KRISTEN N. LEPPINGTON

BILL C-36: THE CREATION OF CANADA’S 2001 ANTI-TERRORISM ACT

Mémoire présenté à la Faculté des études supérieures de l’Université Laval

dans le cadre du programme de Maîtrise en analyse des politiques pour l’obtention du grade de Maître es arts (M.A.)

DÉPARTEMENT DE SCIENCE POLITIQUE FACULTÉ DES SCIENCES SOCIALES

UNIVERSITÉ LAVAL QUÉBEC

2011 © Kristen N. Leppington, 2011

Résumé

Bien que les attentats du 11 septembre 2001 aient pris place aux États-Unis, la réaction du

gouvernement canadien a été de proposer la Loi C-36 (la Loi anti-terroriste), une loi qui

apporte plusieurs changements au Code criminel canadien et modifie d’autres lois.

L´adoption de cette loi s’est faite dans un temps record. Afin de mieux comprendre cette

rapidité (du 11 septembre à sa sanction royale en 99 jours) et de mieux cerner la relation

avec un événement survenu à l´étranger, ce mémoire cherche à expliquer les facteurs

internes et externes qui ont influencé le moment choisi et le contenu de la loi.

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Abstract

Though the terrorist attacks of September 11th, 2001, took place on foreign soil, the

Canadian government reacted to this event by proposing Bill C-36 (the Anti-terrorism Act),

an omnibus bill outlining multiple changes to the existing Canadian Criminal Code and

other acts. With an aim to better understand this anomaly of Canadian public policy in both

its record speed (from 9/11 to its Royal Assent in 99 days) and its relation to a foreign

catastrophe, this thesis seeks to explore both the internal and external factors that

influenced the timing and the content of Bill C-36.

Acknowledgements

I would like take this opportunity to thank the Honourable Anne McLellan, Rev. Bill

Blaikie and Justice Richard Mosley for their invaluable contribution to this research project

through their candid personal interviews. I would also like to thank my thesis co-directors

Prof. Aurélie Campana and Prof. Steve Jacob for their support and direction as this thesis

gradually came together. Finally, I would also like to thank my family as this phase in my

life meant certain real sacrifices on their part; without their support, this never could have

been completed.

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To my young students with whom I spent the dark hours and days following 9/11,

and to Him who guards my eternal security.

Table of Contents Résumé ..................................................................................................................................... i Abstract .................................................................................................................................. ii Acknowledgements ............................................................................................................... iii Table of Contents .................................................................................................................... v List of Figures ...................................................................................................................... vii Introduction ............................................................................................................................. 1 II. Bill C-36: The 2001 Canadian Anti-terrorism Act .......................................................... 21 III. Internal Factors Influencing Bill C-36 ............................................................................ 37 IV. External Factors Influencing Bill C-36 .......................................................................... 61 Broader Conclusions to Consider: Bill C-36 ........................................................................ 84 Bibliography ......................................................................................................................... 92 Appendix A.1 - Text from Correspondence sent to Parliamentarians – English .................. 98 Appendix A.2 - Text from Correspondence sent to Parliamentarians – French ................... 99 Appendix A.3 - Phone Interview Questions – English ....................................................... 100 Appendix B.1 - Ethics Committee Project Approval ......................................................... 103 Appendix B.2 - Consent Form for Interview - English ...................................................... 105 Appendix C – List of Recommendations by the First Report of the Special Senate Committee on Bill C-36 ...................................................................................................... 108

List of Figures Figure 3.1:

Distribution of Parliamentary Votes on Bill C-36 at 3rd Reading – Nov. 2001 . . . . . . . 58 Figure 4.1:

Summaries of United Nations Security Council Resolutions Related to Bill C-36 . . . . 81

Introduction

1. Context

The morning of September 11th, 2001, began a new era in Canada as it did in the

United States. The unprecedented attacks on the World Trade Center, the Pentagon and the

aircraft over Pennsylvania permanently changed the way Canadians viewed their national

and personal security.1 Though the attacks took place on foreign soil, the Canadian

government, as official protector of the liberties and security of its citizens, chose to react

to this event by proposing Bill C-36, an omnibus bill outlining multiple changes to the

existing Canadian Criminal Code and other acts, to the 37th Parliament.2 This bill was first

presented to the House of Commons on October 15th, 2001, and when it received Royal

Assent only eight weeks later, it was titled the 2001 Canadian Anti-terrorism Act (ATA).3

In the preamble to the Canadian Anti-terrorism Act, it is written that, “after

September 11th, 2001, the Government determined that it was necessary to include new

and specific terrorist offences in the Criminal Code, offences which pertain to activities

that could lead to an eventual terrorist attack, in large part to confront the issue that once a

terrorist event takes place, it is too late.”4 This telling declaration implies that the

government had determined that no existing law in Canada was sufficient to prevent a ‘9/11

1 David Schneiderman, “Terrorism and the Risk Society” in Ronald J. Daniels, Patrick Macklem and Kent Roach (Eds.), The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (Toronto: University of Toronto Press, 2001) 63. 2 Ronald J. Daniels, “Introduction” in Ronald J. Daniels, Patrick Macklem and Kent Roach (Eds.), The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (Toronto: University of Toronto Press, 2001) 3. 3 Department of Justice, “The Anti-terrorism Act: Frequently Asked Questions,” 20 Jun. 2008, Government of Canada, 31 Aug. 2008, <http://www.justice.gc.ca/antiter/faqs-faq-eng.asp#Q1>. 4 Department of Justice, “The Anti-terrorism Act: Context and Rationale,” 8 Sep. 2009, Government of Canada, 17 Sep. 2009, <http://www.justice.gc.ca/antiter/contextandrational-contexteetraisondetre-eng.asp>.

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style’ attack. This assumption, as well as the government’s knee-jerk reaction to quickly

rectify the situation by passing Bill C-36, begs a wide variety of important questions that

this research project hopes to explore in depth. In short, our research question will focus

on:

What/Who influenced the timing and content of Bill C-36?

In general, this project aims to clarify and add to our understanding of the creation

of Bill C-36. More specifically, this research aims to identify the factors and actors which

influenced the content and timing of Bill C-36, attempting to answer questions such as:

What specifically about the September 11th attacks moved Canadian lawmakers to react as

they did (as opposed to reacting to other world security problems and events, such as the

Air India bombing of 1985)? Were there, in fact, external pressures that may have

influenced the content and timing of Bill C-36 (i.e. the Canadian Anti-terrorism Act)?

After exploring these important questions and others, we hope to better understand how

these factors may influence other policies created in reaction to a sudden, unexpected event.

2. Research Question Justification – Originality and Value

Though much literature exists extolling or warning against the implications of the

final provisions of Bill C-36 (i.e. the 2001 Canada Anti-terrorism Act), very little has been

published on the behind-the-scenes details of what triggered the process of creating, putting

together and passing such a bill in record speed and in reaction to an event occurring on

foreign soil. This thesis will examine this previously unexplored area of knowledge and

aim to contribute a new angle of analysis to this research area.

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When most Canadian legislation takes months to years to move from a proposal to a

federal statute, this Bill stands as an outlier in how fast it was able to move through the

House and the Senate, as there were only 99 days between 9/11 and Bill C-36 receiving

Royal Assent. Questions regarding the timing of this legislative move begin to appear:

Why was it allegedly ‘fast-tracked’? Why did the events of 9/11 (on foreign soil) prompt

Canada to pass such a Bill here at home? Questions concerning its content also need to be

asked: Why were so many code amendments (196 pages’ worth) attached to the Bill,

amendments that vary in their apparent relation to the events of 9/11? Were there

underlying influences that forced the hands of Canadian legislators to react as they did?

We will seek to answer these questions and others to better understand what prompted the

emergence of Bill C-36 in the fall of 2001.

But why ask this question at all? Understanding the influences behind policy

changes with wide-reaching implications (such as those resulting from Bill C-36) helps us

to better evaluate the policy and political processes that brought about such a response, both

in its type and its speed. Being aware of subtle external/internal influences on public

policies opens the door to other avenues of knowledge exploration. In short, through this

research, we will better understand how factors similar to those that influenced Bill C-36

influence other policies created in reaction to a sudden, unexpected and powerful event.

3. Literature Review

As we began our literature review for this particular topic, it quickly became

obvious that the pursuit of security policy analysis tends to be hindered by a particular set

of challenges that general policy analysis is not. While many articles and books exist on

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the evaluation of the consequences of policies such as the 2001 USA PATRIOT Act, the

United Kingdom’s Anti-terrorism, Crime and Security Act and even Canada’s Anti-

terrorism Act, very little is publicly available on the processes, conversations, agreements

and negotiations that went into drafting these bills (in both their content and their timing),

for reasons possibly linked to national security and political privacy. We will begin our

literature review with a brief overview of the available scholarly resources on Bill C-36 and

finish with an overview of what we believe to be the important gaps in the available

literature.

There are several important books written specifically on the subject of Canada’s

2001 Anti-terrorism Act. The first one published, The Security of Freedom (2001), is based

on papers presented at a conference organized by the Faculty of Law at the University of

Toronto in November 2001. It is a collection of essays documenting the legal debate that

surrounded Bill C-36 at the moment of its presentation in Parliament in October 2001 and

before the Anti-terrorism Act (ATA) was officially enacted in December 2001. Edited by

Daniels, Macklem and Roach, this collection contains 25 essays by 25 contributors and

examines the judicial side of the issue and the legal impact of Bill C-36 on Canadians.

One of the great strengths of this book is that it is the only one written during (even

alongside) the drafting of Bill C-36, and considering that members of the Canadian

Department of Justice were present at the conference that brought about the content of this

book, one could argue that this scholarly work was the only scholarly literature (apart from

expert witness testimony – more on this in Chapter III) that had the opportunity to influence

those who were involved in determining the final draft of the Bill itself. However, though

it contains sporadic and superficial mentions of the factors that may have influenced the

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content and timing of Bill C-36, this book lacks an in-depth analysis of the specific

questions we are seeking to answer through this thesis.

The second book, September 11th: Consequences for Canada (2003), was written by

Kent Roach, an editor and major contributor to the aforementioned Security of Freedom. In

this book, Roach takes a look at how Canadian laws, democracy, sovereignty and security

have been affected by the 2001 Canadian ATA. He also offers his own views on how

Canadian security might be enhanced using administrative and technological measures.

Much like Security of Freedom, September 11th begins its analysis post-Bill C-36 and does

not venture into the factors that may have influenced the construction of the 2001 Canadian

Anti-terrorism Act.

The third book, Anti-terrorism: Security and Insecurity after 9/11 (2009), was

edited by Sandra Rollings-Magnusson, a professor of sociology at Grant McEwan College

in Edmonton, Alberta. Anti-terrorism examines post-9/11 Canada in terms of human rights

and freedoms and government responses to terrorism; the contributing authors offer policy

ideas to adjust those responses that, in Rollings-Magnusson’s opinion, “oppose democratic

values.”5 Her volume is unique in its sociological approach to the evaluation of Canadian

security policy. She ventures a little further than some of the other authors into the factors

that may have influenced Bill C-36, but these are only fleeting mentions in chapters

dedicated to other topics.

Finally, Terrorisme et anti-terrorisme au Canada edited by Stéphane Leman-

Langlois and Jean-Paul Brodeur (2009) is a valuable resource outlining how terrorism has

played out here in Canada over the years and how the Canadian government has responded

5 Sandra Rollings-Magnusson (Ed.), Anti-terrorism: Security and Insecurity After 9/11 (Black Point, Nova Scotia: Fernwood Publishing, 2009), back cover.

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to terrorism. It is a collection of scholarly treatments of various topics such as the

definition of terrorism, the history of terrorism in Canada and terrorism as a criminal

offense, among others. There is a brief section in Chapter 9 of Terrorisme that concentrates

on the creation of Bill C-36, where the chapter author, Antoine Mégie, examines the

question of how an event on foreign soil translated into sweeping changes to the Canadian

Criminal Code. Mégie believes that the primary political justification for this bill resides

in the reality of the context of international terrorism, which made it necessary for states to

align their counter-terrorism texts and legislation. He believes that the Canadian

government used this logic to justify their amendments to the Canadian Criminal Code and

the transformations of its institutions of control and surveillance that ensued (Leman-

Langlois & Brodeur, 2009:189). Beyond this brief segue into Mégie’s hypothesized

influences behind the creation of Bill C-36, there is little mention in this volume of other

forces that may have influenced the content and timing of the bill. For the most part, the

authors’ analysis of Bill C-36 begins after the bill was given Royal Assent.

In addition to these four books, there is an important scholarly evaluation available

on the Department of Justice website called The Views of Canadian Scholars on the Impact

of the Anti-terrorism Act. This project was undertaken to evaluate the major effects of Bill

C-36 on Canadians. In late 2003/early 2004, the Department of Justice sent out questions

to a wide variety of Canadian scholars of varying backgrounds, requesting their informed

opinion on what this legislative move might mean for Canadians in terms of the current

terrorist threat, risks to civil liberties and other important issues. Though this document is

helpful in considering the specific questions issued by the Department of Justice, it fails to

provide insight into the creation and conception of the bill.

7 These works offer an excellent discussion on the legal aspects and the social

consequences of the ATA (for example, if the amendments to the Canadian Criminal Code

are justified, constitutional and/or effective) but for the most part, they all begin their

observations and critiques after Bill C-36 was passed. From our readings, we have found

that this field of literature lacks not only an in-depth study on the Canadian Anti-terrorism

Act (ATA) in its very conception, but also a careful look at the influences that formed the

details, the contents and the timeframe which led to the 2001 ATA. Our research will

venture to fill the gap that currently exists in the literature on the forces influencing

Canadian counter-terrorism policy.

4. Theoretical Framework

According to Kingdon (2003), the creation of any given public policy involves a set

of processes, including (a) agenda-setting, (b) outlining the alternatives from which to

choose, (c) selecting an “authoritative choice” (2003:3) from among said alternatives and

(d) implementing the decision. So as to better understand these policy-making processes,

Kingdon outlines three policy streams which, under normal circumstances, exist

independently and separately: (1) the problem stream (where a myriad of issues compete

for policymakers’ attention); (2) the solution stream (where policy ideas for resolving

particular problems are considered, examined, debated, reviewed, merged and framed); and

(3) the political stream (where key actors in decision-making roles in the legislative and

executive branches of government present, discuss, enact or turn down certain policy

ideas). In this model comprised of “multiple streams,” a policy is created when the three

streams come together during a “policy window” (Kingdon 2003: 166) which opens as a

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result of a focusing event occurring in either the problem or political stream. This event

brings the normally separate and independent streams together at a point of convergence, a

point at which a particular policy is brought to the forefront, considered, debated, and a

proposed solution is accepted. Kingdon’s model of multiple streams views policymaking

as a non-linear process, where each stream exists on its own continuum which merges with

other streams only when a focusing event interrupts the stream, bringing the three streams

together into a “policy window” (Kingdon 2003: 165). In this type of policymaking model,

solutions can exist before the problem is brought to the public’s awareness, causes can be

championed before their time, etc.

Though Kingdon’s streams model was primarily developed to understand

policymaking in the areas of transportation and health, it also translates well into the area of

security policy. We believe that Kingdon’s model is a viable framework from which to

examine security policy, as we will show using the example of the creation of Canada’s

Anti-terrorism Act in the wake of the events of 9/11. We chose Kingdon’s multiple

streams model to explain the factors influencing Bill C-36 because our preliminary research

into the creation of this Bill suggested that its creation, timing and influences did not follow

a linear trajectory; that is, there was activity in all three of the metaphorical streams in the

months, even years, leading up to 9/11, but the policy only saw its day in the House of

Commons after the events of 9/11. Few would dispute the fact that a perceived increase in

global terrorist activity during the years leading up to 9/11 certainly fits the description of

activity going on in the problem stream surrounding this issue. As with any legislative

change, such as the sudden introduction of the USA PATRIOT Act in the weeks following

9/11, there are always political overtones that influence the manner and the content of such

strong political moves since it is politicians themselves who initiate, execute and publicly

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defend such measures. Applied to the anti-terrorism legislative moves that occurred post-

9/11, Kingdon’s political stream would include descriptions of all the various political

pressures and agendas that influenced this type of legislation that was passed in late 2001

and beyond. Kingdon’s solution stream would include the resulting fallout from the

political pressures and the actual problems that led to the focusing event of 9/11 that

interrupted the three streams to form a policy window, converging the streams towards a

policy-making decision (i.e. the solution) presented to the 37th Parliament in the weeks that

followed.

While Kingdon’s multiple streams model helps to organize the factors leading to the

policy window that initiated the drafting of Bill C-36, the public policy theories of

institutional isomorphism and optimizing complement his model by helping us to better

understand the details of the respective external and internal factors that affected the timing

and content of the legislation. We believe that these two additional theories fit into

Kingdon’s model, inside his political and solution streams. In the political stream,

Canadian politicians were certainly weighing their options as to how they were going to

collectively react to the events of 9/11. The public policy theory of optimizing states that,

typically, when public policy decisions need to be made, decision-makers enumerate all the

options available to them. Sometimes, an external event related to the decision can force

decision-makers to make their policy decision before all viable options can be enumerated.

This renders the situation static by force, a point where the utility of waiting for or finding

an even better solution is outweighed by the cost of continuing to search for that solution

(Byron, 1998). Applied to the context of various international legislative reactions to 9/11,

some scholars (Badey, 2006; among others) have suggested that “popular fear, outrage and

anger, in the wake of the attacks of 9/11, weighed heavily on decision-makers. The need to

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do something became as important, if not more important, than the debate about what to do.

Public and media pressure limited time for reflection and analysis.”6 As the act of

optimizing was occurring in Kingdon’s political stream, it was also exerting an influence

on the solution stream, i.e. what was eventually decided on as far as a solution. We will

explore these complementary theories and perspectives in greater depth in Chapter III.

An additional and relevant theory of public policy that relates to both Kingdon’s

solution and politics streams is the concept of institutional isomorphism. In their seminal

work in this area, DiMaggio & Powell (1983) explain that “[w]hen goals are ambiguous or

when the environment creates symbolic uncertainty, organizations may model themselves

on other organizations.”7 A pattern emerges during a quick survey of various nations’

reactions to the events of 9/11 that may indicate an attempt by these same countries (United

States, Canada, the United Kingdom, etc.) to mirror each other’s reactions for what

DiMaggio & Powell would define as reasons of symbolic uncertainty. In this way, the

concept of institutional isomorphism fits within Kingdon’s political stream, subsequently

influencing the eventual solution (i.e. Bill C-36) as proposed by the 37th Canadian

Parliament. We will explore this point in greater depth in Chapter IV.

We believe that all three of these theoretical concepts (Kingdon’s streams, the

theories of optimizing and institutional isomorphism) related to public policy work best

together to create a more nuanced and more complete picture of who/what influenced the

content and timing of Bill C-36. We will further explore how these three theories fit

together in the chapters that follow.

6 Thomas J. Badey, “U.S. Counter-terrorism: Change in Approach, Continuity in Policy,” Contemporary Security Policy 27: 2 (2006), 322. 7 Paul DiMaggio & Walter W. Powell, “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields,” American Sociological Review [Vol. 48, No. 2, April 1983] 151.

