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.
54
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.
55
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.
57
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).
58
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%
59
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
60
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.
62
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.
63
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.
64
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>.
65
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.
66
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.
69
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.
72
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.
74
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.
75
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>.
78
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).
83
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
86
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.
87
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.
88
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.
89
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 [email protected] 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 [email protected] 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 [email protected]; 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: [email protected]. 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 : [email protected]
--- 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.