MUST WE TRADE RIGHTS FOR SECURITY?
THE CHOICE BETWEEN SMART, HARSH, OR
PROPORTIONATE SECURITY STRATEGIES IN
CANADA AND BRITAIN
Kent Roach*
INTRODUCTION
Most debates about terrorism proceed on the assumption that
there is a trade-off between security and rights. The question is often
defined in terms of the proper balance between these two important
values. Some tilt the balance toward security and raise dire warnings
that the Constitution is not a suicide pact. Others tilt the balance
toward rights and raise equally dire warnings that excessive counterterrorism efforts will undermine the high ground that democracies
occupy in their battle with terrorists. Recently, however, the idea of
inevitable trade-off or balance between rights and security is being
questioned. After having downplayed the relevance of human rights
in combating terrorism immediately after 9/11, the United Nations has
begun to place greater emphasis on the positive relationship between
human rights and security. United Nations Secretary General Kofi
Annan argued in a recent report that
[i]t would be a mistake to treat human rights as though there were
a trade-off to be made between human rights and goals such a
security and development. . . . [S]trategies based on the protection
of human rights are vital both for our moral standing and the
practical effectiveness of our actions.1
* Professor of Law, University of Toronto. This article is a revised version of the twentyseventh Viscount Bennett lecture given at the University of New Brunswick Faculty of Law on
October 27, 2005. I thank the Faculty for inviting me to give this lecture and Sharryn Aiken,
Michael Code, David Dyzenhaus, Audrey Macklin, Rayner Thwaites, and Reg Whitaker for
helpful comments on an earlier draft. I also thank Michel Rosenfeld and the group that
gathered at the Rockefeller Centre in Bellagio in July 2005 for helpful and challenging
discussions that helped inform this article. The financial assistance of Canada’s Social
Sciences and Humanities Research Council is gratefully acknowledged.
1 The Secretary-General, Report of the Secretary-General: In Larger Freedom: Towards
Development, Security and Human Rights for All, ¶ 140, delivered to the General Assembly,
U.N. Doc. A/59/2005 (Mar. 21, 2005).
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This argument suggests that human rights can be reconciled with
security and that some abuses of human rights may be counterproductive in preventing terrorism.
Much of the Bush administration’s war on terrorism suggests
that harsh anti-terrorism strategies may be ineffective. The attempt to
detain people in a law-free zone at Guantanamo Bay, Cuba was
ultimately unsuccessful.2 The lack of full adversarial legal procedures
for determining the status of Guantanamo detainees has produced
both false negatives and false positives: namely, the release of people
who have reportedly returned to hostilities and the detention of those
who present no threat to the United States.3 The bipartisan 9/11
Commission has called for the United States to adhere to the rule of
law, including the Geneva Conventions, in large part because of the
pressing need to respond to negative views of the United States and to
help minimize the next generation of terrorists.4 The use of extreme
interrogation techniques has at times produced inaccurate intelligence
and tainted the use of statements in criminal prosecutions.
Nevertheless, coercive and humiliating interrogations at Abu Ghraib
and elsewhere, as well as the invasion of Iraq, seem to have provoked
and inspired more, not less, terrorism. The wholesale use of
immigration detention in the immediate aftermath of 9/11 failed to
result in any terrorism charges related to 9/11.5 The inability of
American governments effectively to mitigate the devastation caused
by Hurricane Katrina has also raised concerns about the smartness of
homeland security policies that focus on terrorism. Effective
emergency preparedness can limit the harms and speed recovery not
only from catastrophic terrorism but also from a variety of natural and
man-made disasters.
The question of whether it is truly necessary to sacrifice rights
for security lies at the heart of the determination of whether a
particular anti-terrorism measure is a proportionate response to the
threat. Principles of proportionality found in many constitutions,
including in the limitation and derogation sections of the European
Convention for the Protection of Human Rights and Fundamental
2 Rasul v. Bush, 524 U.S. 466 (2004). But see Detainee Treatment Act of 2005, Title XIV
of the National Defence Authorization Act for Fiscal Year 2006, H.R. 1815, S. 1405(e), 109th
Cong. (amending 28 U.S.C. 2241 and removing the right of Guantanamo Bay detainees to
apply for habeas corpus and regulating appeals from combatant status review tribunals).
3 Kent Roach & Gary Trotter, Miscarriages of Justice in the War Against Terror, 109
PENN. ST. L. REV. 967, 1012 (2005).
4 THE NAT’L COMM’N ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 REPORT 12.3
(2004) [hereinafter THE 9/11 REPORT].
5 DAVID COLE, ENEMY ALIENS: DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN
THE WAR ON TERRORISM 25-26 (2003).
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Freedoms6 and in Section 1 of the Canadian Charter of Rights and
Freedoms,7 require assessment of the effectiveness of any security
measure that may violate rights. Proportionality analysis requires that
limits on rights must be clearly prescribed by law so as to facilitate
both political and judicial review. It asks whether a rational
connection exists between the proposed measure and the goal of
stopping terrorism, whether less drastic and rights-invasive means
exist to stop terrorism, and finally how the measure’s effectiveness in
preventing terrorism compares to its burden on rights and affected
individuals. Proportionality analysis is a more disciplined and
demanding process than open-ended balancing of rights and security
because it addresses whether rights violations will actually increase
security and whether less drastic measures can be used to prevent
terrorism.8 In addition, proportionality analysis can consider the
distributional consequences of violating the rights of minorities in an
attempt to increase security.9 We should never lose sight of the
normative value of rights in proportionality analysis, and some antiterrorism strategies such as torture and racial and religious profiling
would remain legally and morally wrong even if they were, at times,
effective. However, proportionality analysis requires both judges and
governments to consider the effectiveness of rights-invasive policies
in preventing terrorism.
In this Article, I argue that the relationship between rights and
security is more complex than is suggested by those who argue that
there is an inevitable trade-off between rights and security, or by those
who argue that rights and security can be easily reconciled in every
case. My argument proceeds in three parts. The first is that in many
cases, the smartest and most effective security strategies may not
violate rights in any serious manner. Such smart counter-terrorism
strategies involve not the dramatic introduction of tough new laws
criminalizing terrorism or speech related to terrorism, but rather more
6 See, for example, Article 10(2) of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, which allows necessary limits on freedom of expression,
and Article 15, which allows derogating measures “to the extent strictly required by the
exigencies of the situation.” Nov. 4, 1950, 213 U.N.T.S. 222.
7 Constitution Act, 1982, Pt. I, Canada Act 1982, Sched. B, ch. 11 (U.K.). Section 1
provides: “The Canadian Charter of Rights and Freedoms 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.” On the importance of proportionality in other
systems, see Aharon Barak, A Judge on Judging: The Role of a Supreme Court in a
Democracy, 116 HARV. L. REV. 16 (2002).
8 Jeremy Waldron, Security and Liberty: The Image of Balance, 11 J. POL. PHIL. 191
(2003); Lucia Zedner, Securing Liberty in the Face of Terror: Reflections from Criminal
Justice, 32 J.L. & SOC’Y 507 (2005).
9 Ronald Dworkin, The Threat to Patriotism, 49 N.Y. REV. BOOKS 3 (2002).
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mundane administrative regulation to help prevent terrorists from
gaining access to substances and sites that can be used for terrorism.
A smart security policy would also recognize the reality that it is
impossible to prevent all acts of terrorism or other man-made or
natural disasters and that considerable efforts and resources should be
devoted to emergency preparedness and harm reduction measures.
Although such strategies tend to be neglected as defeatist damage
mitigation strategies, the events surrounding Hurricane Katrina
demonstrate that evacuation and recovery strategies should be key
components of national security strategies.10 In a world of limited
resources, increased emphasis should be placed on double-duty
strategies that can respond to both terrorism and other threats to
human security.11 I also suggest that increased independent review of
national security activities is a smart strategy that may make those
activities more effective while at the same time helping to prevent or
redress rights violations.
The second part of my argument is that some harsh anti-terrorism
policies may not only violate rights, but also prove ineffective in
producing security. One such policy involves the use of overbroad
definitions of terrorism that target conduct that is not directly related
to the commission of violence against civilians. Police and security
agencies should focus their efforts on terrorists who plan and prepare
to commit serious acts of violence and not on others who may engage
in illegal but non-violent dissent. Another harsh anti-terrorism
strategy that violates rights and may be of limited effectiveness in
preventing terrorism is the targeting of speech as a form of terrorism.
I will also suggest that security strategies that target people on the
basis of religion, race, or lack of citizenship may not only
discriminate, but also may be of limited effectiveness because of their
radical over- and under-inclusiveness in targeting terrorists.
Although many smart security strategies do not violate rights and
many harsh security strategies will not prevent terrorism, it would be
wrong to suggest that there is never any tension between rights and
security. The third part of this Article will explore three hard cases
that implicate both rights and security. The hard cases are: the
treatment of information that cannot be disclosed to the affected
person or the public because of concerns about national security
10 SELECT BIPARTISAN COMM. TO INVESTIGATE THE PREPARATION FOR AND RESPONSE TO
HURRICANE KATRINA, A FAILURE OF INITIATIVE: THE FINAL REPORT OF THE SELECT
BIPARTISAN COMMITTEE TO INVESTIGATE THE PREPARATION FOR AND RESPONSE TO
HURRICANE KATRINA (2006), available at http://katrina.house.gov/full_katrina_report.htm.
11 NAT’L RESEARCH COUNCIL, MAKING THE NATION SAFER: THE ROLE OF SCIENCE AND
TECHNOLOGY IN COUNTERING TERRORISM (2002); KENT ROACH, SEPTEMBER 11:
CONSEQUENCES FOR CANADA ch. 7 (2003).
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confidentiality, the treatment of non-citizen terrorist suspects who
cannot be deported because of concerns that they will be killed or
tortured upon their return, and preventive detention of suspected
terrorists. In these difficult cases, I suggest that conflicts between
rights and security should be resolved by the rigorous, rational, and
logical application of proportionality principles. Such principles
accept that the need to prevent terrorism is an important objective and
that the importance of the objective may increase with the frequency
and lethality of terrorist attacks. At the same time, however,
proportionality analysis insists that counter-terrorism strategies must
be legally authorized and subject to judicial application of principles
of rationality, least drastic or restrictive means, and overall balance
between effectiveness in preventing terrorism and infringement on
rights and freedoms.
In the last part of this article, I use a case study to test my thesis
that some of the smartest and most effective anti-terrorism strategies
do not violate rights while some of the harshest strategies may not be
effective. I consider available information about whether the 1985
terrorist bombing of Air India Flight 182, which killed 329 people in
what was before 9/11 the most deadly act of aviation terrorism in
world history, could have been prevented either with smart security
strategies such as better aviation security or through a variety of harsh
or proportionate security strategies such as broad terrorism offenses,
law against terrorist speech, the use of immigration law as antiterrorism law, or preventive arrests.
Most of the examples I discuss in this Article come from
Canadian and British anti-terrorism law and policy. Both British and
Canadian approaches provide interesting contrasts and parallels with
American anti-terrorism law and policy.12 The United Kingdom has
had much experience with terrorism and is an influential innovator
with respect to anti-terrorism laws.13 The United Kingdom has
recently initiated various proposals with respect to preventive
restraints on liberty of suspected terrorists and the punishment of
terrorist speech that depart from traditional American policies that
12 Kim Lane Scheppele, Other People’s PATRIOT Acts: Europe’s Response to September
11, 50 LOY. L. REV. 89 (2004); Stephen J. Schulhofer, Checks and Balances in Wartime:
American, British and Israeli Experiences, 102 MICH. L. REV. 1906 (2004); Michael P.
O’Connor & Celia M. Rumann, Into the Fire: How to Avoid Getting Burned by the Same
Mistakes Made Fighting Terrorism in Northern Ireland, 24 CARDOZO L. REV. 1657 (2003).
13 On the influence of the Terrorism Act, 2000 on other post-9/11 anti-terrorism law, see
Kent Roach, The World Wide Expansion of Anti-Terrorism Laws After 11 September 2001, 3
STUDI SENESI 487 (2004) [hereinafter Roach, The World Wide Expansion] and Kent Roach,
The Post-9/11 Migration of Britain’s Terrorism Act, 2000, in THE MIGRATION OF
CONSTITUTIONAL IDEAS (Sujit Choudhry ed., forthcoming) [hereinafter Roach, The Post-9/11
Migration].
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favor liberty.
Some of these British policies would remain
problematic in the United States, but they may be influential in other
countries.14
Although Canada does not have the same experience with
terrorism as the United Kingdom, or the same influence with respect
to its anti-terrorism laws and policies, it was the launching ground for
the Air India bombing. Pointing both to the Air India bombing and
other events such as the border arrest of Ahmed Ressam, an illegal
immigrant to Canada who had plans to bomb the Los Angeles Airport
at the Millennium,15 concerns have been expressed in some quarters
that Canada may be a weak link in American anti-terrorism policies.16
Canada also is significant because its post-9/11 security policy has
taken a different path from that of the United States.17 Canada has an
official national security policy that defines terrorism as only one of
many risks to human security. This policy places special emphasis on
emergency preparedness18 and includes effective review of security
policies. Canada presently is holding an unprecedented public inquiry
into the actions of Canadian officials in relation to Maher Arar. Arar,
a Canadian citizen born in Syria, was detained in the United States
when he was returning to Canada from Tunsia. He was ordered to be
removed from the United States as a threat to national security and
was sent to Syria. An independent fact finder appointed by the
Canadian inquiry has found that Arar was tortured in Syria. He was
released from Syria after almost a year’s detention and has now
returned to Canada.19 Canada’s public inquiry into Arar’s treatment
14 For example, recent Australian legislation has borrowed from and adapted British
innovations with respect to restricting the liberty of suspected terrorists through control orders
and punishing advocacy of terrorism and other speech that may be associated with terrorism.
Anti-Terrorism Act (No. 2), 2005, scheds. 1, 4, 7 (Austl.).
15 THE 9/11 REPORT, supra note 4, at 6.1.
16 For a survey and endorsement of various criticisms of Canadian anti-terrorism policy
made by Americans, as well as criticisms of Canada’s immigration policies on the basis of
concerns about security, see MARTIN COLLACOTT, CANADA’S INADEQUATE RESPONSE TO
TERRORISM: THE NEED FOR POLICY REFORM 21-27 (2006). For an alternative and, in my view,
more compelling account about how Canada has altered its refugee policy because of security
concerns, see François Crépeau & Delphine Nakache, Controlling Irregular Migration in
Canada: Reconciling Security Concerns with Human Rights Protection, IRPP CHOICES, Feb.
2006, at 14-18, 21-25, available at http://www.irpp.org/choices/archive/vol12no1.pdf. The
changes included decreased appeals to court, decreased legal aid, increased detention, the
signing of a safe third country agreement with the United States, and serious contemplation of
allowing non-citizens held to be security threats to be deported even where they will face
torture.
17 See generally ROACH, supra note 11; Reg Whitaker, Made in Canada? The New Public
Safety Paradigm, in HOW OTTAWA SPENDS 2005-2006: MANAGING THE MINORITY (G. Bruce
Doern ed., 2005).
18 CANADA PRIVY COUNCIL OFFICE, SECURING AN OPEN SOCIETY: CANADA’S NATIONAL
SECURITY POLICY (2004).
19 Both American and Syrian officials have declined requests to participate in the inquiry.
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stands in contrast to American concerns about secrecy and executive
prerogatives in this matter.20 For better or worse, Americans have an
interest in understanding Canada’s evolving anti-terrorism and
national security policies.
I. SMART SECURITY STRATEGIES THAT DO NOT INFRINGE RIGHTS
Much of the post-9/11 response to terrorism has focused on new
laws criminalizing a range of activities in preparation for acts of
terrorism. UN Security Council Resolution 1373 supported this
approach, calling on states to criminalize acts of terrorism including
the financing of terrorism. The focus has been on directing criminal
sanctions at terrorists and their supporters and depriving them of
funds.21 Much of the promise of this strategy has dissipated as
subsequent investigations have revealed that terrorists have mounted
deadly acts of terrorism with modest funds. The 9/11 Commission in
particular was pessimistic about anti-financing strategies, commenting
that trying to starve the terrorists of money is like “trying to catch one
fish by draining the ocean.”22 It expressed doubts that financing laws
can be a “primary weapon” against decentralized terrorist groups.23
A public report of the inquiry is expected to be released in 2006 regarding both the actions of
Canadian officials in relation to Mr. Arar and an independent review mechanism for the
national security activities of the Royal Canadian Mounted Police. Arar has not testified at the
inquiry, but an independent fact-finder has concluded that he was tortured in Syria. COMM’N
OF INQUIRY INTO THE ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MAHER ARAR,
REPORT OF PROFESSOR STEPHEN J. TOOPE, FACT FINDER (Oct. 14, 2005), available at
http://www.ararcommission.ca/eng/17.htm. On the Commission’s work and the terms of
reference used in the inquiry, see www.ararcommission.ca (last visited Mar. 9, 2006). The
Commission’s public reports on the inquiry will eventually be made available on this web site.
20 Arar’s civil law suit against various American officials involved in his rendition to Syria
was recently dismissed, in large part on the basis that it related to questions of national security
and foreign policy considerations that should be left to the executive and legislative branches
of government. Judge Trager concluded that
this case raises crucial national-security and foreign policy considerations,
implicating “the complicated multilateral negotiations concerning efforts to halt
international terrorism.” The propriety of these considerations, including supposed
agreements between the United States and foreign governments regarding
intelligence-gathering in the context of the efforts to combat terrorism, are most
appropriately reserved to the Executive and Legislative branches of government.
Moreover, the need for much secrecy can hardly be doubted.
Arar v. Ashcroft, No. CV-04-0249 DGT VVP, 2006 WL 346439, at *29 (E.D.N.Y. Feb. 16,
2006) (citation omitted).
21 S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001).
22 THE 9/11 REPORT, supra note 4, at 12.3.
23 Id. It has been estimated that the 9/11 attacks cost under $500,000, and the Madrid,
Bali, and London attacks cost as little as $15,000 each, and that the costs of complying with
anti-terrorist financing regulations far outweigh their benefits. Financing Terrorism: Looking
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Focusing on the evil and spectacle of terrorism presents the
danger of distorting rational analysis not only about the probability of
terrorism,24 but also about the best way to prevent it and limit its
harms. Many anti-terrorism strategies focus on deterring or disabling
terrorists before they commit an act of terrorism, an approach that
may discount the full range of strategies that can limit terrorism and
its harms. Much can be learned from other fields. For example,
epidemiologist William Haddon constructed a famous matrix
evaluating countermeasures to minimize harm before, during, and
after traffic accidents.25 Haddon argued that too many resources are
devoted to changing driver behavior before accidents and too little
attention is paid to the environment in which traffic accidents occur
and to damage mitigation after accidents. His insights have led to
increased attention to matters such as highway design, the interiors of
automobiles (including airbags), and the evacuation and treatment of
the critically injured.
In other work, I have adapted the Haddon Matrix to terrorism
prevention and the limitation of harms from terrorism. I have argued
that examining the full spectrum of anti-terrorism policies that can be
used both before and after acts of terrorism suggests that too much
emphasis has been placed on attempts to deter terrorists and not
enough on regulating the environment in which they operate and on
various damage mitigation strategies.26 Before such an approach is
dismissed as defeatist damage control, a neglected finding of the 9/11
Commission should be considered. The Commission found that
in the Wrong Places, ECONOMIST, Oct. 20, 2005, available at http://www.economist.com/
displaystory.cfm?story_id=5053373.
24 CASS R. SUNSTEIN, LAWS OF FEAR ch. 9 (2005); Victor V. Ramraj, Terrorism, Risk
Perception and Judicial Review, in GLOBAL ANTI-TERRORISM LAW AND POLICY 107 (Victor V.
Ramraj, Michael Hor & Kent Roach eds., 2005).
25 William Haddon, A Logical Framework for Categorizing Highway Safety Phenomena
and Activity, 12 J. TRAUMA 193 (1972).
26 ROACH, supra note 11, ch. 7; Kent Roach, The Criminal Law and Terrorism, in GLOBAL
ANTI-TERRORISM LAW AND POLICY, supra note 24, at 129 [hereinafter Roach, Criminal Law
and Terrorism]. The Haddon Matrix, as adapted to terrorism, draws distinctions among
interventions aimed at terrorists, third parties, the physical environment, and the socioeconomic environment. With respect to each category, attention is given to interventions that
occur before, during, and after acts of terrorism. Most anti-terrorism strategies have focused
on identifying and deterring terrorists before they commit acts of terrorism, but target
hardening and weapons controls are promising means to regulate the physical environment in
which terrorists operate. Non-violent outlets for grievances, and other interventions including
regime change, affect the socio-cultural environment in which terrorists operate. Laws against
financing terrorism, as well as laws regulating sites and substances that are vulnerable to
terrorism, are mainly directed toward third parties and not potential terrorists. First response
and emergency preparedness are interventions that can minimize harm during and after acts of
terrorism. In addition, both harsh responses and the stigmatization of acts of terrorism after
they have occurred may be interventions that affect the likelihood of future acts of terrorism.
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during the 1993 World Trade Center bombing, the evacuation of
occupants took four hours, whereas in 2001 between 14,000 and
16,000 people were evacuated in under one hour, due in part to
improvements of procedures and facilities since the 1993 attack.27
The Haddon Matrix suggests that increased attention to
emergency preparedness, and to the regulation of third parties and the
environment, can mitigate the harms of terrorism. In an extensive
study published in 2002, the National Research Council concluded
that better protection of hazardous materials and critical infrastructure
could not only help prevent terrorism, but also “make the nation safer
from natural disasters, infectious diseases, hackers disrupting the
Internet, failures in electric power distribution and other complex
public systems, and human error causing failures in such systems.”28
Double-duty strategies that can assist in the prevention or mitigation
of terrorism as well as other harms may have particular promise. A
broader array of anti-terrorism strategies may also reveal approaches
that are effective but do not burden rights.
A.