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5. Research Hypotheses

According to the Global Language Monitor, the second most prominent word used

in the news media8 from 2000 to 2009 was “9/11”, while the top three most prominent

names were all 9/11-related: “heroes” (in reference to those who rushed the towers after the

terrorist attacks, including rescue workers), “bin Laden” (i.e. the mastermind behind 9/11)

and “Ground Zero” (i.e. the Manhattan crash site of two of the four aircraft used in the 9/11

attacks). A casual search using Google Scholar indicates the presence of more than

641,000 online scholarly articles related to “September 11.”9 To put this into perspective,

this total exceeds that yielded from a search for articles containing the words “global

warming” (545,000),10 “Obama” (122,000)11 and “Y2K” (40,300).12 Such results show us

that scholars and the general public alike seem to have a significant interest in matters

related to this historic tragedy. The news stories and scholarly research articles covering

the event, its players and its aftermath examine these elements from a wide variety of

angles, one of which focuses on the introduction of updated anti-terrorism legislation here

in Canada during the weeks that followed 9/11. As we conducted our review of scholarly

8 According to the Global Language Monitor, their research was conducted as follows: “The analysis was completed on November 16th using GLM’s Predictive Quantities Indicator (PQI), the proprietary algorithm that tracks words and phrases in the media and on the Internet, now including blogs and social media (such as Twitter). The words are tracked in relation to frequency, contextual usage and appearance in global media outlets, factoring in long-term trends, short-term changes, momentum and velocity” <http://www.languagemonitor.com/top_word_lists/>. 9 Google Scholar, “Search for: September 11,” 6 March 2011, <http://scholar.google.ca/scholar?start=20&q=%22september+11%22&hl=en&as_sdt=0,5>. 10 Google Scholar, “Search for: Global Warming,” 6 March 2011, <http://scholar.google.ca/scholar?hl=en&q=%22global+warming%22&btnG=Search&as_sdt=0,5&as_ylo=&as_vis=0>. 11 Google Scholar, “Search for: Obama,” 6 March 2011, <http://scholar.google.ca/scholar?hl=en&q=%22obama%22&btnG=Search&as_sdt=0,5&as_ylo=&as_vis= 0>. 12 Google Scholar, “Search for: Y2K,” 6 March 2011, <http://scholar.google.ca/scholar?hl=en&q=%22y2k%22&btnG=Search&as_sdt=0,5&as_ylo=&as_vis=0>.

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literature and news articles concerning the drafting of Bill C-36, a few unmistakeable

patterns began to emerge. Not only was the scholarly literature relatively silent on possible

influences on the content and timing of Bill C-36, but the news media of the day (including

articles published as recently as 2009) seemed to eagerly come to their own conclusions as

to who and what influenced the creation, the timing and the content of this Bill.13 We

became intrigued by the disconnect between the questions posed by the media and the lack

of substantial scholarly response to such questions. Not wanting to simply accept media

speculation to explain the forces influencing Bill C-36, we decided to take these

propositions and seek out supporting evidence using solid academic methodology.

Our first hypothesis to the question “What/Who influenced the timing and content of

Bill C-36?” relates to the speed in which Bill C-36 was put together, debated and passed

with Royal Assent, almost as if it were somewhat ‘ready to go’ before the tragic events of

9/11. This same kind of speculation surrounded the emergence of the U.S.A. PATRIOT

Act, as put forward by LeClerc & Gould (2009), whose point of view we will further

explore in the chapter dedicated to this hypothesis. Since Bill C-36 was born of the same

global context and emerged soon after the USA PATRIOT Act, it seemed logical to assume

that perhaps Canada’s 2001 Anti-terrorism legislation was also ‘in the making’ leading up

to 9/11. We have articulated this hypothesis as follows:

Hypothesis A: Bill C-36 was already somewhat in the making before 9/11, and the context of the terrorist attacks of 9/11 gave the Bill the green light to pass as legislation in the fall of 2001.

This hypothesis is also further supported by Kingdon’s multiple streams theory, in that

policies can often be available in the solutions stream before a focusing event brings them

13 Chapter IV will explore concrete examples of the media’s contribution to the discussion on Bill C-36.

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to the forefront of policymakers’ agendas. When a precipitating event (such as 9/11) occurs

to create a policy window, these solutions can seem to an outsider as though they

“appeared out of nowhere.” We will explore this theory and hypothesis further in Chapter

III.

Our second hypothesis suggests that the actual events of 9/11 precipitated Bill C-

36. This point is alluded to on the official Department of Justice webpage which describes

the reasons why the 2001 Canada Antiterrorism Act become necessary: “After September

11, 2001, the Government believed that it was necessary to include specific terrorism

offences in the Criminal Code, given the issue that once a terrorist event takes place, it is

too late. In effect, the ATA created offences that criminalize activities […] that take place

before a more dangerous terrorist event can occur.”14 We have articulated our second

hypothesis as follows:

Hypothesis B: Bill C-36 was drafted in reaction to the events of September 11, 2001 (i.e. the terrorist attacks of the World Trade Center, the Pentagon and the other crashed plane in Pennsylvania).

This hypothesis fits into our theoretical framework since Kingdon’s multiple streams

model requires a focusing event to create the policy window onto which activity in the

streams can converge. Our hypothesis proposes that the events of 9/11 fit the description

of a focusing event that eventually led to the creation of the 2001 Canadian Anti-terrorism

Act.

Our third hypothesis suggests that Bill C-36 was drafted in direct response to

the USA PATRIOT Act, also drafted, passed and enacted in the wake of 9/11. This

14 Department of Justice, “The Anti-terrorism Act: Frequently Asked Questions,” 20 Jun. 2008, Government of Canada, 31 Aug. 2008 <http://www.justice.gc.ca/antiter/faqs-faq-eng.asp#Q1>.

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hypothesis also rests on the assumption that continued favour (especially in terms of

trade) from the United States was tantamount, and that Canada needed to respond to

the events of 9/11 with the same legislative strength as the United States so as to

maintain such an economic relationship, and that any lack of conformity (real or

perceived) to America’s domestic and international policies would compromise this

delicate balance. This hypothesis received much media coverage in the fall of 2001, as

we will examine further in Chapter IV. We have articulated this hypothesis as follows:

Hypothesis C: Bill C-36 was drafted in direct reaction to the 2001 USA PATRIOT Act.

This hypothesis fits into our theoretical framework as an essential part of Kingdon’s

politics stream, that perhaps the delicate trade relationship between the United States and

Canada caused Canadian lawmakers to respond in kind to the USA PATRIOT Act to

continue economic favour with their largest trade partner. It also connects with the

theoretical concept of institutional isomorphism, a concept we will explore further in both

in Chapter IV and in our last hypothesis (D).

Our final hypothesis finds its genesis during international meetings that took place

in the wake of 9/11. The day after 11 September 2001, the United Nations Security

Council put forward Resolution 1368 which “call[ed] on the international community to

redouble their efforts to prevent and suppress terrorist acts including by increased

cooperation and full implementation of the relevant international anti-terrorist conventions

and Security Council Resolutions, in particular Resolution 1269 of October 1999.” Up to

that date, Canada had not yet implemented all the aspects of Resolution 1269. This

hypothesis, though quite straightforward and debatably obvious, is essential to better

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understanding all the forces that exerted influence on Bill C-36. We have formulated our

fourth and final hypothesis as follows:

Hypothesis D: Bill C-36 was drafted to complete Canada’s commitments to yet unratified international conventions on terrorism.

As with the previous hypothesis, this hypothesis plugs into Kingdon’s streams both in the

political stream and, consequently, affecting the choices made in the solutions stream. It

also connects to the concept of institutional isomorphism as the United Nations Security

Council conventions were drafted in concert with other nations and required an

‘institutional isomorphism’ of all member states’ anti-terrorism legislation. We will

explore these concepts further in Chapter IV.

The four above-mentioned hypotheses are perhaps better understood once they are

divided into two subcategories of influences: internal forces (under the control of the

Canadian government, i.e. Hypothesis A) and external forces (not under the control of the

Canadian government, i.e. Hypotheses B, C & D). Sub-dividing these influences helps us

to gain a clearer picture of how much of Bill C-36 was determined by the Canadian

government and how much of it was created as the result of pressure from non-Canadian

actors. In Chapter III, we will explore the internal forces (i.e. Hypothesis A) that may have

influenced the creation of Bill C-36, as well as two late-addition possible influences that we

discovered through our interviews with parliamentarians, including witness testimony in

the pre-study process of the Special Senate Committee on Bill C-36 and specific

presentations held in the House of Commons in the weeks following 9/11. In Chapter IV,

we will explore the external forces (i.e. Hypotheses B, C & D) that may have influenced

the creation of Bill C-36.

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6. Methodological Approach

The following is a brief outline of the steps that were taken towards conducting the

research for this thesis. First of all, we reviewed the available literature on Bill C-36 in

order to identify which factors had been previously identified in terms of what influenced

the creation of this bill. Having discovered a dearth of sources consecrated to this angle of

analysis, we proceeded with a plan to solicit and interview those directly involved in the

draft process of Bill C-36, with the hope of adding a fresh new data source to the scholarly

literature available on this topic. These conversations led us to new avenues of research

and analysis (including new potential influential factors to research) which included

extensive research with the aim of corroborating (or countering) the claims made by these

parliamentarians. Many of the answers to our research questions can only be fully

explained by those who actually drafted the law itself and participated in the parliamentary

debates that ensued. A short list of parliamentarians involved in the drafting of Bill C-36

was solicited and several were consulted in the form of one-on-one semi-conducted

interviews for this research project. Their accounts provide us with a profound insider’s

look at activity within the Canadian government in the days and weeks after 9/11. Not only

were these interviewees able to shed some light on the draft process that occurred more

than 9 years ago, but they were also able to contribute some hindsight on the matter, an

historical reflection that enriched our own analysis of the Bill. After the interviews were

conducted and transcribed, the interviewees were asked to review and offer possible

corrections of their respective transcripts. This particular procedure was conducted to be

sure of the validity and reliability of the qualitative data we obtained (Bryman 2003). The

interviewees’ personal contributions, together with other available official documents and

17

scholarly evaluations, help us to better understand how legislation in response to a

particular event (or series of events) is drafted, passed and put into practice.

From here, we sifted through this wealth of information to better understand the

nuances, reasons and justifications behind the various factors exerting influence on the

timing and content of Bill C-36 and proceeded with our own analysis of the subject matter.

Finally, our last and perhaps most important step was to determine what factors caused the

37th Parliament to pass such a bill at this particular time, and we then proceeded to explore

broader generalizations that could be drawn from our study and that might shed light on

how other similar bills (drafted in reaction to a sudden, unexpected event) are created and

what can be learned from this.

7. Data Sources and Collection

We consulted both primary and secondary sources in our research for this project.

Primary sources include the online versions of the 2001 Canadian Anti-terrorism Act and

international treaties involving anti-terrorism to which Canada is party, minutes to

Committee meetings, transcripts from the Canadian Hansard, etc. as well as the data

collected from the interviews with Canadian parliamentarians. Secondary sources include

scholarly evaluation of Bill C-36 and the subsequent 2001 Canadian ATA, including

Security of Freedom (Daniels, Macklem and Roach), September 11: Consequences for

Canada (Roach), Anti-terrorism: Security and Insecurity after 9/11 and Terrorisme et anti-

terrorisme au Canada, as well as various law and political science scientific journals (see

the Bibliography for a complete list of sources consulted), online news sources, etc.

18 To collect our research data, we employed two methods. Much of the data was

obtained through analytical readings of all the textual sources mentioned previously,

including minutes from numerous Senate Committee meetings, Canadian Hansard

transcripts from Fall 2001, online news sources (recent as well as from the last months of

2001), academic journals on various topics and official websites of international

organizations such as the United Nations (U.N.) and the Organization of American States

(O.A.S.). The other source(s) we depended on for previously undocumented evidence was

obtained via the written transcripts of the interviews we personally conducted with

Canadian parliamentarians participating in the 37th Parliament in 2001. As mentioned

before, the interviewees were those who were responsible for the draft process of Bill C-36,

as well as one who spoke out against the Bill at the moment of its presentation in the 37th

Parliament in October 2001, including:

1. The Honourable Anne McLellan, then Minister of Justice and MP for Edmonton West, Liberal;

2. Mr. Bill Blaikie, then Member of Parliament (MP) for Winnipeg-Transcona, New Democratic Party; and

3. Federal Court Justice Richard Mosley, then Assistant Deputy Minister of Justice.

These interviews were conducted individually, in a semi-directed format via a recorded

phone call. Each interview lasted between thirty minutes and an hour, depending on the

participant. Beyond the three parliamentarians who agreed to contribute to this study, we

also solicited 5 other key players (mostly then Members of Parliament) who declined to

participate in this thesis. We would like to emphasize here that the interviews we were

eventually able to perform were very challenging to arrange and that among those solicited

for an interview, only three (who, notably, no longer worked in Parliament) responded to

our request. This highlighted for us the added political factors that often seem to

19

complicate research involving terrorism and anti-terrorism, especially in this case

concerning a recently established policy whose enforcers (R.C.M.P. officers, C.S.I.S.

officials, etc.) are often silent on the finer details of all things surrounding this delicate

public safety issue.

It is important to note here that one of the greatest challenges in drafting this thesis

was the often insurmountable difficulty in finding solid, objective results on which to

confirm or disprove our hypotheses. Though the interviews with the parliamentarians

involved in the draft and debate process provided us with previously unexplored data with

which to examine this topic, the limited number of interviewees who agreed to participate

in the project hindered our ability to examine the issue from more than a couple different

angles. In addition to this challenge, many of the claims of our interviewees were difficult

to corroborate using independent sources as much of the parliamentary activity surrounding

the creation of his Bill happened behind closed doors. To close this gap, we leaned

primarily on statements and documents from outside sources (United Nations publications,

for example) to corroborate the statements and claims made by our interviewees. We will

discuss these challenges in greater detail in the conclusion of this thesis.

8. Thesis Plan

So as to better situate ourselves in this discussion of a very extensive and content-

rich piece of legislation, we decided that it would be useful for us to begin our analysis with

a full chapter consecrated to “setting the stage” for our later analysis of Bill C-36. The

following chapter (II) will provide contextual elements that are indispensible in terms of

better understanding of the timing of this Bill. From there, as stated earlier, we dedicated

20

Chapter III of this thesis to the internal factors that influenced the timing and content of Bill

C-36. Chapter IV examines the external factors, i.e. the factors outside the control of the

Canadian government, and Chapter V serves as our conclusion where we consider the

broader applications of we have drawn from our examination of the influences on Canada’s

2001 Anti-terrorism Act.

II. Bill C-36: The 2001 Canadian Anti-terrorism Act

“[The meeting] was just starting [around] 9:00 in the morning when an official who was downstairs waiting to be called for her item on the agenda sent a note up to me that said that something was happening in New York City, that a plane had flown into a building. I was seated behind Anne McLellan at the time and I passed her the note. She adjourned the meeting, we all trooped downstairs and watched in horror as the events transpired. Then arrangements were made to get her and the Solicitor-General back to Ottawa … I was stuck at the meeting location on the south coast of Nova Scotia for [about] 3 days before I could get out, but I was in contact with my office here in Ottawa. I immediately asked colleagues here to do a review of any legislation that we had in place to deal with terrorism and any legislative proposals that might be in development.”

Justice Richard Mosley, then Assistant Deputy Minister, Criminal Law and Social Policy Branch, Department of Justice,

recounting the September 11th, 2001, Meeting of Attorneys-General in Nova Scotia.15

The average Canadian might say that our everyday lives were permanently altered

in the early hours of Tuesday, September 11th, 2001, as though we woke up that morning in

a sea of security landmines in our own backyard that we as Canadians never needed to

worry about before. But had things really changed? Or had we simply been awakened

from a blissful ignorance regarding security threats and risks here at home? Whether or not

the Canadian context had actually changed, public perception regarding national security

definitely underwent an impromptu shift, especially in the days and weeks following 9/11.

Not only was the public abuzz with talk of new reasons for the public to be ultra-vigilant,

justifications for sending the military after Osama Bin Laden and other topics surrounding

these events, but within hours of the attacks, the Canadian Parliament was promptly on

15 Justice Richard Mosley, Telephone Interview, 29 June 2009.

22

task, gearing up to offer their own legislative reaction to 9/11. And that fall morning, as

calls were placed between Department of Justice offices in Ottawa and personnel on the

coast of Nova Scotia, Bill C-36, now known as Canada’s 2001 Anti-terrorism Act, was

born. The following chapter will provide the backdrop against which we will later analyze

and draw conclusions from the legislative, political and strategic processes that resulted in

Bill C-36 being considered, drafted, debated and passed as law.

i. CONTEXT OF BILL C-36

1. Timeline of the Events of 9/11/01

Though the activity leading up to 9/11 undoubtedly took months, even years to plan

and coordinate, the actual plan took only 102 minutes to execute. The general public was

awakened to this plan at 8:46am16 when a Boeing 767 (American Airlines Flight 11 from

Boston to Los Angeles) crashed into the North Tower of Manhattan’s World Trade

Center.17 What initially seemed to the public to be a regrettable yet accidental plane crash

soon turned suspicious when a second Boeing 767 (United Airlines Flight 175, also from

Boston to Los Angeles) crashed into the South Tower of the same World Trade Center only

17 minutes later. Both towers were reduced to rubble less than 90 minutes later, spewing

debris which later led to the collapse of several other World Trade Center buildings hours

later that same day.

16 All times referring to the events of 9/11 were recorded in Eastern Daylight Time (EDT). 17 All statistics in this sub-section pertaining to the 9/11 attacks were taken from the following source: Philip Zelikow (Executive Director), Bonnie D. Jenkins (Counsel), Ernest R. May (Senior Advisor), The 9/11 Commission Report, (New York: W.W. Norton & Company, 2004).

23 Meanwhile, in Arlington, Virginia, at 9:37am, a third airplane crashed into the

western face of the Pentagon, home of the United States Department of Defence. Only 26

minutes later, a fourth airplane went down in a field near Shanksville, Pennsylvania.

The death toll included more than 2,600 people in Manhattan, 125 people at the

Pentagon and 256 passengers and crew aboard the four hijacked airliners – nearly 3,000

casualties, a collective loss greater than that suffered at Pearl Harbour during World War II.

That evening, United States President George Bush addressed Americans on

television, proclaiming, “Today, our fellow citizens, our way of life, our very freedom

came under attack in a series of deliberate and deadly terrorist acts…Thousands of lives

were suddenly ended by evil, despicable acts of terror.”18 And the following morning of

September 12, 2001, Americans and Canadians alike woke up to a reality that even today

has not returned to its pre-9/11 state of innocence and/or ignorance towards national

security threats. This has been evidenced by growing airline passenger restrictions, as

every year since 9/11, security screening has become more and more stringent, from

restricting carry-on items such as nail clippers, to limiting the possession of liquids such as

water bottles, and presently at its most personally invasive yet as Vancouver International

Airport (as well as Pearson and Trudeau airports in Toronto and Montreal, respectively)

now utilizes body image screening equipment to assist security personnel in the protection

of passengers and aircraft personnel.19 One cannot even go on a simple vacation without

being reminded that terrorists may be lurking somewhere in North American airspace.

18 “September 11th, 2001: A Timeline,” 30 Aug. 2006, Canadian Broadcasting Corporation (CBC) News 6 Nov. 2009, <http://www.cbc.ca/news/background/sep11/attack_timeline.html>. 19 Further details can be found at the Canadian Airport Transportation Security Agency (CATSA) website: “Traveller’s F.A.Q.’s,” Canadian Airport Transportation Security Agency (CATSA), 14 Apr. 2010, <http://www.catsa -acsta.gc.ca/Page.aspx?ID=26&pname=TravellerFAQs_FAQVoyageurs&lang=en>.

24

2. Initial Parliamentary Reaction to the Events of 9/11

As this thesis seeks to investigate the influences on the timing and scope of Bill C-

36 (also known as the 2001 Canadian Anti-terrorism Act), it was important for the

researcher to speak with those who were responsible for the details regarding the process of

drafting this bill in the weeks following 9/11. One invaluable resource to the writing of this

thesis was an exclusive in-depth interview with Justice Richard Mosley, now Federal Court

Justice, then Assistant Deputy Minister, Criminal Law and Social Policy, Department of

Justice, Government of Canada. In this role, Justice Mosley was privy to the finer details

of the draft process of Bill C-36 in the fall of 2001. All the insights and facts found in the

following section were taken directly from our telephone interview with Justice Mosley on

29 June 2009.

As quoted earlier in this chapter, Justice Mosley recounts that the Department of

Justice was first notified of the terrorist attacks at a Meeting of Attorneys-General in Nova

Scotia the morning of September 11th, 2001. He states that at the time, it was standard

practice in the Department for a number of legislative projects to be underway in various

stages of development. When a project reached a stage where it was ready to be presented

to Ministers, it was first sent to the Minister of Justice (then, the Honourable Anne

McLellan) for approval, and with her support, the project would continue on to Cabinet for

approval. In the immediate aftermath of 9/11, Justice Mosley phoned his office from Nova

Scotia and “asked colleagues [in Ottawa] to do a review of any legislation that we had in

place to deal with terrorism and any legislative proposals that might be in development.”20

Those colleagues in the Criminal Law and Social Policy Branch of the Department of 20 Mosley, Interview, 2009.

