ANTI-TERRORISM LAW: AN ANALYSIS OF THE MOTIVE REQUIREMENT
On September 11, 2001, citizens of the western world would be changed forever. On this day, two Boeing 767s were used as “guided missiles” to take down the World Trade Centre in a second and final attempt (“Archives” http://www.theglobeandmail.com, app. 2). The first attempt to take down the American financial and economic symbols occurred in 1993, which was the attempt to bomb the buildings from the ground up (ibid. app. 2). Shortly after the 2001 incident, the United States enacted the Patriot Act and urged other countries follow suit. Canada was one among thirteen other countries that followed in America’s footsteps. Canada enacted the Anti-Terrorism Act (ATA), which directly affected several other pieces of Canadian legislation. When the ATA was first enacted, there were major concerns among many scholars about the motive requirement for terrorist activities. This motive requirement can be defined as “acting in a manner calculated to promote social and political change through violent, undemocratic means…motivated by shared ideology” (Jenkins 2009:432). Many scholars have argued that the motive requirement within the definition of terrorist activity needs to be removed to prevent racial, social, political, or religious profiling of both innocent citizens and non-citizens of Canada (Webb 2005; Roach 2005; Carter 2009). However, the government does not agree that this motive requirement needs to be removed because it is necessary to the definition of terrorist activity (“Government Response” http://www.parl.gc.ca, app. 3). This research paper will look at the social and political conditions that have motivated the development of Canada’s current anti-terrorism laws, and will look at the conflicting interests that surround the motive requirement of terrorist activity. In addition to this intention, the paper will analyze the effectiveness of this motive requirement as it is contrasted with real life examples that have gone horribly wrong.
In 2001, terrorism was nothing new, both domestically and internationally. Over the span of three decades beginning in 1973, a comprehensive review of the ATA highlighted that there has been an estimated number of “6 hijackings, 2 airplane bombings, 73 disruptive hoaxes, 9 hostage takings or kidnappings, 4 letter bombs, 170 bombs, firebombs and arsons, 59 threats, 35 attacks on individuals, 45 acts of vandalism, 14 plots and foiled attacks, and 32 instances of support for terrorist activity” (“Rights, Limits, Security” http://www.parl.gc.ca, app. 3). However, on the day of September 11, 2001 (9/11), terrorism as an urgent issue to address became central among many westernized institutions and states. The United Nations (UN) Security Council adopted several resolutions specifically relating to the 9/11 incidents. On September 12, 2001, the UN Security Council expressed their condemnation of these acts (“Resolution 1368” un.org, app. 4). Then on September 28 and November 12, 2001, the same council respectively decided “all states shall criminalize…terrorist acts” (“Resolution 1373” un.org, app. 14) and “reaffirmed its unequivocal condemnation of all acts, methods, and practices of terrorism as criminal and unjustifiable, regardless of their motivation” (“Resolution 1377” un.org, app. 14). At the time these resolutions were adopted, Canada had just finished its non-permanent member term at the end of 2000 (“Membership” un.org, app. 5). Being a permanent member of same council, the United States was the first to implement their Patriot Act, on top of their four other pieces of anti-terrorism legislation already in place (Jenkins 2009:425-426). Two of the thirteen countries that accompanied the United States in implementing such legislation were the United Kingdom (UK) and Canada. The UK passed their Anti-Terrorism, Crime and Security Act, and Canada introduced the ATA as Bill C-36, which received royal assent on December 18, 2001 (Jenkins 2009:422-425). It is evident that Canada’s anti-terrorism legislation had considerable outside political and social influences, which affected this legislation both directly and indirectly.
Before and after the ATA passed, it had not done so without much criticism. Kent Roach, Maureen Webb, and other scholars argued that this legislation was not needed as other legislative pieces like the Immigration and Refugee Protection Act (IRPA) and the Criminal Code of Canada (CCC) could deal with the terrorist activities created within the ATA (Roach 2005; Webb 2005). Webb argued that there were more than enough CCC offences that could capture “all of the wrongdoing related to the phenomenon called ‘terrorism’” (Webb 2005:72). She outlines the 47 sections within the CCC that deal with offences relating but not limited to aircraft, threats, and universal jurisdictions (Webb 2005:73). After discussing the similarities between the IRPA and the ATA, Roach proposes the question “if the ATA is so necessary and valuable, why rely on the short-cuts and displacement strategies of the IRPA?” (Roach 2005:331). Terrorism affects individuals both domestically and internationally. If the ATA’s definition of terrorist activity and reliance on the motive requirement were not enacted, this legislation would not have been able to deal with domestic terrorist acts and citizens of Canada who supposedly participate in these acts.