Administrative Regulation of Sites and Substances
Vulnerable to Terrorism
One of the most promising strategies for preventing terrorism is
tighter regulation of sites and substances that are vulnerable to
terrorism. The greatest terrorist threat is the possible use of nuclear
material by terrorists. Graham Allison of Harvard’s Kennedy School
of Government has written of the dangers of nuclear terrorism that
“can make 9/11 a footnote.”29 He notes that at various times Al
Qaeda has attempted to buy enriched uranium or acquire nuclear
warheads that Chechen separatists had said they acquired from
Russian stockpiles.30 Professor Allison proposes intensive regulation
of fissile material, highly enriched uranium, and weapons-grade
plutonium, which could be used for nuclear terrorism. He estimates
that such regulation would cost between $5 and $10 billion out of the
more than $500 billion that, at that time of his writing, already had
been spent on defense and the war in Iraq.31 Even if the likelihood of
nuclear terrorism remains thankfully low, such investment may be
27
28
29
THE 9/11 REPORT, supra note 4, at 9.4.
NAT’L RESEARCH COUNCIL, supra note 11, at 23.
GRAHAM ALLISON, NUCLEAR TERRORISM:
CATASTROPHE 3, 203 (2005).
30 Id.
31 Id. at 177.
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ULTIMATE
PREVENTABLE
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warranted, especially if it will also help prevent accidents with
nuclear material.
Internationally, there is increased interest in the dangers of
nuclear terrorism. United Nations Security Council Resolution 1540,
enacted in 2004, calls on states to take action to prevent non-state
actors from gaining access to nuclear, chemical, or biological
weapons or means of delivery.32 It also establishes a committee to
consider country reports on compliance with this resolution. The
most recent UN anti-terrorism convention is the 2005 International
Convention for the Suppression of Acts of Nuclear Terrorism, which
focuses on criminalizing the sale and possession of radioactive
material and taking steps to safeguard such material.33 Even this
Convention, however, emphasizes criminalizing the sale and
possession of nuclear materials by non-state actors as opposed to the
obligations of states and the international community to make every
effort to safeguard and destroy nuclear material that could fall into the
hands of terrorists. As in other areas, a danger exists that focusing on
the evil of terrorism will lead to too much emphasis on the criminal
sanction directed at terrorists and too little emphasis on administrative
regulation to secure sites and substances that can be used for
terrorism. Although tight administrative regulation of nuclear
material may at times make it more difficult for universities and
others to conduct research on such materials and may require
extensive security checks on those who work with such materials, it
cannot be seriously argued that administrative regulation and
destruction of nuclear materials compromises fundamental rights.
The Canadian experience with anti-terrorism law demonstrates
how administrative regulation of sites and substances that can be used
for terrorism can be eclipsed by the need to enact more visible and
tougher strategies to criminalize terrorism. The immediate priority in
Canada after 9/11 was to enact a new Anti-Terrorism Act34 that
created new crimes of terrorism, including crimes based on financing
terrorism and participating in terrorist groups. The new law also
provides for executive designation of terrorist groups and enhanced
provisions to maintain national security confidentiality in legal
proceedings. The Bill was introduced into Parliament on October 15,
2001 and, after a controversial national debate about its effects on
civil liberties,35 was enacted before the end of 2001. One of the
32
33
34
35
S.C. Res. 1540, U.N. Doc. S/RES/1540 (Apr. 28, 2004).
G.A. Res. 59/290, U.N. Doc. A/RES/59/290 (Apr. 13, 2005).
2001 S.C., ch. 41 (Can.).
See generally THE SECURITY OF FREEDOM: ESSAYS ON CANADA’S ANTI-TERRORISM BILL
(Ronald J. Daniels, Patrick Macklem, & Kent Roach eds., 2001).
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driving forces behind the law was the perceived need to enact new
criminal laws before Canada issued its first report to the UN Counter
Terrorism Committee created by Security Council Resolution 1373.36
Another driving force was the erroneous belief that existing criminal
law could not be used to prevent apprehended acts of terrorism.37
What got temporarily lost in the urgent passage of a new AntiTerrorism Act was a companion piece of legislation, the Public Safety
Act,38 which proposed a variety of measures for increased protection
of critical infrastructure such as pipelines, seaports, and airports,
better control of explosives and toxins, and provisions for a variety of
temporary measures to deal with emergencies. The Public Safety Act
was first introduced on November 22, 2001,39 but was not enacted and
given royal assent until May 6, 2004.40 To be sure, part of this delay
can be related to legitimate criticism of several aspects of the Bill.
The Bill as originally introduced allowed for a declaration of military
security zones for reasons of national defense, international relations,
or security, and concerns were raised that such zones could be used to
prevent protests or could cover entire provinces.41 A number of the
Public Safety Act’s provisions authorize information sharing without
enhancing review and oversight as to the necessity of the information
sharing, the accuracy and reliability of the information that is shared,
or the effects of the information sharing on privacy. The emergency
provisions of the Act also are not coordinated with Canada’s
Emergency Act,42 which places a variety of procedural and
substantive restraints on the declarations of emergencies. Despite
these criticisms, however, there is much in the Public Safety Act that
is promising as a means of securing sites and substances that are
vulnerable to terrorism without sacrificing rights. It is unfortunate
that the Act’s less glamorous administrative regulations languished in
Parliament while the expansion of the criminal law was given first
priority.
As I discuss below, Canada’s Anti-Terrorism Act includes a
broad definition of terrorism, which was designed in part to cover
36
37
S.C. Res. 1373, supra note 21.
On Canada’s existing laws related to attempts, conspiracies, and counseling the
commission of various crimes of violence, see Kent Roach, The New Terrorism Offences and
the Criminal Law, in THE SECURITY OF FREEDOM: ESSAYS ON CANADA’S ANTI-TERRORISM
BILL, supra note 35, at 151.
38 2004 S.C., ch. 15 (Can.).
39 Public Safety Act, 2001, Bill [C-42] (Can.).
40 2004 S.C., ch. 15 (Can.).
41 ROACH, supra note 11, at 69-70.
42 1988 S.C., ch. 29 (Can.). For praise of the attempt in this law to provide controls,
restraints, and oversights on the declaration of emergencies, see Bruce Ackerman, The
Emergency Constitution, 113 YALE L.J. 1029, 1061-62 (2004).
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terrorist acts aimed at critical infrastructure.43 The new criminal
definition of terrorist activities, however, has also raised legitimate
concerns that some forms of dissent would be caught by a definition
of terrorism that covered conspiracies, threats, and attempts to disrupt
essential public and private services.44 In contrast, the Public Safety
Act deals with the protection of critical infrastructure in an arguably
more effective, and certainly less controversial, manner. Instead of
relying on the deterrent effect of a potentially overbroad definition of
terrorism in the criminal law to protect critical infrastructure such as
pipelines, the Public Safety Act empowers an administrative agency
to make regulations and to require the private sector to take
precautionary measures to protect such vital infrastructure.45 The Act
also provides for closer controls on explosives and toxins, two items
that can be used by terrorists with deadly results.46 The Public Safety
Act contains various administrative measures designed to regulate the
environment both before and after acts of terrorism. Its measures are
aimed not so much at potential terrorists, but at more rational third
parties who have the ability to deny terrorists access to sites and
substances that can be used for terrorism.
The Public Safety Act also implicitly acknowledges that not all
attempts to identify, deter, or incapacitate potential terrorists will be
successful and that a variety of fail-safe mechanisms are needed to
minimize the damage caused by terrorism and by other events. It
allows Ministers to make emergency directions with respect to
aeronautics, environmental protection, health, food and drugs,
hazardous products, shipping, quarantines, and radiation-emitting
devices.47 To be sure, all emergency powers must be used with
caution and with careful review and oversight, but they also may be
required to respond to a wide range of natural and man-made disasters
including catastrophic acts of terrorism. There is also virtue in shortterm and conscious departures from ordinary norms in times of
emergency as opposed to permanent legislation that may less
explicitly diminish rights over a longer time period.48 Most modern
43 Canada Criminal Code, R.S.C., ch. C-46, § 83.01(1)(b)(ii)(E), as amended by 2001 S.C.,
ch. 41 (Can.).
44 Id. In response to concerns about the overbreadth of this definition of terrorism, an
exemption from the definition was included for protests and strikes so long as those activities
are not intended to endanger life or to cause a serious risk to public health or safety. See infra
notes 97-101 for further discussion of this aspect of the definition of terrorism.
45 Public Safety Act, 2004 S.C., ch. 15 § 84 (Can.).
46 Id. pts. 7, 23.
47 Id. pts. 1, 3, 6, 9-10, 15, 18, 20-22.
48 For arguments for a derogation model of responses to emergencies, see Kent Roach,
Constitutional, Remedial and International Dialogues About Rights: The Canadian
Experience, 40 TEX. INT’L L.J. 537, 572-75 (2005).
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rights-protection instruments recognize that it may be necessary to
derogate from some rights in emergency situations, but that such
derogations should be clearly signaled, justified, and limited to the
length of time necessary to respond to the emergency. The ability to
make temporary emergency directions under the Public Safety Act
follows this tradition, while the Anti-Terrorism Act is based more on
the idea that there must be a permanent shift of the balance between
rights and security in order to deal with terrorism.49
The United Kingdom was much faster than Canada in enacting
new laws regulating sites and substances that are vulnerable to
terrorism. The United Kingdom’s Anti-Terrorism, Crime and
Security Act, 200150 contains a variety of provisions related to
biological and chemical weapons, the security of pathogens and
toxins, and the security of the nuclear industry. Part VI of the Act
deals with “weapons of mass destruction” and includes offenses
related to the transfer and sale of biological agents and toxins and
nuclear materials. It also provides for the extra-territorial application
of such offenses.51 The Terrorism Act, 200652 includes additional
offenses relating to possession of nuclear materials, trespassing at
nuclear sites, and threats of nuclear terrorism. Indeed, under this Bill
a person who threatens to use radioactive material in an act of
terrorism will be criminally liable and potentially subject to life
imprisonment. Although criminalizing and punishing offenses may
play a role in preventing nuclear terrorism, it may be far more
important to regulate the nuclear industry than to attempt to deter
terrorists who would use radioactive material. Fortunately, Part VIII
of the Anti-Terrorism, Crime and Security Act, 2001 deals with the
security of the nuclear industry, allowing regulations to be made to
enhance the security of nuclear facilities and creating offenses
concerning the intentional or reckless disclosure of information
prejudicial to the security of such facilities or the enrichment of
49 Canada’s Anti-Terrorism Act does, however, require a three-year review of its
operations and provisions by a committee of Parliament and contains a five-year sunset on the
powers to make preventive arrests and conduct investigative hearings. Because of the
Canadian federal election in early 2006, the three-year review of the Anti-Terrorism Act has
not yet been completed. For background on the debate about the three-year review, see
generally 54 U. NEW BRUNSWICK L.J. 1 (2005) (opinion forum topic “Civil Liberties Post 911”); 51 CRIM. L.Q. 1-126 (2005) (special issue on review of the Anti-Terrorism Act).
50 c. 24.
51 Passage of the Act, however, was not enough to secure the safety of nuclear materials.
Shortly after 9/11, a decision was made to reprocess nuclear fuels at a location that requires
increased movement of nuclear material. A subsequent decision was made to limit air traffic
over that site. See CLIVE WALKER, BLACKSTONE’S GUIDE TO THE ANTI-TERRORISM
LEGISLATION 243, 246 (2002).
52 Terrorism Act, 2006, c. 11, §§ 9-12 (Eng.).
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uranium.53 It also enhances the powers of a specialist nuclear police
force.
Part VII of the 2001 Act deals with the security of pathogens and
toxins and provides a regime for those who keep dangerous
substances to notify the government, and for the government to issue
instructions to those parties regarding safekeeping of and access to
such substances.54 The Act also includes provisions for police entry
into places where dangerous substances are stored, and an appeal
process for those who have been denied access to such materials.55
The police can require holders of such substances to enhance their
security measures.56 Finally, Part IX of the Act deals with aviation
security, including matters such as unauthorized access in airports and
security arrangements for air cargo.57 The point is not that these
measures are necessarily adequate or could not be extended to other
vulnerable sectors such as seaports, but that the United Kingdom’s
post-9/11 legislation did address vulnerable sites and substances while
Canada’s legislation did not. The above preventive measures
contained in the Anti-Terrorism, Crime and Security Act, 2001 were
relatively uncontroversial, especially when compared to measures
such as Part IV, which provided for the indefinite detention of noncitizen terrorist suspects who could not be deported and which was
eventually repealed after the House of Lords found it to be
disproportionate and discriminatory,58 or Part V, which proposed the
creation of an offense of incitement to religious hatred. This proposed
offense was eventually dropped from the law because of concerns
about interference with free speech.59
B.
Emergency Preparedness and All-Risk Security Policies
Another smart security strategy that does not seriously
compromise rights is the development of emergency preparedness
plans that respond not only to the risks of terrorism but also to manmade and natural disasters. The Haddon matrix identified the postevent phase as one in which important steps can be taken to minimize
the harms of traffic accidents, and the same is true for terrorism.
53
54
55
56
57
58
59
Anti-Terrorism, Crime and Security Act, 2001, c. 24, § 62 (Eng.).
Id. c. 24, §§ 58-75.
Id. c. 24, § 65.
Id. c. 24, § 62.
Id. c. 24, §§ 82-88.
A v. Sec’y of State for the Home Dep’t, [2004] UKHL 56, [2005] 2 A.C. 68 (U.K.).
However, provisions for more severe penalties for “religiously aggravated” offenses
were included in section 39 of the Anti-Terrorism, Crime and Security Act, 2001.
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Indeed, it has been estimated that more people could die in traffic
accidents fleeing a major city after a terrorist dirty bomb than would
be actually killed by the bomb.60 The difficulties in evacuating people
from the 2005 Gulf Coast hurricanes underlines the importance of
emergency preparedness as a smart all-risk security strategy.
Canada’s first formal national security policy, Securing an Open
Society: Canada’s National Security Policy,61 released in April 2004,
features emergency preparedness as one of its main themes. The
policy embraces an all-risks approach which recognizes that “the
threats we face are not limited to terrorism. The SARS (severe acute
respiratory syndrome) outbreak demonstrated the power of
individuals to unintentionally transmit threats around the globe at the
speed of air travel.”62 The Policy goes on to identify natural disasters,
critical infrastructure vulnerability, and pandemics as threats to
Canada’s national security.63 The official policy devotes two of its
eight chapters to emergency planning. In the first year its new
national security policy operated, the government of Canada
established a government-wide operations center, an integrated threat
assessment center, a cyber incident response center, and a new public
health center with a national public health officer. It also held the first
meeting of all federal, provincial, and territorial ministers responsible
for emergency preparedness and established a detailed national work
plan for emergencies.64 An all-risk approach encourages a rational
allocation of resources to the broad range of threats to human security,
and it fights the tendency to focus attention on dramatic acts of
terrorism without adequate regard to their probability of occurrence or
the magnitude of harm they would cause.65
Like the American Homeland Security approach, the Canadian
approach involves many departments of government. One difference
in the Canadian all-risks approach is that not all departments are
asked to focus on the risk of terrorism.66 For example, health
60
61
62
ALLISON, supra note 29, at 59.
CANADA PRIVY COUNCIL OFFICE, supra note 18.
Id. at 1. Outside of Asia, where the disease originated, Toronto was the place most
affected by SARS, with forty-four deaths attributed to the virus. See NAT’L ADVISORY COMM.
ON SARS AND PUB. HEALTH, LEARNING FROM SARS—RENEWAL OF PUBLIC HEALTH IN
CANADA 18 (2003), available at http://www.phac-aspc.gc.ca/publicat/sars-sras/naylor/
(relating emergency preparedness to terrorism and infectious diseases).
63 CANADA PRIVY COUNCIL OFFICE, supra note 18, at 1.
64 CANADA PRIVY COUNCIL OFFICE, SECURING AN OPEN SOCIETY: ONE YEAR LATER
(2005).
65 Cass R. Sunstein, Terrorism and Probability Neglect, 26 J. RISK & UNCERTAINTY 121
(2003).
66 Whitaker, supra note 17. Canada’s all-risk approach can be contrasted with the
American Homeland Security strategy’s single-minded purpose, which is “to mobilize and
organize our Nation to secure the U.S. homeland from terrorist attacks.” OFFICE FOR
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departments do not necessarily have to reallocate resources to
biological and chemical terrorism if they can demonstrate that a
pandemic is more likely to occur and will cause greater damage. A
terrorism-focused approach such as that which drove Canada’s 2001
Security Budget focused on policing, intelligence, aviation security,
and border controls. Although 9/11 had revealed vulnerabilities in all
these sectors, the 2001 Security Budget ran the danger of fighting the
last war.67 In contrast, an all-risk approach allows each and every
department of government to imagine what the next threat to security
will be and to pursue the most effective means of prevention.
Another virtue of the all-risk approach is that it tends to rely on
less coercive policy instruments than does a single-minded focus on
terrorism. Much of the regulation contemplated in the 2004 national
security plan involved administrative regulation designed to enhance
public health, transport security, and border security. The all-risk
approach focuses on preventing and minimizing harms whether they
are caused intentionally or accidentally. The new national security
policy envisions the use of a greater range of policy instruments than
Canada’s initial response to September 11, which focused on the
enacting new criminal laws and enhancing police powers.
Canada also has expanded its Solicitor General’s department,
which has responsibilities for national security policing and
intelligence, into a new Department of Public Safety and Emergency
Preparedness. Although not nearly as massive as the United States
Department of Homeland Security, the new Canadian department has
been given new responsibilities for both a Canadian Border Service
Agency (previously in the Ministry of Citizenship and Immigration)
and the Office of Critical Infrastructure Protection (previously in the
Department of Defence). It also contains a new Integrated Threats
Assessment Centre.
Emergency preparedness is a particular challenge for federal
countries given the difficulties of coordinating various levels of
governments to respond quickly to an emergency. The new
Department of Public Safety and Emergency Preparedness Act68
recognizes that security and emergency preparedness in Canada
deeply implicates matters within provincial and local jurisdictions. It
requires the Minister “with due regard to the powers conferred on the
provinces and territories” to “initiate, recommend, coordinate,
implement or promote . . . projects relating to public safety and
HOMELAND SECURITY, NATIONAL STRATEGY FOR HOMELAND SECURITY 1 (2002), available at
http://www.dhs.gov/interweb/assetlibrary/nat_strat_hls.pdf.
67 On the security budget, see ROACH, supra note 11, at 190-91.
68 Department of Public Safety and Emergency Preparedness Act, 2005 S.C., ch. 10 (Can.).
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TRADING RIGHTS FOR SECURITY?
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emergency preparedness.”69 This power is also backed up with
formal recognition of the federal spending power to make grants and
contributions.70 The new Ministry suggests that Canada’s federal
government recognizes that effective implementation of an all-risk
national security policy will require cooperation and coordination
with all levels of government.
Canada has made a conscious decision to integrate the threat of
terrorism with other threats to human security and has devoted
considerable attention to emergency preparedness as a smart security
strategy. The new federal focus on emergency preparedness and an
all-risk security policy does not, of course, guarantee its effective
implementation, and concerns have been expressed about Canada’s
readiness for a major natural or man-made disaster. Indeed, both a
Senate Committee and the Auditor General of Canada have issued
scathing reports about Canada’s preparedness for an emergency and
the implementation of its security plans.71 As will be suggested in the
next part of this article, these reports underline the positive
contributions that independent review can make to the effectiveness
of security policies.
C.
Effective Review of National Security Activities
There is an unfortunate tendency to think of review as something
that may inhibit the state’s ability to take creative and proactive
actions with respect to national security. To be sure, review of
complaints and self-initiated audits can reveal instances of agencies
engaging in improper and illegal activities. At the same time,
however, review will occur not only when an agency acts, but also
when it fails to act. A recent review that was undertaken in relation to
the 1985 terrorist bombing of Air India focused as much on what was
not done with respect to the translation and retention of wiretap
evidence and co-ordination between police and intelligence agencies
as what was done.72 Review mechanisms can help improve
deficiencies in procedures that may have contributed to the failure to
apprehend terrorists or to minimize harms from terrorism.
69
70
71
72
Id. § 6(a).
Id. § 6(c).
Whitaker, supra note 17.
BOB RAE, LESSONS TO BE LEARNED: THE REPORT OF THE HONORABLE BOB RAE,
INDEPENDENT ADVISOR TO THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS,
ON OUTSTANDING QUESTIONS IN RELATION TO THE BOMBING OF AIR INDIA FLIGHT 182 (2005).
See infra Part IV for further discussion.
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Review is especially important given the secrecy of many
national security activities. The normal checks and balances of
legislative and judicial review and a free press often may not be
available.
In some cases, only independent reviewers with
appropriate security clearances will be in a position to evaluate the
propriety or effectiveness of anti-terrorism policies. An independent
review body may also be a very credible and effective body to
determine whether the resources given to security agencies are
adequate for them to fulfill their important mandates. Even when a
review body focuses on improprieties, it may also improve the
effectiveness of the agency being reviewed. For example, a security
intelligence agency that strays from its mandate by, for example,
investigating lawful dissent is not only acting improperly, but also
misallocating its resources. Extensive data mining and electronic
surveillance may not only invade privacy, but also produce massive
amounts of information that is not useful because it cannot be
translated or analyzed. The knowledge that their activities are subject
to review can improve and sharpen the state’s security activities.
Even the much maligned USA PATRIOT Act73 contained a
provision that directed the Department of Justice’s Inspector General
to devote increased resources to complaints about abuses of civil
liberties and to submit semi-annual reports to Congress. In contrast,
Canada’s Anti-Terrorism Act74 contained no enhanced powers and
resources for review of new powers given to the police. This
omission caused the then-Chair of the Commission of Public
Complaints against the Royal Canadian Mounted Police (RCMP) to
state publicly that she did not have adequate powers to review the
RCMP’s national security activities.75 The Security Intelligence
Review Commission (SIRC), which reviews the activities of the
Canadian Security Intelligence Service (CSIS), has also complained
that it does not have the power to monitor CSIS’s contribution to the
process of listing terrorist groups under Canada’s Anti-Terrorism
Act.76 The independent Privacy Commissioner of Canada has also
raised concerns that she may not have the necessary legal powers or
resources to review incursions on privacy caused by new anti73
74
H.R. 3162, 107th Cong. § 1001 (2001).