25

Justice immediately drew up a list of what provisions of the Criminal Code were available

at that time and what legislation was in the pipeline (in any form), and this list was

submitted to the Privy Council Office just two or three days after 9/11.

By the time Justice Mosley made it back to Ottawa, the Honourable John Manley,

then Minister of Foreign Affairs, had been designated chair of a Cabinet Committee on

Public Security and Anti-terrorism (counterpart of the United States Homeland Security

Chief, Governor Tom Ridge) and a Supporting Committee of Deputy Ministers was

established and chaired by the Clerk of the Privy Council (then Mr. Mel Cappe). The list

of legislative options was presented to both of these committees and “the decision was

made to proceed with the preparation of a bill. [Mosley] was instructed by the then Deputy

Minister of Justice to pull together a team to prepare such a bill.”21 The Department of

Justice was given the lead in the preparation of this piece of legislation as “most of the

legislative instruments were within the purview of the Minister of Justice;”22 for example,

any amendments to the Canadian Criminal Code required the approval of the Minister of

Justice.

Work began immediately, and the Department had approximately 50 people

working on this project. The team assembled to tackle this bill was comprised of policy

council from the Criminal Law and Social Policy Branch, litigation/prosecution counsel

from the Assistant Deputy Attorney General’s branch responsible for Federal prosecutions,

human rights lawyers from the Public Law Branch and legislative council/drafters from that

section of the Department. Within this larger team were smaller teams assigned to each of

the areas of the bill that needed developing; for example, the Charities Legislation was the

21 Mosley, Interview, 2009. 22 Mosley, Interview, 2009.

26

responsibility of the Solicitor General’s Department of Finance, but it was decided that this

legislation would be folded into a Justice-sponsored bill.

Standard procedure “when legislation was contemplated was to prepare a

Memorandum to Cabinet which would deal with the particular proposed legislation;”23 in

this particular situation, “there was one overview memorandum to Cabinet and then what

we did was we prepared issues papers on each individual topic and they went to Mr.

Manley’s committee. And if approved, and the options were chosen by that committee, we

then proceeded on that basis to prepare, to give drafting instructions directly to the

legislative counsel.”24 After 99 days of consideration, debate, rewrites and consultations

with interest groups, legal counsel and other parliamentarians, Bill C-36 was given Royal

Assent and was renamed the 2001 Canadian Anti-terrorism Act.

Before we enter into a deeper analysis of the draft process of Bill C-36 as outlined

by Justice Mosley, we will pause briefly for an overview of the bill’s content and its

Parliamentary justification in the following section (continued on the following page).

23 Mosley, Interview, 2009. 24 Mosley, Interview, 2009.

27

ii. CONTENT OF BILL C-36

1. Components of the 2001 Canadian Anti-terrorism Act

a. Definition of Terrorism

It is important to mention here that until this point in history, Canada had no official

anti-terrorism legislation packaged as such. According to the Department of Justice, “[l]aw

enforcement relied on the normal processes of investigation, prosecution, and conviction

under the Criminal Code to address terrorism.”25 However, “[a]fter September 11, 2001,

the Government determined that it was necessary to include specific terrorist offences in

the Criminal Code, in large part to confront the issue that once a terrorist event takes place,

it is too late.”26

In the 2001 Canada Anti-terrorism Act, the complete definition of terrorism goes on

for more than three pages. The heart of the definition is found in Article 83.01, which

defines terrorism as the following:

[…] (b) an act or omission, in or outside Canada, (i) that is committed

(A) in whole or in part for a political, religious or ideological purpose, objective or cause, and (B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an

25 Department of Justice, “The Anti-terrorism Act: Context and Rationale,” 8 Sep. 2009, Government of Canada, 17 Sep. 2009, < http://justice.gc.ca/antiter/contextandrational-contextetraisondetre-eng.asp>. 26 Department of Justice, “The Anti-terrorism Act: Context and Rationale,” 8 Sep. 2009.

28

international organization to do or refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada

(ii) that intentionally (A) causes death or serious bodily harm to a person by the use of violence,

(B) endangers a person’s life, (C) causes a serious risk to the health or safety of the public or any segment of the public, (D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or (E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C).

and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.27

Though an evaluation of the individual components of this bill is not the principal

aim of this thesis, it is worth noting that one of the most contentious components of this

27 Anti-terrorism Act, S.C. 2001, c. 41, Part II.1, Art. 83.01.

29

definition, according to scholarly literature of the topic, is Subsection (E) of Bill C-36’s

definition of terrorism as it relates to activity “other than as a result of advocacy, protest,

dissent or stoppage of work that is not intended to result in the conduct or harm referred to

in any of clauses (A) to (C)”. In an exclusive interview for the purpose of this present

thesis, then-New Democratic Party Opposition Member Rev. William Blaikie explains that

“there was a lot of concern, a lot of opposition to [this aspect of] Bill C-36,”28 a sense of

uneasiness that was not only affected by the events of 9/11 but also by what had happened

in Québec City in May that same year at the Summit of the Americas. He goes on to

explain that a “lot of protestors, lawful protestors, people who weren’t breaking any laws,

had been rubber-bulleted, tear-gassed and some of them had been arrested”29 on the streets

of the Capitale-Nationale. He also makes reference to the 1997 Asia-Pacific Economic

Cooperation (A.P.E.C.) Summit in Vancouver, B.C. where protestors were pepper-sprayed

by the Royal Canadian Mounted Police (R.C.M.P.). In his opinion, had those events not

been in the recent memory of Canadians, the context would have been one where citizens

may have more easily “given the government the benefit of the doubt as to its ability to

distinguish dissent from terrorism.”30 However, it is Blaikie’s sense that many would agree

with him that “lawful protestors and dissenters had been treated as if they were criminals

and/or terrorists and this bill might give new powers to people who fail to make that

distinction.”31 Though he doesn’t necessarily believe that this has proven to be true (over

time as the legislation was passed, enforced and modified over the next few years), he

believes that many were concerned about this at the time. Reiterating Blaikie’s perspective,

28 Rev. William Blaikie, Telephone Interview, 26 March 2009. 29 Blaikie, Interview, 2009. 30 Blaikie, Interview, 2009. 31 Blaikie, Interview, 2009.

30

Schneiderman & Cossman (2001) suggest that the ambiguity of this definition may define

“individuals and groups engaged in civil disobedience [and/or] protestors who consciously

choose to violate the law in order to advance their political cause” as terrorists.32 They

illustrate their point with the example of anti-globalization organizer Jaggi Singh who was

arrested at the aforementioned Summit of the Americas in Quebec City for participating in

a riot, violating bail conditions, and for possession of a weapon. The weapon in question

was “a catapult deployed to throw teddy bears over a fence surrounding the old city.”33

Though perhaps the casual observer might not regard Singh as a violent threat to anyone’s

personal security, Schneiderman & Cossman wonder if perhaps the “act of catapulting

stuffed animals over police line could be cast as intending to cause serious disruption to an

essential service, namely, the protection of international dignitaries in attendance at the

Summit.”34 Roach agrees that under the 2001 Canadian Anti-terrorism Act’s definition of

terrorism, “it is unclear exactly what services will be deemed essential” which could mean

that road blockades or obstructions of entrances to private or public buildings (such as a

picket line) could, in fact, be deemed terrorist offences.35 Mégie (2009) affirms that many

professors of law and lawyers have underlined the risk that this definition of terrorism may

be applied to anarchist groups advocating civil disobedience, other disenfranchised social

movements and strikes.36 He also believes that though the definition attempts to exclude

32 David Schneiderman & Brenda Cossman, “Political Association and the Anti-terrorism Bill” in Ronald J. Daniels, Patrick Macklem and Kent Roach (Eds.), The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (Toronto: University of Toronto Press, 2001) 177. 33 Schneiderman & Cossman, Political Association, 178. 34 Schneiderman & Cossman, Political Association, 178. 35 Kent Roach, “The New Terrorism Offences and the Criminal Law” in Ronald J. Daniels, Patrick Macklem and Kent Roach (Eds.), The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (Toronto: University of Toronto Press, 2001) 158. 36 Antoine Mégie, “Le Canada et les normes internationales anti-terroristes” in Stéphane Leman-Langlois & Jean-Paul Brodeur (Eds.), Terrorisme et antiterrorisme au Canada (Montréal : Les Presses de l’Université de Montréal, 2009) 192.

31

activity classified as “a result of advocacy, protest, dissent or stoppage of work that is not

intended to result in the conduct or harm referred to in any of clauses (A) to (C)” from

being classified as an act of terrorism, the ambiguity of the categories that define terrorism

leaves the law open to interpretation, perhaps to the detriment of such protestors and social

movements whose “terrorist” character is, to some, highly debatable.

Further analysis and interpretation of the finer points of Canada’s 2001 Anti-

terrorism Act remain the topic of another thesis research project, as this present thesis seeks

only to investigate the influences on the timing and the content of the Act. Our brief

venture into the debates surrounding the definition of terrorism helps us, however, to better

understand the context in which this Act was born, especially in terms of law enforcement

responses to protests and other civil disobedience that occurred in the years and months

leading up to 9/11, in particular the 1997 APEC Summit in Vancouver and the 2001

Summit of the Americas in Quebec City.

b. Codes and Acts Amended and Added

The 2001 Canada Anti-terrorism Act is summarized in its preamble as an

“enactment [that] amends the Criminal Code, the Official Secrets Act, the Canada Evidence

Act, the Proceeds of Crime (Money Laundering) Act and a number of other Acts, and enacts

the Charities Registration (Security Information) Act, in order to combat terrorism.”37

The 195-page Act is divided into 6 parts. Part 1 brings changes to the Criminal

Code, including the implementation of international conventions related to terrorism

(including the financing and facilitation of terrorist activities), providing for the removal of 37 Anti-terrorism Act, S.C. 2001, c. 41.

32

websites propagating hate, and creating a new offence related to property damage to

religious places of worship. Part 2 brings amendments to the Official Secrets Act (renamed

the Security of Information Act), addressing national security issues such as espionage and

“coercive activities against émigré communities in Canada,” and creating new offences to

“counter intelligence-gathering activities by foreign powers and terrorist groups.”38 Part 3

brings amendments to the Canada Evidence Act “to address the judicial balancing of

interests when the disclosure of information in legal proceedings would encroach on a

specified public interest or be injurious to international relations or national defence or

security.”39 Part 4 amends the Proceeds of Crime (Money Laundering) Act (renamed the

Proceeds of Crime (Money Laundering) and Terrorist Financing Act), assisting “law

enforcement and investigative agencies in the detection and deterrence of the financing of

terrorist activities, facilitate the investigating and prosecution of terrorist activity financing

offences, and improve Canada’s ability to cooperate internationally in the fight against

terrorism.”40 Part 5 amends the Access to Information Act, Canadian Human Rights Act,

Canadian Security Intelligence Service Act, Corrections and Conditional Release Act,

Federal Court Act, Firearms Act, National Defence Act, Personal Information Protection

and Electronic Documents Act, Privacy Act, Seized Property Management Act and United

Nations Act. The amendments to the National Defence Act more clearly define the powers

of the Communications Security Establishment in their fight against terrorism. Finally,

Part 6 enacts the Charities Registration (Security Information) Act, and brings changes to

38 Anti-terrorism Act, 2001, Summary. 39 Anti-terrorism Act, 2001, Summary. 40 Anti-terrorism Act, 2001, Summary.

33

the Income Tax Act, “in order to prevent those who support terrorist or related activities

from enjoying the tax privileges granted to registered charities.”41

2. Canadian Parliament’s Justification for the 2001 Canadian Anti-terrorism Act

In the framework of this present thesis, we also conducted an exclusive, in-depth

interview with (then) Justice Minister Anne McLellan regarding her experience heading up

the drafting of Bill C-36. When asked why Bill C-36 included a wide variety of offences

(beyond the basic act of terrorism), McLellan highlights the difference between prosecuting

suicide terrorists and prosecuting the average (non-suicidal) criminal. In regards to non-

terrorist criminals, McLellan underlines that, save its deterrent effect before the

commission of a crime, the Criminal Code aims at dealing with an event after it occurs, for

example, “it’s after somebody robs the bank that the police investigate, charges are laid,

there’s a trial, there’s evidence, there’s a conviction or not and so on.”42 However, since

many terrorists commit suicide in the commission of their terrorist offences, jail time has

no deterrent effect on these criminals. She explains that the point of Bill C-36 was to try to

prevent such actions from ever happening, as catching terrorists in the act is too little, too

late. She believes that law enforcement and intelligence gatherers should be equipped with

the tools necessary to prevent terrorists from ever getting on the plane (or however they

plan to attack civilians). It was for this reason that certain offences related to facilitating

terrorism were added to the Canadian Criminal Code. To explain this, she leans on the

criminal law concept of aiding and abetting; in drafting the Bill, her department chose to

41 Anti-terrorism Act, 2001, Summary. 42 The Honourable Anne McLellan, Telephone Interview 20 March 2009.

34

criminalize a set of activities that enabled terrorists to carry out their acts (such as

financing), thus acting as a “pre-emptive strike” against those terrorists – hindering their

collection of funds, their associations and planning before their plots get out of control.

McLellan summarizes the Canadian government’s position with the following: “What 9/11

taught us, clearly […] is that once they’re on the plane, there’s nothing we can do; we can’t

stop them at that point and they’re going to kill a lot of people … [Furthermore, when] your

terrorists are dead, there’s no one [left] to prosecute … So what you want to do is get them

before they ever get on the plane.”43

According to members of the 37th Canadian Parliament, Bill C-36 brought increased

powers to law enforcement, intelligence gatherers and the courts to fight the threat of

terrorism here in Canada. There is ample evidence supporting steps taken towards this end,

as characterized by the 195-page 2001 Anti-terrorism Act outlining the numerous

amendments and new offences added to the Criminal Code and dozens of other Acts,

though the effectiveness of such changes remain the topic of another research project.

However, after all the interviews with the key players involved in Bill C-36 are thoroughly

considered, one important question is still left unaddressed: Why did the Canadian

Department of Justice choose a thorough review of pending domestic security legislation as

their initial reaction to the events of 9/11? There seems to be a linear disconnect between

the events of 9/11 on American soil and the immediacy of plans to overhaul large sections

of the Canadian Criminal Code and other acts. Though it certainly makes sense for the

affected country (i.e. the United States) to immediately retrace their steps so as not to let a

9/11-style incident from recurring on their own territory, it is less obvious why Canada

would choose this course of action for its own territory, not being the present victim of such 43 McLellan, Interview, 2009.

35

a large-scale security breech. It seems obvious that new Canadian security legislation

would neither reverse the effects of the tragedy in the United States nor (directly) prevent it

from happening again on American territory. While we are not so much interested in the

effectiveness of the choices made by the Canadian Parliament of the day, we are certainly

interested in discovering what thought processes were at work when a foreign disaster

immediately translated into drastic domestic security policy overhaul.

It becomes increasingly clear that though Bill C-36 succeeded in plugging some

perceived legislative gaps in Canadian domestic terrorism legislation, this piece of

legislation had many other forces exerting pressure on both the timing of the Bill’s

introduction to Parliament and the content included. This is the raison d’être for this

present thesis, to provide a previously uncharted scientific investigation into the many

forces that exerted influence on this particular piece of Canadian security policy. The

following chapter will offer the reader a more in-depth look at the more subtle influences

that gave shape and speed to this Act, among others, pressure from foreign governments

(e.g. United States), international bodies (e.g. United Nations) and the actual events of 9/11.

CHAPTER CONCLUSION

With the contextual ground work laid out, we now have a solid foundation from

which to launch our investigation into the forces that shaped the content and the scope of

Bill C-36 (the 2001 Canada Anti-terrorism Act). Rev. Blaikie’s, Justice Mosley’s and

Justice Minister Anne McLellan’s personal accounts provide us with a rare insider’s look at

how the events of 9/11 translated into a thick piece of legislation amending the Canadian

Criminal Code and dozens of other acts, and we will be further consulting these interviews

36

in subsequent chapters of this thesis. But missing from their accounts are the more subtle,

less accessible motivational factors that influenced the scope, the content and the timing of

this wide-reaching piece of legislation. The source of these influences potentially lies in

the peripheral context surrounding activity in the House of Commons during that particular

session. In the following chapter, we will explore inside factors that added internal

pressure to the Canadian legislative team (both overtly and covertly) and that gave shape

and reach to the 2001 Canadian Anti-terrorism Act.

III. Internal Factors Influencing Bill C-36

“So, in terms of the usual timeframe for legislation, both drafting and then consideration by parliamentarians, there’s no question that this happened in a compressed timeframe.”44

- The Honourable Anne McLellan,

then Minister of Justice (Liberal Party)

“Whatever else was on the agenda of the Justice Committee … was soon re-prioritized when C-36 was introduced because the government wanted [the Bill] to happen in a hurry. I mean, if you consider that on September the 11th there was no consideration of anti-terrorism legislation and by October we were debating a fully drafted bill – this is lightning speed compared to the usual sort of legislative process.”45

- Rev. William Blaikie, then Member of Parliament for Winnipeg-Transcona (New Democratic Party)

“I know there is a commonly held view that the legislation was rushed through but that was not my view in the matter. In contrast to what was done in Washington and in London, I think our Parliament took its responsibility seriously and conducted extensive hearings … the number of witnesses that were called in both chambers [was] somewhere between 50 and 150, in that range, most of whom were critical of the legislation, so it’s not as if the voices that were opposed to it were not heard … [B]etween October and through November/December, there was a very healthy debate in Parliament.”46

- Justice Richard Mosley,

then Assistant Deputy Minister, Criminal Law and Social Policy, Department of Justice

44 The Honourable Anne McLellan, Telephone Interview 20 March 2009. 45 Rev. William Blaikie, Telephone Interview 26 March 2009. 46 Justice Richard Mosley, Telephone Interview 29 June 2009.

38 There is no disputing the fact that Bill C-36 (the 2001 Canada Anti-terrorism Act)

enjoyed a great deal of attention from Parliament in the weeks and months after 9/11, so

much so that this 195-page Act was able to be drafted, debated and passed with Royal

Assent only 99 days after 9/11. Even the above quoted parliamentarians agree. But, as

stated in the introduction, when most Canadian legislation takes months to years to move

from a proposal to a federal statute, this Bill stands as an outlier in how fast it was able to

move through the House and the Senate. Why was it fast-tracked? And what factors had to

be in place to give rise to such a bill at such a time? This chapter will further explore our

research findings into which internal factors (i.e. factors somewhat under the control of the

sitting government) influenced the speed and the content of this extraordinary piece of

legislation. As outlined in the introduction, we will also apply Kingdon’s theory of policy

streams and the public policy theory of optimizing to better understand the Canadian

government’s particular legislative response to the events of 9/11.

As researchers, we do not wish to rely solely on the government’s official position

on Bill C-36 (as sought out in our exclusive telephone interviews with parliamentarians

from that time), certainly a somewhat restricted and one-sided spin-prone perspective on

how the 2001 Canadian Anti-terrorism Act came to be and how it came to be so quickly. In

this next section, we will focus not only on first-hand accounts from those who were

instrumental in creating the bill but also on other contextual factors that may have overtly

and/or covertly influenced the draft/pass speed and final shape and reach of Canada’s 2001

Anti-terrorism Act.

Prior to the initial drafting of this thesis, we isolated one hypothesis that could be

considered an internal influence on the drafting and passing of Bill C-36: pending

amendments to the Canadian Criminal Code and other acts. We initially selected this

39

possible influence since it figured prominently in public (and governmental) discussions

regarding Bill C-36 as it emerged in media chatter and Canadian government press releases

in the days and weeks following 9/11. This is also in line with Kingdon’s multiple streams

theory, as solutions (i.e. bills, or initial drafts of bills) to not-yet-publicly-addressed

problems can exist in the solution stream long before a focusing event brings a given

solution to the Parliamentary table. Additionally, through the course of our exclusive

interviews with key parliamentarians involved in the draft process of this bill, we came

across two other possible internal influences on the draft process of Bill C-36: witness

testimony in the pre-study process of the Special Senate Committee on Bill C-36 and

presentations held in the House of Commons in the weeks following 9/11. We will further

discuss the origins and impetus behind each of these influences in the paragraphs and

sections that follow.

