The Security of Freedom: A Conference on Canada's Anti-Terrorism Bill

On October 15, 2001, Federal Justice Minister Anne McLellan introduced sweeping anti-terrorism legislation in response to the terrorist attacks of September 11, 2001. Bill C-36 proposed significant changes to 10 different statutes, affecting areas of Canadian life from immigration to charitable giving, and from privacy to trial fairness. 

Given the scope of the proposed legislation and its potential impact on fundamental principles of Canadian law, Bill C-36 could not be adequately assessed and evaluated by any one or even several people; it would require the input of a wide variety of experts drawn from numerous relevant fields. The Faculty of Law understood well the critical role it could play in helping to analyze the legislation and the many challenging issues it raised, ranging from national security to restrictions on rights and freedoms. “We felt it was important to help shape the debate, rather than to be after-the-fact critics of the legislation,” said Dean Daniels.

The solution was a conference organized in just three weeks by the Faculty of Law. Held at the University of Toronto on November 9-10, The Security of Freedom: A Conference on Canada’s Anti-Terrorism Bill brought together 26 speakers from the University of Toronto and other Canadian universities, and included not only legal scholars, but also experts from the fields of history, economics, criminology, political science and international studies, and, notably, the drafters of the legislation, Rick Mosley and Stan Cohen.

With over 350 attendees, the conference addressed two main questions. First, what is the impact of expanded governmental powers on individual rights and liberties; and second, would the proposed legislation in fact achieve its avowed goals of reducing the risk of terrorism borne by citizens in Canada and other nations?

The opening panel laying out the conference’s themes included Professors Kent Roach, David Schneiderman and David Dyzenhaus. Introducing the issue of “Charterproofing,” Professor Roach examined whether the ability of Bill C-36 to withstand a challenge under Canada’s Charter of Rights and Freedoms, would be sufficient to ensure that it is, nevertheless, consistent with Canada’s core democratic values (see excerpt on page 10). Professor Dyzenhaus followed with an analysis of the dangers inherent in the transfer of emergency powers to  the state in conventional legislation. The fear, he argued, is that states will become addicted to the expanded powers, and that citizens will become steadily inured to their exercise, despite the impact on individual rights and liberties.

In the next session, Professors Lorraine Weinrib, Janice Gross Stein of the Centre for International Studies, and Oren Gross of the Benjamin N. Cardozo School of Law worked to define the nature of the terrorist threat (see short adaptation of Prof. Weinrib’s article on page 12). They were followed by a panel including Professors Martin Friedland, Wesley Wark of the Department of History, and Mariana Valverde of the Centre for Criminology, analyzing the impact of the antiterrorism legislation on the issue of information gathering.

The international dimensions of the response to terrorism were explored by Professors Jutta Brunnée and Patrick Macklem. Professor Brunnée argued that the international response to terrorism may have a significant impact on customary international law, but that this shift is not being sufficiently thought about or debated. Professor Macklem followed with a presentation that supported the idea of creating an international offence of terrorism (see excerpt on page 17). While acknowledging the necessity of revising the flawed definition provided in Bill C-36, he argued that the Bill’s assertion of universal jurisdiction over crimes of terrorism is an important starting point. 

Professor Roach also spoke in a panel addressing the effects of Bill C-36 on criminal law, along with Professor Martha Shaffer, and Don Stuart and Gary Trotter of Queen’s University. His analysis of the new criminal offenses defined by the legislation suggested that many of these provisions were vague and overboard. Professors Shaffer, Stuart and Trotter expressed similar concerns in their presentations.

Addressing the effects of Bill C-36 on information rights, Professors Hamish Stewart and Lisa Austin asked such questions as “Is Privacy a Casualty of the War on Terrorism?” Acknowledging that a new balance is being struck between citizen privacy and the state’s interest in promoting enhanced security, Professor Austin asked what kind of balance is permissible or desirable, and raised the concern that rights of privacy are swamped by national security concerns.