2001 S.C., ch. 41 (Can.). This law did recognize the jurisdiction of the Commissioner of
the Communication Security Establishment to review the legality of intercepts by the
Establishment, which is Canada’s signals intelligence agency. Id. pt. 5. The Canadian system
is based on Ministerial as opposed to judicial authorization of foreign intercepts. Id.
75 Shirley Heafey, Civilian Oversight in a Changed World, in TERRORISM LAW AND
DEMOCRACY: HOW IS CANADA CHANGING FOLLOWING SEPTEMBER 11? (David Daubney ed.,
2002).
76 SEC. INTELLIGENCE REVIEW COMM., ANNUAL REPORT 2004-2005, at viii (2005).
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TRADING RIGHTS FOR SECURITY?
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terrorism powers including the increased emphasis on information
sharing.77
The government of Canada in recent years has demonstrated
increased interest in review of national security activities. Its 2004
National Security Policy states that while security and intelligence
activities expand, “it is vitally important that we ensure that review
mechanisms keep pace.”78 To this end, the government has proposed
“to create an arm’s-length review mechanism for the RCMP’s
activities relating to national security.”79 In 2004, the Canadian
government appointed a public inquiry headed by a respected judge
with a mandate to explore and report on the activities of Canadian
officials with respect to the rendition of Maher Arar, a Canadian
citizen born in Syria, who was held in the United States and rendered
to Syria where he was detained for ten and a half months. The
Commission has heard one hundred twenty seven days of testimony
from eighty five witnesses, including those in CSIS, the RCMP, and
the Department of Foreign Affairs, in both in camera and public
sessions. It has made public 2,461 documents from a broad range of
government agencies concerned with national security.
The
Commission’s work, which will culminate in the release of a public
report later in 2006, has increased awareness of the international
dimensions of terrorism investigations and the vulnerability of
Canadians who have dual citizenship with countries such as Syria.80
This inquiry also has a mandate to make recommendations about an
independent review mechanism for the national security activities of
the RCMP. The Commission has completed a research project
examining the nature of national security activities and a broad range
of review mechanisms in Canada and abroad. It has issued a
consultation paper that outlines a variety of options ranging from
enhancing the powers of the Commission for Public Complaints
77 PRIVACY COMM’R OF CANADA, POSITION STATEMENT ON THE ANTI-TERRORISM ACT (May
9, 2005), available at http://www.privcom.gc.ca/media/nr-c/2005/ata_050509_e.asp.
78 CANADA PRIVY COUNCIL OFFICE, supra note 18, at 19.
79 Id.
80 See generally Arar Commission, www.ararcommission.ca (last visited Mar. 10, 2006).
Note, however, that the United Nations Human Rights Committee has expressed concerns that
inquiries may not be conducted with respect to other Canadians held abroad, and has
recommended that
[t]he State party should ensure that a public and independent inquiry review all
cases of Canadian citizens who are suspected terrorists or suspected to be in
possession of information in relation to terrorism, and who have been detained in
countries where it is feared that they have undergone or may undergo torture and illtreatment. Such inquiry should determine whether Canadian officials have directly
or indirectly facilitated or tolerated their arrest and imprisonment.
U.N. Human Rights Comm., Concluding Observations of the Human Rights Committee, U.N.
Doc. CCPR/C/Can/CO/5 (Nov. 2, 2005).
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Against the RCMP to expanding the jurisdiction of the Security
Intelligence Review Committee (which reviews and audits the CSIS)
to include the RCMP, to creating a new agency to review all federal
activities with regard to national security.81 It remains to be seen
what the Arar Commission will recommend and how the government
will respond to its recommendations. Nevertheless, it is an important
and positive sign that that the government has accepted the principle
that independent review should occur and that it should keep pace
with the changing nature of national security activities.
Another important development with respect to review in Canada
is the government’s commitment to create a National Security
Committee of Parliamentarians.
An Interim Committee of
Parliamentarians carried out research on this subject and
recommended a joint committee that, unlike present committees,
would have access to secret national security information. The
proposed committee would review not just one agency but “all present
and future agencies, departments and review bodies, civilian and
military, involved in the collection, analysis, and dissemination of
intelligence for the purpose of Canada’s national security.”82 As
originally suggested by the McDonald Commission into RCMP
activities,83 the proposed committee of elected Members of
Parliament and appointed Senators would be concerned with security
priorities and capacities, as well as the propriety and legality of
security activities. In April, 2005, the government accepted that a
new committee should review the “ability of departments and
agencies engaged in security and intelligence activities to fulfill their
responsibilities,”
including
identifying
“required
ongoing
improvements to the effectiveness of Canada’s national security
system.”84
A committee of Parliamentarians with access to classified
information follows best international practice, but it will be
81 COMM’N OF INQUIRY INTO THE ACTIONS OF CANADIAN OFFICIALS IN RELATION TO
MAHER ARAR, POLICY REVIEW: CONSULTATION PAPER (2004), available at
http://www.ararcommission.ca/eng/15.htm.
82 INTERIM COMM. OF PARLIAMENTARIANS ON NAT’L SEC., REPORT OF THE INTERIM
COMMITTEE OF PARLIAMENTARIANS ON NATIONAL SECURITY 12 (2004), available at
http://www.pco-bcp.gc.ca/docs/Publications/cpns/01-cov-e.htm.
83 The McDonald Commission suggested that a joint Parliamentary committee “should be
as much concerned with the effectiveness of the security intelligence organization as with the
legality and propriety if its operations.” MCDONALD COMM’N, FREEDOM AND SECURITY
UNDER THE LAW 899 (1981); see also A. Stuart Farson, In Crisis and In Flux?: Politics,
Parliament and Canada’s Intelligence Policy, 16 J. CONFLICT STUD. 30, 30-56 (1997).
84 Press Release, Office of the Deputy Prime Minister & Minister of Pub. Safety and
Emergency Preparedness, Model for National Security Committee of Parliamentarians (Apr. 4,
2005), available at http://www.psepc-sppcc.gc.ca/media/nr/2005/nr20050404-1-en.asp.
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TRADING RIGHTS FOR SECURITY?
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revolutionary in Canadian politics. To its credit, the government
seems prepared to mandate that the committee review not only
Canada’s widespread intelligence activities but also broader questions
of the effectiveness of its national security policy. The proposed
committee is also remarkable because, unlike existing review bodies,
it will have jurisdiction over all of the government’s increasingly
integrated and widespread security activities.85 This is an important
mirror to the comprehensive nature of Canada’s all-risk security
policy, which involves multiple institutions and departments and is
also reflected in the Arar Commission’s mandate to examine the
activities of all Canadian officials in relation to the matter.
In November 2005, a bill was introduced in Parliament that
would give a committee of Members of Parliament and Senators
bound to secrecy the ability to review a broad range of all national
security activities, including the national security activities of all
federal departments and agencies, and the legislative, regulatory,
policy, and administrative framework of those activities. At the same
time, the Bill contemplates that responsible Ministers would have
wide discretion to deny the committee access to information for a
range of reasons related to national security confidentiality, attorney
client privileges, and ongoing criminal investigations.86 Such a
discretion could deprive the committee of vital information and
compromise its effectiveness as a review body. Effective review, like
effective security, will require access to information including
information that, if released, might harm national security and
relations with allies. The ability of Ministers to deny information to
the proposed committee may be related to concerns about the
reliability of the Members of Parliament and Senators who may sit on
the committee, but it discounts the fact that they would be subject to
criminal prosecution for any leaks of information.
A series of independent reviews are also required in the United
Kingdom with respect to anti-terrorism laws. Lord Carlile has been
given a mandate to make independent reports on the operation of the
Terrorism Act, 2000,87 as well as the Prevention of Terrorism Act,
2005.88 He has access to classified information in making these
reports. There also have been independent reviews of the Anti85 Reg Whitaker, Designing a Balance Between Freedom and Security, in IDEAS IN
ACTION: ESSAYS ON POLITICS AND LAW IN HONOUR OF PETER RUSSELL 141, 144-45 (Joseph F.
Fletcher ed., 1999).
86 National Security Committee of Parliamentarians Act, 2005, Bill [C-81] §§ 13-14 (Can.)
(setting out mandate of the committee and affirming the discretion of Ministers to deny the
committee information).
87 c. 11.
88 c. 2, § 14(3), (5).
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Terrorism, Crime and Security Act, 2001 conducted by Privy
Councillors. Despite initial attempts to delay its investigation, a new
Independent Police Complaints Commission is presently investigating
the killing of Jean Charles de Menezes after he was mistaken by the
police for a possible suicide bomber and killed by them in a London
subway station.89
Independent reviews of both legislation and police actions have
the potential to provide increased accountability for national security
activities. In national security cases, it will be important for
independent reviewers to have access to information that cannot be
revealed to the public for reasons related to national security
confidentiality. In addition, review may be important in dispelling
suspicion and cynicism that may develop with respect to the
government’s national security activities, particularly among those
who may fear that they will be unfairly targeted by such activities.
Widespread public suspicion about national security activities could
eventually compromise the effectiveness of security activities.
The above analysis has suggested that some of the most
promising security strategies do not threaten rights. Canada’s all-risk
national security policy does not focus exclusively on terrorism and it
includes emergency preparedness as a key all-risk strategy. The least
controversial parts of Canada’s 2004 Public Safety Act and Britain’s
Anti-Terrorism, Crime and Security Act, 2001 focus on administrative
regulation of sites and substances that are vulnerable to terrorism,
including nuclear material. Independent review of national security
activities can both respond to rights violations and monitor the
effectiveness of various national security activities.
II. HARSH SECURITY STRATEGIES THAT INFRINGE RIGHTS WITHOUT
PROTECTING SECURITY
Much popular and even academic debate about anti-terrorism
law and policy addresses the important question of how far
democracies can go in their fight against terrorism. The orientation of
this debate is in part related to the need to respond to far-reaching
anti-terrorism proposals by governments such as the Terrorism Act,
2006,90 first introduced in the British Parliament in October 2005 in
response to the London bombings of July of that year. Much of this
debate is necessary and healthy, but as suggested in the introduction
89
90
Police Reform Act, 2002, c. 30, pt. 2 (Eng.).
Terrorism Act, 2006, c. 11, §§ 9-12 (Eng.).
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to this Article, proper assessment of the proportionality of antiterrorism measures requires calm assessment of the effectiveness of
each measure. If a measure is not rationally connected to the aim of
preventing terrorism91 or if there are alternative means to prevent
terrorism while infringing rights less, the measure should be rejected
as a disproportionate response to terrorism. In addition, some sense
of the overall effectiveness of each measure is necessary in order to
compare the good achieved by the measure against the harms caused
to rights and freedoms. In what follows, I will examine whether some
of the harshest and most controversial anti-terrorism measures are
likely to be effective in preventing terrorism. This analysis is not
meant to displace more overtly normative analysis but to supplement
such analysis. If many harsh measures are ineffective in the sense of
not being rationally connected to their goals, or if less drastic
alternatives will clearly be as effective, it may not even be necessary
to determine the overall balance that should be struck between rights
and security.
A.
Overbroad Definitions of Terrorism
A common feature of post-9/11 anti-terrorism laws has been very
broad definitions of terrorism that go beyond the murder and maiming
of civilians. This trend started with the United Kingdom’s Terrorism
Act, 2000, which served as a template for much post-9/11 legislation,
especially in Commonwealth countries. Section 1 of the Terrorism
Act, 2006 defines as terrorism actions involving not only serious
violence or danger to life, health, or safety, but also actions involving
serious damage to property and serious interferences with an
electronic system if they are “designed to influence the government or
to intimidate the public or a section of a public, and the use or threat is
made for the purpose of advancing a political, religious or ideological
cause.”92 The law defines governments and public to include those
from a foreign country.93 Andrew Ashworth has criticized this
definition of terrorism as “elastic” and as blurring the distinction
The broad British
between organized crime and terrorism.94
91 For a discussion of the importance of defining the objective of laws narrowly and
precisely in proportionality analysis, and a rejection of the vague concept of national security
as the objective of anti-terrorism legislation, see Re Application under Section 83.28 of the
Criminal Code, [2004] 2 S.C.R. 248 ¶¶ 39-40.
92 Terrorism Act, 2000, c. 11, § 1(1)(b) (U.K.).
93 Id. c. 11, § 1(2). Section 34 of the Terrorism Act, 2006 proposes a minor change by
adding attempts to influence international organizations to this definition.
94 ANDREW ASHWORTH, HUMAN RIGHTS, SERIOUS CRIME AND CRIMINAL PROCEDURE 30
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definition of terrorism also misses the point that post-9/11 terrorism
has been directed toward the murder and maiming of civilians and not
the destruction of property or the disruptions of electronic systems.
The definition of terrorist activities in Canada’s Anti-Terrorism
Act is quite similar to the broad British definition. With respect to
property damage, however, the Canadian law is more restrained
because it only applies to politically or religiously motivated serious
damage to property “if causing such damage is likely to result in”
harm or conduct that causes death or serious bodily injury, endangers
a person’s life, or causes a serious risk to public health or safety.95
The more restrained Canadian approach to property damage might
exclude groups such as extreme elements of the animal rights or
environmental movements that engage in politically motivated
property destruction. Does the Canadian approach sacrifice security?
The modern danger of terrorism comes from what former Canadian
Minister of Justice Irwin Cotler calls “the slaughter of the
innocents”96 and not from those protesters who would damage
property or disrupt services in a manner that does not endanger life,
health, or safety. My point is not that protesters who violate the law
or destroy property should not be prosecuted under the ordinary
criminal law, but only that they should not be subject to the
extraordinary investigative powers and special punishments that are
available for terrorism crimes.
In one respect, the Canadian definition of terrorism is more
expansive than the British definition. The Canadian definition
replaces serious disruptions of an electronic system with the broader
concept of serious disruptions of any essential public or private
service, facility, or system.97 As originally introduced, the Canadian
provision was subject to an exemption for lawful protests and strikes,
but after unions, Aboriginal groups, and others expressed concerns
that illegal strikes and blockades might fall under the definition of
terrorism, the government agreed to delete the qualifying word
“lawful.”98 The exemption for protests and strikes now applies unless
(2003).
95 Canada Criminal Code, R.S.C., ch. C-46, § 83.01(b)(ii)(D) (1985).
96 Irwin Cotler, Principles of the Anti-Terrorism Act Review, 54 U. NEW BRUNSWICK L.J.
137, 137 (2005). Cotler has made influential arguments that modern terrorism should be
conceived as a threat to human rights. See also Irwin Cotler, Terrorism, Security and Rights:
The Dilemma of Democracies, 14 NAT’L J. CONST. L. 13 (2002).
97 The Canadian definition also applies to attempts to compel persons, which may include
corporations. For criticisms, see Kent Roach, Ten Ways to Improve Canadian Anti-Terrorism
Law, 51 CRIM. L.Q. 102, 102-05 (2005).
98 Anti-Terrorism Act, 2001, Bill [C-36] § 83.01(1)(b)(ii)(E) (Can.). For criticism of the
requirement that protests must be lawful, see David Schneiderman & Brenda Cossman,
Political Association and the Anti-Terrorism Bill, in THE SECURITY OF FREEDOM: ESSAYS ON
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the protest or strike is intended to cause death or serious bodily harm,
or endanger life, public health or safety.99 These amendments
undoubtedly advanced freedom of expression and freedom to
protest.100 At the same time, however, they did not sacrifice
legitimate security interests given that unlawful strikes and protests do
not amount to a compelling security threat in a world in which planes,
trains, and other crowded places are bombed. It is not in Canada’s
own security interests to return to the days in which the RCMP
investigated radical but non-violent political movements because of
the reality of limited resources and greater threats.101
More minimal definitions of terrorism could be used in both
British and Canadian anti-terrorism law without sacrificing security.
In 2002, the Supreme Court of Canada read a minimal definition of
terrorism into an undefined reference to terrorism in Canadian
immigration law.102
This definition was taken in part from
international law and is quite close to universal definitions of
terrorism proposed by the United Nations. It defines terrorism as acts
intended to cause death or serious bodily injury to a civilian in order
to intimidate a population or compel a government or an international
organization to act. As the Supreme Court noted, “this definition
catches the essence of what the world understands by ‘terrorism.’”103
Unlike the definition of terrorism found in Canada’s Anti-Terrorism
Act or Britain’s Terrorism Act, 2000, this definition does not include
any form of property damage or disruptions of essential services or
electronic systems, nor does it require proof of political or religious
motive.104 This limited definition of terrorism minimizes the chances
CANADA’S ANTI-TERRORISM BILL, supra note 35, at 173, 176-81.
99 Canada Criminal Code, R.S.C., ch. C-46, § 83.01(1)(a)(ii)(E) (1985).
100 Concerns remain that some strikes could be interpreted as terrorism if they involve an
intention to cause a serious risk to health or safety, and that some expressions of political or
religious opinion could satisfy a definition of terrorism that includes threats to commit
terrorism.
101 In the aftermath of the 1970 October Crisis, in which two cells of a terrorist group
committed to the separation of Quebec from Canada kidnapped two political officials and
murdered one of them, the RCMP increased its anti-terrorism activities. A subsequent inquiry
found that some of the RCMP’s actions were not authorized by law and were aimed at nonviolent dissenters. See MCDONALD COMM’N, supra note 83.
102 Suresh v. Canada, [2002] 1 S.C.R. 3.
103 Id. ¶ 98.
104 For arguments that the requirement of political or religious motive is not necessary to
distinguish terrorism from other crimes, and that it will require police and prosecutors to
collect and introduce evidence that may cause prejudice to the accused without advancing the
case that the accused acted on wide spread political and religious motives, see Kent Roach,
The Three Year Review of Canada’s Anti-Terrorism Act: The Need for Greater Restraint, and
Fairness, Non-Discrimination and Special Advocates, 54 U. NEW BRUNSWICK L.J. 308, 314-16
(2005). For a defense of the political and religious motive requirement as necessary to
distinguish terrorism from other crimes, see Stanley A. Cohen, Law in a Fearful Society: How
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that Aboriginal protesters, anti-globalization protesters, and the
animal rights movement will be investigated as terrorist suspects. A
minimal definition of terrorism that focuses on death and injury to
humans can be defended both on the normative basis that it minimizes
targeting dissent and on the practical basis that it guards against the
misallocation of scarce investigative resources on dissenters.
Defining the completed crime of terrorism in a minimal manner
to focus on harm to life and limb does not mean that the state cannot
intervene until that harm is actually realized. Canada’s definition of
terrorist activities “includes a conspiracy, attempt, or threat to commit
any such action or omission,” as well as counseling the commission of
completed acts.105 Britain’s definition of terrorism also includes
either a use or “a threat of action” to commit the proscribed harms.106
In addition, both anti-terrorism acts prohibit various forms of
preparation to commit terrorist activities. In Britain, these offenses
include membership in a terrorist group, terrorist fundraising,
possession of funds for terrorism, weapons training, directing a
terrorist organization, possession of material in connection with
terrorism, and collection of information to prepare for terrorism.107
The Terrorism Act, 2006, introduced into the UK Parliament in
October 2005, adds to this list new offenses relating to preparation
and training for terrorism as well as new offenses involving
possession of nuclear material and trespass at nuclear sites.108 The
Canadian law also criminalizes many specific acts of preparation for
terrorism including various forms of terrorism financing, participating
in a terrorist group, facilitating a terrorist activity, committing an
offense for a terrorist group, and instructing a terrorist group.109 So
long as various forms of preparation to commit terrorist acts are
criminalized, the completed act of terrorism can be defined in a fairly
restrictive manner without compromising security.
B.
Regulation of Speech Associated with Terrorism
Security Council Resolution 1624, adopted on September 14,
2005, calls upon all states to take steps to prevent incitement to
commit terrorist acts.110 The resolution, which was sponsored by the
Much Security?, 54 U. NEW BRUNSWICK L.J. 143, 158 (2005).
105 Canada Criminal Code, R.S.C., ch. C-46, § 83.01(1)(a)(ii)(E) (1985).
106 Terrorism Act, 2000, c. 11, § 1 (U.K.).
107 Id. §§ 11, 15-16, 54-55, 57-58.
108 Terrorism Act, 2006, §§ 5, 6, 9-12 (Eng.).
109 Canada Criminal Code, R.S.C., ch. C-46, §§ 83.02-83.04, 83.18-83.28 (1985).
110 S.C. Res. 1624, U.N. Doc. S/RES/1624 (Sept. 14, 2005).
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British government, declares that states have “obligations under
international law to counter incitement of terrorist acts motivated by
extremism and intolerance and to prevent the subversion of
educational, cultural and religious institutions by terrorists and their
supporters.”111 As will be seen, the British government has enacted a
controversial new offense to prohibit speech that directly or indirectly
encourages terrorism.112 Australia has also enacted new laws against
sedition that would include as sedition some forms of incitement to
terrorism, and would allow organizations that advocate terrorism to be
prohibited as terrorist groups.113 It remains to be seen whether
Canada’s newly elected Conservative government will follow this
new trend in anti-terrorism law by enacting new laws against speech
associated with terrorism.114 When evaluating the proportionality of
laws against terrorist speech, it is particularly important to be precise
about the objectives of the law. In the following sections, I will
assume that the objective of laws against incitement or advocacy of
terrorism is the prevention of terrorism,115 even though other
objectives such as the denunciation of terrorism or the punishment of
hate speech also might be invoked.
In its focus on speech and extremism, Security Council
Resolution 1624 seems to be motivated by Karl Lowenstein’s theory
of militant democracy, which suggests that democracies need to be
more aggressive toward those who do not believe in democracy.116
Resolution 1624 also calls on states “to continue dialogue and
broaden understanding among civilizations, in an effort to prevent the
indiscriminate targeting of different religions and cultures.”
Unfortunately, targeting what state officials consider “extremist”
speech that incites terrorism could inhibit intercultural dialogue,
particularly if groups believe that some members of their community
either have been or may in the future be unfairly stigmatized as
supporting terrorism. Some Muslims and other minority communities
may express understanding and even sympathy for acts of terrorism
committed in foreign lands without actively aiding the commission of
violent acts. The criminalization of speech is a problematic anti111
112
113
114
Id.