1. Pending Amendments to the Canadian Criminal Code and Other Acts

Our initial hypothesis that the content of Bill C-36 was influenced by pending

amendments to the Canadian Criminal Code and other acts of Parliament is articulated as

follows:

Hypothesis A: Bill C-36 (a.k.a. the 2001 Canada Anti-terrorism Act) was already somewhat in the making before 9/11, and the context of the terrorist attacks of 9/11 gave the Bill the green light to pass as legislation in the fall of 2001.

The rationale behind this sub-hypothesis is that prior to 9/11, the Canadian government

may have been fully aware of critical gaps in their existing Criminal Code (as they

pertained to terrorist activity), but was hesitant, unable, or not yet ready to pass sufficient

40

legislation to give law enforcement personnel stronger and wider powers to help prevent a

9/11-style terrorist attack on Canadian soil. We hypothesize here that the events of 9/11

gave lawmakers the proper context (of public panic and fear) to pass a bill that may have

otherwise been met with public scepticism or significant protest; in other words, the events

of 9/11 became Kingdon’s so-called “focusing event” needed to bring this solution into

being. This hypothesis originally came about because of the speed in which Bill C-36 was

put together, debated and passed with Royal Assent, almost as if it were somewhat ‘ready

to go’ before the tragic events of 9/11. This same kind of speculation surrounded the

emergence of the U.S.A. PATRIOT Act; LeClerc & Gould (2009) suggest that

“[the fact that] the [PATRIOT] Act was available and approved within 6 weeks of 9/11 strongly suggests that this was on the agenda of the Bush-Cheney administration prior to the September 11th attacks … Both the speed with which and the circumstances under which the Act appeared indicate that the legislation was pulled together from pre-existing (and perhaps failed) proposals to expand government powers. That such sweeping reforms were largely ready to go when the time was right is troubling” (p. 200).

With this kind of speculation going on south of the border, it would not be too much of a

stretch to wonder if the same type of situation were occurring here in Canada as Bill C-36

made its sudden appearance in the House of Commons.

Proving this hypothesis requires a serious insider’s look into work done by the

Canadian Department of Justice in the months, even years, leading up to 9/11. In our

interview with (then) Justice Minister Anne McLellan, she points out that contrary to

popular belief that Bill C-36 spontaneously appeared from out of nowhere after the events

of 9/11, “a lot of work [had already] been done around what one would call a general

41

basket of anti-terrorism measures”47 before that date. She underlined that Canada, for

several years leading up to 9/11, was one of the leading members of the United Nations

responsible for putting together some sort of international anti-terrorism convention. She

admits that most of the items to be included in the international convention had already

been agreed upon by member states “but for the definition of terrorism because that

becomes a very controversial issue in the minds of some.”48 For this reason, justice

officials (herself included) from within the United Nations, the Organization of American

States (O.A.S.) and other countries were already “steeped in the major issues around

terrorism.”49 According to McLellan, the Canadian Department of Justice was already

looking to ratify the remaining U.N. conventions50 on terrorism, though she doesn’t believe

that any government could have ever anticipated the scope of events that occurred on 9/11.

Her claim in this aspect is further substantiated by independent corroborating evidence that

Canada had indeed adopted (but not ratified) those two remaining conventions on terrorism

years before the events of 9/11: the Permanent Mission of Canada to the United Nations

website confirms that the International Convention for the Suppression of Terrorist

Bombings was signed by Canada on 12 January 1998 and the International Convention for

the Suppression of the Financing of Terrorism was signed by Canada on 10 February

2000,51 indicating intent on Canada’s part to eventually ratify both of these treaties. The

stipulations of both conventions were included in Bill C-36 as passed in December 2001

and the United Nations independently confirms Canada’s ratification of both conventions

47 McLellan, Interview, 2009. 48 McLellan, Interview, 2009. 49 McLellan, Interview, 2009. 50 More on the United Nations International Conventions on Terrorism in Section 3 of this chapter. 51 Permanent Mission of Canada to the United Nations, “Fighting International Terrorism and Crime,” 08 Aug. 2008, Government of Canada, 15 Jan 2010, <http://www.canadainternational.gc.ca/prmny-mponu/canada_un-canada_onu/positions-orientations/peace-paix/terrorism-terrorisme.aspx?lang=eng>.

42

by early April 2002.52 Her claim is also further substantiated by independent corroborating

evidence found at the Organization of American States (O.A.S.) website that indicates that

several counter-terrorism agreements53 between member states (including Canada) had

indeed been drawn up in the years leading up to 9/11, indicating intent on their part to

counter what was considered to be the changing face of modern terrorism.

In our interview with the Minister, McLellan also comments on the international

context of counter-terrorism measures in the years leading up to 9/11. She again highlights

Canada’s pre-9/11 involvement in counter-terrorism discussions at the United Nations and

other venues, as Canada was a non-permanent member of the United Nations Security

Council from 1999 to 2000.54 McLellan says that it was becoming obvious from other

world events such as the bombings of the American embassies in East Africa in 1998 and

the attack on the U.S.S. Cole off the coast of Yemen in 2000 that the face of terrorism was

beginning to change, that “those who would commit terrorist acts were probably becoming

more sophisticated, better financed.”55 She adds that “[o]ne of the things that people don’t

actually understand is that while 9/11 was clearly the triggering event for governments to

clean up their legislation and move forward on anti-terrorism legislation, this really is a

continuum of activity that had begun long before 9/11.” 56 Canada and other U.N. member

states were participating in regular consultations before 9/11 to finally come to an

agreement on the anticipated anti-terrorism convention. She remarks that each member

52 Permanent Mission … “International Crime” … 2008. 53 Agreements such as the 1995 Ottawa Ministerial Declaration on Countering Terrorism, the 1996 Declaration of Lima to Prevent, Combat and Eliminate Terrorism, the 1998 Commitment of Mar del Plata, the 1999 Hemispheric Cooperation to Prevent, Combat and Eliminate Terrorism to name a few. Source: “Inter-American Committee against Terrorism,” 2006, Organization of American States (O.A.S.), 21 Jan 2010, <http://www.cicte.oas.org/rev/en/about/History.asp>. 54 “Canada on the Security Council 1999-2000,” 2002, United Nations Association in Canada, 15 Jan 2010, <http://www.unac.org/en/link_learn/canada/security/index.asp>. 55 McLellan, Interview, 2009. 56 McLellan, Interview, 2009.

43

state came to the table with a different perspective, having experienced different levels,

types and frequencies of terrorism in their country. For example, some Western European

countries such as Germany and Italy have been dealing with terrorist activity since the

1970s (the Red Army Faction and the Red Brigades, respectively, for example); the United

Kingdom had its own anti-terrorism legislation (the Prevention of Terrorism Acts) in place

because of struggles dealing with the I.R.A. North America’s lack of domestic terrorist

activity (as compared to activity in Europe and elsewhere) meant that our legislation here in

Canada and the United States was not quite as developed as that of other ally states. 57

Though years of discussions on anti-terrorism measures had taken place both in the

Canadian Department of Justice and in the halls of the United Nations and the Organization

of American States, Canada’s Bill C-36 was definitely not complete in its final content

before the events of 9/11 and the fresh debates and considerations that ensued. As

mentioned in the above paragraph, Justice Minister McLellan herself stops short of stating

that the entirety of Bill C-36 was in the making prior to 9/11. She believes that it was the

process and the deliberations of the Ad-hoc committee working together with Ministers and

their officials that “quickly” 58 led everyone to the conclusion that new legislation focused

on terrorism was needed. In our 2009 interview, Justice Richard Mosley also reaffirms

McLellan’s position that Bill C-36 was indeed in the making prior to 9/11. He offers the

example of “a long-time effort to reform the Official Secrets Act,” an effort that involved,

to his recollection, “something like 300 meetings of officials in Ottawa to deal with the

many issues that concern that statute.” 59 Mosley’s role in that reform process was working

with then Deputy Prime Minister Herb Gray and former National Security Advisor in the

57 McLellan, Interview, 2009. 58 McLellan, Interview, 2009. 59 Mosley, Interview, 2009.

44

Privy Council Office John Tait (also former Deputy Minister of Justice). Working papers

had been prepared and presented to Gray and Tait, and though that work “[wasn’t]

anywhere near completion, […] it was well advanced.”60 Also in the House at that time

was the Charities Registration Act which was subsequently folded into Bill C-36 post 9/11.

Prior to 9/11, that Act was a separate bill before the House. Concerning the

implementation of the two United Nations International Conventions on terrorist bombings

and financing, “that work was in progress … [though not near completion], the elements of

the legislation that Canada would need to adopt in order to implement those conventions

had been identified and we had begun consultations on them.”61 Mosley also stops short of

affirming that the entire Bill was nearly ready to go before 9/11: “Apart from [early work

on the Official Secrets Act, the Charities Registration Act, and preliminary consideration

on how to implement the United Nations International Conventions on Terrorism], there

hadn’t been any concerted work in this area until 9/11.”62 Justice Mosley also reaffirms

that the government’s perspective on anti-terrorism measures was in a state of shift. He

explains that “existing provisions in the Criminal Code were reactive as opposed to

preventive, [i.e.] they were appropriate for application after an event had taken place and

you could apprehend perpetrators.”63 He states that few would disagree on the criminality

of the murders and other crimes (perhaps related to the Hijacking of Aircraft Convention,

for example) that took place on 9/11, and had these events been committed here in Canada,

these acts would have been subject to these provisions of the Canadian Criminal Code.

However, as was indicated by McLellan and many others in the immediate aftermath of the

60 Mosley, Interview, 2009. 61 Mosley, Interview, 2009. 62 Mosley, Interview, 2009. 63 Mosley, Interview, 2009.

45

9/11 attacks, the Canadian Criminal Code was never intended to be an instrument of crime

prevention and the available “measures dealing with terrorism in the Code were not

designed to try to prevent such an incident taking place. So the object of the new offences

that were created and all of the procedural provisions that go with them was to set up a

regime which could operate and provide the tools to law enforcement to try to prevent such

an incident from happening as opposed to reacting or responding to it once it had

happened.”64 As we can see, both McLellan and Mosley agree that as the manner in which

the events of 9/11 occurred was carefully examined by the Department of Justice, it became

clear that the traditional way of dealing with criminal offences would do little in the way of

preventing similar attacks from happening again, as the modus operandi of the 9/11

terrorists included the suicide of the perpetrators, therefore exempting them from post-

crime criminal prosecution. Consequently, this created the need for further discussions on

anti-terrorism methods and legislation that certainly would have modified previous work on

anti-terrorism measures that had been in the making in the months and years leading up to

9/11.

One question that surfaced during the post-interview analysis of our discussions

with Mosley and McLellan was why, prior to 9/11, did the International Convention for the

Suppression of Terrorist Bombings remained signed but unratified for over three years, and

why did the International Convention for the Suppression of the Financing of Terrorism

remained signed but unratified for 19 months? As mentioned above, Justice Mosley

confirmed that “the elements of the legislation that Canada would need to adopt in order to

implement those conventions had been identified and we had begun consultations on

64 Mosley, Interview, 2009.

46

them.”65 One might then logically conclude from this that these consultations had been

underway (or perhaps placed on the political back-burner) for more than three years.

McLellan adds that part of the delay involved a complicated debate over the definition of

terrorism “because that becomes a very controversial issue in the minds of some.”66 From

this, a second unanswered question emerges: If the definition of terrorism was indeed a

significant obstacle to Canada ratifying these two conventions, then how did the Canadian

Department of Justice finally decide on a definition for terrorism for Bill C-36 when no

additional input was offered from the United Nations in this regard? In other words, if the

definition of terrorism was indeed the cause for delay in the ratification of the two

outstanding United Nations Conventions on Terrorism, how did the events of 9/11 assist

law-makers in resolving the conflict surrounding the Canadian definition for terrorism, as

suddenly, in the weeks following 9/11, a definition for terrorism was finally fleshed out in

Bill C-36 and the two conventions were subsequently ratified? The answer to this question

may lie in the many consultations with affected interest groups that took place between the

first draft of Bill C-36 in October 2001 and its final version with Royal Assent in December

2001. We will further examine this point of view in Section 2 of this chapter.

As far as confirming our first hypothesis that Bill C-36 was indeed in the making in

the months and years leading up to 9/11, there seems to be mounting evidence that this is at

least somewhat true. We have insider confirmation (through the testimonies of Justice

Minister McLellan and Justice Mosley) that discussions were indeed taking place within

the Canadian Department of Justice and the United Nations in the months and even years

leading up to 9/11. We have independent corroboration of these statements that, prior to

65 Mosley, Interview, 2009. 66 McLellan, Interview, 2009.

47

9/11, the Canadian government was taking concrete steps to boost its own anti-terrorism

legislation by signing the two United Nations International Conventions on Terrorism (in

1998 and in 2000). In any case, the evidence presented indicates that Bill C-36 was indeed

somewhat in the making prior to September 2001, though not in its complete and final draft

form as modifications were certainly considered and added in the wake of the 9/11 attacks

in the United States. This is shown in both Mosley and McLellan’s confirmations that Bill

C-36 was given its final shape and reach after extensive reflection on the nature of the

terrorist attacks in the United States that fall, i.e. in that there needed to be provisions in the

Criminal Code that aided law enforcement in preventing a 9/11-style attack, since

traditional post-crime prosecution did not apply in the event of a suicide bombing.

One source of evidence that would give us absolute certainty that C-36 was

indisputably in the works prior to 9/11 would be access to working papers on certain bills

that eventually were folded into this Bill. Unfortunately, all we have to lean on are the oral

testimonies of a few parliamentarians involved in this process as such working papers are

not publicly available. Considering the lack of independent corroborating evidence that the

Canadian Department of Justice was already beginning to draft Bill C-36 in the months and

years prior to 9/11, we cannot definitively confirm our initial hypothesis as previously

worded. However, considering a reasonable amount of outside evidence from which we

can draw definitive yet qualified independent conclusions, we offer the following nuanced

conclusion to our first hypothesis:

Conclusion A – Bill C-36 (a.k.a. the 2001 Canada Anti-terrorism Act) was INDEED already in the making prior to 9/11 in the sense that Canada was party to international discussions and resolutions aimed at modifying its existing Criminal Code so as to incorporate new anti-terrorism measures.

48

This conclusion would certainly fit within our chosen theoretical framework as all this pre-

9/11 reflection on Canadian anti-terrorism law would easily describe activity in Kingdon’s

solution stream. In the section of this chapter that follows, we will also examine how the

public policy theory of optimizing ties in with Kingdon’s multiple streams model to help us

understand the timing of Bill C-36 within the solution stream.

2. Witness Testimony in the Pre-Study Process of the Special Senate Committee on Bill C-36

Gross (2001) states that “one cannot ignore the fact that emergency situations bear a

disproportionally heavier burden on political outsiders, minorities, critics of the

government, trade unionists, defence lawyers and even critical insiders.”67 For this reason

and others, after the first reading of Bill C-36 to Parliament on October 15th, 2001, a series

of consultations with legal experts, members of law enforcement and interest groups that

could possibly be affected by sweeping changes to the Canadian Criminal Code were

undertaken in the form of roundtable discussions and meetings of the Special Senate

Committee on the Subject Matter of Bill C-36 chaired by Joyce Fairbairn.

In the introduction to its First Report on 1 November 2001, the Committee states

that:

the unusual importance of [Bill C-36] caused the government to ask the Senate to proceed by a special, rarely used process called pre-study … [which includes] examin[ing] the subject matter of the Bill, hearing from 3 ministers and 30 witnesses. Should the Bill pass all stages in the House of Commons, it will be sent to the Senate where it will undergo the regular

67 Oren Gross, “Cutting Down Trees: Law-Making under the Shadow of Great Calamities” in Ronald J. Daniels, Patrick Macklem and Kent Roach (Eds.), The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (Toronto: University of Toronto Press, 2001) 47.

49

process of debate and committee examination. This report sets out our comments and recommendations.68

The group of witnesses consulted for the First Report included Minister of Justice Anne

McLellan, Solicitor General of Canada Lawrence MacAulay, the Honourable Arthur

Eggleton, representatives from Canadian Security Intelligence Service (CSIS), Canada

Customs and Revenue Agency, the Department of Finance, the Solicitor General’s office,

the Communications Security Establishment, the Information Commission of Canada, the

Security Intelligence Review Committee, the Office of the Privacy Commissioner of

Canada, the Royal Canadian Mounted Police (RCMP), the Canadian Centre for

Philanthropy, the Canadian Civil Liberties Union, the Canadian Bar Association, the

Communications Security Establishment and various academics. This First Report outlined

22 recommendations for amending the First Draft of Bill C-36 as published in October

2001, suggestions that range from language clarification to new safeguards against

executive authority.69 This report was submitted to the drafters of the Bill, and as a result,

several amendments to First Draft of Bill C-36 were made, including:

Removing the word lawful from the phrase the exclusion of lawful advocacy, protest, dissent or stoppage of work from the scope of the definition of terrorist activity so as to “clarify that this specific exclusion from the scope of the definition of ‘terrorist’ activity applies whether the advocacy, protest, dissent or stoppage of work is lawful;”70

68 Special Senate Committee on the Subject Matter of Bill C-36, “The First Report on the Special Senate Committee on the Subject Matter of Bill C-36,”1 November 2001, Government of Canada, 5 March 2010, <http://www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/sm36-e/rep-e/rep01oct01-e.htm>. 69 A complete list of these recommendations can be found in Appendix C. 70 Anne McLellan,“[Evidence],” 4 December 2001, Special Senate Committee on Bill C-36, 30 Jan 2010, p. 33, <http://www.parl.gc.ca/37/1/parlbus/commbus/senate/Com-e/sm36-e/07mn e.htm?Language=E&Parl=37&Ses=1&comm_id=90>.

50

A new provision was added “that stipulates that, for greater certainty, the definition of ‘terrorist activity’ does not apply to the expression of political, religious, or ideological ideas that are not intended to cause the various forms of harm set out in the definition,” this done to “help ensure that the enforcement provisions in the bill are not interpreted or applied in a discriminatory manner or in a manner that would suppress democratic rights;”71

In response to the Committee’s request for additional monitoring of powers and activity conducted under this law, the Ministry of Justice amended Bill C-36 to include a requirement for an annual report, “requir[ing] that the Attorney General of Canada and those of the provinces, report publicly once per year on the exercise of the Bill C-36 powers in respect of investigative hearings [and preventive arrests] that took place within their jurisdictions;”72

In response to a request to have much of the bill subject to a sunset clause (excluding the portions that fulfill obligations to international agreements), “the House has amended the bill so that these two measures [investigative hearings and preventive arrests] are subject to a sunset clause under which they would expire after five years. This expiry is subject, however, to the ability of Parliament to extend the provisions on resolutions adopted by a majority of each chamber for additional periods of time, but no period may ever exceed five years;”73

Regarding security certificates, “amendments have been accepted that strengthen the protections,”74 such as outlining which conditions are necessary to issue a certificate, where the certificate would be published, the appeals process, and conformity to the Access of Information Act and the Privacy Act.

Though not all recommendations outlined in the Committee’s First Report were accepted,

there seems to have been some consideration and the application of a few of their

71 McLellan, Special Senate ... 2001, p. 34. 72 McLellan, Special Senate ... 2001, p. 35. 73 McLellan, Special Senate ... 2001, p. 36. 74 McLellan, Special Senate ... 2001, p. 37.

51

suggestions by the drafters of the Bill (as outlined above), confirming that the content of

the First Report of the Special Senate Committee on the Subject Matter of Bill C-36 indeed

influenced the scope and reach of sections of Bill C-36.

Between the time of the First Report by the Special Senate Committee on the

Subject Matter of Bill C-36 and December 18th (when Bill C-36 was finalized and given

Royal Assent), another round of witness testimonies took place in Committee. This second

group involved the input of the Barreau du Québec, the Office of the Privacy

Commissioner of Canada, the Canadian Association of Chiefs of Police, the Canadian

Police Association, various scholars, Urban Alliance and Race Relations, the Coalition of

Muslim Organizations, the Canadian Bar Association, the National Association of Women

and the Law, the National Organization of Immigrant and Visible Minority Women of

Canada, the Canadian Arab Federation, the Canadian Council of Criminal Defence

Lawyers, the Canadian Civil Liberties Association, various law societies and the

Information Commissioner of Canada. This cluster of witnesses differed somewhat from

the first group in that it involved the input of many minority groups (e.g. Arabs, Muslims,

etc.) that might have potentially found themselves negatively affected by the

implementation of Bill C-36.

