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Vincent Clifford: How the law changed after 9/11


 On Sept. 11, 2001, a group of al-Qaida militants hijacked four passenger airliners and orchestrated deadly suicide attacks against the United States. When the towers fell, our collective sense of security collapsed with them. From a common perspective, the 9/11 attacks continue to call up indelible memories of towers crumbling to the ground and the suffering we experienced over the loss of innocent life. From a legal perspective, 9/11 stands as a transformative event that prompted Canadian lawmakers to take immediate action to ensure our country was acting in concert with the rest of the world in combating future terrorist threats.

Previous Right to Know columns have shed an informative and sometimes critical light on both traditional and trending criminal law issues. As part of our ongoing series, this and the next three columns are devoted to examining one of the most emergent and vital areas of Canadian jurisprudence — national security and anti-terrorism law.

Although the threat of terrorism is a modern-day reality, many Canadians do not have a full appreciation of the sweeping powers contained in the laws we have created to combat terrorism and enhance national security.

In the dark days that followed 9/11, our government introduced Canada’s Anti-Terrorism Act. Never before had a bill passed through Parliament with such a sense of crisis and urgency. The act was crafted as “omnibus legislation.” This meant that it had the effect of amending 16 existing statutes, including the Criminal Code of Canada and the Canada Evidence Act. The bill passed just three months after the towers fell. The immediateness of Canada’s political response was unprecedented.

The three main objectives of Canada’s new anti-terrorism legislation were to suppress the existence of terrorist groups, to provide law enforcement and related agencies with new investigative tools, and to provide tougher sentences to incapacitate terrorists. For the first time in Canadian legal history, a definition for “terrorist activity,” together with several new terrorism-related offences, was written into our Criminal Code. Those charged with terrorism offences under the Criminal Code are dealt with in our criminal trial courts and are afforded the rights and freedoms extended to all accused under our Constitution.

In addition to new laws enacted under the Anti-Terrorism Act, the federal government also has another legal tool that allows it to detain and deport permanent residents or foreign nationals considered to be a security threat. Such individuals are named in a “security certificate” that is signed by the Minister of Citizenship and Immigration and the Solicitor General. The legal procedure followed after a person is named in such a certificate is outlined in the Immigration and Refugee Protection Act. In such cases, charges under the Criminal Code need not be laid and the government can use secret evidence that the accused person is not permitted to see.

In 2007, the Supreme Court of Canada held that many aspects of the “security certificate” regime failed to meet minimal Constitutional standards. Our government responded by adopting a system modelled after British law that introduced “special advocates” to assist those who the government seeks to detain and deport. Currently, certificate cases based on claims of terrorism are the subject of ongoing legal and procedural challenges in our Federal Court.

The almost 12 years since 9/11 have revealed successes and failings in national security initiatives. In 2008, Momin Khawaja, a resident of Ottawa, was found guilty and thereafter sentenced by an appeal court to life imprisonment for his involvement in a plot to detonate fertilizer bombs in the United Kingdom. He was the first to face trial under Canada’s new anti-terrorism laws.

In contrast to Khawaja’s case, Canadians were saddened to learn about the odyssey of Canadian citizen Maher Arar who, while passing through an airport in New York on Sept. 26, 2002, was arrested and detained by American officials for 12 days. His arrest stemmed from suspicions that he was involved with persons linked to 9/11. Arar was moved to a prison in Syria where he was imprisoned and subjected to interrogations and torture for almost a year. Canadian officials played a role in Arar’s rendition to Syria. In 2006, a Commission of Inquiry concluded that there was no evidence whatsoever to indicate that Arar committed an offence anywhere or that his activities ever constituted a security threat to Canada.

The mere threat of terrorist attacks and the potential undermining of our national security will always evoke a strong political and societal response. We are however assured by the fact that our courts represent one of the finest legal systems in the world. There is no doubt that Canada’s struggle against terrorism and national security threats will be conducted according to the law. Indeed, history reveals that even in times of war, the law should not be silent.

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