Terrorists

Anti-Terrorism Law and Ideology

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.

REFERENCE LIST
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.

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My mom…the terrorist?!

I am writing a research paper on anti-terrorism law in Canada. I decided to choose this topic because of this strange memory I had as a kid. It was this memory of tents all on our lawn and a lot of people being around the house at the same time. The only reason I knew this memory was real and not just a fragment of many recalled dreams was because of this one photograph I had seen over and over again in photo albums (the strange thing about me is that sometimes my dreams get tangled up with my realities and I have a hard time remember what was real in my past and what was simply a dream).

Those dreams are beside the point. A few weeks ago, I called my mom to ask her if she had done anything with Oka. I didn’t tell her about my memory or questioned her about the things I had remembered. She simply said yes. We had a long discussion about the information I was finding and the things that I could remember. At the time of Oka, I would have been around 3-4 years old. Some people say kids don’t remember events at that age…that is not true. I remember a lot of what happened.

My mom said that we were not allowed to use the phone and that our phone lines were tapped by the RCMP. She also said that she helped cook food for some of the families and individuals who were housed nearby. By this act alone, the motive requirement, and participation offences within the Criminal Code of Canada (CCC), my mom could have been considered as a listed entity under terrorism offences within the CCC.

There isn’t just one bad thing about being a listed entity, which means an individual, organization or corporation that conducts terrorist activities. There are a slew of things wrong with this practice. In a recent rabble.ca post, Pam Palmater discusses CSIS and First Nations’ activities. What is not discussed is how do individuals go about in getting put on such lists? Well, here is a quick outline:

  • Individuals can be put on the list. They do not have to have membership with any terrorist group or any other listed entity.
  • Individuals can be put on the list by way of association with terrorist groups and their activity or association to threats to Canadian society.
  • Individuals put on the list do not have a right to challenge this list (because they receive no notice if they are on it…they cannot challenge something they do not know about).
  • If individuals do want information on from CSIS, they do not have a right to receive detailed information. Rather they will be given a summary of the information. CSIS decides which information is be kept secret to “protect national security.”

The issue with these lists is that there is very little judicial interpretation and constitutional challenges to these lists because of the secrecy that surrounds them. What does this mean for Canadian citizens? Any one of us can be placed on this list and not even know it. An example of this list going wrong is the case of Cindy Blackstock, which is referenced in Palmater’s blog. As described by Palmater, Blackstock is a “peaceful, law-abiding citizen with a big heart.” So how did Cindy end up on this list? Who knows, she was merely advocating for First Nations children. Check out her “Have a Heart Campaign” that was launched this past February 14. Maybe all those Valentine’s Day cards sent to MPs and the PM’s office were considered a threat to “national security”?

I really like the way Palmater’s blog shares the way the information is shared with individuals who request an Access to Information and Privacy request. Please have a read over her entire blog to see the information that she received in return from the CSIS.

These supposed secret lists and the information they have on individuals all collected in the name of “protecting national security” kind of scares me. It is especially disheartened that institutions that are supposed to protect citizens are busy collecting information on its Indigenous peoples … all in the name of “protecting national security.” I wouldn’t believe that any Indigenous person, organization, or corporation deserves to be put on such a list especially when we are always fighting for our inherent and constitutional rights.

I wonder though, would my momma be on the list?

Oh and hey, Mister Government, where is our apology that was written about in the December 2010 Globe and Mail for having First Nations as listed entities, or are you all tired out from the 2008 Residential School apology?

Am I a "terrorist"?

Tonight, I just finished reading a journal article for political science class. This article was titled, Notes on Terrorism: Origins and Prevention by Ervin Staub.

This article peaked my interest on several instances. Two of these instances included:

1) It mentioned terrorists actions are from reactions to feelings of being marginalized, along side the “clash of their traditional background.” (Staub 2002)

2) “Freedom, democracy, and equal opportunity… would help create societies that would more effectively integrate culture change with tradition” (Staub 2002)

These two stuck out to me because as an Aboriginal, I am aware that both Aboriginals and non-Aboriginals believe the Aboriginal community to be “marginalized.” I believe this as well. By believing this, it reminded me of my previous post on the Canadian Military listing Radical Aboriginal groups as insurgents, which included the Tamils on that list (Aboriginals: Past Insurgents). It made me question myself, “Does the fact that Aboriginals are considered to be marginalized really mean I can possibly be one day considered/profiled as a terrorist?” I only ask this because of the factual belief that Aboriginals are marginalized, and that the Canadian military once believed that “radical Aboriginal groups” were “insurgents.” Does this mean that all groups that are marginalized and “radical” are terrorists? Does that mean I am going to be profiled when I try to cross the international border or board a plane? I certainly hope not.

The second point really stuck out because I asked myself: Which culture with which tradition? Does this mean that the lesser of the two cultures in one society is to be marginalized to fit the tradition of the more dominant culture? If that is the case, does that not mean that the first point makes no sense if the second one is enforced. Only because the second point will create more marginalization if the lesser of the two cultures in society is to be “effectively integrated” by “culture change with tradition” into the more dominant culture aka Westernized by tradition and culture.

This article also reminded me of the time I was once approached by a non-Aboriginal person after knowing them for a few months. She approached me and said, “I didn’t know you were Aboriginal. I thought you were kind of intimidating and scary when I first met you.”(As if being Aboriginal and “scary” go hand-in-hand). At first I laughed and then I asked her why she thought I was “scary.” She replied, “Because you didn’t talk to me.” I told her, “Just because I am shy, doesn’t mean I am scary”

With that being said, let me tell you two things about the “big bad scary” me:

1) I will be the first one to scream when the lights suddenly go out.

2) At the site of a spider, I scream and run…. 20 feet away from the spider.

Based on this article and based on this ignorant conversation I had with one person, I am left questioning my own self and my own identity once again, and most importantly left with many unanswered questions. One of these questions being: will I be profiled as a terrorist one day just because I am a “marginalized” group that should have my culture “integrated” into “traditional” society aka Westernized?