Terrorism Act, 2006, §§ 5, 6, 9-12 (Eng.).
Anti-Terrorism Act (No. 2), 2005, scheds. 1, 7 (Austl.).
On the concept of trends in anti-terrorism laws, see Kent Roach, Sources and Trends in
Post 9/11 Anti-Terrorism Law, in SECURITY AND HUMAN RIGHTS (Benjamin Goold & Liora
Lazarus eds, forthcoming).
115 Re Application Under Section 83.28 of the Criminal Code, [2004] 2 S.C.R. 248, ¶¶ 3940 (defining the purpose of Canada’s Anti-Terrorism Act as the prevention of terrorism, as
opposed to the larger, vaguer objective of national security).
116 Karl Lowenstein, Militant Democracy and Fundamental Rights, 31 AM. POL. SCI. REV.
417, 638 (1937). See generally MILITANT DEMOCRACY (Andras Sajo ed., 2004).
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terrorism strategy because it burdens freedom of expression without
necessarily punishing those who would provide assistance for acts of
terrorism. Criminal prosecutions of speech that advocates terrorism
blur the distinction between ideas and actions. They may also be a
counterproductive anti-terrorism strategy if they confirm and broaden
false perceptions that the present war against terrorism is a war
against Islam.
The Canadian approach to criminalizing speech associated with
terrorism has been relatively cautious so far. In response to concerns
that including political or religious motive as part of the definition of
terrorist activities would target those who may share religious and
political opinions with terrorists, Canada amended its 2001 AntiTerrorism Bill to provide that “for greater certainty, the expression of
a political, religious, or ideological thought, belief or opinion” will
not constitute a terrorist activity unless the expression satisfies the
other definition of terrorist activities.117 Although it is possible that
speech that might be considered a threat to commit terrorist activities
may fall under Canada’s definition of terrorism, most extreme speech
will not be prohibited under Canada’s Anti-Terrorism Act. Canada
did, however, increase the ability of the state to seize and remove hate
propaganda from the internet118 and created a new offense of mischief
to religious property.119 Although Canada accepts the criminalization
of hate speech as a reasonable limit on freedom of expression,120 it
has not yet focused on targeting speech related to terrorism. This
does not mean that Canada has done nothing with respect to the
dangers of extremism. It has created a Cross Cultural Roundtable on
National Security Issues, and in the wake of the London bombings,
both Canada’s Public Safety Minister and its Prime Minister met with
Imams, who had agreed to a statement condemning the bombings.121
Smart strategies based on working with prominent Muslims who
condemn terrorism and extremism may be more effective than
divisive prosecutions of extreme speech, especially speech that may
attempt to explain and justify terrorism as opposed to speech that
promotes hatred towards identifiable groups.
117 Canada Criminal Code, R.S.C., ch. C-46, § 83.01(1.1) (1985). This provision is not
found in the British definition of terrorism or in other anti-terrorism legislation based on the
British model in Australia, Hong Kong, or South Africa. See Roach, The Post-9/11 Migration,
supra note 13.
118 Canada Criminal Code, R.S.C., ch. C-46, § 320.1 (1985).
119 Id. ch. C-46, § 430(4.1) (1985).
120 R. v. Keegstra, [1990] 3 S.C.R. 697.
121 After the closed meeting, Prime Minister Martin said “[i]t is very important that the
government respond, to show . . . that we recognize the truth of their statement so we can build
on that statement . . . .” Martin Meets with Imams; Calls for Ongoing Dialogue, GLOBE &
MAIL, July 28, 2005, at A4.
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In contrast to Canada, Britain has an established history of
banning both terrorist groups and speech associated with terrorism.
For example, prohibitions were issued against broadcasting words
spoken by members of proscribed organizations including the Irish
Republic Army, Sinn Fein, and the Ulster Freedom Fighters.122
Attempts to strike down this ban through judicial review were
unsuccessful.123
Britain’s Terrorism Act, 2000 criminalizes
membership or professed membership in a terrorist group,124 as well
as arranging or speaking at a meeting of three or more persons that
will encourage support for a proscribed terrorist group.125 The House
of Lords has held the membership offense to be a proportionate
restriction on freedom of expression simply by concluding that “the
necessity of attacking terrorist organizations is . . . clear” without any
sustained analysis of the proportionality of measures that limit
freedom of association and freedom of speech. In other words, there
was no analysis of whether prohibiting speech associated with
terrorism is rationally connected with preventing terrorism, whether
there are less restrictive alternatives, and whether there is overall
balance between the effects on free expression and the effectiveness
of criminalizing speech in preventing terrorism.126 The European
Court of Human Rights also has upheld, as a reasonable limit on
freedom of speech and association, Turkey’s prohibition of some
Islamic political parties on the basis that their platform of
implementing “sharia,” or Islamic law, is incompatible with the
fundamental principles of democracy.127 Neither Canada nor the
United States has followed the British model of making membership
in a terrorist organization a crime, or of criminalizing speech
associated with terrorism. There seems to be a more libertarian
tradition of respect for expressive and associational freedoms in North
America as compared to Europe.
Section 59 of Britain’s Terrorism Offence, 2000 created a new
offense of soliciting acts of terrorism outside the United Kingdom.
Various soliciting offenses already applied to acts of incitement to
violence within Britain. In 2004, charges of soliciting murder and
racial hatred were laid against Abu Hamza al-Masri, an Islamic leader
122 Geoffrey Bennett, Legislative Responses to Terrorism: A View from Britain, 109 U.
PENN. L. REV. 947, 950-52 (2005); Russell L. Weaver & Geoffrey Bennett, The Northern
Ireland Broadcasting Ban: Some Reflections on Judicial Review, 22 VAND. J. TRANSNAT’L L.
1119 (1989).
123 R. v. Sec’y of State ex parte Brind, [1991] 1 A.C. 696.
124 Terrorism Act, 2000, c. 11 § 11 (U.K.).
125 Id. § 12.
126 Sheldrake v. DPP, [2005] 1 A.C. 264 (H.L.) ¶ 54 (U.K.).
127 Refah Partisi v. Turkey, 37 Eur. H.R. Rep. 1 (2003).
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associated with the Finsbury Park Mosque in North London that had
been attended by both Richard Reid, the attempted shoe bomber, and
Zacarias Moussaoui, who faces charges in relation to 9/11. Hamza
was convicted by a London jury in February 2006 of eleven soliciting
counts and sentenced to seven years imprisonment. His conviction
was for speech that advocated terrorism and not for preparation for
actual acts of terrorism. The British approach of prosecuting Hamza
for speech can be contrasted with the American approach of seeking
to extradite Hamza on charges of hostage-taking and conspiracy.128
Conviction on the basis of speech that supports or advocates terrorism
may produce more lenient sentences than convictions based on
planning or involvement in acts of terrorist violence. Speech-based
prosecutions also run the risk of alienating those who may be in
sympathy with the political or religious ideas expressed in the speech,
but who are not prepared to act on such ideas.
Britain’s Terrorism Act, 2006 takes an even more aggressive
approach with respect to speech that may be associated with
terrorism. A September 13, 2005 draft of the anti-terrorism bill
proposed the creation of an offense subject to the maximum penalty
of five years imprisonment for “glorifying terrorism.”129 The
proposed offense would apply if the statement “glorifies, exalts or
celebrates the commission, preparation or instigation (whether in the
past, in the future or generally) of acts of terrorism.”130 The drafters
clearly contemplated that a person could be guilty of this offense for
celebrating acts of terrorism in the distant past, and provided that the
Secretary of State could enact regulations that permit glorifying
designated acts of terrorism that occurred more than twenty years
before the speech in question. Not surprisingly, given the breadth of
the proposed offense and the Orwellian idea of officially approved
and officially disapproved acts of terrorism, the government retreated
from this proposal before the actual introduction of the Terrorism Act,
2006 in Parliament.
Section 1 of the Terrorism Act, 2006 now merges the previously
proposed offense of glorifying terrorism into an offense of
encouraging terrorism, subject to a maximum penalty of seven years
imprisonment. This offence applies to “a statement that is likely to be
128 Don Van Natta, Jr., Cleric Convicted of Stirring Hate, N.Y. TIMES, Feb. 8, 2006, at A1;
see also R. v. El-Faisal, [2004] EWCA (Crim) 456 (Eng.) (affirming a conviction of another
minister of Islam for soliciting murder under section 4 of the Offences Against the Person Act,
1861 and racial hatred under the Public Order Act 1986).
129 A copy of the September 13, 2005 draft is available at The Home Office Security
website
at
http://security.homeoffice.gov.uk/news-and-publications1/publication-search/
legislation-publications/proposed-terrorism-bill (last visited Mar. 12, 2006).
130 Id.
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understood by some or all of the members of the public to whom it is
published as a direct or indirect encouragement or other inducement
to them to the commission, preparation or instigation of acts of
terrorism . . . .”131 The law then deems that indirect encouragement
includes
every statement which a) glorifies the commission or preparation
(whether in the past, in the future or generally) of such acts or
offenses; and b) is a statement from which those members of the
public could reasonably be expected to infer that what is being
glorified is being glorified as conduct that should be emulated in
existing circumstances.132
The offense clearly targets speech and deems it irrelevant to guilt
“whether any person is in fact encouraged or induced by the statement
to commit, prepare or instigate” any act of terrorism.133 It also targets
speech that advocates terrorism short of violence and speech that
advocates terrorism against repressive regimes in foreign lands.
The law has been certified as compatible with the Human Rights
Act, 1998 by Home Secretary Charles Clarke. The Human Rights
Act, 1998 incorporates Article 10 of the European Convention on
Human Rights, which provides that “everyone has the right to
freedom of expression” including the right to “impart information and
ideas without interference by public authority.”134 This right is
subject to limits that “are prescribed by law and are necessary in a
democratic society in the interests of national security” as well as for
“the prevention of disorder or crime” and for the protection “of the
rights of others.”135 Lord Carlile, the independent reviewer appointed
by the government to review anti-terrorism law, has concluded that
the revised offense of encouraging terrorism
is a proportionate response to the real and present danger of young
radically minded people being persuaded towards terrorism by
apparently authoritative tracts wrapped in a religious or quasireligious context. The balance between the greater public good and
the limitation on the freedom to publish is no more offended by this
proposal than it would be by, say, an instruction manual for credit
card fraud were such to be published. I believe that it is Human
Rights Act compatible.136
131
132
133
134
Terrorism Act, 2006, c. 11, § 1(1) (Eng.).
Id. § 1(3).
Id. § 1(5).
European Convention for the Protection of Human Rights and Fundamental Freedoms,
supra note 6, art. 10.
135 Id.
136 LORD CARLILE, INTERIM REPORT ¶ 23 (Oct. 10, 2005), available at
http://security.homeoffice.gov.uk/news-and-publications1/publication-search/independent-
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Lord Carlile’s conclusion that the offense is a proportionate
restriction on speech is flawed137 in its assumption that the
criminalization of speech that glorifies terrorism is rationally
connected with the legitimate and important objective of preventing
terrorism. He does not explain how criminalizing speech will prevent
“young radically minded people being persuaded towards terrorism”
and he ignores the possibility that prosecuting those who praise acts
of terrorism could result in greater attention and sympathy for their
cause. The causal determinants of terrorism, particularly suicide
terrorism, are complex, and it is simplistic to assume that prosecuting
some speech will prevent terrorism. Lord Carlile’s analogy between
speech that glorifies terrorism and a manual about how to commit a
crime is inapt given that the encouragement offense will catch
impassioned political and religious speech that may praise terrorism,
but gets nowhere near the details about how to commit it.138 Lord
Carlile also does not address a central question in proportionality
analysis, namely whether there are alternative methods of addressing
the objective that do not violate freedom of expression. In this
respect, he neglects that those who glorify terrorism can be criticized
and condemned for their opinions.139 Moreover, those who counsel
reviews/ carlile-review-121005?view=Standard&pubID=241429 (last visited Feb. 26, 2006).
137 The Joint House of Commons and House of Lords Committee on Human Rights has
concluded that the proposed offense is a disproportionate restriction on freedom of expression
because the reference to the glorification of terrorism is too vague to satisfy the requirement
that limits on freedom of expression must be prescribed by law under Article 10 of the
European Convention on Human Rights, and also because the terrorism that is advocated could
include property damage. The Committee also expressed concerns about the lack of any
requirements for a showing of intent to incite terrorism or of a likelihood that the speech will
cause terrorism, as well as the failure to include provisions allowing reasonable excuses or
public interest defenses. HOUSE OF LORDS, HOUSE OF COMMONS JOINT COMM. ON HUMAN
RIGHTS COUNTER-TERRORISM POLICY AND HUMAN RIGHTS, TERRORISM BILL AND RELATED
MATTERS, 2005-06, H.C. 561-I, H.L. 75-I, at ¶ 36 [hereinafter TERRORISM BILL AND RELATED
MATTERS]. The Joint Committee raises valid points concerning the vagueness and overbreadth
of the proposed offense and the lack of public interest defenses. Like Lord Carlile, however,
their report unfortunately fails to deal with the more fundamental question of whether laws
against terrorist speech are a proportionate means to prevent terrorism. For example, the
Committee does not examine whether laws against terrorist speech are rationally connected to
the prevention of terrorism, whether there are less drastic alternatives to offenses against
speech, and whether the overall benefits of new offenses against terrorist speech in preventing
terrorism are greater than their infringement on freedom of expression.
138 On the distinction between advocacy of terrorism and speech that provides information
about how to commit terrorism, see Laura K. Donohue, Terrorist Speech and the Future of
Free Expression, 27 CARDOZO L. REV. 233 (2005).
139 The British government has issued a consultation paper, which proposes that those who
control places of worship could be required by a court order to take steps to stop extremist
behavior in a place of worship. Extremist behavior would be defined as what the police
reasonably believe to be support for a proscribed terrorist organization or encouragement of
terrorism as proposed in the Terrorism Bill. A failure to take reasonable steps to control
extremism would be an offense. HOME OFFICE, PREVENTING EXTREMISM TOGETHER: PLACES
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particular crimes already can be, and have been, successfully
prosecuted for inciting the commission of a crime.140 Lord Carlile
also does not consider the limited effectiveness of the proposed
offense given the sheer amount of information that is distributed in
the modern age. As will be discussed in the next section of this
Article, an important part of proportionality analysis is assessing the
effectiveness of a proposed measure in preventing terrorism.
The British Terrorism Act, 2006 does not stop at offenses of
direct or indirect encouragement of terrorism. Sections 2 and 3 of the
Bill contain a range of broad offenses punishable by up to seven years
imprisonment related to “terrorist publications,” which are defined as
publications that directly or indirectly encourage terrorism as well as
those which are “useful in the commission or preparation” of terrorist
acts and understood as being made available “wholly or mainly for
the purpose of being so useful to them.”141 There is also a provision
for police officers to warn people that a terrorist publication is on their
web sites and give them two days to remove the material.142 Lord
Carlile has concluded that these offenses are a proportionate
restriction on freedom of expression even though he expresses a
concern that researchers into terrorism, including people such as
himself, may fall into the wide net set by the offenses.143 Once again,
he fails to explore whether prohibiting terrorist publications is
rationally connected to stopping terrorism or whether less restrictive
alternatives are available. He also does not distinguish between
publications that may directly or indirectly encourage terrorism and
publications that provide specific information about how to commit
terrorism, even though the latter form of speech seems to be more
directly related to the state’s legitimate and important objective of
stopping terrorism.144
Although the fate of the Terrorism Act, 2006 was in some
doubt,145 it has been enacted into law and UN Security Council
OF WORSHIP ¶¶ 17, 20 (2005), available at http://www.homeoffice.gov.uk/ documents/consprev-extreme/. Lord Carlile rightly notes that this proposal raises many questions concerning
freedom of religion and concludes that it may be unnecessary given the new offenses already
proposed in the Terrorism Bill. LORD CARLILE, supra note 136, ¶¶ 107-09.
140 Although it does not reject the new offense on this basis, the Joint Committee on Human
Rights does note that “in view of the breadth of the offence of solicitation to murder and of
common law incitement, the strict necessity for a new offence might be thought to be
questionable.” TERRORISM BILL AND RELATED MATTERS, supra note 137, ¶ 25. Leaving aside
its own justification, the successful prosecution of Hamza and others under existing incitement
offenses would suggest that new incitement laws may not be required. See supra note 128.
141 Terrorism Act, 2006, c. 11, § 2(3) (Eng.).
142 Id. § 3(3).
143 LORD CARLILE, supra note 136, ¶ 28.
144 Donohue, supra note 138.
145 The provision related to the glorification of terrorism was defeated in the House of
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Resolution 1624 suggests that many countries will now consider
enacting laws targeting speech that is thought to incite or encourage
terrorism. Such laws place an obvious burden on extreme and
unpopular forms of political and religious expression. Given that a
hallmark of liberal democracies is their tolerance of a broad range of
political and religious expression, the burden on states to demonstrate
that restrictions on political and religious speech are reasonable and
proportionate should be quite onerous. Proportionality analysis
should be conducted in a much more rigorous and demanding manner
than demonstrated in Lord Carlile’s interim report on the Terrorism
Act, 2006.
Speech-based crimes are very vulnerable under all elements of
proportionality analysis, especially if the objective of the law is
defined as the prevention of terrorism. It is far from clear that
targeting speech is rationally connected to preventing terrorism. Any
effectiveness of targeting speech that advocates terrorism is likely to
be minimal, especially when compared to the obvious harms caused
to freedom of expression. In addition, there is a broad range of
alternative measures including criminalization of many forms of
preparation for terrorism. The ability of the state to condemn acts of
religious and political extremism without using the heavy hand of the
criminal law should not be ignored. The possibility that terrorist
speech prosecutions could counter-productively result in greater
attention and sympathy for those who glorify terrorism should also
not be dismissed. Targeting terrorist speech is a harsh security
strategy that infringes rights essential to a democracy and is not likely
to be an effective security strategy in preventing terrorism.
C.
Over-Inclusive and Under-Inclusive Profiling Practices
1.
Racial and Religious Profiling
There has been much discussion since 9/11 over the profiling of
groups based on race, religion, or country of origin. Much of this
debate revolves around whether police and intelligence agencies
engage in such practices. Most official agencies deny using these
Lords, but reinstated by a 315-277 vote in the House of Commons. Jenny Booth, Blair Wins
Vote to Reinstate Glorifying Terror Law, TIMES, Feb. 15, 2006, available at
http://www.timesonline.co.uk/article/0,,17129-2041906,00.html. The amendment in the House
of Commons, however, was defeated by a close vote in the House of Lords. Julian Glover,
Surprise New Defeat in Lords on Terror Bill, GUARDIAN, Mar. 1, 2006, available at
http://www.guardian.co.uk/terrorism/story/0,,1720497,00.html; see also Terrorism Act, 2006,
c. 11 (Eng.).
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practices, but some members of Muslim and Arab communities claim
such practices are used. It is important to debate these issues because
equality, like freedom of expression, is one of the defining features of
democracies. At the same time, the fact that racial or religious
profiling is not officially authorized at law has also meant that the
effectiveness and proportionality of such measures have not often
been tested through judicial review.146 This is unfortunate because
considerations of its proportionality would likely lead to the
conclusion that racial or religious profiling is not only morally wrong,
but is also not an effective security strategy.
Canada has an estimated Muslim population of about 600,000
and the United Kingdom has an estimated Muslim population of 1.6
million. Heightened investigation of such large populations would
not be a rational allocation of limited resources, especially given
British intelligence estimates that only one percent of its Muslim
population ever could be potential terrorists.147 In the language of
proportionality analysis, targeting people on the basis of religion or
race is not rationally connected to identifying potential terrorists. In
addition, there are plenty of alternative investigative strategies that
would violate equality rights less, such as focusing on a person’s
travel patterns as opposed to his or her perceived religion or race. In
short, profiling will be dramatically over- and under-inclusive. It will
be over-inclusive by subjecting the vast majority of innocent people in
the group profiled to increased investigation, and under-inclusive by
not examining those who may be terrorists but do not fit the
stereotyped profile and perceptions of investigators.
Racial or religious profiling may also be a counterproductive
security strategy because it will create fear and animosity within
communities that may have information that could assist authorities in
terrorism investigations. People may be unwilling to come forward
with tips if they fear discrimination from state officials. This fear
may not be irrational if knowledge about or association with terrorists
make a person vulnerable to investigation and prosecution under
broad anti-terrorism laws. As part of its new national security policy,
the Canadian government has created a Cross-Cultural Roundtable on
National Security Issues. Undoubtedly, this was done in part to
demonstrate commitment to equality and multiculturalism,148 but it
146 Sujit Choudhry & Kent Roach, Racial and Ethnic Profiling: Statutory Discretion,
Constitutional Remedies and Democratic Accountability, 40 OSGOODE HALL L.J. 1 (2003).
147 This estimate is taken from a memo leaked after the London bombings. Robert Winnett
& David Leppard, Leaked No 10 Dossier Reveals Al Qaeda’s British Recruits, TIMES, July 10,
2005, available at http://www.timesonline.co.uk/article/0,,22989-1688872,00.html (including
copy of leaked memo).
148 Canada has pursued an official policy of multi-culturalism since the early 1970’s, and
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was also done for instrumental reasons. Police and security agencies
may well find it difficult to obtain cooperation from the Muslim
community unless their own commitments against profiling are
clearly communicated. To this end, real questions exist whether a
consultative roundtable will be sufficient. It will also be helpful to
make special efforts to include Muslim and Arab Canadians in police
and security intelligence agencies, both to demonstrate a commitment
to equality and to obtain language skills and knowledge of the
community. Parliament has been asked to amend the Anti-Terrorism
Act to define and prohibit discriminatory profiling in law
enforcement.149 Such a law should not inhibit legitimate security
activities because it would still allow the development of more
nuanced profiles that do not rely on crude and over-inclusive and
under-inclusive categories like race and religion. It would also
provide a meaningful statement of Canada’s commitment to equality.
A commitment to non-discrimination is not only the right thing to do,
but may also be the smart thing to do in structuring an effective antiterrorism agenda.