Roach (2003) explains that this testimony of opponents to the Bill “attempted to

create a counter-narrative to the horrifying story of September 11.”75 Interestingly, after

consideration of the testimony of this group of witnesses, not a single recommendation was

offered by the Committee, though three observations were included in the Committee’s

Second Report. Also, the Second Report highlights a shift in party support of Bill C-36:

75 Kent Roach, September 11 – Consequences for Canada (Montreal: McGill-Queen’s University Press, 2003) 61.

52

while the First Report indicated a unanimous presentation of recommendations for the Bill,

the Second Report notes that though the Liberal Majority of Senators approved the Bill (in

its amended form) with only three observations for consideration, the Progressive

Conservative Minority senators continued to stand behind the recommendations of the First

Report and were not pleased by the government’s choice not to appoint “an officer of

Parliament to monitor the exercise of powers under this Bill [nor] the application of a true

sunset clause to virtually all parts of this bill.”76 In addition to this report, a Clause-by-

Clause Review of Bill C-36 was conducted by the Committee the same day (10 December)

and every single motion to recommend amendment to the Bill was defeated.

Several questions arise as the result of these findings in the Second Report. First of

all, how do we account for the differences between the First and Second Reports made by

the Special Senate Committee? In other words, why were so many recommendations

offered in the First Report while none were offered in the Second, even after the testimony

of another round of witnesses? Can the answer to this lie in the timing of the Reports, as in,

did the First Report offer more recommendations since it was their first rebuttal to the First

Draft of Bill C-36? Were the arguments offered by the second round of witnesses less

convincing, and therefore resulted in only observations offered to the people drafting Bill

C-36? Was witness testimony a mere formality?

We believe that the key to understanding what happened here in the Senate

Committee lies in the public policy theory of optimizing. According to Byron (1998),

optimizing (as opposed to satisficing) “requires that one choose the best option given one’s

76 Special Senate Committee on the Subject Matter of Bill C-36, “The Second Report on the Special Senate Committee on the Subject Matter of Bill C-36,” 10 December 2001, Government of Canada, 5 March 2010, <http://www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/sm36-e/rep-e/rep02dec01-e.htm>.

53

aims.”77 He describes the optimizing process using a simplified version of Pettit’s (1984)

explanation of this decision-making strategy, which involves listing all available options,

evaluating them and then selecting the best one. He qualifies the use of this strategy by

underlining that sometimes, a decision needs to be made before all options can be brought

to the table, such as, in some cases, when time is running out. In this type of situation,

optimizing is done when the “best option so far” (p. 72) is selected, which he describes as a

context which is static by force (as opposed to a context where the context is naturally

static, such as when one makes a decision from a menu of finite dining options and all the

available options are evident). In a forcedly static context, “for some reason extrinsic to

optimization, one is forced to choose before having completed the enumeration” (p. 72). In

what Schmidtz (1995) refers to as subtle optimization, the following procedure is followed:

1. The available options are listed and considered;

2. At a certain point, the value of continuing the search for further choices and

the expected advantage of those potentially better options are evaluated;

3. At the point where the cost of “continuing the search exceeds the expected

utility of finding a better option,”78 the best option is chosen.

In relation to this specific situation in the Senate Committee, Roach (2003) speculates that

perhaps, once a few concessions were made by Parliament, “the government put the lid on

firmly and tightly. It limited parliamentary debate and imposed party discipline to ensure

quick passage of the amended bill.”79 Perhaps the Committee had come to the point where

time was running out and the cost of continuing the debate had exceeded that of the utility

of finding a better solution. This could also explain the party-line split in the Second

77 Michael Byron, “Satisficing and Optimality,” Ethics [Vol. 109 (October 1998)] 72. 78 David Schmidtz, Rational Choice and Moral Agency (Princeton: Princeton University Press, 1995) 29. 79 Roach, 2003: 68.

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Report; both the Liberals and the Conservatives unanimous in their First Report yet split on

the Second Report, the change being that the Liberal Senators decided they were now in

agreement with the amended Bill even though many of their recommendations from the

First Report were not included.

Though a few questions remain unanswered, we can still independently confirm that

the content of the First Report of the Special Senate Committee on the Subject of Bill C-36

(whether the product of witness testimony or Senator-driven) did, in fact, have an apparent

effect on the content and scope of Bill C-36, as evidenced by the amendments Justice

Minister Anne McLellan accredits to this Report (as outlined above). Therefore, we offer

the following nuanced conclusion to add to our findings:

Conclusion A.2: During its draft process, Bill C-36 was amended to include some recommendations of the First Report of the Special Senate Committee on the Subject of Bill C-36.

3. Presentations held in the House of Commons in the Weeks Following 9/11 As is standard practice in the drafting and passing of any legislation in Canada,

discussion and debates were held in the House of Commons, the Senate and within the

Committees and Sub-Committees pertaining to the drafting of Bill C-36. Mosley (2009)

testifies that “between October and through November/December [2001], there was a very

healthy debate in Parliament.”80 He goes on to explain that

everything had to be justified. Options would be put forward [and] each one would be supported by a statement of considerations, pro and con. Those were debated internally, debated with the senior officials from across the government. They would then be debated again by the ministers on Mr. Manley’s committee and finally by the full Cabinet before

80 Mosley, Interview, 2009.

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they approved the bill prior to its introduction and then of course in the House. There was a lively debate about what was necessary and what was appropriate.81

According to Mosley, contributions by select Members of Parliament were more influential

than others. Particularly,

[o]f considerable influence were the comments made by Irwin Cotler (who was then MP [Liberal] for Mount Royal and a long standing human rights advocate, professor of law and activist in human rights matters). He articulated a series of principles which he’s written about and published that, I think, had a great influence on the debate in the House of Commons.82

The comments Mosley is referring to here were voiced in the House of Commons on

several occasions, beginning on 20 September 2001. Cotler’s five foundational principles

for counterterrorism law and policy are outlined as follows in the House of Commons

Hansard (2001):

1. The struggle against terrorism should be a cornerstone of

both domestic and international human security policy. It should mobilize parliaments, governments, civil society and security forces.

2. A clear and principled policy requires clear and principled thinking. We must jettison the notion that one person’s terrorist is another person’s freedom fighter. Rather, the principle must be that one democracy’s terrorist is another democracy’s terrorist and that terrorism, from whatever quarter and for whatever purpose, is unacceptable.

3. It must be clear that this is a war against terrorism and

not against Islam or any religion.

81 Mosley, Interview, 2009. 82 Mosley, Interview, 2009.

56

4. The struggle against terrorism should explore and exhaust a multi-layered strategy of diplomatic, juridical, financial, informational and related strategic initiatives short of a military response.

5. Any military response must comport with the principles

of international humanitarian law: the doctrines of necessity, proportionality, protection of civilians in armed conflict and the like.

a. In a word, the new transnational network of super terrorist suicide bombers is an existential threat that requires clear, principled thinking and comprehensive policy and strategy.83

These principles by Cotler84 were presented in the House of Commons on at least two

occasions (20 September and 25 September 2001). Since the first draft of Bill C-36 was

made in October 2001, we can confirm that Cotler’s first occasion of input into the draft

process occurred prior to Parliamentary debates on the First Draft of Bill C-36.

But how can we prove that one man’s comments to the House of Commons bore

any specific influence on a pending bill? Roach (2003) believes that “although the

government did not implement all of Cotler’s recommendations, it accepted many of them

when it amended Bill C-36 in late November 2001,”85 though Roach does not specify

which principles were indeed accepted. Whether Cotler’s comments suddenly steered the

drafting of the Bill in a new direction or whether these principles flowed from the draft

process itself (or other sources) and were simply articulated at a later date is difficult to

prove, as his presentation was made prior to the first draft of the Bill as presented to

83 Irwin Cotler, “[Bill C-36],” 25 September 2001, Government of Canada Hansard (Online Transcript of Parliamentary Debates), 23 Sep 2009, <http:www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=37&Ses=1&DocId=845036>. 84 As articulated in Irwin Cotler’s “Thinking Outside the Box: Foundational Principles Underpinning the Counter-Terrorism Law” in Ronald J. Daniels, Patrick Macklem and Kent Roach (Eds.), The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (Toronto: University of Toronto Press, 2001) 111-147. 85 Roach, 2003: 66.

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Parliament and we do not have access to earlier versions of this Bill that may have been

drafted prior to Cotler’s remarks with which to compare. However, we can take a look at

how members of the 37th Parliament voted on the final reading of the Bill to see if a pattern

emerges indicating the influence (or lack thereof) of his remarks to members of the

Canadian House of Commons (see following page for chart and analysis).

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Yea Nay Liberal 133 70.4% 1 2.1% Canadian Alliance 50 26.4% 5 10.6% Progressive Conservatives 6 3.2% 0 0% New Democratic Party 0 0% 10 21.3% Bloc Québécois 0 0% 31 66% Total*: 189 100% 47 100% All Parties Combined*: 189 80.1% 47 19.9%

* Not included in these totals are 6 Liberal MPs and 6 Bloc Québécois MPs who paired86

their votes. Figure 3.1: Distribution of Parliamentary Votes on Bill C-36 at 3rd Reading – Nov 2001

As we can see in Figure 3.1, every member of the Cotler’s own Liberal Party (save

one) voted in favour of Bill C-36 at its final reading. This is not surprising, as the Liberal

Party was the parliamentary majority at the time and it would have been counterproductive

for the governing party to put forward a bill that even members of their own party could not

86 According to the Parliament of Canada website glossary, pairing is “an arrangement whereby a Member of the government party and any Member of an opposition party agree not to vote for a specific period of time. Independent Members may also be paired. This arrangement, which permits Members to be absent on other business, is worked out either by the respective Whips or by the Members themselves.”

Canadian Alliance (Yea);

50; 21% Progressive

Conservatives (Yea); 6; 3%

Bloc Québécois (Nay); 31; 13%

New Democrats (Nay); 10; 4%

Canadian Alliance (Nay);

5; 2% Liberals (Nay); 1; 1%

Liberals (Yea); 133;

56%

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agree upon. With 133 Liberals voting in favour of the Bill (from a total of 236 Members of

Parliament [MPs] voting that day), the Bill would have passed with 56% of the vote even if

no other MP from another party were in favour of it. What is interesting is that members of

the Liberal Party were not the only MPs that were in favour of the Bill in its final reading

version. Most Canadian Alliance (CA) MPs (91%) and all Progressive Conservative (PC)

MPs also voted in favour of the Bill, creating an 80/20% vote split in favour of the Bill.

The Liberal Party, with the majority of votes at their disposal, could have simply decided

on a course of action in terms of drafting an anti-terrorism bill and gone ahead with it since

they did not require other party votes to pass the Bill. However, for some reason,

conservatives (in both the PC and CA) also voted in favour of the Bill. This signifies that

there was some reason for conservatives to show

support for Bill C-36 (or the appearance of support, perhaps). Whether or not Cotler’s

presentation in the House helped conservative MPs make their decision is impossible to

determine without asking every conservative why he/she voted in favour of the Bill. What

we can extract from this vein of analysis, however, is that there was something within (or

peripheral to) Bill C-36 that caused not only PCs and the CA to vote in favour of the Bill,

but also for the Bloc Québécois and the New Democratic Party to categorically vote against

it. Though it is perhaps obvious why some opposition parties (i.e. the BQ and the NDP)

would vote against the Bill (as it is their task to ‘oppose’), it is less obvious why other

opposition parties (i.e. PCs and the CA) would vote in favour of a Liberal Bill. Further

research into the reasons why the votes on Bill C-36 were distributed as they were would

be a fascinating study on which to embark at a later date. For the purposes of this present

thesis, we cannot solidly confirm nor deny the influence of Cotler’s statements; we cannot

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determine whether conservatives were swayed by Cotler’s statements, the crisis at hand, or

some other external and more subtle factor.

CONCLUDING NOTES

Through the course of this chapter, we have explored one existing hypothesis and

two newly discovered hypotheses on what/who may have influenced the timing and content

of Bill C-36. Through our interviews with Canadian parliamentarians and corroborating

external evidence, we have come to the following conclusion that we can add the First

Report of the Special Senate Committee on the Subject Matter of Bill C-36 to our initial list

of internal influences on the timing and content of Bill C-36. The following chapter of this

thesis will further explore three possible external influences on the content and timing of

Bill C-36.

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IV. External Factors Influencing Bill C-36

Beyond the internal factors exacting influence on the timing and content of Bill C-

36 (i.e. the factors over which the Canadian government of the day had a measure of

control), there were a number of forces that were beyond the control of the 37th Parliament

that had significant consequences on the creation of Bill C-36. In our initial stages of

research, we isolated three main external influences that all figured prominently in public

(and governmental) discussions regarding Bill C-36 as they emerged in media chatter and

Canadian government press releases in the days and weeks following 9/11. We will further

discuss the origins and impetus behind each influence in the paragraphs that follow. We

will also apply Kingdon’s streams theory and the public policy theory of institutional

isomorphism to better understand how Bill C-36 came to be in its timing and content.

1. The Events of 9/11

What role did the events of 9/11 play in the timing and content of Bill C-36? At

first glance, it would be easy for one to assume that the former had a direct influence on the

latter. A reactionary response to disasters and tragedies is a common way to pass (and

sometimes fast-track) new legislation.87 But how did a mass tragedy on foreign soil, in a

87 For example, the United States Federal Emergency Management Agency (FEMA) claims that during its first century of operations, “ad hoc legislation was passed more than 100 times in response to hurricanes, earthquakes, floods and other natural disasters.” Federal Emergency Management Agency, “FEMA History,” 29 May 2009, United States Department of Homeland Security, 16 Jan 2010 <http://www.fema.gov/about/history/shtm>. For a scientific study of emergency legislation passed in response to an unexpected disaster, see Peter P.J. Driessen and Anton A.J. de Gier, “Flooding, River Management and Emergency Legislation Experiences of the Accelerated Reinforcement of Dikes in the Netherlands,” Tijdschrift voor Economische en Sociale Geografie [90: 3 (1999)] 336-342.

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country that is not subject to our own laws and systems, give rise to a legislative overhaul

of the Canadian Criminal Code as it did with Bill C-36?

Our hypothesis that the content and timing of Bill C-36 was influenced by the

events of 9/11 in the United States is articulated as follows:

Hypothesis B: Bill C-36 (a.k.a. the 2001 Canada Anti-terrorism Act) was drafted in reaction to the events of September 11, 2001 (i.e. the terrorist attacks of the World Trade Center, the Pentagon and the other crashed plane in Pennsylvania).

The rationale behind this hypothesis is that perhaps after a brief survey (and clear

observation) of failed security mechanisms in the United States, the Canadian government

decided that the existing Canadian Criminal Code was not strong enough to protect

Canadians from a 9/11-like attack. At first glance, this hypothesis seems overly simplistic,

as few would argue that the events of 9/11 had no influence on the timing of this

legislation. However, we will seek to further investigate this point of view through our

interviews with key parliamentarians and the limited scholarly literature available on this

specific topic so as to better evaluate in what way and in what measure the events of 9/11

affected the legislative trajectory of Bill C-36.

The hypothesis that 9/11 gave way to C-36 is supported by other scholars in the

field. Rollings-Magnusson (2009) believes that the 2001 Canada Anti-terrorism Act

“represented the Canadian government’s hasty response to the terrorist strikes in the United

States on September 11th, 2001.”88 Media discussions in the weeks following 9/11 and

public opinion on the matter would certainly corroborate this point of view, that Bill C-36

88 Sandra Rollings-Magnusson, “Buying Security with Freedom: The Vulnerability of Human Rights in Canada in the Post 9/11 Era” in Sandra Rollings-Magnusson (Ed.), Anti-terrorism: Security and Insecurity after 9/11 (Black Point, Nova Scotia: Fernwood Publishing, 2009) 83.

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was indeed “fast-tracked.”89 A tangent point of view to this hypothesis is that something

(indeed, anything) needed to be done in reaction to the public panic resulting from the

events of 9/11. To use an everyday comparison, when a child goes missing in a particular

community, parents tend to hold on to their own children a little tighter than normal in the

days and weeks that follow, feeling wary of strangers and ultra-vigilant of their children’s

safety. These parents and the general public may also become critical of police efforts if

the child is not found quickly and especially if another child goes missing soon after. One

wonders how the public may have reacted to the Canadian government had Parliament not

offered some sort of strong hand of preventative justice in the weeks following 9/11.

Badey (2006) further elaborates on this concept using the example of the (even ‘faster-

tracked’) USA PATRIOT Act, Bill C-36’s American counterpart: “Popular fear, outrage and

anger, in the wake of the attacks of 9/11, weighed heavily on decision-makers. The need to

do something became as important, if not more important, than the debate about what to do.

Public and media pressure limited time for reflection and analysis.”90 Gross (2001) adds

that “the need to respond quickly to future threats (as much as to assure the public that

government is not sitting idly by but is rather reacting with a vengeance against the

terrorists who committed attacks) frequently results in rushed legislation.”91 Critics would

agree that Bill C-36 indeed fits the basic description of ‘rushed legislation’, as only 99 days

passed between the events of 9/11 and Royal Assent on a 196-page Anti-terrorism Act.

Since this legislation is unique in its conception, content and context in the Canadian legal

89 See “In Depth: Canadian Security - Anti-terrorism Act,” 27 Feb 2007, Canadian Broadcasting Corporation (CBC) News, 16 Apr. 2009, <http://ww.cbc.ca/news/background/cdnsecurity/>, for example. 90 Thomas J. Badey, “U.S. Counter-terrorism: Change in Approach, Continuity in Policy,” Contemporary Security Policy [27: 2 (2006)] 322. 91 Oren Gross, “Cutting Down Trees: Law-Making under the Shadow of Great Calamities” in Ronald J. Daniels, Patrick Macklem and Kent Roach (Eds.), The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (Toronto: University of Toronto Press, 2001) 42.

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landscape, we have little to compare it to so as to more effectively measure its

thoroughness, effectiveness and attention to detail. Justice Mosley, however, measures the

quality of Bill C-36 against similar legislation that emerged in both the United States and

the United Kingdom in the weeks and months following 9/11. As quoted at the beginning

of the previous chapter, Mosley is fully aware that “[t]here is a commonly held view that

the [Canadian anti-terrorism] legislation was rushed through;” it is his belief, however, that

when we compare Canada’s response to how Washington and London responded to 9/11,

that Canada “took its responsibility seriously”92 and was more comprehensive in their

consideration, debate and evaluation of their subsequent anti-terrorism legislation. He

asserts that “between October and through November/December, there was a very healthy

debate in Parliament.”93 Though, at this time, we do not intend to enter into a detailed

analysis of the United States’ Congress’ reaction to September 11th, it is worth noting that

the USA PATRIOT Act became public law only 45 days after 9/1194 under very challenging

(and what some conspiracy theorists would call highly suspicious) political circumstances.

In the wake of postal anthrax attacks on certain members of the United States Congress,

Capitol Hill had been evacuated, precluding members of the House and Senate from accessing their offices and from engaging in normal deliberative processes … [increasing] the likelihood that few members of Congress had the time or interest or access to read the expansive 132-page document prior to voting in favour of it. The speed with which Congress acted similarly shielded the Act from public scrutiny and debate. The powers of the state and the rights of

92 Justice Richard Mosley, Telephone Interview, 2009. 93 Mosley, Interview, 2009. 94 “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001,” United States Congress, <http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_public_laws&docid=f:publ056.107.pdf>.

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citizens were transformed at lightning speed, and in the dark.95

Considering the ‘extra time’ and the relatively ‘open format approach’ the Canadian

Parliament took to further debate Bill C-36 and to consult members of potentially affected

interest groups,96 there seems to have been at least the opportunity for Canadian law-

makers to produce (at least the appearance of) a more thoughtful, carefully considered piece

of legislation than that which was passed in Washington in October 2001; determining

whether or not parliamentarians took full advantage of this opportunity is beyond the

resources available to this thesis.