Aside from receiving much criticism, the ATA was also unique at an international level especially in comparison to the other approaches to anti-terrorism legislation. The United States’ progressive steps with anti-terrorism legislations are stark in comparison to the Canadian approach. Under section 145 of the ATA, the Canadian approach to anti-terrorism was to implement it and then assess it after three years from receiving Royal Assent (“Government Response” http://www.parl.gc.ca, app. 3). The United States is different in that they already had previous anti-terrorism legislation in place, one of which punished individuals by way of death (Jenkins 2009:426). The Americanized approach to anti-terrorism laws did not make Canada near perfect in their approach. Referring to international standards of non-discrimination, Roach states in his own three-year review of the ATA “that Canada lags well behind Britain in treating non-citizens suspected of terrorism in a fair manner [and] is something of an international embarrassment” (Roach 2005:332). Central to this international embarrassment is the motive requirement within the definition of terrorist activity.
At the time of the ATA’s required parliamentary review one of the main issues had been the definition of terrorism specifically relating to the issue of the motive requirement. Before the Bill C-36 received Royal Assent, Roach and his colleague proposed an amendment to include anti-discrimination and anti-profiling clauses within the ATA (Roach 2005:324). These clauses were proposed in an attempt to address not only discrimination and profiling issues relating to imprisonment, detention of person, but also include all forms of investigation and not just law enforcement (Roach 2005:325). This inclusion of all forms of investigation would affect custom officials, immigration officials, etc. During the parliamentary review, the unelected Senate Committee proposed similar recommendations to remove the motive requirement (Roach 2007:282-283). Being unelected, the government did not have to take these recommendations as seriously as the elected Commons Committee. The elected Commons Committee did not agree with this recommendation, and the Canadian government agreed with them. Both felt that in order to appropriately address the unique nature of terrorism as being different from ordinary crime, the motive requirement must be included (“Government Response” http://www.parl.gc.ca, app. 3; Roach 2007:282). Eventually, this definition of terrorist activity and motive requirement was expanded across several pieces of legislation including the Canadian Security Intelligence Services (CSIS) Act, Security of Information Act (Roach 2007:282). Unfortunately, many scholars only focus on the motive requirement within the CCC.
Finally on July 18, 2007, the Canadian government issued a response to these proposed amendments. The response outlined that with defining terrorism from other forms of crime is essential, but also acknowledged the difficulty in coming to an agreement on the current CCC definition (“Government Response” http://www.parl.gc.ca, app. 3). The definition has two components. The first component addresses transnational terrorist acts, and the second component includes the requirement for motive and intimidation of public or persons (“Government Response” http://www.parl.gc.ca, app. 3). The motive requirement specifically refers to “an act or omission, in or outside Canada, that is committed in whole or in part for a political, religious, or ideological purpose, objective or cause…with the intention of intimidating the public” (“Criminal Code of Canada” app. 12). Many have argued that this motive requirement may lead to targeting individuals for dissident political or religious views. This is where the difficulty lies in defining terrorism as a crime. Webb states, “‘terrorism’ is impossible to define precisely because to say that some crimes are terrorist acts and some not is to make a judgement about the motive behind a crime. And that judgement necessarily depends on the social, racial, religious, political, or historical perspective of the people making it” (2005:59). This implies that relying on the motive behind terrorist activity depends on the perspectives of the people making judgements about that motive. The motive requirement blurs the boundaries of the legislative powers and the enforcement that follows these powers.
Since the Bill C-36 received its Royal Assent in December 2001, the major conflicting issue is the relevancy of the motive requirement within the definition of terrorist activity, including the ATA and the CCC. The motive requirement was first enacted under the ATA as “political, religious, or ideological purpose, objective or cause…with the intention of intimidating the public” (Roach 2005:311). Many scholars, committees, and also the government itself have attempted to address this issue. It is important to note that resolution 1377 adopted by the UN’s Security Council stated that all forms of terrorism must be criminalized regardless of the motive behind the act (un.org app.4). The government has asserted that this motive requirement is what separates terrorism from ordinary crime. In its response, the government stated that this motive “operates to narrow the scope of the definition, helping to distinguish terrorist activity from other, more conventional forms of criminal activity” (“Government Response” http://www.parl.gc.ca, app. 3). Justice Rutherford’s decision in R. v. Khawaja outlines that the motive requirement must not exist independently from other requirements for the definition of terrorist activity. Rutherford states that terrorist activity “must also be committed for a political, religious or ideological purpose, and it must also intentionally cause death or serious injury, and it must also have the intent to intimidate the public or compel a person, organization or government to do something” (at para. 66 in “R. v. Khawaja 2006” app. 11). However, Justice Rutherford’s goes on to state that this motive is not relevant and sees no benefit of including the motive requirement within the CCC’s definition of terrorist activity (ibid. app. 11). The government has responded by removing this section from the ATA to expand it to other pieces of legislation, like CSIS Act in Section 2 (“Canadian Security Intelligence Service Act” app. 12) and Security of Information Act in Section 3(1)(a) (“Security of Information Act” app. 13). This expansion only creates more difficulties in defining threats to Canadian society or terrorist activities.