2.
The Use of Immigration Law as Anti-Terrorism Law
Many countries including Canada and the United Kingdom have
relied extensively on immigration law as a means to detain suspected
terrorists. In Canada, only one person, a Canadian citizen, has been
charged under the Anti-Terrorism Act, while five suspected terrorists
have been detained under security certificates issued under the
Immigration and Refugee Protection Act (IRPA).150 The immigration
law approach to terrorism is questionable from a rights perspective.
Immigration law, as compared to the criminal law, uses much lower
standards of proof and broader standards of liability. Under section
33 of IRPA, a person can be denied admission on security grounds
based on facts “for which there are reasonable grounds to believe that
they have occurred, are occurring or may occur,” a standard lower
section 27 of the Canadian Charter of Rights and Freedoms provides that Charter rights “shall
be interpreted in a manner consistent with the preservation and enhancement of the
multicultural heritage of Canadians.” Constitution Act, 1982, Pt. I, Canada Act, 1982, ch. 11,
§ 27, Sched. B (U.K.). See generally WILL KYMLICKA, FINDING OUR WAY: RETHINKING
ETHNOCULTURAL RELATIONS ON CANADA (1998).
149 Roach, supra note 104, at 322-26.
150 2001 S.C., ch. 10 (Can.). See generally Roach, The World Wide Expansion, supra note
13.
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than even the civil balance of probabilities standard.151 Under section
34 of IRPA, a person may be denied admission on security grounds
not only for engaging in terrorism, but for “being a danger to the
security of Canada” or “being a member of an organization that there
are reasonable grounds to believe engages, has engaged or will
engage” in terrorism or subversion by force of any government.152
Exclusion on the basis of membership is particularly significant in
Canada as a decision was made in drafting the Anti-Terrorism Act not
to follow the British example of criminalizing membership in a
terrorist organization.
In its very first equality rights case, the Supreme Court of
Canada recognized non-citizens as a discrete and insular minority
vulnerable to discrimination;153 unfortunately, the lower standards of
proof and broader liability rules in immigration (as opposed to
criminal law) generally have not been evaluated by either the public
or the courts in the context of the judicial recognition that non-citizens
are a discrete and insular minority that is vulnerable to discrimination.
Rather, the focus in both public and judicial debates often has been on
the idea that non-citizens do not enjoy all the rights of citizens.154
Part IV of Britain’s Anti-Terrorism, Crime and Security Act,
2001 derogated from fair trial rights in order to provide for the
indeterminate detention of non-citizen terrorist suspects who could
not be deported because of concerns that they would be tortured. The
proper treatment of such people raises difficult questions that will be
explored in the next part of this Article. At this juncture, what is
significant is that the House of Lords, in holding that the derogation
was not justified, was heavily influenced by the under-inclusiveness
of anti-terrorism strategies that focus on non-citizens. It stressed that
many terrorist suspects are citizens,155 a fact that was subsequently
and sadly affirmed when the London bombings of July 2005 were
perpetrated by British nationals. The use of immigration law as antiterrorism law may provide terrorist groups with incentives to recruit
citizens, including a second generation of immigrants, to commit acts
of terrorism. In addition, the immigration law shortcut may prevent
investigators and prosecutors from developing the skills and
procedures needed to withstand the rigors of criminal prosecutions
with their demands for full disclosure and proof beyond a reasonable
doubt. This is especially the case in Canada, where there has been
151
152
153
154
155
2001 S.C., ch. 10, § 33.
Id. § 34.
Andrews v. Law Soc’y of B.C., [1989] 1 S.C.R. 149.
Chiarelli v. Canada, [1992] 1 S.C.R. 711; Medovarski v. Canada, [2005] S.C.C. 51.
A v. Sec’y of State for the Home Dep’t, [2004] UKHL 56, [2005] 2 A.C. 68 (U.K.).
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only one ongoing prosecution under the Anti-Terrorism Act, and a
major criminal prosecution in relation to the Air India bombing
resulted in controversial acquittals.156
Another practical flaw in reliance on immigration law is that the
ultimate aim of immigration law is removal, not punishment. The
British regime allowed suspected international terrorists to agree to
leave the country, and the House of Lords raised concerns about the
effectiveness of an anti-terrorism measure that identifies a terrorist
suspect but then allows the suspect to relocate to a neighboring
country such as France. The remedy of removal may displace rather
than stop terrorism. If the person identified as a terrorist suspect is
really a terrorist, a criminal prosecution may not only better respect
that person’s rights, but also provide a more viable long-term solution
to the state’s security needs.
In short, both racial and religious profiling and the extensive use
of immigration law as anti-terrorism law not only challenge equality
rights, but constitute security strategies of limited effectiveness. Such
policies are radically over-inclusive because the vast majority of
people of the Muslim faith, people of Arab origin, and non-citizens
are innocent of any involvement in terrorism and may be needlessly
exposed to heightened investigation based on their status. They are
under-inclusive because they fail to target terrorist suspects who do
not fit the profile, including citizens. The use of immigration law is
also under-inclusive because it is not designed to punish terrorists. As
with security strategies that target speech, profiling based on race,
religion, and lack of citizenship may both violate rights and have
limited effectiveness in preventing terrorism.
III. PROPORTIONATE SECURITY POLICIES
The trade-off or balance between rights and security that is often
posited as part of a democratic struggle against terrorism is
unnecessary in those cases where a democracy can employ smart
security strategies that do not violate rights and in those cases in
which harsh security policies are unlikely to be effective in preventing
terrorism. At the same time, however, tensions between rights and
security do arise. There are no easy answers in these hard cases that
genuinely implicate both rights and security concerns, but
democracies can deal with these issues best through the use of
proportionality analysis. As already suggested in the last part of this
156
R. v. Malik, [2005] B.C.S.C. 350 (Can.).
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Article, proportionality analysis is not a simple matter of declaring a
security strategy to be proportionate or relying on a crude evaluation
of the comparative harms of terrorism and rights infringement.
Rather, proportionality analysis requires detailed and rational thought
about the aims of any proposed security measure, whether there is a
rational connection between those aims and the means employed,
whether there are less drastic or restrictive means available in order to
achieve the aims, and how the measure’s effectiveness compares with
its infringement on rights.157
A.
National Security Confidentiality
Terrorist investigations will frequently involve information that
cannot be disclosed because of concerns about compromising the
sources and methods of ongoing investigations and because the
information was received in confidence from other states or
international organizations. Such information creates a true dilemma
and tension between rights and security. Those who face criminal
charges, immigration detention, the denial of security clearances, and
executive designation as terrorists will be treated unfairly if they do
not have access to the information that has caused the government to
act against them. On the other hand, ongoing investigations,
information sharing, and eventually security may be compromised if
the evidence is disclosed to the affected parties or to the public.
Exchange of information about potential terrorists has been
encouraged both internationally and domestically since 9/11.158 The
dilemmas of national security confidentiality have increased as more
information is collected, stored, and circulated electronically between
governments. Because it raises a genuine conflict between rights and
security, the dilemma of national security confidentiality can be
resolved only through the application of proportionality principles on
a case-by-case basis.
Canadian law deals with national security confidentiality in a
variety of ways.
The Anti-Terrorism Act contemplates that
information obtained from a foreign government or international
organization can be submitted by the government and considered by a
judge in determining whether a decision to list a group as a terrorist
group or withdraw its charitable status is reasonable, even though that
evidence is not disclosed to the affected party. The affected person
157 I thank Dieter Grimm for most useful discussions about proportionality principles and
their usefulness in the national security context.
158 S.C. Res. 1373, supra note 21.
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may receive a summary of the evidence, but only if the information
disclosed in the summary would not injure national security or
endanger the safety of any person.159 A similar summary process is
also used under the Immigration and Refugee Protection Act when a
non-citizen is detained pending deportation under a security
certificate.160 In 1992, the Supreme Court of Canada upheld the
constitutionality of a somewhat similar procedure in previous
legislation, while also stressing the importance of providing the
affected person with a summary of the evidence that is heard in
camera and ex parte.161 In 2002, the Supreme Court upheld similar ex
parte and in camera procedures with respect to requests for the release
of information held by the government under the Privacy Act that
implicated national security. In a judgment written by Louise Arbour,
the Court stressed the importance of Canada keeping the confidence
of its allies because Canada is a net importer of intelligence.162 In
2004, the Federal Court of Appeal recognized that security certificate
procedures “derogate in a significant way from the adversarial process
normally adhered to in criminal and civil matters,” but nevertheless
upheld these procedures as constitutional because “the threat of
terrorism or a threat to national security does not represent or reflect a
situation of normality, at least not in our country.”163 I suggest below
that all of these decisions did not adequately consider less drastic
means to protect national security confidentiality while ensuring as
much fairness as possible to the affected person.
Two broad issues arise from claims of national security
confidentiality. The first is the process of determining whether the
government’s claim of confidentiality is warranted, and the second is
what should be done in cases where the claim is warranted and
relevant evidence cannot be disclosed. With some exceptions,
Canadian law generally allows judges to determine whether the
disclosure of information would adversely affect national security or
result in injuries to others.164 This recognizes that an independent
159 Canada Criminal Code, R.S.C., ch. C-46, § 83.06 (1985); Charities Registration
(Security Information) Act, 2001 S.C., ch. 41, § 6 (Can.).
160 2001 S.C., ch. 10, § 78(g) (Can.).
161 Chiarelli v. Canada, [1992] 1 S.C.R. 711.
162 Ruby v. Canada, [2002] 4 S.C.R. 3 ¶¶ 44-51.
163 Re Charkoui, [2004] 247 D.L.R. (4th) 404 ¶¶ 75, 80 (Can.); see also Almrei v. Canada,
[2005] 251 D.L.R. (4th) 13 ¶ 75 (concluding that disclosing information from foreign sources
to the detainee would cause such sources to “dry up” and could not be Parliament’s intent).
Note that the Supreme Court has granted leave to hear appeals from both these decisions, and
hearings are scheduled to begin in June 2006.
164 Section 38.13 of the Canada Evidence Act allows the Attorney General of Canada to
issue a certificate that blocks court-ordered disclosure of information on national security
grounds.
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judge should make decisions about the scope of national security
confidentiality because it may often be in the government’s interest to
make overbroad claims of secrecy. What the Canadian system often
lacks, however, is an effective adversarial challenge to the
government’s claims of national security confidentiality. To be sure,
the affected parties are able to argue to the judge that evidence should
be disclosed, but their arguments will not be precise or particularly
effective because they are not allowed to see the information that the
government claims cannot be made public or disclosed. Judges may
tend to be risk-averse when the government makes unchallenged
claims that the disclosure of information would threaten lives or the
ability of Canada to receive intelligence from other countries.
The second, even more difficult issue is what should be done in
cases where the judge upholds the claims of national security
confidentiality and the evidence cannot be disclosed to the affected
person. This problem is most acute in security certificate cases in
which a non-citizen suspected of involvement with terrorism is
detained, often for years, as a judge determines the reasonableness of
the security certificate and deportation. The detainee does not have
full access to the government’s case against him, including
intelligence received from foreign sources and the identity of
informers. The information that is not disclosed may involve many of
the hallmarks of miscarriages of justice such as improper procedures
for eyewitness identification, unreliable statements from in-custody
and at-jeopardy informants, and confessions made after the
application of extreme interrogation techniques.165
In Charkaoui v. Canada, the Federal Court of Appeal upheld the
security certificate process on the basis that government lawyers had a
duty to present all the evidence in the closed ex parte proceedings and
the presiding judge had special expertise in challenging the
government’s case.166 Judges in Canada, however, are not trained to
be expert investigators and inquisitors. One judge of the specialized
court that hears immigration cases has argued that the judges on that
court miss the “security blanket” of the adversarial system. He has
even made the extraordinary confession that the system of ex parte
presentation of secret intelligence made him as a judge feel like a “fig
leaf.”167
165 See Roach & Trotter, supra note 3. For a recognition of problems with evidence
obtained through torture, see A v. Sec’y of State for the Home Dep’t, [2005] UKHL 71.
166 Re Charkaoui, [2004] 247 D.L.R. (4th) 404.
167 James K. Huggessen, Watching the Watchers: Democratic Oversight, in TERRORISM
LAW AND DEMOCRACY: HOW IS CANADA CHANGING FOLLOWING SEPTEMBER 11?, supra note
75, at 384-86. On the importance of adversarial challenge, see MICHAEL IGNATIEFF, THE
LESSER EVIL 10 (2004).
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A more proportionate approach to claims of national security
confidentiality has been taken in the United Kingdom. The impetus
for British reforms was a 1996 decision of the European Court of
Human Rights, which held that an immigrant denied access to
information had been denied fair hearing rights.168 In response,
legislation was enacted that allowed the immigration board to appoint
security-cleared special advocates who could both challenge the
government’s claims to national security confidentiality and represent
the interests of the affected person in closed hearings.169 The Federal
Court of Appeal in Charkaoui took note of the British system of
special advocates, but held that the desirability of such a reform was a
matter for Parliament.170 The Court of Appeal’s analysis was flawed
because the availability of less drastic means is a central matter for
judges in determining the proportionality of a measure that violates
the detainee’s right to a fair hearing.171
There are some important design issues in creating a panel of
special advocates. A Parliamentary Committee in the United
Kingdom has raised concerns that special advocates are taken from a
panel of barristers cleared for government work and do not have
adequate support for their work. At least one special advocate has
resigned stating he was a “fig leaf” because he could not
communicate with the affected person after having received the
classified information.172 In many cases, it will be the client who has
the information necessary to challenge the confidential information
and place it in context. This may be particularly true in cases
168 Chahal v. United Kingdom, 23 Eur. H.R. Rep. 413 (1996). Interestingly enough, the
European Court of Human Rights was under the erroneous impression that special advocates
were used before the Canadian courts in immigration cases. At the time, some security
certificate cases were heard by the Security Intelligence Review Committee, and its securitycleared counsel would challenge government claims of national security confidentiality and
cross-examine security intelligence agents when the detainee was excluded from the
proceedings because of national security confidentiality concerns. See Murray Rankin, The
Security Intelligence Review Committee: Reconciling National Security with Procedural
Fairness, 3 CAN. J. ADMIN. L. & PRAC. 173 (1990); Rayner Thwaites, Review of Ministerial
Decisions to Deport on Grounds of National Security in Canada and the UK (2004)
(unpublished LLM thesis, University of Toronto) (on file with author).
169 Special Immigration Appeals Commission Act, 1997, c. 68 (U.K.).
170 Canadian courts reviewing security certificates have been asked to appoint securitycleared special advocates to challenge such evidence, but have refused to do so. Re Harkat,
[2004] F.C. 1716, ¶ 42.
171 Another possible, less drastic alternative is to allow the detainee’s lawyer to obtain a
security clearance, as is sometimes done in the United States. One potential problem with this
approach is distorting the solicitor-client relationship if the lawyer cannot share information
with his or her client. See Re Vancouver Sun, [2004] 2 S.C.R. 332, ¶ 49.
172 HOUSE OF COMMONS CONSTITUTIONAL AFFAIRS COMM., THE OPERATION OF THE
SPECIAL IMMIGRATION APPEALS COMMISSIONS (SIAC) AND THE USE OF SPECIAL ADVOCATES,
2005-6, H.C. 232-1, ¶¶ 27-30.
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involving claims that the affected person has been involved in
terrorism in a foreign country. The UK government has responded to
these criticisms by advertising the special advocate position and
arguing that in some cases the special advocate can communicate with
the affected person after having received the classified information.173
To be sure, special advocates are a departure from normal adversarial
treatment, and the House of Lords has recently divided on whether
special advocates can be used in the absence of clear authorizing
legislation.174
Nevertheless, special advocates are a more
proportionate, albeit far from perfect, alternative to the present
Canadian system of ex parte proceedings that allow no effective
adversarial challenge to claims and evidence covered by national
security confidentiality. It will often be impossible to be fully happy
with any particular resolution of difficult issues that genuinely
implicate competing claims of rights and security. National security
confidentiality raises a true conflict between rights and security, and
proportionality analysis may produce results in this context that mean
that neither rights nor security can be completely satisfied.
B.
Terrorist Suspects Who Cannot Be Deported
Another case where rights and security conflict is the appropriate
disposition of non-citizen terrorist suspects who, if deported, may face
torture or death. Most of the world recognizes that deporting
someone to a place where he or she will be tortured would violate
various international laws.175 It was acceptance of this norm that led
the United Kingdom to authorize indefinite detention of terrorist
suspects who could not be deported under Part IV of the AntiTerrorism Crime and Security Act, 2001. However, in December
2004, the House of Lords declared this part of the Act to be
disproportionate and discriminatory towards non-citizens.176 The UK
government accepted the decision and repealed this part of the law.
In response, the government enacted the Prevention of Terrorism Act,
173 DEP’T FOR CONSTITUTIONAL AFFAIRS,
GOVERNMENT RESPONSE TO THE
CONSTITUTIONAL AFFAIRS SELECT COMMITTEE’S REPORT INTO THE OPERATION OF THE SPECIAL
IMMIGRATION APPEALS COMMISSIONS (SIAC) AND THE USE OF SPECIAL ADVOCATES, 2005,
Cm. 6596, at 6-7.
174 Roberts v. Parole Board, [2005] UKHL 45, [2005] 2 A.C. 738 (U.K.) (allowing, in a
three-to-two decision, the use of special advocates before the parole board in the absence of
explicit statutory authorization).
175 See PHILIPPE SANDS, LAWLESS WORLD: AMERICA AND THE MAKING AND BREAKING OF
GLOBAL RULES 205-07 (2005).
176 A v. Sec’y of State for the Home Dep’t, [2004] UKHL 56, [2005] 2 A.C. 68 (U.K.).
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2005,177 which allows for control orders to be placed on both citizens
and non-citizens. Control orders can result in various restrictions
short of imprisonment on the basis that the Secretary of State has
“reasonable grounds for suspecting that the individual is or has been
involved in terrorism-related activity.”178 Some of those formerly
detained in Belmarsh prison under Part IV were placed under control
orders. Some of these people have been detained again on the
expectation that they can be deported once the British government has
secured agreements from the countries not to mistreat the suspects
upon their return. A great deal of skepticism has been expressed
about possible agreements by repressive regimes not to torture
terrorist suspects. Lord Carlile, however, has recently defended
attempts to establish verifiable agreements with countries to ensure
that terrorist suspects will not be tortured.179
British attempts to grapple with the difficult cases of terrorist
suspects who cannot be deported at least have attempted to respect the
absolute obligation not to deport to torture. The same regrettably
cannot be said about a rightly controversial passage in the Supreme
Court’s 2002 decision in Suresh v. Canada, which suggested that
while it would generally violate the Canadian Charter of Rights and
Freedoms to deport a person to a substantial risk of terrorism, it might
not violate the Charter to do so in otherwise undefined “exceptional
circumstances.”180 The idea that deportation to torture could ever be
legal runs counter to the most basic rights in domestic and
international law. The United Nations Human Rights Committee has
pointedly reminded Canada that the right against torture is absolute,181
and the New Zealand Supreme Court recently rejected the Canadian
Court’s approach with respect to exceptional circumstances.182 One
member of the Suresh Court, Louise Arbour, now the United Nation’s
High Commissioner for Human Rights, has spoken that there should
never be exceptions from the right not to be tortured.183
The Suresh exception for deportation to torture is not only
morally abhorrent and in violation of international law, but
questionable as an effective strategy for combating terrorism.
Deportation is a lengthy legal process, and it is difficult to believe that
177
178
179
180
181
c. 2 (Eng.).
Id. c. 2, § 2.
LORD CARLILE, supra note 136, ¶¶ 100-02.
[2002] 1 S.C.R. 3, ¶ 78.
U.N. Human Rights Comm., Ahani v. Canada, Views of the Human Rights Committee
Under Optional Protocol to the International Covenant on Civil and Political Rights, U.N.
Doc. CCPR/c/80/d/1051/2002 (June 15, 2004).
182 Zaoui v. Attorney-General, [2005] N.Z.S.C. 38, ¶ 16.
183 Jeff Sallot, There Are No Circumstances That Justify Torture: Arbour, GLOBE & MAIL,
Oct. 21, 2005, at A4.
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the Suresh exception would be a viable option in the ticking time
bomb scenario where some have accepted that torture is inevitable
and should be authorized and controlled by judges.184 Moreover, the
existence of the Suresh exception may be a factor in Canada’s failure
to develop a clear strategy about how to deal with suspected terrorists
who cannot be deported because of concerns about torture. So far,
Canada has relied on indefinite detention of such persons under the
security certificate process even though the legislation does not
clearly authorize (or prohibit) such a harsh measure.
Canada’s de facto reliance on indeterminate detention of noncitizens deemed to be a security threat is unfair and not sustainable.
Mohamad Mahjoub has been detained in Canada under a security
certificate since June 2000. Two other men, Mahmoud Jaballah and
Hassan Almrei, have been detained since August and October 2001,
respectively, while a fourth man, Mohamad Harkat, has been detained
since December 2002 under a security certificate. These men have in
most cases been detained in solitary confinement in temporary
remand centers designed for those awaiting criminal trials. A number
of them have protested their conditions of confinement through
prolonged hunger strikes of over sixty days. The government has
responded with plans to construct a special holding center, but these
plans have been criticized as proposing a “Guantanamo North.”185
When the United Kingdom clearly authorized the harsh measure
of indefinite detention, it was found to be disproportionate and
discriminatory,186 and concerns about the constitutionality or
sustainability of indeterminate detention under Canadian security
certificates may be part of the reason why no new certificates have
been issued with respect to suspected terrorists since May 2003.
There is also no explicit provision in Canadian immigration law that
addresses the question of whether the public can be protected by
methods less drastic than detention. These less drastic restrictions,
which include reporting requirements, electronic bracelets, and
periodic searches, are available for use with those subject to control
orders under Britain’s Prevention of Terrorism Act, 2005. A more
proportionate response to the dilemma of what to do with a terrorist
suspect who cannot be deported would require judges to address
whether less drastic alternatives than detention could protect society’s
security interests.187
184
185
ALAN DERSHOWITZ, WHY TERRORISM WORKS ch. 4 (2002).