Reaction to the events of 9/11 and their subsequent influence on Bill C-36 varies

between members of the 37th Parliament. The Department of Justice of the time admits that

the events of 9/11 exerted some influence on the timing and content of Bill C-36.

According to then-Canadian Justice Minister McLellan, though far from being the sole

instigator of the legislative process that ensued,

9/11 became the triggering event for us to pull a lot of work that was already underway in the Department of Justice, but also, [to] review everything at the domestic level in light of 9/11, and review our criminal laws, look at the nature of global terrorism, and figure out whether we needed to create some new offences through the Anti-terrorism Act to deal with this new face of terrorism.97

Indeed, as previously discovered in Chapter III of this thesis, the events of 9/11 brought

new variables to the discussion on how to fight terrorism, i.e. finding preventive measures

95 Patrice LeClerc and Kenneth A. Gould, “No One Left to Speak Out: The USA PATRIOT Act and the Future of U.S. Social Movements” in Sandra Rollings-Magnusson (Ed.), Anti-terrorism: Security and Insecurity after 9/11 (Black Point, Nova Scotia: Fernwood Publishing, 2009) 200. 96 More on this in Chapter III of this thesis. 97 The Honourable Anne McLellan, Telephone Interview 2009.

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to stop terrorists before they ever commit the crime.98 However, the Official Opposition

(as represented here by Reverend Bill Blaikie, one of the interviewees for this thesis) offers

a fresh perspective on the government’s official framing of the Bill. In contrast to

McLellan’s perspective that Bill C-36 was in significant stages of development before 9/11,

Blaikie believes that the bill (as it is) would never have come forward without the events of

9/11. From his perspective, there was a wide spectrum of public perception/reaction on

Canada’s choice to approach this security crisis with stronger legislation. For some, there

was a “sense of urgency or imminent danger or repetition of some kind of terrorist attack

… [that fuelled the perception] that perhaps something new and more draconian needed to

be in place.”99 This point of view is also supported by the scholars quoted in the

paragraphs above (Rollings-Magnusson 2009; Badey 2006; Gross 2001).

This discussion on the influence of the events of 9/11 on the elaboration of

Canadian anti-terrorism policy brings up new questions and considerations that will

eventually lead us to a broader application of the lessons we can take away from our careful

analysis of this particular piece of legislation. We will further examine this perspective in

the concluding chapter of this thesis. At this point in the analysis, we see from our

interviews with Justice Minister McLellan and Rev. Blaikie and other scholars in the field

that the events of 9/11 certainly played an important role in bringing about Bill C-36.

McLellan, as champion of the bill, credits the events of 9/11 with reasons to reconsider

Canada’s existing approach to anti-terrorism as structured in the Criminal Code, while

Blaikie and other scholars credit the events of 9/11 with reasons for the government to

simply ‘react’ (not sitting idly by) for the sake of the Canadian public and our collective

98 McLellan, Interview 2009. 99 Rev. William Blaikie, Telephone Interview 2009.

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fear that a 9/11-style attack may happen here unless the government does ‘something’.

Though the government’s motivations for reacting legislatively to the events of 9/11 appear

debatable, it seems clear that for whatever reason, 9/11 indeed acted as a triggering (i.e.

focusing) event for the legislative process that resulted in Bill C-36. This perspective is

best evidenced by the fact that the most obvious difference between the Canadian

Department of Justice’s to-do list on 10 September 2001 and their agenda on 12 September

2001 was sober consideration of what occurred in Manhattan, Washington D.C. and

Pennsylvania the morning of 11 September 2001, as evidenced by the sudden attention and

consideration Bill C-36 enjoyed in Parliament in the weeks that followed. That morning

marks the exact moment when the Department’s course of action changed, and though the

finer details of the eventual Bill C-36 may have been brought about for more peripheral

reasons, there is no denying the fact that the terrorist attacks against the United States

launched at least the initial, raw reaction of Parliament to, in some way, address public

panic and voter reaction to the events of 9/11.

In taking one last look at Kingdon’s theory of multiple streams, as already indicated

in Chapter III, the events of 9/11 were arguably the focusing event that brought the three

policy streams together to a point of convergence that resulted in the creation of Bill C-36.

In light of this, we offer the following nuanced conclusion:

Conclusion B - Bill C-36 (a.k.a. the 2001 Canada Anti-terrorism Act) came into being in the wake of the focusing event of the events of September 11, 2001 (the terrorist attacks of the World Trade Center, the Pentagon and the other crashed plane in Pennsylvania).

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2. Pressure from the United States

The researcher’s position that the content of Bill C-36 was influenced by the USA

PATRIOT Act and/or pressure from Washington100 is articulated as follows:

Hypothesis C: Bill C-36 (a.k.a. the 2001 Canada Anti-terrorism Act) was drafted in direct reaction to the 2001 USA PATRIOT Act.

This hypothesis is definitely the most difficult to prove scientifically, as no parliamentarian

would want to admit to being pressured into anything, legislative or otherwise. The

rationale behind this hypothesis is that after several less-than-subtle accusations from

Washington that Canada’s ‘loose’ approach to security (in legislation and practice) may

have contributed to the 9/11 terrorists’ ability to carry out their attacks on the United States,

Canada needed to pass a bill similar to the USA PATRIOT Act to ensure continued

favourable relations (economic and otherwise) with the United States.

This hypothesis has oft been examined by North American media, especially in the

wake of (factually erroneous yet powerfully influential) comments put forth by several

United States senators and congressmen/congresswomen suggesting that Washington may

have found Canada to be somewhat to blame for the events of 9/11. Even as recently as

2009, United States Homeland Security Secretary Janet Napolitano made comments in a

televised interview with the Canadian Broadcasting Corporation’s (CBC) Neil MacDonald

that “to the extent that terrorists have come into [the United States] or suspected or known

terrorists have entered our country across a border, it’s been across the Canadian border.

100 Used here and elsewhere in this thesis as a metonym for the United States Congress and/or Oval Office, i.e. (then) President George H.W. Bush.

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There are some real issues there.”101 When MacDonald asked her specifically if she was

referring to the terrorists of 9/11, Napolitano replied, “Not just those, but others as well.”

Michael Wilson, Canada’s ambassador to the United States, has spent much time publicly

refuting such accusations. He emphasizes, “As the 9/11 Commission reported in 2004, all

of the 9/11 terrorists arrived in the United States from outside North America. They flew to

major U.S. airports. They entered the U.S. with documents issued by the United States

government, and no 9/11 terrorists came from Canada.” However, despite such official

findings, this has not stopped other high profile American public servants including Senator

John McCain,102 former United States Homeland Security Secretary Michael Chertoff,103

Secretary of State Hillary Clinton,104 former House Speaker Newt Gingrich105 and former

U.S. Senator Conrad Burns106 from fuelling the myth that the United States’ northern

border with Canada is somewhat to blame for their own problems with national security.

This idea is further fuelled by incidences involving would-be terrorists such as Ahmed

Ressam, the Algerian man who came to Canada under false pretences as a refugee and

managed to take a carload full of explosives onto a ferry traveling from Victoria, B.C. to

Port Angeles, Washington, U.S.A. with every intention of bombing LAX (Los Angeles

International Airport) on the eve of the millennium.107

101 “Canada more lax about whom it lets in, Napolitano says,” 21 April 2009, Canadian Broadcasting Corporation (CBC) News, 15 Dec. 2010, <http://www.cbc.ca/world/story/2009/04/21/napolitano-border-canada021.html>. 102 “McCain defends Napolitano, Insists 9/11 Perpetrators Came from Canada,” 24 April 2009, Canadian Broadcasting Corporation (CBC) News, 08 Dec 2009, <http://www.cbc.ca/world/story/2009/04/24/mccain-border-canada-911.html>. 103 “Canada more lax …” CBC News. 104 “Canada more lax …” CBC News. 105 “Homeland Security Boss Rebuked by Canada for Erroneous 9/11 Statement,” 21 April 2009, Canada.com (Canwest News Service), 13 Dec. 2010, <http://www.globaltv.com/entertainment/movie-guide/Homeland+Security+boss+rebuked+Canada+erroneous+statement/1519303/story.html>. 106 “Homeland Security Boss …” Canwest News Service. 107 “Ahmed Ressam’s Millennium Plot,” 2010, Public Broadcasting Service (PBS.org), 15 Apr. 2010, <http://www.pbs.org/wgbh/pages/frontline/shows/trail/inside/cron.html>.

70 How might erroneous and/or inflammatory statements offered by United States

Government officials affect Canada’s legislative reaction to the events of 9/11? The answer

to this lies in the delicate asymmetrical relationship that often exists between bordering

nations. Hoberg (1991) has examined external influences on domestic public policy and

offers the conclusion that less populous states (such as Canada, for example) are often

dependant on a much more populous neighbouring state (such as the United States).108 In

defining the challenges faced by these smaller states, he quotes former Canadian Prime

Minister Pierre Trudeau, who during his first trip to Washington as Prime Minister in 1969,

remarked:

Let me say that it should not be surprising if these policies in many instances either reflect or take into account the proximity of the United States. Living next to you is like sleeping with an elephant. No matter how friendly and even-tempered the beast, one is affected by every twitch and grunt.109

Nicol (2005) highlights that though Canada and the United States share an international

border, each state views the significance of this divide differently. According to Nicol, the

security of this border is tantamount to the United States, while Canada is more

preoccupied with cross-border economic integration.110 If this is indeed true, then the

United States’ concerns about lax Canadian security could potentially cause major

problems regarding cross-border trade. For Canadians, significant disruption of trade with

the United States would be cataclysmic for our standard of living. Nicol states that:

108 George Hoberg, “Sleeping with an Elephant: The American Influence on Canadian Environmental Regulation,” Journal of Public Policy [Vol. 11, Issue 1 (1991)] 107. 109 Hoberg, “Sleeping …” (1991), 108. 110 Heather Nicol, “Resiliency or Change? The Contemporary Canada-US Border,” Geopolitics [Volume 10, Issue 4 (2005)] 778.

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while Canadian goods to the United States account for more than 80 per cent of total Canadian exports, U.S. exports to Canada account for only approximately 25 per cent. Canada imports most of its goods from U.S. sources, while the U.S. imports a substantial but not dominant share of goods from Canada. Although this represents the largest trade relationship in the world, it remains asymmetrical. Cross-border trade is essentially three times more important to the Canadian economy than it is to the U.S. economy.111

One can certainly appreciate the metaphorical minefield Canada needs to wade through

when considering how our country is perceived by our most significant trade partner, no

matter whether those perceptions are true or false.

Dobrowolsky, Rollings-Magnusson & Doucet (2009) ponder why the Canadian

government offered a much stronger response to a terrorist attack on foreign soil (9/11)

than it did to a terrorist attack on its own citizens (referring to the Air India bombing on 23

June 1985).112 They believe that “much of the answer lies in the influence of the United

States, continental integration, the broader forces of globalization, and their interplay with

securitization.”113 Laxner (2004)114 offers the following description for this particular

situation: “A storm had been gathering in the Canadian-American relationship for years

prior to September 11, but on that date the tempest struck,”115 alluding to other cross-border

issue conflicts at the time (such as globalization and continental integration) that found

their peak in the events of 9/11. Mégie (2009) also believes that the relationship between

Canada and the United States played an important role in Canada’s own domestic security

111 Nicol, “Resiliency …” (2005): 778. 112 More on the Air India tragedy in the following chapter. 113 Alexandra Dobrowolsky, Sandra Rollings-Magnusson and Marc G. Doucet, “Security, Insecurity and Human Rights: Contextualizing Post-9/11” in Sandra Rollings-Magnusson (Ed.), Anti-terrorism: Security and Insecurity after 9/11, (Black Point, Nova Scotia: Fernwood Publishing, 2009) 21. 114 James Laxner, “The Border: Canada, the U.S. and Dispatches from the 49th Parallel” (Toronto: Anchor, 2003) 9, as cited in Sandra Rollings-Magnusson (Ed.), Anti-terrorism: Security and Insecurity after 9/11, (Black Point, Nova Scotia: Fernwood Publishing, 2009) 21. 115 Laxner, “The Border …” (2003) in Rollings-Magnusson Anti-terrorism (2009), 21.

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policy.116 He illustrates this with the case of the detention of Canadian Omar Khadr.

Khadr was arrested in Afghanistan at 15 as a child soldier (under international

conventions), yet the United States sent him to prison in Guantanamo Bay, Cuba. Despite

pressure from the Canadian public to have him released and a Supreme Court ruling that

Canada and the United States had indeed violated Khadr’s rights,117 the Canadian

government has never officially requested his return to Canada,118 suggesting that unless

there is classified information that trumps international conventions on the detention of

child soldiers, the Canadian government must be attempting to manoeuvre outside

pressures (i.e. Washington) while resolving (or not) Mr. Khadr’s fate.

During the course of our interviews for this thesis, Rev. Blaikie offered an

interesting interpretation of perceived subtleties that may have given speed and particular

content to Bill C-36. In regards to concerns Blaikie had during the draft process of the Bill,

he mentions that on at least two occasions, he requested “that the Government do a quick

referral to the Supreme Court to see if they thought [Bill C-36] was charter-proof …

governments can do this and presumably, they could have asked for expeditiousness on the

part of the court … [b]ut they wouldn’t do that.”119 In his opinion, he believes that this

request was denied because the Government was “just really under the gun – they were

meeting somebody else’s deadline, not their own.”120 Whether or not this “somebody else”

116 Antoine Mégie, “Le Canada et les normes internationales anti-terroristes” in Stéphane Leman-Langlois and Jean-Paul Brodeur (Eds.), Terrorisme et antiterrorisme au Canada (Montréal : Les Presses de l’Université de Montréal, 2009) 201. 117 “Khadr Ruling Sees Top Court Clash with Tories,” 29 Jan 2010, Globe and Mail (Online), 15 Apr. 2010, <http://www.theglobeandmail.com/news/politics/khadr-ruling-sees-top-court-clash-with-tories/article1450138/>. 118 Antoine Mégie, “Le Canada et les normes internationales anti-terroristes” in Stéphane Leman-Langlois and Jean-Paul Brodeur (Eds.), Terrorisme et antiterrorisme au Canada (Montréal : Les Presses de l’Université de Montréal, 2009) 201. 119 Blaikie, Interview, 2009. 120 Blaikie, Interview, 2009.

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was the United States, the United Nations or the international community, he wouldn’t say

exactly. He also adds that:

it wasn’t explicit, but it was implicit in a lot of what was said. The official reason was that the U.N. had passed these resolutions and that Canada wanted to protect itself. But you just got the feeling, in a nod and a wink sort of way, that we were doing this because Washington wanted us to, that basically they had said, “You better do this,” and that was the rush. The rush was to show Washington or President Bush or however you want to describe it that we were taking this all as seriously as they wanted us to … it was sort of like, “We don’t have any choice in this matter - we’re doing what we’re told here, so don’t be too hard on us.”121

Though highly interesting, independently confirming this perception as fact requires further

investigation and access to documents and conversations to which this researcher was not

issued access. However, as we will see in Section 3 of this chapter, the United Nations

indeed had imposed a deadline by which member states needed to ratify the two

conventions on terrorism, so perhaps this was the outside pressure alluded to in Blaikie’s

observations. In the end, no indisputable evidence pointing at Washington’s hands at work

in the creation of Bill C-36 was found during the course of our interviews with

parliamentarians.

However, even though our interviews revealed no direct evidence linking Bill C-36

directly to the USA PATRIOT Act, we did find ample evidence of consultations that took

place between Canadian officials and their counterparts in other countries,122 including the

United States. Mosley (2009) states that the Department of Justice did a great deal of

comparative legal analysis and research, examining comparable legislation in Europe and

just about every other western country at that time. McLellan mentions that “justice

121 Blaikie, Interview, 2009. 122 Mosley, Interview, 2009; McLellan, Interview, 2009.

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ministers from the United States, Australia and other members states throughout the G8, the

Council of Europe and the European Union were talking to each other on a regular basis …

trying to decide the best way forward.”123 She underlines that all were “seized with a

sense of urgency”124 as far as ratifying the U.N. International Conventions as soon as

possible. Certainly, having witnessed the horror of 9/11 across the border as a sort of

‘wake-up call’, the Canadian government would have been careless, even foolish, to not

learn from this event and strengthen their own domestic anti-terrorism measures. McLellan

indicates that officials in her ministry and other ministries kept in close touch with their

colleagues and counterparts in like-minded liberal democracies; they discussed issues

including forged passports and other ID documents, “how to catch these people before they

get on the plane, how to pick them up when they get off the plane if they’re trying to

illegally enter certain countries … it was this ongoing consultative process after 9/11 that

really ramped up after the attack” 125.

Not only were there international discussions on what to include in Canada’s anti-

terrorism legislation, but there were also discussions within departments of the Canadian

government, since Bill C-36 included amendments under the purview of many departments.

According to McLellan, in the days following 9/11, “the Prime Minister created an Ad-hoc

Committee on National Security and that committee was chaired by […] Foreign Affairs

Minister John Manley. The committee was made up of all the key ministers who needed to

be involved,”126 ministers from the Departments of Justice, Finance, Transport, Defence,

123 McLellan, Interview, 2009. 124 McLellan, Interview, 2009. 125 McLellan, Interview, 2009. 126 McLellan, Interview, 2009.

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Solicitor General, Immigration, National Revenue, etc. McLellan explains that the reason

for this gathering of many different departments was because

the U.N. was very clear that we had to review all our legislation around terrorist financing and the kinds of organizations that perhaps had charitable status in the country and, in fact, were raising money that was then sent overseas for terrorist acts, [etc.] … [W]e began work right away in terms of reviewing our domestic situation in all those areas.127

McLellan goes on to describe how the committee process was conducted:

[Ministers] would come to Committee and say “Look, this is where we think our law is at, this is what we think is missing in light of what we’ve learned about the modern face of terrorism, this is what the U.N. ha[s] said that they need to see … In discussions with our counterparts with the G8, the European Union, [etc.], these seem to be the key provisions that we all agree we need in place.” We would take that to Committee and then it would be discussed … [T]hose discussions were often very vigorous because we were always concerned about that balance between providing for Canadians’ national security and civil liberties.128

McLellan emphasized that though Bill C-36 was a (Department of) Justice-sponsored bill,

the final content of the bill was really up to the Ad-Hoc Committee on National Security.

She explains:

[A]lthough the Department of Justice was the lead in terms of presenting proposed amendments to the Code and then was the lead in terms of the actual drafting (and we brought our recommendations to Committee), it was actually the Committee that discussed and signed off on all the ultimate proposals … [among those consulted], the ministers met weekly, but officials were meeting every day … The Ad-hoc Committee represented all the key departments who would have an interest in this issue.129

127 McLellan, Interview, 2009. 128 McLellan, Interview, 2009. 129 McLellan, Interview, 2009.

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These international and inter-ministerial debates and considerations are externally

confirmed by both the United Nations’ Security Council Resolutions on terrorism

conventions, but also evidence that Bill C-36 includes modifications to Codes and Acts

under the purview of ministries beyond the Department of Justice, such as Immigration,

Revenue, Transportation, etc., which would have certainly required the contribution of each

one of these ministries.

To sum up, no indisputable evidence pointing to Washington’s hands at work in the

creation of Bill C-36 was found during the course of our interviews with parliamentarians.

However, we did find scholarly research that strengthened the possibility that Canada’s

asymmetrical trade relationship with the United States may have contributed to

considerations that favoured the United States’ point of view on our own domestic anti-

terrorism legislation. Therefore, we cannot confirm Hypothesis #3 that Bill C-36 was

drafted in direct reaction to the USA PATRIOT Act. However, we did discover that

meetings with officials from several other countries took place, and from the accounts of

McLellan and Mosley, there seems to have been significant discussion and comparisons

done between states and between various departments of the Government of Canada.

Therefore, we propose that the above statement be rephrased to read as follows:

Conclusion C: Bill C-36 (a.k.a. the 2001 Canada Anti-terrorism Act) was drafted in concert with other anti-terrorism legislation in other Western nations and as the result of consultations between many branches of the Canadian government.

