; CANADIAN ENVIRONMENTAL
   PROTECTION ACT, 1999; CRIMINAL CODE,
   DEPARTMENT OF HEALTH ACT; EXPLOSIVES ACT,
   EXPORT AND IMPORT PERMITS ACT; FOOD AND
   DRUGS ACT; HAZARDOUS PRODUCTS ACT;
   IMMIGRATION ACT; NATIONAL DEFENCE ACT;
   NATIONAL ENERGY BOARD ACT; NAVIGABLE
   WATERS PROTECTION ACT; OFFICE OF THE
   SUPERINTENDENT OF FINANCIAL INSTITUTIONS
   ACT; PEST CONTROL PRODUCTS ACT; PROCEEDS OF
   CRIME (MONEY LAUNDERING) ACT; QUARANTINE
   ACT; RADIATION EMITTING DEVICES ACT; CANADA
   SHIPPING ACTS; BIOLOGICAL AND TOXIN WEAPONS
   CONVENTION AND THE PROCEEDS OF CRIME
   (MONEY FINANCING ACT). (39)

Due to internal dissent and extensive external criticism, Bill C-42, intended to deal with the 'emergency' situation perceived after the events of September, 2001 was allowed to languish in Parliamentary limbo. On 24 April 2002, it was formally withdrawn. Within a week a replacement bill--Bill C-55--the Public Safety Act was put before Parliament by the Government. As one media columnist noted "Bill C-42's replacement is less offensive than original", but C-42 was mostly "yanked due to concerns about its capacity to withstand a legal challenge." (40)

ENDNOTES

(1.) Peter Self, Administrative Theories And Polities, (London: George Allen & Unwin, 1977), pp.277-78.

(2.) See, for example, The Globe and Mail, 21 March 1995, on Indian Government infiltration of Sikh Youth Movement information on bombings.

(3.) For example, the CIA ensure academic analysis on European Union foreign policy capacity as it relates to US capacity in dealing with foreign affairs.

(4.) The McDonald Commission. 413-14.

(5.) Ibid.

(6.) The strategic planning discussion in the October 1970 crisis was premised on a notion of concentric circles regarding the perceived internal threat--an 'apprehended insurrection.'

(7.) B.C. Civil Liberties Association, January 1979.

(8.) See, for example, Leonard Cohen, Patrick Smith and Paul Warwick, The Vision and the Game: Making the Canadian Constitution (Calgary: Detselig, 1987).

(9.) Efficiency vs. accountability concerns regarding a security service.

(10.) BC Civil Liberties Association, Brief on C-157, p. 9.

(11.) Op. cit., p. 2.

(12.) At the same time, the French Government was rejecting such balance concerns in its dealings with Greenpeace and its ship the Rainbow Warrior, which French security forces sunk in New Zealand; balancing concern about fundamental civil liberties where these contradicted perceived national interests did not seem a significant consideration.

(13.) BCCLA, Brief, op. cit., (May, 1984.)

(14.) It was elsewhere, for example in the Criminal Code, or Official Secrets Act or the War Measures Act.

(15.) BCCLA, op. cit., (May, 1984), p.8.

(16.) Ibid: p. 8.

(17.) http://canada.jnstice.gc.ca/en/news/nr/2001/doc_27785html (Date ac-cessed, 3 February 2002).

(18.) Ibid.

(19.) Ibid.

(20.) Ibid. 'News release: Government of Canada Introduces Anti-Terrorism Act," 2001-10-15.

(21.) John Dixon, BC Civil Liberties Association, "Repeat of McCarthy Era Would imperil Democracy," The Vancouver Sun, 27 September 2001, p.A15.

(22.) David Beers, Commentary, "The New McCarthyism," The Vancouver Sun, 6 October 2001, p.A6.

(23.) Anti Terrorism Act, Bill C-36.

(24.) Editorial, "Revision needed, now, to terrorist legislation: Adequate safeguards must control potential for abuse", The Vancouver Sun, 17 October 2001), p.A20; see also Daniel LeBlanc, "Senators Unite Against Anti-terror Bill," The Globe and Mail, 2 November 2001, p.Al0.

(25.) See, for example, Janice Tibbetts, "Major changes to anti-terrorism legislation hinted at by Ottawa: The justice minister says 'we are listening to people's concerns,'" The Vancouver Sun, 2 November 2001, p.A9.

(26.) See, for example, Daniel LeBlanc, "Senators Unite Against Anti-terror Bill," The Globe and Mail, 2 November 2001, p.A 10.

(27.) See, for example, Editorial, "Sunset's Good Sense," The Globe and Mail, 2 November 2001, p. A14. As noted in this editorial, "there are provisions in this bill (C-36) that should be accepted only in the context of an emergency. ... Those who value the liberties enshrined in the Charter and championed in earlier laws are unwilling to see their curtailment become the status quo, an accepted part of the legislative scenery."

(28.) See, for example, Jim McNulty, "Liberals to amend bungled anti-terrorism act," The Province, 14 November 2001, p.A23

(29.) Ibid

(30.) In a brief presented to the House of Commons committee reviewing Bill C-36, Amnesty/international Canada, 6 November 2001, Press release.

(31.) Ibid

(32.) Ibid.

(33.) Ibid.

(34.) Canadian Press, "Festive mood at anti-terrorism-bill sit-in", The Province, 9 December 2001, p.A25.

(35.) Department of Justice, Canada "Royal Assent To Bill C-36," 18 December 2001, http://canada.justice.gc.ca/en/news/nr2001/doc_28217.html [date accessed 7 January 2002.]

(36.) On these see, for example, www.caw.ca/visual+printlibrary/ speeches+briefs/11090.asp; http://www.crr.ca/en/MediaCentre/NewsReleases/ eMedCen_NewsRel20011119.htm; http://www.prochoice connection.com/procan/0102win.html#terrorism; http://www.rsf.org/rsf/uk/html/ameriques/cplp01/lp01/121201.html; http://www.wsws.org/articles/2001/nov2001/can-n20.shtml; http://www.arena.org.nz/canbil.htm; http://www.chrc-ccdp.ca/ar-a/_AR2001RA /AR0 1RaannualReport_1_rapportAnnuel.asp; http://www.canadianliberty.bc. ca/liberty-vs-security/; http://www.privcom.gc.ca/media/nr-c/02_05_b_011130 _e.asp; http://www.policyalternatives.ca; http://www.geocities.com/ericsquire/ articles/np042502.htm; http://perc.ca/PEN/2002-02/s-johnson2.html;www.cana dianactionparty.ca

(37.) http://www.dnd.ca/ang/archive/2001/nov01/22NDA_b_e.htm > Date accessed. May 20/02.

(38.) Transport Canada: http://www.tc.gc.ca; date accessed 12 April 2002.

(39.) http://www.parl.gc.ca/37/1/parlbus/chambus/housefoills/government/ C-42/C-42 1/C-42TOCE.html

(40.) James Travers, "Bill C-42 replacement is less offensive than original," Torstar News Service.

Patrick J. Smith is a Professor of Political Science at Simon Fraser University, Vancouver, Canada. The author is grateful for research assistance from Wendi Postnikoff and Liam Smith.