Timothy Appleby, High-Security Centre To House Terror Suspects, GLOBE & MAIL,
Feb. 2, 2006, at A2.
186 A v. Sec’y of State for the Home Dep’t, [2004] UKHL 56, [2005] 2 A.C. 68 (U.K.).
187 A Canadian judge has released Adil Charkaoui under strict conditions after he had been
detained under a security certificate for twenty months. Re Charkaoui, [2005] F.C. 248. The
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As is often the case, however, with hard cases that implicate both
security and rights, it is unlikely that proportionality analysis will
fully satisfy those concerned with either security or rights. Those
concerned with security may have concerns that security risks should
not be subject to even controlled or conditional release. On the other
hand, the burdens of controlled release on liberty should not be
underestimated. Lord Carlile has expressed concerns about the
strictness of the conditions imposed on those subject to control orders
in Britain. Consistent with requirements of proportionality, he has
recommended that the least restrictive conditions that are consistent
with security should be imposed on each individual subject to a
control order.188
Release subject to conditions or control orders is not the only
more proportionate alternative to indefinite detention of terrorist
suspects who cannot be deported. Another, perhaps fairer, alternative
is to prosecute terrorist suspects who cannot be deported under
domestic anti-terrorism laws that in both Canada and Britain apply to
acts committed outside of the country and cover a broad range of acts
in preparation of terrorism and association with terrorists.189 The
Newton Committee was very critical of indefinite detention under
immigration law and recommended domestic criminal terrorism
prosecutions as a more proportionate alternative to indefinite
immigration detention. The Newton Committee, however, was also
prepared to adopt the criminal process for national security
confidentiality concerns discussed above by providing for an
investigating judge who might either not disclose all the evidence to
the accused or impose delayed disclosure.190 There are no easy
answers to the dilemmas of either national security confidentiality or
the appropriate treatment of terrorist suspects who cannot be deported.
Judges and governments should examine each case on its facts in light
of the question of what is the least restrictive and fairest deprivation
of rights that is consistent with security interests.
New Zealand Supreme Court has also held that the common law powers to grant bail have not
been clearly displaced by the country’s immigration law providing for security certificates.
The Court has released a detainee on bail, stressing that the proper question in determining his
release was whether he would be an immediate danger if released, as opposed to the ultimate
question to be determined on review of the security certificate process, which was whether he
posed a threat to national security. Zaoui v. Attorney-General, [2004] 2 N.Z.L.R. 339 (H.C.).
188 LORD CARLILE, FIRST REPORT OF THE INDEPENDENT REVIEWER PURSUANT TO SECTION
14(3) OF THE PREVENTION OF TERRORISM ACT 2005 ¶¶ 45-46 (Feb. 2, 2006).
189 In some cases, new criminal laws with extra-territorial effect cannot be applied because
any alleged acts of association or preparation pre-date the laws’ enactment.
190 LORD NEWTON, CHAIR, NEWTON COMM’N, ANTI-TERRORISM, CRIME AND SECURITY ACT
2001 REVIEW REPORT ¶¶ 203-05 (2003), available at http://security.homeoffice.gov.uk/newsand-publications1/publication-search/independent-reviews/laws-against-terror.pdf.
2006]
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C.
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Preventive Deprivations of Liberty
Many countries allow judges to deny bail for a person charged
with a criminal offense when necessary to prevent future crimes.191
Preventive detention raises somewhat different concerns because it
refers to restraints on liberty short of arrest on the basis of reasonable
and probable grounds for believing the suspect committed a specific
offense. Many anti-terrorism laws allow a person to be subject to
preventive arrests and other restraints on liberty on the basis of
reasonable suspicion of involvement with terrorism. Such restraints
clearly infringe ordinary protections on liberty, but are said to be
justified because of the extreme harms caused by terrorism and the
difficulties the state faces in obtaining enough evidence to make
ordinary arrests. As with other cases of conflict between rights and
security claims, any preventive detention would have to be justified
by the state as a proportionate and necessary limitation on rights.
Canada’s Anti-Terrorism Act allows police to make preventive
arrests on the basis of a reasonable belief that terrorist activity will be
carried out and a reasonable suspicion that an arrest or the imposition
of a conditional recognizance is necessary to prevent the carrying out
of terrorist activity.192 The arrestee must generally be brought before
a judge within twenty-four hours, with a presumption of release
unless the state shows cause that detention is necessary to ensure the
arrestee’s presence at further proceedings, for public safety, to
maintain confidence in the administration of justice, or for any other
just cause.193 The preventive arrest, however, can be extended for a
total period of seventy-two hours if the judge decides to exercise
discretion to adjourn the hearing.194 At the hearing, the judge may
order the accused to enter into a recognizance to keep the peace for a
period of up to one year if the judge concludes that the police did
indeed have a reasonable suspicion that such an order was required to
prevent terrorist activity.195 If an arrestee refuses to enter into the
recognizance, he or she is guilty of an offense punishable by up to one
year imprisonment.196 Breach of a recognizance is punishable by up
to two years imprisonment.197 Police officers in Canada generally
191
192
193
R. v. Morales, [1992] 3 S.C.R. 711; United States v. Salerno, 481 U.S. 739 (1987).
Canada Criminal Code, R.S.C., ch. C-46, § 83.3(2) (1985).
Note that denial of bail for “just cause” has been struck down as excessively vague. R.
v. Hall, [2002] 3 S.C.R. 309.
194 Canada Criminal Code, R.S.C., ch. C-46, § 83.3(7)(b)(ii) (1985).
195 Id. § 83.3(8).
196 Id. § 83.3(9).
197 Id. § 811.
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cannot make preventive arrests without the consent of the Attorney
General,198 and the preventive arrest power is subject to a renewable
five year sunset and annual reporting obligations.199 From December
2001 to December 2004, no preventive arrests were reported in
Canada, which suggests that Canadian authorities are reluctant to use
this new procedure and prefer to use alternative methods such as
surveillance. At the same time, persons in Canada can be subject to
preventive arrests and year-long conditions that could impose
restrictions on liberty similar to British control orders.
In contrast to the above restrictions on preventive detention
under the criminal law, Canadian immigration law contains much
broader powers of investigative detention. A non-citizen, including a
permanent resident, can be detained on reasonable grounds that he or
she is inadmissible as a security threat and a danger to the public.
Review takes place within forty-eight hours, not by a judge, but an
official within the Immigration Division. Continued detention can be
authorized on the basis that “the Minister is taking necessary steps to
inquire into a reasonable suspicion that they are inadmissible on
grounds of security or for violating human or international rights.”200
This period of detention is unlimited, but the reasons for the detention
must be reviewed every thirty days.201 This power was used to arrest
and detain twenty-one men in a highly publicized case in Toronto in
2003. Original reports suggested that the men were part of an Al
Qaeda cell with possible designs on a nuclear reactor near Toronto,
but in the end none of the men were charged with terrorism offenses
or designated as a security threat under immigration law. A number
of the men are now making refugee claims on the basis that the
publicity associating them with terrorism in Canada would make it
unsafe for them to return to Pakistan.202
Double standards have long been accepted with respect to
preventive detention under immigration and criminal law. Violations
of equality rights are relevant to proportionality analysis. Measures
that impose harms on discrete and insular minorities such as noncitizens may not be rationally connected to the broader aim of
preventing terrorism because such strategies are under-inclusive in
ignoring the dangers that citizens may commit acts of terrorism. In
addition, any violation of equality rights should be considered when
assessing the harms of violating rights and the existence of less rights198
199
200
201
202
Id. § 83.3(1).
Id. §§ 83.31-83.32.
2001 S.C., ch. 10, § 58(1)(c) (Can.).
Id. § 57(2).
See Roach, The World Wide Expansion, supra note 13, at 522-24.
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invasive means to prevent terrorism. If society takes extreme
measures to prevent terrorism, generally everyone should bear the
costs of those measures. Judges may have a special role in
scrutinizing the proportionality and justifications for measures that are
imposed on a vulnerable subset of the population such as non-citizens.
As suggested above, the under- and over-inclusiveness of using
immigration law as anti-terrorism law should be a factor in
proportionality analysis.
As discussed above, the United Kingdom was prepared to
derogate from fair trial rights to provide for indefinite preventive
detention of non-citizen terrorist suspects who could not be deported.
In December 2004, however, the House of Lords held that this
derogation was disproportionate in part because it did not apply to
terrorist suspects who were citizens.203 In response, Parliament
repealed the indefinite detention provisions and provided for control
orders that could be applied to both citizens and non-citizens and were
designed in the normal course not to derogate from rights.204
Breaches of equality rights may be a clue that anti-terrorism measures
are a disproportionate response to terrorism, which is motivated more
by fear and suspicion of unpopular groups than rational analysis of the
need for, or the effectiveness of, the measure or its effects on those
whose rights are violated.
Preventive detention is also available under the criminal law in
the United Kingdom. The use of preventive detention under the
Prevention of Terrorism (Temporary Provisions) Act, 1984205 was
found to violate Article 5(3) of the European Convention.206
Parliament’s response was to derogate from those rights, and this
derogation was subsequently upheld by the European Court of Human
Rights as necessary and proportionate.207 This derogation was
discontinued with the Terrorism Act, 2000,208 which provided for a
seven-day preventive arrest on reasonable suspicion that a person is a
terrorist. Under this provision, however, arrestees would normally
203
204
A v. Sec’y of State for the Home Dep’t, [2004] UKHL 56, [2005] 2 A.C. 68 (U.K.).
Prevention of Terrorism Act, 2005, c. 2 (Eng.). Note, however, that only one of
eighteen people reportedly subject to control orders under this Act was a British citizen. LORD
CARLILE, supra note 188, ¶ 18.
205 c. 8 (U.K.).
206 Brogan v. United Kingdom, 11 Eur. H.R. Rep. 539 (1989).
207 Brannigan v. United Kingdom, 17 Eur. H.R. Rep. 539 (1994).
208 Terrorism Act, 2000, c. 11, § 41 (U.K.).
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appear before a judge within forty-eight hours.209 In 2003, the total
period was extended to fourteen days.210
The Terrorism Act, 2006211 introduced into Parliament in
October, 2005 proposed to increase the maximum period of
preventive arrest to ninety days. This proposal created massive
controversy, with rights groups claiming that it could effectively reintroduce the internment procedures that were used in Northern
Ireland and are now accepted by many both as a violation of basic
rights and as counterproductive.212 The maximum period of detention
was reduced from ninety to twenty-eight days by amendments made
in the House of Commons.213 At the same time, the ninety-day period
had some powerful supporters. The Metropolitan Police argued that
ninety days was necessary because arrests must be made to stop
terrorist attacks designed to maximize civilian causalities long before
the evidence has been gathered. They also argued that international
terrorism requires time-intensive evidence gathering through the use
of interpreters, analysis of computers and mobile telephones, and
contact with foreign agencies.214 Lord Carlile, the independent
assessor of anti-terrorism legislation, had also expressed the view that
the ninety-day period “is probably a practicable and sensible option,
all other things being equal.”215 At the same time, he has
recommended increased judicial protection during the period of
investigative detention. In this, he adopted a previous suggestion by
Lord Newton that special judges should be given the power to oversee
terrorist investigations.216 Although presented by Lord Carlile as a
protection for the detainee, the introduction of such continental-style
procedures would enhance the investigative powers of the state during
the period of detention.217
At the time the Terrorism Act, 2006 was introduced, a study of
comparative anti-terrorism measures, mainly from other parts of
Europe, was released under Foreign Affairs Jack Straw’s name. That
209 The grounds for extension are that the further time is necessary to obtain relevant
evidence by questioning the arrestee, or to preserve evidence, provided in each case that the
investigation is being conducted diligently. See id. c. 11, §§ 29-32, sched. 8 (U.K.).
210 Criminal Justice Act, 2003, c. 44, § 306 (U.K.).
211 Terrorism Act, 2006, c. 11, §§ 19-20 (Eng.).
212 Bennett, supra note 122, at 961.
213 Simon Freeman, Labour Denies Pulling Crunch Terror Vote, TIMES, Nov. 3, 2005,
available at http://www.timesonline.co.uk/article/0,,17129-1855851,00.html.; see also
Terrorism Act, 2006, c. 11, § 23 (Eng.).
214 Letter from Andy Hayman, Assistant Comm’r, Metropolitan Police, to Charles Clarke,
Home Sec’y (Oct. 6, 2005) (on file with author).
215 LORD CARLILE, supra note 136, ¶¶ 64-69.
216 Id.
217 Id.
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document, however, does not provide comparative support for a
maximum ninety-day detention period before a person has been
charged with an offense.218 Comparative law analysis can play a
useful role in proportionality analysis, but there must be special
attention paid to context and justification.
What is unfortunately missing from Lord Carlile’s analysis is
any sustained examination of whether ninety days of preventive or
investigative detention is a proportionate response to the terrorist
threat. Although some of the Metropolitan Police’s justifications for
the ninety-day period, such as the need to obtain translators and to
allow suspects to pray five times a day, seem specious and even
discriminatory, their argument that modern cell-based, Al Qaeda style
terrorism requires prolonged international investigations may
establish a rational connection between significant periods of
preventive detention and the prevention and prosecution of terrorism.
At the same time, however, both the Met and Lord Carlile ignore
whether less drastic means exist through which to advance these
important state interests. Here it may be helpful to distinguish the
state’s interests in preventing terrorist acts from its interests in
obtaining evidence for terrorist prosecutions. With respect to the
latter, the seizure and retention of physical evidence such as encrypted
computers in order to allow further investigations would constitute a
much less drastic alternative than holding a person for three months
while such tests were performed.
Shockingly, neither the Met nor Lord Carlile examines the role
that control orders could play in allowing a terrorist suspect to be
released while the police gather more evidence, while ensuring that
the suspect does not interfere with the administration of justice, flee
the jurisdiction, or commit acts of terrorism before criminal charges
are laid.219 As discussed above, control orders were introduced by the
218 Maximum periods of detention without charge are one hundred sixty-eight hours in
Australia, seventy-two hours in Canada, ninety-six hours in France, forty-eight hours in
Norway, and one hundred twenty hours in Spain, with longer detention periods for those
arrested and presumably charged in France, Germany, or Greece. SEC’Y OF STATE FOR
FOREIGN AND COMMONWEALTH AFFAIRS, COUNTER-TERRORISM LEGISLATION AND PRACTICE:
A SURVEY OF SELECTED COUNTRIES (2005) (discussing detention periods in various countries);
Canada Criminal Code, R.S.C., ch. C-46, § 83.3 (1985), as amended by 2001 S.C., ch. 41
(providing for preventive arrest and detention for up to seventy-two hours on the basis of
reasonable suspicion that arrest is necessary to prevent the detainee from carrying out a
terrorist activity). See supra notes 192-199 for further discussion.
219 The Joint House of Commons and House of Lords Committee on Human Rights
concluded that both the ninety day and twenty-eight day periods were disproportionate, in part
because “there were alternative means of achieving the police’s objective, without extending
the period of pre-charge detention, in particular by the use of a combination of lesser charges
(carrying a likelihood of remand in custody) and control orders, and relaxing the restriction on
post-charge questioning, with appropriate safeguards, all of which would enable the police to
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Prevention of Terrorism Act, 2005.220 Orders can be made for a
renewable twelve-month period on the basis that reasonable grounds
exist to suspect that either citizens or non-citizens have been involved
in terrorist activities and that restrictions on liberty short of detention
are necessary for protecting the public from “a risk of terrorism.”221
The conditions of control orders can be very broad and severe,
including orders that a person may not associate with others, possess
certain substances, or travel to certain places, and that they must wear
electronic devices or submit to questioning. Leaving aside the
important question of whether control orders are themselves a
proportionate response to terrorism,222 it defies comprehension that
Lord Carlile would not advert to the possibility that much of the
preventive and investigative objectives of the proposed ninety-day
detention period could be satisfied through the use of control orders.
The issue should be whether control orders can do the job, not
whether a ninety or twenty-eight day period appears sensible.
Another less drastic alternative to preventive arrests or control
orders is charging terrorist suspects with one of the many offenses of
preparation for terrorism. A broad array of such offenses already
exists, including membership in a terrorist organization and
possession of materials that may be useful for terrorism. The
Terrorism Act, 2006 adds additional offenses including preparation
and training for terrorism and attendance at a place for training.223 An
arrest for any one of these offenses would allow the state to argue that
bail should be denied. A judge could then decide this question under
the ordinary criminal law. If subsequent investigations revealed more
evidence, new charges could be laid as appropriate.
Even if control orders and ordinary arrests are rejected as more
proportionate alternatives to preventive arrests, proportionality
analysis still requires a comparison of the rights infringed by
preventive arrests with the benefits of such arrests in preventing
terrorism. Here, the social context of contemporary anti-terrorism law
and the past record of the police should not be ignored. Among the
justifications that the Met has provided for preventive arrests is the
need to allow arrestees to pray five times a day. Although respect for
religious practices is laudable, it is clear that the powers of preventive
continue their investigations without prejudicing public safety.” TERRORISM BILL AND
RELATED MATTERS, supra note 137, ¶ 91.
220 Prevention of Terrorism Act, 2005, c. 2 (Eng.).
221 Id. c. 2, § 2.
222 For arguments that Canada does not need control orders because its preventive arrest
provisions already allow judges to impose recognizances or peace bonds on terrorist suspects
for up to a year, see Roach, supra note 97, at 110-12.
223 Terrorism Act, 2006, c. 11, §§ 5, 6, 8 (Eng.).
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arrests will be directed primarily against Muslims. In addition, 496 of
895 people arrested under the Terrorism Act, 2000 between
September 11, 2001 and September 30, 2005 have been released
without charge.224
This suggests that arrests already impose
considerable harms on the innocent.225 The harms of preventive
arrests include not only the temporary deprivation of liberty, but also
the publicity and stigma that may accompany the arrests.
In addition, concerns have been expressed in both Britain and
Canada about the lack of effective judicial supervision and the
conditions of confinement during the period of preventive arrests.
Mistreatment in custody has contributed to miscarriages of justice in
past terrorism cases.226 Indeed, the detention of the innocent for
seven, fourteen, twenty-eight, or ninety days under preventive arrest
provisions itself could be seen as a miscarriage of justice.227 In work
both before and after 9/11, Ronald Dworkin has eloquently warned
that democracies should not impose the ever-present risk of
miscarriages of justice disproportionately on discrete groups.228 The
harms preventive arrests impose on innocent persons and unpopular
minorities should be thoroughly considered in determining the
proportionality of such measures. These harms should then be
compared to the benefits of such arrests.
The British experience suggests that once preventive detention is
allowed, there will arise pressures to increase the duration of
detention periods more as a symbol of the state’s commitment to antiterrorism than on the basis of a demonstrable and rational necessity
for such measures. Indeed, some evidence shows the police have
rarely made use of the 2003 increase to a maximum of fourteen days
detention under the existing preventive arrest provisions,229 and the
224 Only one hundred thirty-eight of the arrestees were charged under the Terrorism Act,
2000, and only twenty-three have been convicted. Sixty-three have been transferred to
immigration authorities.
See Home Office, The Terrorism Act 2000,
http://www.homeoffice.gov.uk/security/terrorism-and-the-law/terrorism-act/ (last visited Mar.
1, 2006).
225 The Joint Committee on Human Rights suggested that extension of preventive detention
could possibly be justified by “firm statistical evidence demonstrating the number of actual
cases in which the current 14 day limit had either prevented charges from being brought at all,
or required the police to bring the wrong or inappropriate charges.” TERRORISM BILL AND
RELATED MATTERS, supra note 137, ¶ 90. One danger with this analysis is assuming that those
released are guilty or would be charged if only the police had more time to gather evidence.
Instead, the presumption should be that those released were innocent.
226 WALKER, supra note 51, at 141-46.
227 Roach & Trotter, supra note 3, at 1032-40.
228 RONALD DWORKIN, A MATTER OF PRINCIPLE ch. 3 (1985); Dworkin, supra note 9.
229 Only thirty-six of three hundred fifty-six people arrested since the fourteen-day period
was put in place in early 2004 have been detained in excess of seven days. MIRIAM PECK,
HOUSE OF COMMONS LIBRARY, RESEARCH PAPER 05/66, THE TERRORISM BILL 2005-2006: BILL
55 OF 2005, at 39 (2005), http://www.parliament.uk/parliamentary_publications_and_archives/
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debate in Parliament about whether twenty-eight days or ninety days
would send the appropriate signal about the need to take terrorism
seriously underlines the arbitrary and symbolic nature of the duration
of preventive arrests. Rational assessment of the necessity for
preventive detention requires rigorous application of proportionality
principles. The focus should be on whether less drastic alternatives,
such as control orders and ordinary arrests, would suffice. Even if the
less drastic alternatives are not sufficient, the benefits of preventive
arrests must be compared to their harmful effects both on detained
individuals and on groups who may be disproportionately targeted for
preventive arrest.
IV. COULD THE AIR INDIA BOMBING HAVE BEEN STOPPED BY
SMART, HARSH, OR PROPORTIONATE SECURITY STRATEGIES?
Thus far I have argued that many smart security strategies will
not violate rights, that many harsh security strategies that do violate
rights will not achieve security, and that principles of proportionality
should be applied to resolve the remaining tensions between rights
and security. This analysis has proceeded on a fairly abstract level
and a fair question exists whether my thesis would work in practice.
In order to test my thesis, I will apply it to the 1985 bombing of Air
India Flight 182 by Sikh separatists. The flight originated in Canada,
and the plane exploded off the coast of Ireland killing all 329 people
on board in what was before 9/11 the most deadly act of aviation
terrorism in world history. Interjit Singh Reyat pled guilty in 2003 to
manslaughter in relation to the supply of materials used to make the
bomb,230 and Ripudaman Singh Malik and Ajaib Singh Bagri were
acquitted by a Canadian judge in 2005 of conspiracy to commit
murder in relation to the bombing.231 Talwinder Singh Parmar,
widely accepted as the leader of the plot and subject to intensive
surveillance in Canada before and after the bombing, was able to flee
Canada and was subsequently killed by the police in India in 1992.232
Following the increased emphasis on review, the government of
Canada agreed in late November 2005 to hold an inquiry into the
1985 Air India bombing, which would focus on matters related to
research_papers/research_papers_2005.cfm.