This conclusion is in line with the public policy theory of institutional isomorphism. This

theory states that organizations mimic like organizations, even when it doesn't necessarily

serve their purposes. DiMaggio & Powell, in their ground-breaking 1983 article entitled

“The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in

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Organizational Fields,” examine this phenomenon in depth. They state that “when the

environment creates symbolic uncertainty, organizations may model themselves on other

organizations.”130 Few would disagree that the events of 9/11 and the subsequent political

climate, certainly in Canada and the United States, created such an environment. They go

on to say that “[o]rganizations tend to model themselves after similar organizations in their

field that they perceive to be more legitimate or successful.”131 Since the United States’

government was responding to these events with increased anti-terrorism measures and

considering the lopsided economic relationship Canada shares with the U.S., Canada may

have been (subconsciously or consciously) modeling their own anti-terrorism measures

after the more seemingly legitimate American anti-terrorism policy.

3. Unratified United Nations Conventions on Terrorism

The day after 9/11, the United Nations Security Council passed Resolution 1368,

“unequivocally condemn[ing] in the strongest terms the horrifying terrorist attacks which

took place on 11 September 2001 in New York, Washington, D.C. and Pennsylvania and

regards such acts, like any act of international terrorism, as a threat to international peace

and security.”132 Fourteen days later, the U.N.S.C. passed Security Council Resolution

1373, calling on member States to implement the content of that (1373) resolution and also

ratify any outstanding conventions on terrorism. The researcher’s hypothesis that the

130 Paul DiMaggio & Walter W. Powell, “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields,” American Sociological Review [Vol. 48, No. 2, April 1983] 151. 131 DiMaggio & Powell, 1983: 151. 132 “Resolution No.1368 (S/RES/1368/2001),” 12 Sep. 2001, United Nations Security Council, 15 June 2008, p. 1, <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N01/533/82/PDF/N0153382.pdf?OpenElement>.

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timing and content of Bill C-36 was influenced by yet unratified international conventions

on terrorism is articulated as follows:

Hypothesis D: Bill C-36 (a.k.a. the 2001 Canada Anti-terrorism Act) was drafted to complete Canada’s commitments to yet unratified international conventions on terrorism.

The rationale behind this sub-hypothesis is that Canada had not yet fulfilled some of its

obligations to international treaties (specifically the two outstanding United Nations

International Conventions on Terrorism) and aimed to rectify the situation by drafting Bill

C-36.

When asked (in our interviews) if the Canadian Department of Justice was issued

any sort of deadline in drafting and/or passing new anti-terrorism legislation post-9/11, both

Mosley (2009) and McLellan (2009) made reference to United Nations Security Council

Resolution 1373 (adopted on 28 September 2001) that gave member States until the end of

that chronological year to ratify two conventions concerning terrorism (the International

Convention for the Suppression of Terrorist Bombings [1998] and the International

Convention for the Suppression of the Financing of Terrorism [2000]). In brief, these two

conventions require U.N. member states to pass domestic legislation that would build a

stronger framework of cooperation between member states in the international fight against

terrorism; these conventions, together more than 30 pages long, outline the U.N.’s

standards for how they would like these standards to work in every jurisdiction around the

world. This certainly ties in to what was discovered in Section 2 of this chapter, that

Canada drafted Bill C-36 in concert with other anti-terrorism legislation in other Western

nations and as the result of consultations between many branches of the Canadian

government. We will further explore this relationship in the following section.

79 Canada was among those countries that had not yet ratified these two conventions

on terrorism. According to McLellan, the Department of Justice was already “very keen to

get the government to ratify” the two outstanding United Nations International Conventions

on Terrorism before the events of 9/11 even happened.133 She also points out that the

United Nations, in the immediate aftermath of 9/11, passed a resolution “putting the

members of the U.N. on a very short timeframe in terms of reviewing their own domestic

legislation and making sure we had the necessary laws in place.”134 United Nations

Security Council Resolution 1373 required all member states to “to report to the

Committee, no later than 90 days from the date of adoption of this resolution and thereafter

according to a timetable to be proposed by the Committee, on the steps they have taken to

implement this resolution,”135 which places the deadline around 27 December 2001 or the

end of that calendar year.136 McLellan adds: “The U.N. was very clear that we had to

review all our legislation around terrorist financing and the kinds of organizations that

perhaps had charitable status in the country and in fact were raising money that was then

sent overseas for terrorist acts, all those kinds of things.”137 As stated earlier in this

chapter, McLellan also affirms that she as well as other justice ministers from the U.S.,

Australia, and member states throughout the G8, the Council of Europe and the European

Union all agreed that ratification of these conventions was urgently needed.138 Cotler

(2001) quotes then Assistant Deputy Minister of Justice (Criminal Law and Social Policy)

133 McLellan, Interview, 2009. 134 McLellan, Interview, 2009. 135 “Resolution No. 1373 (S/RES/1373/2001),” 28 Sep. 2001, United Nations Security Council, 15 June 2009, p. 3, <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement>. 136 Mosley, Interview, 2009. 137 McLellan, Interview, 2009. 138 McLellan, Interview, 2009.

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Richard Mosley,139 one of the architects of the Bill: “‘[before 9/11,] we thought we had at

least several months – maybe even years – to implement the International Convention on

the Suppression of Terrorist Financing. We now found ourselves obliged to enact

implementing legislation for this Treaty – even leaving aside the undertakings mandated by

the Resolution – within 90 days.’”140 Not only was there an international obligation to

ratify these treaties, but there were certainly consequences related to delaying the alignment

of anti-terrorism laws in other countries. Mosley (2001) adds that “those [foreign]

organizations share information with Canada and expect it to be protected or we will not

receive it. If we do not receive it, we may not be in a position to take actions in support of

the security of the country.”141 This rounds out the government’s official point of view that

it was indeed the United Nation’s 90-day deadline for ratification of the two treaties and the

potential for more substantial and timely international anti-terrorism cooperation that added

speed to the drafting of Bill C-36.

139 This is the same (Justice) Richard Mosley that we interviewed for this thesis. 140 Irwin Cotler, “Thinking Outside the Box: Foundational Principles Underpinning the Counter-Terrorism Law” in Ronald J. Daniels, Patrick Macklem and Kent Roach (Eds.), The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (Toronto: University of Toronto Press, 2001) 117. 141 Richard Mosley, “Concluding Comments from the Department of Justice” in Ronald J. Daniels, Patrick Macklem and Kent Roach (Eds.), The Security of Freedom: Essays on Canada’s Anti-terrorism Bill (Toronto: University of Toronto Press, 2001) 439.

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Figure 4.1 – Summaries of United Nations Security Council Resolutions

Related to Bill C-36

Some scholars disagree that this United Nations deadline was indeed the invisible

hand at work in the speed of the drafting of Bill C-36. Mégie (2009) is somewhat sceptical

of the government’s position that their hands were tied as far as when the government was

to have ratified the two outstanding international conventions on terrorism (the 90-day

deadline). This author underlines that governments often exercise great liberties

concerning when they might ratify (or not) a particular piece of international legislation.

Mégie believes that the Canadian government used this commitment to the U.N. as an

excuse to legitimize the speed in which Bill C-36 moved through the Chambers.142

Whether or not Canada indeed had the freedom to determine its own terms in

ratifying the United Nations conventions on terrorism, it seems, at least in this instance, that

they chose not to exercise such freedom. Consequently, the Canadian government complied

142 Antoine Mégie, “Le Canada et les normes internationales anti-terroristes” in Stéphane Leman-Langlois and Jean-Paul Brodeur (Eds.), Terrorisme et antiterrorisme au Canada (Montréal : Les Presses de l’Université de Montréal, 2009) 198.

U.N. Security Council Resolution 1373 (Sep. 28/01)

•Reaffirms U.N. Security Council Resolutions 1269 (1999) and 1368 (2001);

•Calls upon member States to implement the details of this resolution and report to the Committee of the Security Council no later than 90 days from the date of adoption of this resolution and thereafter according to a timetable to be proposed by the Committee, on the steps they have taken to implement this solution (Point 6).

U.N. Security Council Resolution 1269 (Oct. 19/99)

•Unequivocally condemns all acts, methods and practices of terrorism;

•Calls upon States to fully implement the international anti-terrorist conventions to which they are parties, encourages all States to consider as a matter of priority adhering to those to which they are not, and encourages also the speedy adoption of pending conventions;

•Stresses the U.N.'s role in combating terrorism;

•Encourages States to work in cooperation with each other to fight terrorism.

U.N. Security Council Resolution 1368 (Sep. 12/01)

•Unequivocally condemns the 9/11 attacks;

•Offers sympathy and condolences to victims, their families, and the people and government of the United States of America;

•Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks

•Calls on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council Resolutions, in particular Resolution 1269 of October 1999.

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with the externally enforced deadline of the end of 2001 to ratify the outstanding

conventions on terrorism and, according to the Permanent Mission of Canada to the United

Nations, became one of the first United Nations states to ratify these conventions through

Bill C-36. The International Convention for the Suppression of Terrorist Bombings was

signed by Canada on 12 January 1998, and ratified by Canada 3 April 2002. The

International Convention for the Suppression of the Financing of Terrorism was signed by

Canada on 10 February 2000 and ratified by Canada on 19 February 2002.143 As the

passing of Bill C-36 before the end of 2001 confirms the adoption of the two outstanding

conventions on terrorism, we can therefore conclude that:

Conclusion D: Bill C-36 (a.k.a. the 2001 Canada Anti-terrorism Act) was indeed drafted (in part) to complete Canada’s commitments to yet unfulfilled international conventions on terrorism.

CONCLUDING ANALYSIS

An interesting phenomenon seems to emerge when we consider the internal factors

that gave content and inspired the timing of Bill C-36 (as outlined in the previous chapter)

as opposed to the external factors offered in this chapter: If one were to do a rough

measurement of which factors exerted what type of influence on Bill C-36, it seems that

though the factors under the control of the Canadian government144 defined the fine print or

content of Bill C-36, it was certainly external factors145 that prompted Parliament to react

143 Permanent Mission of Canada to the United Nations, “Fighting International Terrorism and Crime,” 08 Aug. 2008, Government of Canada, 15 Jan 2010, <http://www/canadainternational.gc.ca/prmny-mponu/Canada_un-canada_onu/positions-orientations/peace-paix/terrorism-terrorisme.aspx?lang=eng>. 144 Internal factors such as pending amendments to the Canadian Criminal Code and other Acts and Reports from the Special Senate Committee, as outlined in the previous chapter. 145 Such as the events of 9/11, decisions and legislation from other nations and international treaties, as outlined in this chapter).

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when it did,146 that determined what course of action to take147 and that established the final

deadline for their eventual course of action (see U.N.S.C. Resolutions 1368 & 1373). It is

interesting to note that all factors influencing timing were out of the direct control of the

Canadian government. Since both Mosley and McLellan testify that Bill C-36 was already

in the making before the disaster of 9/11 (but was nowhere near completed), one might

conclude that if it were up to the Canadian Parliament of the day, they might have chosen

to take even more time to consider and reconsider their approach in adopting anti-terrorism

legislation.

Because these influences cover a wide range of origins, we might offer the general

conclusion that the events of 9/11, other legislative work leading up to 9/11 (both

domestically and internationally through the U.N.), and lateral discussions within

government ministries and between countries created the perfect storm (i.e. the focusing

event and subsequent policy window) that led to Canada’s adoption of their first so-called

anti-terrorism legislation. The following chapter of this thesis will further explore the

broader implications that can be gleaned from our study of the forces influencing the

content and timing of Bill C-36, Canada’s 2001 Anti-terrorism Act.

146 I.e. immediately following 9/11 and before the end of 2001 (to implement the UN Resolutions). 147 I.e. through comparison with other anti-terrorism legislation and in compliance with the UN Resolutions.

Broader Conclusions to Consider: Bill C-36

In this thesis, we examined the various internal and external factors influencing both

the timing and the content of Bill C-36. We began by examining the Bill itself and the

political context in which it was born. We discussed the Bill’s genesis with those who were

responsible for it as well as those who opposed it. We thoroughly explored the available

literature on the subject (both academic and journalistic) and sought to corroborate

statements made by our interviewees using publications by other actors involved in the

post-9/11 international anti-terrorism policy shift (for example, the United Nations Security

Council, the Special Senate Committee on the Subject of Bill C-36, etc.). We evaluated

trends in the policy process (towards Bill C-36) that took place in the Canadian Parliament

in the weeks that followed 9/11 and ventured to extract statistical patterns from votes held

after various readings of the Bill in the House of Commons. Throughout this journey, we

examined our hypotheses through the lens of Kingdon’s theory of policy streams, the

concept of institutional isomorphism and the theory of optimizing.

As a result of this process, we were able to take this previously undocumented

information pertaining to the drafting of Bill C-36 (i.e. the content of our interviews with

the Honourable Anne McLellan, Rev. Bill Blaikie and Justice Richard Mosley, all who

participated very closely in the drafting and debating of Bill C-36 before it received Royal

Assent) and use it to examine our research question on policy creation from a unique angle.

However, in the same vein, though many interesting points were gleaned from the

interviews, the fact that the accounts of these parliamentarians came 8 years after 9/11 and

from those so very closely connected to the Bill, there is always the risk that these accounts

85

are simply biased reconstructions of the past that serve those recounting this particular

series of events. It is also difficult to corroborate many of their statements about what

Parliament was up to (especially in the years leading up to 9/11) since there are few

publicly available documents that would independently support their accounts. We

certainly would have benefitted from a larger number of parliamentarians agreeing to be

interviewed for this thesis, but this element was outside of our control.

Taking these challenges into account, we believe that our final conclusions

(nuanced by the reality of available objective proof) certainly add to the body of knowledge

concerning the creation of anti-terrorism policy. First of all, we found that Bill C-36 was

indeed already in the making prior to 9/11 in the sense that Canada was party to discussions

and resolutions aimed at modifying its existing Criminal Code so as to incorporate new

anti-terrorism measures. Secondly, we found that Bill C-36 was amended to include some

recommendations of the First Report of the Special Senate Committee on the Subject of

Bill C-36. Thirdly, we found that Bill C-36 came into being in the wake of the focusing

event of the events of September 11, 2001 (i.e. the terrorist attacks of the World Trade

Center, the Pentagon and the other crashed plane in Pennsylvania). Fourthly, we found that

Bill C-36 was drafted in concert with other anti-terrorism legislation in other Western

nations and as the result of consultations between many branches of the Canadian

government. Finally, we found that Bill C-36 was indeed drafted (in part) to complete

Canada’s commitments to yet unfulfilled international conventions on terrorism at the

United Nations.

Being aware of the factors influencing the timing and content of Bill C-36 (i.e. the

2001 Canada Anti-terrorism Act) certainly adds to our understanding of that particular

piece of legislation, but can something more general, more widely applicable be gleaned

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from this study? We would like to take a moment to look at two important findings

outlined in this thesis and broaden them into more general implications and conclusions

that can be applied to other analyses of Canadian domestic policy.

A. Impact of Foreign Cataclysmic Events on Canadian Domestic Policy

One of the initial questions we put forward in the drafting of this thesis is how the

events of 9/11 (occurring outside Canada) created such heavy legislative implications for

Canadians, i.e. the 2001 Canada Anti-terrorism Act. Though some lessons can certainly be

gleaned from the practices of the security forces in both countries, the vastly different

contexts of the two jurisdictions (political context, security threats, law enforcement

capacity, state powers, etc.) make for very strained comparisons and cross-border

applications of procedures and standards.

One might also logically assume that if a country is sensitive enough react to

seemingly preventable catastrophes in other jurisdictions, that this same country would

react even more aggressively to events directly involving its own citizens. Remarkably, in

a highly comparable context of 20th century aviation terrorism, this was not at all the case.

There is an undeniable difference between the Canadian Parliamentary reaction to the

events of 9/11 (which killed 24 Canadians148 in a primarily U.S. tragedy149) to the Canadian

Parliamentary reaction to the events of the Air India Bombing of 1985 (which killed 280

148“List of the Canadian Victims of 9/11,” 11 Sep 2006, Canoe News, 13 Feb. 2010, <http://cnews.canoe.ca/CNEWS/Canada/2006/09/07/1810996.html>. 149 I.e., the United States counted the majority of victims in this incident.

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Canadians150 in a primarily Canadian tragedy). These events warrant comparison since

they share many similarities: both incidents were terrorist attacks involving aircraft, both

tragedies occurred on foreign soil (the latter off the coast of Ireland), and both events

involved the loss of Canadian lives. Using population statistics from the year in which each

of the tragedies occurred (1985 and 2001 respectively),151 the Air India Bombing caused

the death of approximately 1 in every 92,296 Canadians, where the 9/11 attacks caused the

deaths of 1 in every 1,292,552 Canadians. Though even a single human loss is infinitely

regrettable, one wonders how the higher-scale tragedy in 1985 did not bring about a

Parliamentary response of equal or greater value as our collective loss as Canadians was 14

times greater in 1985 than it was in 2001.152 One conclusion may be that the size of the

calamity is not the only factor influencing the legislative response; other factors, such as

those outlined in this present thesis, may play an even more important role in determining

the scale and reach of a country’s response to disaster, at home and abroad.

We might also take this logic one step further and observe that though the actual

fallout of the events of 9/11 (contained to the loss of life in Manhattan, Washington and

Pennsylvania) only affected 24 Canadians and their loved ones, the policy changes that

ensued (involving security, immigration, charities, surveillance, etc.) certainly affect the

daily lives of every Canadian. One hardly needs to pass through security at Pearson airport

or attempt to enter a Vancouver 2010 Olympic venue to find street-level evidence that the

events of 9/11 still have repercussions for everyone 9 years later in 2010. For example,

consider the fact that the Governments of British Columbia and Canada set aside an 150 Data Source: “In Depth: Air India – F.A.Q.’s about the inquiry into the Air India bombing,” March 2007, Canadian Broadcasting Corporation (CBC) News, 17 Apr. 2009, <http://www.cbc.ca/news/background/airindia/inquiry-faq.html>. 151 Data Source: “Estimated Population of Canada, 1605 to Present,” 06 July 2009, Statistics Canada, 12 Dec. 2010, <http://www.statcan.gc.ca/pub/98-187-x/4151287-eng.htm#table3>. 152 Only minor adjustments to air security policies were made in the wake of this event.

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unprecedented $900 million dollars to secure the Vancouver 2010 Olympic Winter Games.

The Vancouver 2010 Integrated Security Unit was comprised of more than 15,000

employees, including 4,500 members of the Canadian Forces deployed in the mountains

and forests surrounding outdoor Olympic venues such as Whistler and Cypress Mountain153

and more than 5,000 games security screeners that manned airport-style venue portals fully

equipped with magnetometers, x-ray equipment and sophisticated accreditation scanners;

some sites responsible for screening vehicles entering the secure zone around Olympic and

Paralympic venues were also equipped with bomb-sniffing dogs and gamma-ray vehicle

scanning equipment.154 In addition to this, there were “frigates patrolling the waterways,

CF-18 jet fighters screaming overhead and high-tech surveillance wizardry in the form of

static surveillance balloons that are usually employed on the bomb-laced roadways of

Kandahar.”155 Compare all this to the security plan in pre-9/11 (1988) Calgary where “the

last time the Olympic Games were held in Canada, the military sent 42 soldiers to operate a

logistics and distribution warehouse, …the RCMP and local police made up the security

force in Calgary,” and the then-Solicitor General “decided that the security threat to the

1988 Calgary Winter Games was such that security assistance from [the Department of

National Defence] was not required.”156 Robert Huebert, a University of Calgary defence

expert, adds, “Calgary 1988 was simple, but likely a more naïve time. There were still

people out there willing to kill innocent athletes to make their political point; look at

153 “Huge Olympic Military Deployment Shows Times have Changed since Calgary,” 5 Feb 2010, Fort Frances Times Online, 4 Ap. 2010, <http://fftimes.com/node/230979>. 154 The author of this thesis was employed by the Vancouver 2010 Integrated Security Unit and was stationed at the Vancouver Remote Vehicle Screening Site (VRVSS) where the R.C.M.P. used gamma-ray scanning trucks and bomb-sniffing dogs, as well as radiation detectors (Geiger counters) and other advanced security screening equipment and practices, to ensure no prohibited items or weapons entered the secure Olympic area. 155 “Huge Olympic …” Fort Francis Times Online 2009. 156 “Huge Olympic …” Fort Francis Times Online 2009.