Scholars who argued against the motive requirement have suggested including an anti-discriminatory clause. Roach argues that the motive requirement does not make things easier, but makes an already complex situation more difficult to assess (2005:314-315). Influenced by American legislation, Roach proposed the anti-discriminatory clause to be included before the ATA received Royal Assent and that this clause also be applied “to all enforcement powers under federal legislation” (2005:325). This clause suggests that immigration and CSIS officials who are also governed by their corresponding legislation to not conduct discriminatory practices. However, the proposed amendment only applied to the CCC. Webb and Carter who argue against the motive requirement agree that this motive requirement may lead to irreparable harm on innocent citizens via discriminatory practices. Webb states that this motive requirement “gives state agents wide discretion to politically profile individuals” (2005:63). Meanwhile, Carter highlights that the motive requirements goes against the role of the law in multicultural societies. Carter argues the “principle of legality demands an inquiry focused on what the accused has done rather than on the person’s character” (2009:209). The motive requirements suggests that it is punishing individuals for who they are as a person, which includes their political, religious, or ideological beliefs, instead of punishing individuals for their acts. Punishing someone for their political, religious, or ideological beliefs may be difficult to do in a multicultural society such as Canada.
Surrounding the issue of motive requirement, there exist also issues of secrecy regarding listed entities. A listed entity is defined as a “terrorist group…that has one of its purposes or activities facilitating or carrying out any terrorist activity” (Jenkins 2009:441) Individuals may be listed as terrorist group simply for associating with individuals who are already listed entities. Webb argues that by adding sections 83.05 to 83.07 to the CCC creates a “regime of secrecy in respect of the listing of individuals and groups as ‘terrorists’” which is similar to the security certification in the IRPA (2005:93). Under the IPRA, non-citizens who are deported do not receive a notice once placed on this list, and cannot challenge being placed on the list (Roach 2005:327). This regime of secrecy under the CCC is an attempt to deal with Canadian-born citizens who participate in domestic terrorism. This type of legislative power and enforcement suggests a function in support of the dominant ideology.
The creation of the ATA and the expansion of the motive requirement relating to terrorism or threats to Canadian society to other pieces of legislation have severely complicated the issue. The inclusion of an anti-discriminatory clause would mean that institutions must not engage in racial, political, social, and religious profiling. However, many descriptions relating to charges under the CCC and other legislations like the IRPA specifically list race or ethnic origin as a physical identifier similar to weight and height. Does this mean that institutions are racial profiling? The answer appears to be no prima facie. Unfortunately, individuals have been arrested simply for looking like a suspected criminal of the same ethnic origin. For example, in June 2010, two university students were targeted after Sault Ste. Marie (SSM), Ontario police received a tip that one of the students resembled a dangerous and wanted suspect from Toronto, Ontario (“Algoma U students…” link no. 1, app. 6). Even after SSM Police adopted a bias-free policing policy that prohibits racial profiling expect when used in identification of the suspect, this incident occurred. Roach’s suggestion of inserting an anti-discriminatory clause would not be enough to prevent social, racial, political, or religious profiling. Further, the regime of secrecy surrounding terrorist lists has also contributed to these complications in defining terrorist activities and listed entities. The definition of threats to Canadian society and terrorist activity is so broad that Cindy Blackstock, who advocates for the rights of First Nations children both domestically and internationally, was listed as an enemy to the state of Canada under CSIS (“CSIS and me” app. 10). With much of the ATA amended to the expansion of other legislative pieces, like the CSIS and Security of Information Act, an analysis of various legislative pieces that contain this motive requirement is needed, as opposed to just focusing on the CCC. This motive requirement, which implies it is in support of the dominant ideology, should be removed or at least assessed to avoid harming other innocent citizens. As an Indigenous person to Canada, it is disheartening to read about individuals such as Cindy Blackstock being listed as an enemy to the state especially when she is fighting for the inherent and constitutional rights of Canada’s Indigenous children.
Carter, Mark. 2009. “R. v. Khawaja, The Definition of ‘Terrorist Activity,’ and the Irrelevance of Motive Doctrine: Constitutional Dimensions of a Common Law Principle.” University of British Columbia Law Review 42(1): 197-227.
Jenkins, David. 2003. “In Support of Canada’s Anti-Terrorism Act: A Comparison of Canada, British, and American Anti-Terrorism Law.” Saskatchewan Law Review 62(2): 419-454.
Roach, Kent. 2005. “The Three Year Review of Canada’s Anti-Terrorism Act: The Need for Greater Restraint and Fairness, Non-Discrimination, and Special Advocates.” University of New Brunswick Law Journal 54: 308-335.
Roach, Kent. 2007. “The Parliamentary Review of the Anti-Terrorism Act.” Criminal Law Quarterly 52 (3-4): 281-284.
Webb, Maureen. 2005. “Essential liberty or a little temporary safety? The review of the Canadian anti-terrorism act.” Criminal Law Quarterly 51(1): 53-101.