230 R. v. Malik, [2003] B.C.S.C. 254 (trying Inderjit Singh Reyat). He was convicted in
1991 of manslaughter in a related bombing of an Air India flight that landed in Japan. R. v.
Reyat, [1991] 13 W.C.B.2d 86.
231 R. v. Malik, [2005] B.C.S.C. 350.
232 KIM BOLAN, LOSS OF FAITH: HOW THE AIR INDIA BOMBERS GOT AWAY WITH MURDER
122 (2005).
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aviation security, the assessment of the terrorist threat, the relation
between Canada’s civilian intelligence agency, CSIS, and its national
police force, the RCMP, and the relation between intelligence and law
enforcement generally.233
A.
Smart Strategies
As suggested in the first part of this Article, one smart security
strategy is to take precautions to protect sites and substances that are
vulnerable to terrorism. A number of such strategies were used in
Canada to protect Air India planes which were viewed as a possible
terrorism target in the wake of the Indian Army’s June 1984 attack on
the Golden Temple, the holiest place in the Sikh religion. For
example, the RCMP increased its presence around Air India planes in
Canada both on the tarmac and at the check-in counter as the one-year
anniversary of the attack on the Golden Temple approached.
Passengers were frisked and screened with a metal detector before
boarding Air India planes in Canada. Such screening is common
today, but it was unusual in 1985.234
Another unusual security strategy used on Air India flights in
Canada in 1985 was the x-ray screening of luggage. Tragically,
however, the x-ray machine used for this purpose broke down on the
evening of Air India Flight 182 on June 22, 1985. In its place, an
unreliable hand-held explosive sniffer was used. To make matters
worse, the police had already issued warnings about the
ineffectiveness of the sniffer device, but the private security firm
responsible for screening the luggage still used the sniffer device.
Moreover, the private security officials operating the device did not
respond to beeps coming from the device on that evening.235
233 BOB RAE, supra note 72; Press Release, Office of the Deputy Prime Minister & Minister
of Pub. Safety and Emergency Preparedness, Minister McLellan Announces Inquiry Into
Outstanding Questions Concerning the Bombing of Air India Flight 182 (Nov. 23, 2005),
available at http://www.psepc-sppcc.gc.ca/media/nr/2005/nr20051123-2-en.asp. Canada’s
new Conservative government also promised an inquiry into this matter, one that, like the Arar
Commission, would be headed by a judge and would have coercive powers to compel
witnesses and the production of relevant evidence.
234 CANADIAN AVIATION SAFETY BD., AVIATION OCCURRENCE REPORT INTO THE CRASH
INVOLVING AIR INDIA FLIGHT 182 ON 23 JUNE 1985, at 7-11 (1985), available at
http://www.psepc-sppcc.gc.ca/prg/ns/airs/ai_rep_en.asp.; SALIM JIWA, THE DEATH OF AIR
INDIA FLIGHT 182, at 27 (1986).
235 R. v. Malik, [2005] B.C.S.C. 350 ¶¶ 23-31. In January 1985, police from both the
RCMP police and the local police had informed airport security and Air India personnel about
the ineffectiveness of the hand held-sniffer. BOB RAE, supra note 72, at 10; see also ZUHAIR
KASHMERI & BRIAN MCANDREW, SOFT TARGET: THE REAL STORY BEHIND THE AIR INDIA
DISASTER 71 (2d ed. 2005); JIWA, supra note 234, at 95.
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Even given these technological failures, the bombing could have
been prevented if a policy of off-loading the luggage of passengers
who did not board the flight had been in place.236 In the case of Air
India, the bomb was transported on a non-Air India flight from
Vancouver to Toronto even though the passenger who had checked in
the luggage, an “M. Singh,” did not travel on either the flight from
Vancouver or the Air India flight that departed from Toronto.237 In its
review of the case, the Canadian Aviation Safety Board found that
normal procedures concerning baggage were followed and that there
was not even a system in place for matching baggage with
passengers.238 A judicial inquiry in India subsequently recommended
that luggage not be allowed to travel without its passengers.239 A
1985 Canadian report recommended that additional security measures,
including the screening of all baggage on high-risk flights, was
advisable in part because “intelligence cannot be relied on to predict
and thus forestall specific acts of terrorism . . . .”240 These findings
underline the importance of tighter aviation security long before 9/11.
The screening of all luggage for explosives is a smart security strategy
that might have prevented the Air India bombing without infringing
any rights.241
236 Another possible alert was that the ticket for the flight was purchased only a few days
before the flight and was paid for with a large amount of cash, and the purchaser did not
provide a full name for the passenger. KASHMERI & MCANDREW, supra note 235, at 65.
237 The fact that the baggage should not have been interlined from Vancouver onto the Air
India flight led some to speculate that two bombs may have been placed on the flight. Two
authors have asked:
How could a cell of single-minded terrorists trust their mission to the blind chance
of collective breakdowns of Vancouver, Toronto and Montreal security. The bag
should never have been interlined, the X-ray machine should not have broken down,
the PD-4 Sniffer should have detected the bomb and the bag should never have been
loaded without a matching passenger coupon.
CLARK BLAISE & BHARATI MUKHERJEE, THE SORROW AND THE TERROR: THE HAUNTING
LEGACY OF THE AIR INDIA TRAGEDY 159 (1987).
238 CANADIAN AVIATION SAFETY BD., supra note 234, at 56. Because of the heightened
security threat at the time, however, Air India did use a system to ensure that passengers who
checked luggage on its flights in Toronto and Montreal actually boarded the plane. JIWA,
supra note 234, at 93. This system, however, did not catch the failure of M. Singh to board
because his bags were interlined from a separate flight not run by Air India, which originated
in Vancouver.
239 HON. JUSTICE B. N. KIRPAL, REPORT OF THE COURT INVESTIGATING ACCIDENT TO AIR
INDIA BOEING 747 AIRCRAFT VT-EFO, “KANISHKA” ON 23 JUNE, 1985, at ch. 5 (1986),
available at http://www.psepc-sppcc.gc.ca/prg/ns/airs/_fl/Kirpalai-en.pdf.
240 INTERDEPARTMENTAL COMM. ON SEC. & INTELLIGENCE, REPORT ON SECURITY
ARRANGEMENTS AFFECTING AIRPORTS AND AIRLINES IN CANADA 2 (1985), available at
http://www.psepc-sppcc.gc.ca/prg/ns/airs/_fl/seabornaimod-en.pdf.
The report, however,
expressed concerns about the effectiveness of screening baggage for all flights, in part because
of “screen operator” fatigue. It suggested that that “passenger baggage match” would be
preferable to screening all baggage on international flights. Id. at 4.
241 Another smart strategy, though one of limited effectiveness against suicide bombers, is
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Another smart security strategy is to regulate substances such as
explosives that can be used for terrorism. Nineteen days before the
Air India bombing, the acknowledged ringleader of the plot,
Talwinder Parmar, Inderjit Reyat, and an unidentified man
participated in a test explosion in a wooded area on Vancouver
Island.242 Reyat was able to gain access to explosives that were used
at the time in construction and for tasks such as tree removal. As part
of the Public Safety Act,243 Canada amended its Explosives Act to
place stricter restrictions on explosives, including inspection and
forfeiture powers and offenses for unauthorized use of explosives.
Even in 1985, the Criminal Code made it an offense punishable by up
to five years imprisonment to possess explosives without a lawful
excuse, the burden of proof of which is on the accused.244
The men who participated in the test blast were at the time under
surveillance by CSIS, Canada’s domestic civilian intelligence agency,
which had just come into existence in June 1984. The CSIS agents
were not able to observe the blast, and they thought that the sound
they heard was a gunshot. In any event, CSIS agents do not have
peace officer status to arrest people. The RCMP did discover some
physical evidence of the test blast, but only a few days after the
bombing of Air India. Both Parmar and Reyat were originally
charged with possession of explosives for an unlawful purpose and
manufacture of explosives with intent to endanger life or property.
The charges were dropped against Parmar for lack of evidence, and
Reyat pled guilty in 1986 to unlawful possession of explosives and
was given a $2,000 fine even though the maximum penalty for this
indictable offense was a maximum of five years imprisonment.245
This suggests a need to take a stiffer approach to the unauthorized use
of explosives and other dangerous substances, apart from whether the
prosecution can prove that they were intended for use in terrorism.
Another smart security strategy reviewed in the first part of this
article is independent review of state activities. Adverse findings by
review agencies can help those responsible for security to improve
their procedures. CSIS was created in 1984 subject to review by a
special civilian review agency, the SIRC, with wide access to all
the requirement that baggage be matched with passengers. After the Air India bombing,
Canada implemented this practice, and it was required by the International Civil Aviation
Organization in December 1987. BOB RAE, supra note 72, at 20. On post-9/11 developments
in aviation security, see Alan Khee-Jin Tan, Recent Developments Relating to Terrorism and
Aviation Security, in GLOBAL ANTI-TERRORISM LAW AND POLICY 225, supra note 24.
242 SEC. INTELLIGENCE REVIEW COMM., ANNUAL REPORT 1991-1992, at 8 (1992).
243 2004 S.C., ch. 15, pt. 7 (Can.).
244 Criminal Code of Canada, R.S.C., ch. C-46 § 82 (1985).
245 KASHMERI & MCANDREW, supra note 235, at 78; STEWART BELL, COLD TERROR 18
(2004); BOB RAE, supra note 72, at 14.
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information held by CSIS (with the exception of Cabinet confidences)
and the power to audit or inspect CSIS activities, hear complaints, and
issue reports, including mandatory annual reports.246 SIRC examined
CSIS’s role with respect to Air India and criticized CSIS for its failure
to translate from Punjabi wiretaps of Parmar and his confederates. It
noted that there was a lack of serious concern within CSIS about the
translation backlog of 100 tapes that had built up just before the
bombing.247 SIRC also criticized CSIS for not having an adequate
policy for the retention of tapes, and for destroying the majority of the
tapes of the Parmar wiretaps as part of its standard operating
procedures.248 Given the destruction of the majority of these tapes, it
is impossible to know whether expeditious translation would have
alerted the authorities to the plot to bomb Air India.249 The remaining
tapes that were not erased suggest that Parmar and others were
involved in suspicious conversations in the months leading up to the
bombing, including veiled references to the delivery of certain
materials in the days before the bombing. In addition, Parmar was
subject to physical surveillance during much of this time and
conducted many suspicious meetings with a number of associates in a
conspiratorial fashion, apparently attempting to avoid possible
electronic surveillance.250
SIRC also examined how Canada’s new intelligence agency,
CSIS, interacted with its national police force, the RCMP, which has
primary responsibilities for investigating and preventing criminal
offenses arising from conduct that constitutes a threat to national
security.251 SIRC criticized CSIS for not having adequate policies
about how it would interact with the RCMP in terrorism
investigations. Indeed, problems continued even after the Air India
bombing with the RCMP not being made aware of the CSIS wiretaps
immediately after the bombing.252 SIRC also criticized the RCMP for
failing to follow up when CSIS informed the RCMP a day after
246
247
248
Canadian Security Intelligence Service Act, 1984 S.C., ch. 21, §§ 34-55 (Can.).
SEC. INTELLIGENCE REVIEW COMM., supra note 242, at 9, 12.
The trial judge in the Bagri and Malik prosecutions subsequently found that the CSIS’s
destruction of the wiretaps constituted unacceptable negligence. R. v. Malik, [2002] B.C.S.C.
864; R. v. Malik, [2004] B.C.S.C. 554. The tapes that were destroyed covered intercepts on
Parmar from March 27, 1985 to April 8, 1985, from April 26, 1985 to May 5, 1985, and from
May 8, 1985 to June 23, 1985. BOB RAE, supra note 72, at 16.
249 The wiretaps were obtained under section 21 of the CSIS Act under a warrant granted by
the Federal Court on the basis that there were reasonable grounds to believe that electronic
surveillance was necessary to investigate a threat to the security of Canada.
250 I am indebted to my colleague Michael Code, who acted as a defense lawyer for Ajaib
Singh Bagri, for making available to me various submissions and court documents in this case.
251 Security Offences Act, R.S., ch. 23 (1985).
252 SEC. INTELLIGENCE REVIEW COMM., supra note 242, at 10.
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Parmar, Reyat, and an unidentified man were observed by CSIS on
Vancouver Island conducting suspicious activities in the woods. The
RCMP concluded that the suspicious activities were a test explosion
only after the bombing of Air India. At the same time, SIRC also
noted that its mandate was limited to examining CSIS’s role and it did
not have jurisdiction or powers to review the RCMP’s conduct in this
case. In 1985, the RCMP was not subject to independent review, and
even now it is subject to review on the basis of complaints about the
conduct of individual officers. Complaints often may not be brought
in the secretive national security context, and both policing
misconduct and policing failures may be related to systemic faults of
organizations as opposed to the fault of individual officers.253
Canada’s 2004 national security policy includes a commitment to
create an independent review mechanism for the RCMP’s national
security activities. The Arar Commission is examining a range of
review mechanisms, including some in which the same body would
review the national security activities of both the RCMP and CSIS. In
addition, the Arar Commission will consider recommending that
whatever body reviews the national security activities of the RCMP
should have powers to conduct self-initiated reviews similar to the
audit or inspection powers SIRC has over CSIS. In the absence of a
full review of the RCMP’s as well as CSIS’s actions with respect to
the Air India investigation, it is not possible to know for sure whether
the plot could have been apprehended through better intelligence,
better policing, and better coordination of intelligence and policing.
Nevertheless, the available evidence suggests that, as with 9/11, better
coordination and information sharing between police and intelligence
agencies might have improved the chances of apprehending the
terrorists. The SIRC report found that CSIS was reluctant to share
information with the RCMP and also indicated that the RCMP did not
promptly follow up on the information that it did receive from CSIS
before the Air India bombing.254 As with 9/11, organizational
interests and differences may have led to an overestimation of the socalled wall between intelligence and law enforcement.255 More
253
254
Royal Canadian Mounted Police Act, R.S.C., ch. R-10, pt. VI (1985).
The SIRC report bears some striking similarities to the 9/11 Report. SIRC found that
CSIS had reports “that something big or spectacular was about to happen,” but no specific
intelligence that could have prevented the terrible act of terrorism. SEC. INTELLIGENCE REVIEW
COMM., supra note 242, at 8-10.
255 Section 19(2) of the Canadian Security Intelligence Service Act, 1984 S.C., ch. 21, §§
34-55, provides broad discretion for CSIS to disclose information to the police to be used “in
the investigation or prosecution of any alleged contravention of any law in Canada or a
province . . . .” In addition, the Minister responsible for both the RCMP and CSIS entered into
a memorandum of understanding in 1984 that provided that “the RCMP will rely on the CSIS
for intelligence relevant to national security offences” and that “the RCMP and CSIS will
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effective and integrated review of CSIS and the RCMP might have
encouraged them to make better use of existing laws and policies that
allowed information to be shared between them.
B. Harsh Strategies
Could harsh policies have stopped the bombing of Air India? As
discussed in the second part of this article, there is a new focus on
criminalizing direct or indirect incitement to terrorism. Ajaib Singh
Bagri, who was eventually charged with and acquitted of conspiracy
to bomb Air India, made an “emotional speech, frequently tinged with
violent images” before 4,000 Sikhs at Madison Square Garden in
1984 addressing “the need for Sikhs to wage a war of independence”
and to “exact[] revenge against the Indian government.”256 A
videotape of this speech was introduced as evidence at Bagri’s
terrorism trial, and the speech could possibly qualify as direct or
indirect encouragement of terrorism under the British Terrorism Act,
2006.257 At the same time, the trial judge found that such strong
feelings were not uncommon in the Sikh community at the time and
that the speech did not assist in proving whether Bagri conspired to
blow up the Air India flight. Incitement prosecutions may play some
role in disrupting terrorist groups, but they may also drive terrorist
groups underground and frustrate attempts by intelligence and police
agencies to monitor their activities. In addition, they may reach the
emotional political and religious speech of those who have no
intention of engaging in terrorism. It is also unclear to what degree
terrorists may be motivated by the incitement of others. Incitement
prosecutions could have been used in the Air India case, but their
success in stopping terrorism is far from certain while the burden they
place on extreme political and religious speech is clear.
Another harsh technique is proscription of terrorist groups.
Canada has not followed the United Kingdom in making membership
in a terrorist organization illegal.258 The Sikh separatist group known
consult and co-operate with each other with respect to the conduct of security investigations.”
BOB RAE, supra note 72, at 13 (quoting the Memorandum of Understanding between the
RCMP and CSIS dated July 17, 1984). Any wall between policing and intelligence was more
a result of informal organizational culture than a matter of law or official policy.
256 R. v. Malik, [2005] B.C.S.C. 350 ¶ 793.
257 Terrorism Act, 2006, § 1.
258 For a British case convicting three people of membership in the International Sikh
Youth Federation, a proscribed terrorist group, and sentencing them each to twelve months in
prison, see R. v. Hundal, [2004] 2 Crim. App. 307. A subsequent case held that the
membership offense is a proportionate restriction on freedom of expression, but also stressed
that accused individuals should be given the benefit of a reasonable doubt, with respect to a
defense under § 11(2) of the Terrorism Act, that they did not participate in the activities of the
organization while it was proscribed. R. v. Sheldrake, [2005] 1 A.C. 264, ¶¶ 47-54 (H.L.).
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as the Babbar Khalsa was designated as a terrorist group by the
Canadian cabinet under the 2001 Anti-Terrorism Act on June 18,
2003, a few days before the eighteenth anniversary of the Air India
bombing. Even if such a designation had been made in 1985, it would
at most have deemed that the Babbar Khalsa was a terrorist group in
any terrorism-related prosecution.259 Proscription of a terrorist group
might also facilitate applying the provisions of Canada’s AntiTerrorism Law that prohibit financing terrorist groups and prevent
terrorists from obtaining charitable status, which the Babbar Khalsa
once enjoyed in Canada.260 At the same time, it is far from clear that
criminalizing the group or the financing of the group would have
prevented the bombing. No estimates are available of how much it
cost to carry out the Air India bombing, but the relevant plane tickets
were purchased at the last minute at a cost of $3,000 and the overall
costs of the bombing were likely less than the $15,000 to $30,000
estimated cost of each of the Madrid, Bali, and London bombings.261
Another harsh security strategy that has gained much attention of
late is the use of extreme interrogation techniques including torture.
Although they are denied by the Indian government, which claims
that Parmar was killed in a gun battle with the Indian police,
allegations have been made that Parmar was captured, tortured, and
killed by the police in India.262 The use of harsh interrogation
methods would have tainted the use of any resulting evidence in a
subsequent Canadian prosecution. If the torture allegations are true, it
also shows how torture can create an environment in which people die
in custody. A journalist who believes that a number of people,
including Parmar, got away with murder has written:
The reality is that Parmar’s in-custody murder not only ruined the
chances that the families would one day see him brought to
justice . . . it also allowed his supporters to suggest that his death
was proof that India was behind the Air India bombing and had
murdered Parmar because he would have exposed the truth. Still
other militants now had a new shaheed, or martyr, to inspire
them.263
259 For an argument that executive deeming in a prosecution would violate the presumption
of innocence by substituting the Cabinet’s designation of a terrorist group for the proof beyond
a reasonable doubt required in a criminal trial, see David Paciocco, Constitutional Casualties
of September 11, 16 SUP. CT. L. REV. (2d) 199 (2002). The information used by the Cabinet to
designate a terrorist group is subject to both national security confidentiality and Cabinet
confidences.
260 BOLAN, supra note 232, at 52.
261 Financing Terrorism: Looking in the Wrong Places, supra note 23.
262 BOLAN, supra note 232, at 127.
263 Id. at 122.
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Another harsh strategy discussed in the second part of this
Article is the use of broad definitions of terrorism that include a
requirement for proof of political and religious motive. Malik and
Bagri were charged in 2000 with conspiracy to commit murder in
relation to the Air India bombing. The trial was the longest and most
expensive in Canadian history, involving 230 days of trial over
nineteen months in a specially-built $8 million courtroom with
estimated investigative costs of over $100 million.264 Malik and
Bagri were eventually acquitted with the trial judge stressing that
proof of guilt beyond a reasonable doubt “is the essence of the Rule of
Law and cannot be applied any less vigorously in cases of horrific
crimes than it is with respect to any other offence under the Criminal
Code.”265 The verdict has been very controversial, with a public
opinion poll indicating that about two-thirds of respondents disagreed
with the decision.266
The trial judge considered evidence of the accuseds’ political and
religious motives to retaliate against the state of India for its Army’s
1984 attack on the Golden Temple, the holiest site in the Sikh
religion. Shortly after that attack, Indira Ghandi, the Prime Minister
of India, was assassinated by her Sikh body guards and thousands of
Sikhs were killed in retaliatory riots in Delhi. In the end, the trial
judge did not find motive evidence very helpful in proving the
charges against Bagri and Malik because strong political and religious
motives against India were “shared by countless other Sikhs
throughout the world and by an unknown number in British
Columbia.”267 This suggests that evidence of political or religious
motive of the type now required under British and Canadian antiterrorism law may not be helpful in distinguishing between those with
strong views who would commit acts of terrorism and those who
would not.
A danger exists that juries may be more willing to convict people
of terrorism when they hear that they have extreme religious and
political views. Political motive and association evidence have played
a role in some miscarriages of justice in terrorism cases, such as in the
case of the Maguire Seven in England.268 Wrongful convictions in
264
265
266
KASHMERI & MCANDREW, supra note 235, at vi-vii.
R. v. Malik, [2005] B.C.S.C. 350 ¶ 662.
A public opinion poll found that 68% of respondents that had an opinion disagreed with
the trial judge’s verdict of acquittal. Robert Matas & Campbell Clark, Poll Finds Many in B.C.
Reject Air-India Verdict, GLOBE & MAIL, Mar. 31, 2005, at A7.