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Munich in 1972.”157 Even with a horrific event like the murders of 11 members of the

Israeli Olympic team at the 1972 Munich Summer Olympics158 only 16 years before, the

Canadian government (in 1988) did not react with elaborate security plans for its 1988

Olympic Winter Games. This reaffirms our above-stated conclusion that often, the

calamity itself is not the only factor influencing a particular legislative response; other

factors, such as those outlined in this present thesis, may play an even more important role

in determining the scale and reach of a country’s response to disaster, both at home and

abroad.

As we see from the various external factors that influenced the timing (i.e. the days

following 9/11), the type of response (i.e. in comparison with other anti-terrorism

legislation elsewhere) and the final deadline for Bill C-36 (as issued by the United Nations

Security Council), there are often more forces at work in the drafting and passing of

Canadian domestic legislation than what goes on north of the 49th parallel. As evidenced

by our 21st century context of online media and 24/7 news channels, the world has come to

our front door and simply ignoring our interconnected existence is no longer an option.

This has increasingly become the reality for citizens not only here in Canada, but certainly

in every modern Western democracy.

157 “Huge Olympic …” Fort Francis Times Online 2009. 158 Kevin Johnson, “Olympic Village Makes Home Pampered for Athletes in Vancouver,” 26 Feb 2010, USA Today, 03 Mar. 2010, <http://www.usatoday.com/sports/Olympics/Vancouver/2010-02-25-athletes-village_N.htm>.

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B. Impact of International Obligations on Canadian Domestic Policy

In our 21st century context of global treaties, international conventions and

cooperation between nations, Canada’s international obligations to our neighbour to the

south, the United Nations and the international community at large will indeed play an

increasingly significant role in domestic policy decision-making in the years to come. As

we saw in Chapter IV, both the international community and Canada’s obligations to the

United Nations yielded significant influence on our 2001 Anti-terrorism Act. These

influences affect all sorts of domestic policy in other arenas. One need only consider the

long list of international organizations to which Canada is party to begin to comprehend the

influence of the world-scale ‘group decisions’ on the everyday lives of Canadians. For

example, Canada’s commitment to the North American Free Trade Agreement (NAFTA)

and its long-term dispute with the United States over illegal softwood lumber tariffs has

had a significant impact on the livelihood of more than 15,000 British Columbian forestry

workers.159 In this case, one might also argue that unreciprocated obligations of other

nations to Canada (i.e. the United States’ unlawful tariffs on Canadian lumber exported to

the United States) also have significant repercussions for Canadians that cannot be lawfully

corrected via domestic legislation (since such a move would be illegal in terms of Canada’s

commitment to NAFTA). What centuries ago used to be a basic market relationship of

selling wood to those who wish to buy it has now transformed into an increasingly complex

minefield of conducting ‘free market’ exchanges that may or may not benefit Canadian

suppliers. One might also carry the logic one step further and conclude that though our

159 “In Depth: Softwood Lumber Dispute,” 23 August 2006, Canadian Broadcasting Corporation (CBC) News, 19 Jan. 2010, <http://www.cbc.ca/news/background/softwood_lumber>.

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Canadian borders still delimit our enormous physical jurisdiction, the world is slowly

creeping into our ability to make Canadian-beneficial choices, this though the rise and

double-edged sword of globalization.

FINAL THOUGHTS

Canada’s 2001 Anti-terrorism Act is certainly not the last word on how Canada will

continue to fight terrorism within its borders in the years to come. As Justice Mosley stated

in our interview, it would be foolish to assume that lawmakers get everything right the first

time.160 There needs to be room for this collection of laws and amendments to adapt to the

fluidity of contextual changes that will give lawmakers reason to re-evaluate them, redefine

them and keep them up-to-date with the times. Our parliamentary democracy will provide

the arena for amendments, additions and deletions to be made to the 2001 Canada ATA by

Members of Parliament in the years ahead as the need arises. Beyond its primary goal of

creating legislative hindrances to those who would plot acts of terrorism within Canadian

borders, Bill C-36 also stands as a fascinating case study into how 21st century domestic

legislation is constructed – with a concern for the well-being of Canadians, tempered by a

consideration of our commitment to and delicate relationships with members of the

international community.

160 Mosley, Interview, 2009.

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Appendix A.1 - Text from Correspondence sent to Parliamentarians – English

Dear _____________________, My name is Kristen Nicole Leppington, and I am currently a Master’s degree candidate at Université Laval in Québec City. My chosen thesis project focuses on discovering how emergency legislation is put into place. You have been chosen from a short list of Canadian policymakers involved in the drafting and passing of Bill C-36, now known as Canada’s 2001 Anti-terrorism Act. Your knowledge, experience and input constitute invaluable resources that would greatly add to the scholarly body of knowledge on policy creation and analysis. If at all possible, and on terms convenient to your busy schedule, I would be very interested in asking you a few questions concerning your participation in and perspective on the process that put the 2001 Anti-terrorism Act into place. This would take the form of a phone interview (of no more than an hour) or an email questionnaire, whichever form would suit you better. In the case of a phone interview, I would send you the questions ahead of time so that you might prepare for them accordingly. You would be free to answer or not answer questions as you feel comfortable, without needing to justify your reasons for abstaining from answering a particular question. My research will eventually take the form of a written thesis and possibly a partial publication in a scholarly journal. If you are interested, I am ready to give you full written credit for your responses, but if you wish to remain anonymous, this can also be arranged. This can be done on a question-by-question basis, if desired. If you have any questions or concerns, or if you would like to see a copy of the questions before making a decision about the interview, please don’t hesitate to contact me at kristen-n.leppington.1@ulaval.ca or by phone at (604) 866.0235. Your participation in this research project would be very much appreciated, and I look forward to hearing from you soon. Sincerely, Kristen N. Leppington Master’s candidate, Université Laval

Project approved by the Ethics Committee for Research involving Human Subjects of Laval University

(Approval # 2008-294), January 16, 2009.

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Appendix A.2 - Text from Correspondence sent to Parliamentarians – French

Cher/Chère _____________________, Je m’appelle Kristen Nicole Leppington, et je suis présentement étudiante à la maîtrise en affaires publiques à l’Université Laval à Québec que je réalise sous la direction des Professeurs Aurélie Campana et Steve Jacob. Mon projet de mémoire porte sur les lois élaborées et adoptées en urgence (emergency legislation) et cherche à comprendre comment ces lois sont préparées. En raison de votre implication dans la rédaction du projet de loi C-36 (maintenant l’Acte antiterroriste canadien de 2001), je souhaite pouvoir obtenir plus d’information de votre part. Vos connaissances, votre expérience et votre input constituent des ressources inestimables qui contribueraient considérablement à la littérature savante en analyse des politiques. Si vous l’acceptez, et selon les modalités qui vous conviennent, je serais très intéressée à vous poser quelques questions concernant votre participation en et votre perspective sur le processus qui a abouti à la Loi antiterroriste. Ceci prendra la forme d’une entrevue téléphonique (d’une heure ou moins) ou d’un questionnaire électronique en fonction de vos préférences. Si vous acceptez de me donner une entrevue téléphonique, je vous enverrai les questions à l’avance. Vous serez libre de répondre ou de ne pas répondre à toutes les questions, sans avoir besoin de justifier votre choix de vous abstenir de répondre à une question en particulier. Mes recherches prendront la forme d’un mémoire écrit et possiblement une publication partielle dans une revue scientifique. En fonction de vos préférences, je pourrai citer vos propos dans mon texte ou si vous préférez que vos propos soient rapportés de façon confidentielle, je m’engagerai à préserver votre choix. Cet engagement à la confidentialité peut ne concerner que certains passages de l’entrevue si vous le souhaitez. Si vous avez des questions, ou si vous désirez avoir un aperçu des questions avant de prendre la décision de participer à l’entrevue, n’hésitez pas de me contacter à kristen-n.leppington.1@ulaval.ca ou par téléphone au (604) 866.0235. Je serais vraiment reconnaissante de pouvoir compter sur votre participation à ce projet de recherche. Dans l’attente de votre réponse, veuillez agréer, Monsieur, Madame, l’expression de mes sentiments les meilleurs. Kristen N. Leppington Candidate de maîtrise, Université Laval

Projet approuvé par le Comité d’éthique de la recherche avec des êtres humains de l’Université Laval

(No. d’approbation 2008-294), le 16 janvier, 2009.

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Appendix A.3 - Phone Interview Questions – English I. INTRODUCTION This interview is part of a master’s thesis research project aimed at discovering how emergency legislation is put into place. Your name has been chosen among a short list of Canadian policymakers involved in the drafting and passing of Bill C-36, now known as Canada’s 2001 Anti-terrorism Act. Your knowledge, experience and input constitute invaluable resources that would greatly add to the scholarly body of knowledge on policy creation and analysis. Please feel free to answer these questions as you feel comfortable, and do not feel obliged to answer questions that you feel are too personal, irrelevant, or would compromise confidentiality agreements. Upon your verbal and/or written consent, this interview will be recorded to ensure accuracy in relaying your responses to the whole of the research project. The researcher is ready to give full credit to you for your responses, but if you wish to remain anonymous, please inform the interviewer and your wishes will be respected. This can be done on a question-by-question basis, if desired. Your participation in this interview is very much appreciated. II. INSTRUCTIONS A. Telephone interview: We will ask you the following questions by telephone and you can answer them as you feel comfortable. B. Written Questionnaire: You have two options (select the one that suits you best): 1. Type your answers to the following questions in this Word document and return it by email to kristen-n.leppington.1@ulaval.ca; 2. Print this document, answer the questions in written form and mail the completed questionnaire to the following address: Ms. Kristen N. Leppington Unit #4 – 31406 Upper Maclure Road Abbotsford, BC, V2T 5L8 III. QUESTIONS A. Before the Bill was Drafted 1. How were you first made aware of the need to issue emergency legislation?

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2. Who authorized/initiated the drafting of Bill C-36? Who directed you to participate in the drafting of this legislation? 3. What justifications were given for the need to modify the existing Canadian Criminal Code? Who offered these justifications? 4. Who were the key participants involved in the drafting of Bill C-36 (individuals, groups, committees, citizens, organizations, etc.)? 5. Were law enforcement personnel consulted? If so, at what level and in what manner? 6. Were other government departments/ministries consulted? If so, which one(s)? 7. After you were given the task of drafting this bill, were you given a deadline? If so, who issued this deadline? Were reasons given? Explain. 8. Prior to drafting the bill, were you given specific instructions on what to include in the bill? 9. Were you asked to consider/consult other/previous legislation (Canadian or other)? If so, please explain. 10. Was there legislation similar to Bill C-36 already in the making before the events of 9/11? Describe and explain the impetus for such a bill, if known. 11. Describe your degree of satisfaction with the draft process of Bill C-36. 12. In your opinion, how did the context of the events of 9/11 affect the drafting of this bill? (timeframe, public perceptions, external/internal pressures, etc.) How did/does this specific draft process compare/contrast to other draft processes you had been or have since been party to? 13. Do you have anything else you would like to add? B. Drafting the Bill 1. Describe the draft process for Bill C-36: a) Who was responsible for what? b) Was the process done together as a group? c) Were there stages to the draft? d) Did some sections depend on the outcome of other sections? e) Other comments:

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2. What were some of your own concerns/issues/etc. regarding the bill? 3. What kind of roadblocks came up in the draft process? (rules, procedural red tape, powerful influences, etc.)? 4. Describe how consensus was reached. 5. Do you have anything else you would like to add? C. A Look Back 1. If you could go back and change something over which you had control in the draft process, what would you change/insist on/do differently? 2. Describe your degree of satisfaction with the bill: a) as drafted b) as passed (as the 2001 Anti-terrorism Act) c) as modified in 2007. 3. Retrospectively, describe your assessment of the Act in view of Canadian security post Bill C-36. 4. In hindsight, do you think anything should now be added to the Act? Anything removed? Anything that should have been done differently? 5. Do you have anything else you would like to add? III. COMMENTS IV. INTERVIEWEE INFORMATION 1. Name/Title: 2. Position in government in September 2001: 3. Political party and riding represented in September 2001: 4. Contact info:

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Appendix B.1 - Ethics Committee Project Approval

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Appendix B.2 - Consent Form for Interview - English

CONSENT FORM FOR POLICYMAKER INTERVIEWS

THESIS TITLE: BILL C-36: THE CREATION OF CANADA’S 2001 ANTI-TERRORISM ACT BY: MS. KRISTEN N. LEPPINGTON

A. THESIS PROJECT TITLE

Bill C-36: The Creation of Canada’s 2001 Anti-terrorism Act

Project approved by the Ethics Committee for Research involving Human Subjects at Laval University (Approval # 2008-294). This research will be published as a Master’s thesis and as articles in scientific journals. B. ABOUT THE RESEARCHER This research is carried out in the context of Ms. Kristen N. Leppington’s Master’s thesis, directed by Professors Aurélie Campana and Steve Jacob of the Political Science Department at Laval University. Before accepting to participate in this project, please take the time to carefully read and understand the instructions that follow. This document explains the goals of this project, its procedures, and advantages, risks and disadvantages to the participant. We invite you to ask all questions you deem necessary to the person presenting you this document. C. BRIEF DESCRIPTION OF THE PROJECT The goal of this project is to study the creation of Canada’s 2001 Anti-terrorism Act, including the participants involved, the law’s influences, the manner in which the law was put together, etc. D. YOUR PARTICIPATION Your participation in this project consists of an interview (or written questionnaire, if preferred) of approximately one hour, which will focus on the following elements:

A general description of the draft process of Bill C-36; Your general perspective on the draft process of Bill C-36; A general description of your own personal role in the drafting of Bill C-36.

E. VOLUNTARY PARTICIPATION AND RIGHT TO WITHDRAW You are free to participate in this project. You can also end your participation at any time without negative consequences or prejudice and without having to justify your decision. If you decide to end your participation, it is important to let this project’s researcher know (her contact information is given at the end of this document). All your personal information will then be destroyed. F. CONFIDENTIALITY AND INFORMATION MANAGEMENT If you do not give your full consent for your name to appear in documents related to this project, certain steps will be taken in handling your personal information. The following measures will be in place to assure the confidentiality of the information supplied by participants who wish to remain anonymous:

The participant’s name will NOT appear in any report without the participant’s consent; Research documents will be codified and only the researcher and her directors will have access to the

list of names and codes; Individual participant results will NEVER be communicated without the consent of the participant;

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Research materials, including interview transcripts and recordings, will be kept for two years and then destroyed;

The research will be published in scientific journals, and NO participant will be identified or recognizable without the participant’s consent;

A short resume of the research results will be sent to the participants who request such a report. Warning: Because of the specificity of your former or current position in the government and the nature of the

organizations in which you work, there is a possibility that even anonymous statements may leave little room for doubt as to their source, this despite any precautions taken to protect your identity in the publication of the research results.

I hereby give the researcher my permission to publish my name in documents related to this study.

o Yes

o No I hereby give the researcher my permission to record our phone interview.

o Yes

o No

G. OTHER INSTRUCTIONS If you have any questions about this research project or on the implications of your participation, please contact Ms. Kristen N. Leppington (researcher, Master’s candidate) at the following phone number: (604) 866.0235. She can also be contacted at the following email address: kristen-n.leppington.1@ulaval.ca. H. ACKNOWLEDGEMENTS Your collaboration is invaluable to the fulfillment of this project and we thank you again for your participation.

I. SIGNATURES I, the undersigned __________________________________ consent freely to participate in the research project entitled: “Bill C-36: The Creation of Canada’s 2001 Anti-terrorism Act”. I am aware of the contents of this consent form and I fully understand the goals, the nature, the advantages, the risks and the disadvantages of this research project. I am satisfied with the explanations, the details and answers given to me by the researcher, if needed, regarding my participation in this project. ___________________________________ ________________ Participant’s Signature Date A short resume of the results of this study will be sent to all participants interested (please leave your address in the space provided below). The results of this study will not be available before ____________. If your address changes before this date, please inform the researcher of the new address at which you choose to receive the report. The address at which I wish to receive a short resume of the results of this research ___________________________________________ ___________________________________________ ___________________________________________

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(The following is for the researcher to sign) I have explained the goal, the advantages, the risks and the disadvantages of the research project to this participant. I have answered his/her questions to the best of my knowledge and I have verified the comprehension of the participant. ____________________________________ _________________ Researcher’s Signature Date J. COMPLAINTS AND CONCERNS All complaints and concerns regarding this project can be addressed to the Office of the Ombudsman at Laval University at: Pavillon Alphonse-Desjardins, Office 3320 2325, rue de l’Université Université Laval Québec (Québec) G1V 0A6 Information – Secretariat: (418) 656-3081 Fax : (418) 656-3846 Email : info@ombudsman.ulaval.ca

--- Participant Copy --- Project approved by the Ethics Committee for Research involving Human Subjects of Laval University

(Approval # 2008-294), January 16, 2009.

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Appendix C – List of Recommendations by the First Report of the Special Senate Committee on Bill C-36

(As taken from the following online version of the report: <http://www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/sm36-e/rep-e/rep01oct01-e.htm>)

1. The Committee recommends that the language of the Clause 145 be changed, to clarify that both a committee of the Senate and a separate committee of the House of Commons shall undertake this review.

2. The Committee further recommends that the Minister of Justice cause to be tabled, on an annual basis, a report to Parliament, delineating actions taken under Bill C-36.

3. The Committee recommends applying a five-year expiration expiration clause – a "sunset clause" – to Bill C-36. It is recognized that the provisions that implement our obligations under international conventions must of course not be subject to forced expiration.

4. The Committee recommends that within 90 days of Royal Assent to Bill C-36, Parliament appoint an Officer of Parliament to monitor, as appropriate, the exercise of powers provided in the bill. This officer shall table a report annually, or more frequently, as appropriate, in both Houses.

5. The Committee recommends that there be a process of review by the proposed Officer of Parliament to avoid to the greatest extent possible the listing of innocent groups or individuals. Except in cases of demonstrable urgency, this review must be conducted before the list is made public.

6. With respect to the Government’s biannual review of the list, the Committee recommends that it be based upon examination of all pertinent information by an independent body such as SIRC or the proposed Officer of Parliament.

7. As the harm caused to wrongfully listed entities derives in part from the name of the list ("List of Terrorists"), the Committee further recommends changing the name of the list, perhaps following an examination of similar lists in other jurisdictions.

8. The Committee recommends that the Bill provide for an automatic and rapid referral to a higher court, where a person is committed to prison for failure to enter into the requested recognizance.

9. The Committee recommends that any such certificate be reviewed by the Federal Court which should be specifically directed to balance the competing interests in disclosure and international relations, national defence and national security.

10. The Committee recommends that a time limit be imposed, for example five years, with provision made for renewal of the certificate. Furthermore, the Committee recommends that the renewal be subject to the same review procedure.

11. The Committee recommends that provision be included for this designation to be appealed or reviewed, by a court or another independent body. The Committee also recommends that consideration be given to providing for applications for reconsideration of the designation, after the passage of time or changes of circumstances.

12. Therefore, the Committee recommends that judicial authorization be obtained where appropriate and feasible.

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13. The Committee recommends that a definition of national security and related terms be provided to clarify the intent of these provisions.

14. The Committee recommends a right of appeal. Furthermore, as review of the information involves restrictions of information available to the appellant on grounds of international affairs, national defence and national security, the appeal procedures could reflect the model developed within SIRC to ensure natural justice while ensuring national security.

15. The Committee recommends that the regulations also be subject to a parliamentary review process.

16. The Committee therefore recommends that a non-discrimination clause be added to Bill C-36.

17. The Committee recommends deleting the word "lawful" from proposed subsection 83.01(1)(b)(ii)(E).

18. The Committee recommends that the English term be changed to "national security" throughout the Bill to ensure greater consistency and clarity.

19. The Committee recommends that the availability of this defence be broadened to include any disclosure that is, when weighed against the needs of national security, judged by the Courts to be in the public interest.

20. The Committee recommends that for facilitation by individuals to occur, the requirement of knowledge - though not necessarily of a specifically planned act - should be clear in this section and throughout the Bill.

21. The Committee recommends that the word "sex" be added to the list of motivating factors on which mischief is based.

22. The Committee recommends that, in order to ensure consistency, the word "terrorism" be changed to "terrorist activities" throughout the bill.