From the moment the conference was conceived in the days following the introduction of Bill C-36, the Faculty’s primary motivation was to contribute to the public debate on a pressing public policy issue in a timely and effective manner

The session on financial aspects of the response to terrorism included Professors Kevin Davis and David Duff. In his discussion of proposed changes to money laundering legislation in Canada, Professor Davis argued that because of the difficulty of defining what constitutes terrorist financing, any bill that is broad enough to include all economic ties with terrorists will also affect many legal commercial activities. These effects are likely to be felt disproportionately by members of specific ethnocultural groups. 

The effect of antiterrorism measures on particular ethnic groups was further analyzed by Professor Sujit Choudhry, who spoke about the enforcement and application of the anti-terrorism legislation in a panel with Professors Brenda Cossman, David Schneiderman and Lorne Sossin. Focusing on the adverse effect the practice of racial profiling has on minority groups, Professor Choudhry argued that everyone should be equally subject to anti-terrorism measures (see excerpt on page 14). While such an approach would have greater costs, he suggested they are worth paying in order to safeguard the principle of equality.

These concerns were also addressed by Professors Ed Morgan, Ayelet Shachar, and Audrey Macklin in their panel on terrorism and immigration. Professor Macklin expressed concern that Canadian security forces will tend to use more loosely-controlled immigration measures such as deportation against perceived security threats in order to avoid the safeguards set out in Bill C-36 (see excerpt on page 15). Like Professors Davis and Choudhry, she concluded with a warning against the potentially stigmatizing effects of the response to terrorism on specific groups within Canadian society.

A unique perspective was provided by the Honourable Irwin Cotler, both a Professor of Law specializing in human rights at McGill University, and a Member of Parliament for the Liberal government which introduced Bill C-36. Cotler argued that the bill was a response to an extraordinary situation, and that analysis of the bill must be willing to think “outside the box” of conventional approaches. In his view, the bill’s purpose was ensuring “human security,” a goal that could protect both national security and civil liberties. Having defended the principle of the bill, however, Cotler identified numerous areas of detail which required improvement and amendment if it was to fulfill its purpose.

The conference ended with a presentation by Rick Mosley and Stan Cohen, the legislation’s drafters from the Department of Justice. Speaking about the many issues which had helped to shape the draft legislation, Mosley emphasized that the legislation was still in process and open to amendment – an assurance that was later validated by the amendments that were implemented before the bill’s passage into law. 

To this end, the Faculty recruited the assistance of the University of Toronto Press, which committed to publishing the proceedings of the conference within a week. Not only did the Press fulfill its commitment with the fastest book ever published on its presses, but George Meadows, the Press’ President and Publisher, personally drove copies of the book to Ottawa, where they were distributed to the Minister of Justice and all members of the House of Commons and Senate.

These extraordinary efforts paid off. When the legislation eventually passed into law, it included important amendments to key clauses of the bill, many of which were in direct response to issues raised at the conference.

 “It was exhilarating to think you’ve been even a small part of the democratic process,” said Professor Kent Roach. “These are important issues, not just for lawyers but for all Canadians.” As The Globe and Mail remarked in its review of the published proceedings, “The Security of Freedom is an important critical contribution to [the] reframing of Bill C-36. The book itself is a remarkable accomplishment for the three editors, Ronald Daniels, Patrick Macklem and Kent Roach, as well as the University of Toronto Press….Let us hope that future democratic deliberations about anti-terrorism legislation will aspire to this standard.”

The proceedings of the conference were published as The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill, eds. Ronald J. Daniels, Patrick Macklem and Kent Roach (Toronto: University of Toronto Press, 2001). This book is available from the University of Toronto Press (http://www.utpress.utoronto.ca/). The proceedings of the conference were broadcast live on the web, and have been archived for public viewing. For more information on the conference, for further resources related to Bill C-36, or to view a broadcast of any or all of the conference sessions, go to the conference website at http://www.law.utoronto.ca/c-36/index.htm.  

This article was first published in the Spring 2002 issue of Nexus.