267 R. v. Malik, [2005] B.C.S.C. 350 ¶ 1238. The trial judge also considered association
evidence of the type now deemed relevant under section 83.18(4) of the Criminal Code, but
again found that it was not sufficient to establish guilt beyond a reasonable doubt. Id.; Canada
Criminal Code, R.S.C., ch. C-46, § 83.18(4) (1985).
268 Roach & Trotter, supra note 3, at 975-79.
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terrorism cases raise both normative and instrumental issues.
Normatively, a wrongful conviction is one of the most serious wrongs
a state can engage in, and one that is especially egregious in the
terrorism context where the risks of wrongful convictions are
disproportionately imposed on discrete groups who may share
political and religious beliefs or other connections with terrorists.269
A fundamental distinction between the violence used by terrorists and
the violence used by democracies to fight terrorists is that
democracies do not punish the innocent.270 Wrongful convictions
represent a failure to punish the guilty and they may help legitimate
the grievances of terrorists. In terrorism cases, wrongful convictions
may offer the public some temporary reassurance, but they ultimately
allow the guilty to go free and can discredit the state’s anti-terrorism
efforts.
Although it was impossible to use retroactive criminal charges in
the Air India case under Canada’s 2001 Anti-Terrorism Act, an
attempt was made during the trial to use the new procedure of an
investigative hearing with respect to a reluctant witness. This
procedure allows a judge to order a person to reveal information about
a terrorist offense.271 Although the law does not spell out sanctions
for failure to cooperate, a person who refuses to testify or produce
evidence can be held in contempt of court or prosecuted for failure to
obey a court order. Because they require the consent of both the
Attorney General and a judge, investigative hearings will only be held
in cases where there are reluctant witnesses, often witnesses who may
fear for their lives if they cooperate with authorities or fear that they
themselves may be prosecuted for terrorism offenses.272 Investigative
hearings were one of the most controversial parts of Canada’s AntiTerrorism Act, and they are subject to a renewable five-year sunset
provision and special reporting requirements.
The attempt to use an investigative hearing during the Air India
trial culminated in a six-to-three decision by the Supreme Court that
the new procedure was consistent with the Canadian Charter of Rights
and Freedoms. The majority of the Court ruled that investigative
hearings were judicial proceedings that should be conducted subject
to presumptions of an open court, application of the rules of evidence,
269
270
DWORKIN, supra note 228, ch. 3.
The Supreme Court of Canada has held that because of increased knowledge of the risk
of wrongful convictions, it is unconstitutional to extradite a fugitive without assurances that the
death penalty will not be applied. United States v. Burns, [2001] 1 S.C.R. 283.
271 Canada Criminal Code, R.S.C., ch. C-46, § 83.28 (1985).
272 Section 83.28(4)(b)(iii) of the Criminal Code requires that reasonable attempts have
been made to obtain the information from the person subjected to an investigative hearing.
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and full participation by both judge and counsel.273 It held that they
did not violate the principles of fundamental justice because any
compelled evidence and any evidence derived from compelled
evidence could not be used in subsequent criminal proceedings.274
The Court also extended use and derivative use immunity to apply to
subsequent extradition and immigration proceedings.
Some may worry that the Court has deprived investigative
hearings of their utility as an investigative device, especially by
imposing the presumption that such hearings should be held in public.
But such criticisms beg the question of the utility of investigative
hearings as a means of dealing with reluctant witnesses. The Air
India trial suffered from many problems concerning reluctant
witnesses. One key witness was offered extensive witness protection
in the form of numerous relocations and changes of identity, and
another was provided $300,000 to testify. The identities of both
witnesses remain subject to a court publication ban. Two other
possible witnesses for the prosecution were murdered before charges
were laid in the case, and many witnesses were fearful for their safety.
The prosecution did not attempt to use an investigative hearing with
respect to these witnesses, but rather with respect to a less crucial
witness who did not object to the release of her name. After having
won the constitutional battle to subject the witness to an investigative
hearing, the prosecutor decided not to proceed with the hearing.
The answer to the problem of witness intimidation in terrorism
and other cases is more complex than simply using investigative
hearings to force reluctant witnesses to answer questions under threat
of prosecution and punishment. Widespread use of investigative
hearings may only brand witnesses as uncooperative and produce a
record of inconsistent statements to be used by defense lawyers. Use
of investigative hearings against witnesses who may have been part of
a terrorist conspiracy also may grant such witnesses immunity
because of statutory and constitutional standards that prevent the use
of compelled statements and evidence derived from compelled
statements in subsequent proceedings.275 In the end, the proposed
investigative hearing in the Air India trial was not held, and it is
doubtful that even extensive use of investigative hearings as a form of
pre-trial discovery would have cured the problems with many of the
273 Three judges dissented from the Court’s main decision, holding that it was an abuse of
process to use investigative hearings during a trial, with two of the three judges holding that it
also violated judicial independence to have judges preside over police investigations. R. v.
Malik, [2005] B.C.S.C. 350 ¶ 1238.
274 Canada Criminal Code, R.S.C., ch. C-46, § 83.28(10)(b) (1985).
275 Canada Criminal Code, R.S.C., ch. C-46, § 83.28(10) (1985); R. v. S. (R.J.), [1995] 1
S.C.R. 451.
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witnesses in the Air India case. Indeed, extensive use of investigative
hearings with those witnesses may have revealed only more
inconsistencies and credibility problems. The judge ultimately held
that the key witnesses against both Malik and Bagri were not credible
for a variety of reasons including motives to lie. Those who argue
that investigative hearings are a much needed symbol that Canada is
serious about the war against terrorism276 not only downplay the
extent to which investigative hearings limit rights, but also make
unwarranted assumptions about the usefulness of such proceedings in
compelling people to cooperate. In many cases, witness protection
and plea bargains will be of more practical use than investigative
hearings in making people cooperate.
Another harsh security measure examined in the second part of
this Article is the use of immigration law, and in particular security
certificates, as a means to detain non-citizens suspected of terrorism.
Most of those thought to be associated with the Air India bombing,
however, immigrated to Canada in the early 1970’s, more than a
decade before the bombing, and were Canadian citizens at the time of
the plot.277 Accordingly, security certificates and other immigration
procedures could not be applied to them. As suggested by the House
of Lords in A v. Secretary of State,278 a focus on immigration law as
anti-terrorism law is under-inclusive and may make the state
vulnerable to terrorist attacks by citizens. The immigration law
approach to terrorism also runs the risk of discriminatory treatment of
non-citizens.
C.
Proportionate Strategies
As discussed in the third part of this Article, reconciling national
security confidentiality with fairness to affected persons is one of the
most difficult parts of devising a proportionate security strategy.
Canada frequently has relied on the security certificate process to deal
with terrorist suspects because it allows the state to use information
and intelligence against the detainee without disclosing it to the
detainee. The security certificate process was not in place at the time
276 Wesley Wark, Intelligence Requirements and Anti-Terrorism Legislation, in THE
SECURITY OF FREEDOM: ESSAYS ON CANADA’S ANTI-TERRORISM BILL, supra note 35, at 287,
291; Barry Cooper, Privacy and Security in an Age of Terrorism, STUD. IN DEF. AND FOREIGN
POL’Y, Oct. 2004, at 21.
277 BOLAN, supra note 232, at 35.
278 A v. Sec’y of State for the Home Dep’t, [2004] UKHL 56, [2005] 2 A.C. 68 (U.K.).
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of the Air India bombing and would not have been available with
respect to those involved in the plot who had Canadian citizenship.
In the absence of this procedure, criminal prosecutions were used
both with respect to the Air India bombing and in other prosecutions
in Canada of Sikhs charged with conspiring to commit acts of
terrorism in India and the United States. Two of these prosecutions
were ultimately unsuccessful in large part because the state was
reluctant to make full disclosure. In one case, the accused, including
Talwinder Parmar, successfully challenged the admissibility of
evidence obtained through electronic surveillance because of a failure
to disclose the information that supported the warrant.279 In another
case, which involved charges of conspiracy to blow up another Air
India plane, charges were eventually stayed because of the
prosecution’s refusal to disclose information relating to a key
informer.280 The failure to make full disclosure in these two cases
was based not on national security concerns about the receipt of
information from foreign agencies, but rather on a more traditional
reluctance by the authorities to reveal information about informers.
The failure to complete the prosecution process in both of these cases
suggests that even before 9/11 there was a danger that officials could
abandon the use of open and stringent criminal prosecutions in their
anti-terrorism efforts.281
In the Air India trial, however, the disclosure process fortunately
went much more smoothly despite the fact that much of the disclosed
material involved legitimate national security confidentiality
concerns, including intelligence received from the Indian government
and evidence that revealed the investigative methods of CSIS and the
RCMP. The prosecutor in the Air India case initiated a process in
which defense counsel conducted a preliminary review of the massive
amount of material stemming from the CSIS and RCMP
investigations, subject to the client’s agreement that defense counsel
would not disclose the information reviewed with anyone, including
their clients. The materials that defense counsel believed should be
disclosed were then submitted to the prosecutor for reconsideration
279
280
R. v. Parmar, [1989] 53 C.C.C. (3d) 489 (Ont. Ct. App.).
R. v. Khela, [1991] 9 C.R. (4th) 380 (Que. Ct. App.) (overturning conviction because of
a lack of disclosure); R. v. Khela, [1995] 4 S.C.R. 201 (affirming constitutional nature of the
Crown’s disclosure obligations); R. v. Khela, [1998] 126 C.C.C. (3d) 341 (Que. Ct. App.)
(permanently staying charges because of failure to disclose information relating to a police
informer). Section 38.14 of the Canada Evidence Act, as amended by the 2001 Anti-Terrorism
Act, also affirms the ability to stay criminal trials on the basis that the need to maintain
national security confidentiality makes it impossible to have a fair trial.
281 On the dangers of states abandoning the criminal law in favor of less restrictive
strategies including immigration law and extra-legal processes, see Roach, Criminal Law and
Terrorism, supra note 26.
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with the option of litigation if the prosecutor and the defense
disagreed about whether it could be disclosed. Michael Code, a
defense lawyer in the case, has written that “what is remarkable about
this process is that it has continued over a lengthy pretrial period of
almost two and a half years and not a single document has ever been
taken to the trial judge, or to the Federal Court, for a judicial
resolution of the disclosure/privilege dispute.”282 He observes that for
the prosecutor, the cooperative approach is preferable to having to
justify non-disclosure in court and having a criminal prosecution in
the provincial superior courts disrupted by litigation of national
security confidentiality claims in the Federal Court.283 For the
defense, this procedure, while not perfect, was certainly preferable to
having the judge examine the material in private as is done in the
security certificate cases. “Any diligent defence counsel will prefer
his or her own personal inspection of the Crown’s withheld materials”
to the judge’s private inspection.284 At the same time, this process
depends on the good faith of and cooperation between prosecutors and
defense counsel. In many ways, the real triumph of the Air India case
is that it reached a verdict and did not get bogged down with disputes
over national security confidentiality that could have fractured and
delayed and perhaps even ended the criminal trial.
In Canada, disputes over national security confidentiality must
be litigated before a specially designated Federal Court judge and not
before the criminal trial judge. This process is designed to protect the
confidentiality of the material, but it also fractures and disrupts
criminal prosecutions. At least one criminal prosecution in Canada
has been disrupted and delayed by frequent interlocutory proceedings
in the Federal Court. The accused was prevented from seeing all the
evidence for which the government claimed national security
confidentiality, but the Federal Court appointed a security-cleared
advocate to examine the material.285 As discussed in the third part of
this Article, special advocates are far from ideal, but they are a more
proportionate alternative to ex parte proceedings that deprive the
judge of the benefit of an adversarial challenge to the government’s
claim that evidence cannot be disclosed to the accused because of
concerns about national security confidentiality, or of the benefit of an
adversarial testing of evidence that is subject to a legitimate claim of
national security confidentiality.
282 Michael Code, Problems of Process in Litigating Privilege Claims under the Flexible
Wigmore Model, in SPECIAL LECTURES 2003: THE LAW OF EVIDENCE 272-73 (Alan W. Bryant
et al. eds., 2004).
283 Canada Evidence Act, R.S.C., ch. C-5, § 38 (1985).
284 Code, supra note 282, at 272-73.
285 Canada v. Ribic, [2003] F.C.A. 246, ¶¶ 42-45.
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In balancing the interest in disclosing evidence to the accused
with the potential damage to national security, the Federal Court has
employed a test that makes generous allowance for the state’s
interests and that generally will disclose evidence only when the
accused’s innocence is at stake.286 Such a stringent test, especially
when conducted by a Federal Court judge who is not the trial judge,
runs the risk of not disclosing helpful information to the accused. In
any event, the Attorney General of Canada has the power to reverse a
court order that evidence should be disclosed to the accused with
respect to information that is obtained from a foreign entity or that
concerns national security or defense.287 Such an order is subject to
only limited review by one judge of the Federal Court of Appeal and
will be reversed only if the evidence does not relate to national
security or national defense, or if it was not obtained from a foreign
entity.288 At that point, the issue will be returned to the trial judge,
who has the ability to stay criminal proceedings if he or she
determines that it is impossible to have a fair trial without disclosure
of the material to the accused.289 One problem with this procedure is
that the trial judge may have to determine whether a fair trial is
possible even though he or she has not seen the evidence withheld
from the accused. Conversely, the Federal Court judge must decide
whether evidence should be disclosed to the accused because the
accused’s innocence is at stake even though he or she is not the trial
judge in the accused’s case. Fortunately, the Air India trial was
litigated without use of this awkward and protracted procedure, but
future terrorism trials in Canada may well become bogged down in
this procedure for protecting national security confidentiality.
The Air India case also raises the haunting question of whether
arrests could have been made that would have prevented the terrible
act of terrorism. As discussed above, the security intelligence agents
who had Parmar, Reyat, and an unidentified man under surveillance
when a test blast was conducted nineteen days before the bombing did
not have the power to arrest those men. They did inform the RCMP
about the event (which they thought at the time may have involved a
gun shot and not an explosion), but no detailed investigation was
conducted until after the bombing of Air India. It is possible that an
expeditious investigation and perhaps an arrest of Reyat and Parmar at
that time for unlawful possession or use of explosives might have
disrupted the plot. It is not clear whether the many new terrorism
286
287
288
289
Id.
Canada Evidence Act, R.S.C., ch. C-5, § 38.13 (1985).
Id. § 38.131(8).
Id. § 38.14.
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offenses under Canada’s 2001 Anti-Terrorism Act, had they been
available in 1985, could have been used before the Air India bombing.
The new offenses of participation in a terrorist group and facilitation
of terrorist activities might have been charged, but given the failure to
translate and retain the wiretaps and the caution exhibited by Parmar
and his associates when they did talk on the phone, it is unclear
whether the prosecutor would have had sufficient evidence of purpose
or knowledge in relation to acts of terrorism.
When considering whether the new offenses in the AntiTerrorism Act could have been used to prevent the Air India bombing,
it must be remembered that it was possible in 1985 to charge the men
under existing broad Canadian laws regarding attempts to commit
crimes, conspiracy to commit crimes, and counseling people to
commit crimes.290 The reasons why these charges were not laid relate
to the failure of CSIS to translate wiretaps expeditiously and problems
of coordination between CSIS and the RCMP. Since 9/11, the RCMP
has created Integrated National Security Teams composed of RCMP,
municipal, and provincial police and CSIS agents.291
Could a preventive arrest such as those now available in Canada
and the United Kingdom have prevented the Air India bombing?
Although the Canadian provision allows arrest on the basis of a
reasonable suspicion that it is necessary to prevent the person from
participating in terrorist activities, it still requires reasonable and
probable grounds to believe that a terrorist act will occur. The SIRC
report concluded that CSIS did not have specific intelligence about
the plot to bomb Air India.292 Even if arrests or preventive arrests
could have been made after the test explosion, and conditions could
have been imposed upon Parmar and Reyat, there are no guarantees
that the conditions would have been obeyed or enforced by the police.
Parmar was subject to extensive surveillance at the time of the test
blast in early June 1985 because Indian Prime Minister Rajiv Gandhi
was visiting the United States at that time. Once Gandhi left North
America, however, physical surveillance of Parmar stopped shortly
before the Air India bombing on June 23, 1985.293 Although it is easy
to criticize these actions as yet another failure of intelligence or
policing, there are legal and practical limits to intrusive techniques
such as surveillance and preventive arrests. It is not possible to
dismiss the idea that preventive detention or broader offenses may
290
291
Roach, supra note 37, at 152-54.
COMM’N OF INQUIRY INTO THE ACTIVITIES OF CANADIAN OFFICIALS IN RELATION TO
MAHER ARAR, ACCOUNTABILITY OF SECURITY INTELLIGENCE IN CANADA (2004).
292 SEC. INTELLIGENCE REVIEW COMM., supra note 242, at 8.
293 BELL, supra note 245, at 15; BOLAN, supra note 232, at 63; SEC. INTELLIGENCE REVIEW
COMM., supra note 242, at 8.
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have helped apprehend the plot to destroy Air India, but the available
evidence suggests that the most certain way this horrific act of murder
and terrorism could have been avoided was through the smart security
strategy of screening all luggage that went on the aircraft for
explosives.
CONCLUSION
Too much of the post-9/11 debate about terrorism has accepted
that there is an inevitable and pervasive trade-off between rights and
security. In this article, I have argued that the relationship between
rights and security is more complex than a simple trade-off between
these two values. Some of the most promising anti-terrorism
strategies are smart strategies that do not violate rights. Conversely,
some harsh anti-terrorism strategies may violate rights without being
effective in preventing terrorism. Finally, security strategies that
genuinely implicate both rights and security should be designed to
respect principles of proportionality. These principles require that any
rights-invasive policy must be prescribed by law and rationally
connected to the prevention of terrorism, and that less drastic
measures must be inadequate. Proportionality principles also require
that the effectiveness of rights-invasive security policies in preventing
terrorism substantially outweigh their harms in violating rights.
Some of the most promising strategies to prevent terrorist attacks
are smart strategies that do not violate rights. Such strategies include
administrative regulation of substances such as explosives and nuclear
material that can be used to commit terrorism. They also include the
administrative regulation and target hardening of sites such as airports
and seaports that are particularly vulnerable to terrorism. Other smart
security strategies that do not violate rights are emergency
preparedness to minimize the harms of both terrorism and a broad
range of natural and man-made disasters and review of national
security activities to ensure both their propriety and their
effectiveness. In 2004, Canada adopted an all-risks national security
policy with a particular emphasis on review of the state’s national
security activities and emergency preparedness. Canada’s national
security policy attempts to place terrorism on a rational list of threats
to security that includes threats such as pandemics and natural
disasters. It also envisions review of national security activities as a
means of both responding to rights violations and improving the
effectiveness of national security policies and operations.
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Taking tough steps that limit or violate rights will not guarantee
security. Indeed, harsh anti-terrorism policies such as the prosecution
of non-violent dissent or extreme political or religious speech, or the
use of racial or religious profiling, may be counterproductive. The
deletion of the requirement for proof of political and religious motive
in British and Canadian anti-terrorism laws would respond to
concerns about singling out some groups while making it a bit easier
to prosecute terrorism cases. A narrower definition of terrorism
would not only minimize threats to civil liberties, but would also help
focus limited resources on the most serious threats. Investigative
hearings not only adversely affect rights, but, as Canada’s failed Air
India prosecution demonstrates, they do not ensure the cooperation of
reluctant witnesses. Discriminatory profiling not only violates
equality rights, but also misallocates limited intelligence and policing
resources on many innocent people while running the risk of allowing
terrorists who do not fit the stereotyped profile to escape scrutiny.
The use of immigration law as anti-terrorism law presents the risk of
discrimination against non-citizens, and it will fail to apprehend
citizens who commit acts of terrorism. The United Kingdom’s recent
decision to abandon indefinite detention of some suspected terrorists
under immigration law has led to new controls that can apply to both
citizens and non-citizens who are suspected of terrorism. In contrast,
Canada’s reliance on indeterminate detention of non-citizen terrorist
suspects under immigration law continues to violate rights while not
addressing terrorist threats from Canadian citizens.
Finally,
overbroad anti-terrorism laws, the prosecution of extremist speech,
and the use of racial and religious profiling risk alienating the
communities that could assist the state in understanding and
preventing terrorist threats.
Although many smart security strategies do not violate rights,
and some harsh security strategies violate rights without preventing
terrorism, there are some strategies that violate rights but can be
justified as necessary to prevent terrorism. Such strategies should be
carefully and rationally designed and prescribed by law in light of
proportionality principles. The state must be prepared to justify such
strategies as rationally connected to the prevention of terrorism. It
must also be able to demonstrate that less drastic measures will not be
adequate and that the effectiveness of these strategies will
substantially outweigh their harms in violating rights. The use of
security-cleared special advocates to deal with the dilemmas of
national security confidentiality holds some promise as a
proportionate strategy, but will not end all concerns about the fairness
of denying affected parties access to evidence. Use of special
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advocates might make the process fairer, and also might result in
better intelligence and increased public awareness of the legitimate
reasons for not disclosing all security intelligence information.
Countries must struggle with how to treat non-citizen terrorist
suspects who cannot be deported because of concerns that they will be
tortured upon their return to countries such as Syria. The answer is
not to be complicit in torture, and alternatives like domestic
prosecutions and preventive restraints on liberty must be explored on
a case-by-case basis. When considering the proportionality of
preventive restraints on liberty, there should be a recognition that the
range of punishable offenses for various forms of preparation for
terrorism has expanded and that criminal prosecutions may in some
cases constitute a more proportionate response to security threats than
the use of preventive detention or control orders.
The threats of terrorism are real and have been so for quite some
time. Nevertheless, terrible acts of terrorism such as the 1985
bombing of Air India Flight 182 probably would not have been
prevented by employing harsh strategies such as the prohibition of
speech associated with terrorism, racial and religious profiling, or the
use of immigration law as anti-terrorism law. Even proportionate
strategies, including preventive restraints on liberty, may not reliably
prevent acts of terrorism or ensure their successful prosecution. The
fallibility of such strategies underlines the continued importance of
smarter strategies designed to deny terrorists access to substances
such as explosives that will be used to kill and sites such as airplanes
that are vulnerable to terrorism. Societies should also invest in
strategies that will limit the damage caused by terrorism and other
threats to security.