Debating the Anti-Terrorism Legislation: Lessons Learned

Article excerpt

Bill C-36, Canada's anti-terrorism bill, was drafted under extraordinary circumstances, and was the subject of an extraordinary debate within and without Parliament. This article describes the legislative process and broader societal debate surrounding Bill C-36. Furthermore, it argues that three central lessons can be learned from studying the discussions of the Bill: that the legislative process should be "internationalized" to correspond with increasingly international law and policy; that parliamentary committees can and should be empowered to play an important role in formulating policy; and that emergency legislation poses grave dangers and should be made as temporary as possible.

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Bill C-36, the Anti-Terrorism Act, was the Government's legislative response to the terrorist attacks of 11 September 2001, and Canada's domestic contribution to an international legal effort to suppress terrorism. In the aftermath of September 11, the United States, the United Kingdom, France, Germany, and Australia, inter alia, all passed bills with purported objectives similar to those of C-36.

Bill C-36 was complex, cross-jurisdictional, and unprecedented. It received more public attention than almost any bill in recent memory. It was tabled in the wake of one of the most calamitous events in North American history. It was drafted and studied under considerable time constraints and political pressures. Perhaps most significantly, it proposed changes that touched on some our deepest societal values and most profound philosophical ideas--individual human rights, racial and religious inclusion, national security, and liberty of the person.

The Legislative Process

Bill C-36 was introduced in the House by Justice Minister Anne McLellan on 15 October 2001. It was the result of intensified, accelerated work by Department of Justice officials. Assistant Deputy Minister Richard Mosley, speaking at a University of Toronto conference on the Bill, described the behind-the-scenes process by which the legislation came into being. Immediately after 11 September, Mosley said, the department conducted a review of all Canadian legislation of relevance to terrorism--an "already formidable body of law," (1) in Mosley's words. On 18 September, Minister McLellan spoke in the House about moving forward with amendments to implement the two international conventions on Bombing and the Suppression of Terrorist Financing, while also making reference to changes to the Canada Evidence Act and the Official Secrets Act. At this point, Mosley suggests, the Bill was still in its early stages within the Department, where drafters were struggling with "conceptual issues" such as how--or indeed whether--to define terrorism. The Department continued to debate the question of definition, among other things, up until 13 October, at which point the Bill had to be printed to table in the House. However, says Mosley, "we recognized that this was not going to be anywhere near the end of the debate and that it would then have to be addressed in a broader public context and also, of course, within Parliament." In drafting the bill, the Department was working under significant time constraints. The most formal--if not the most important--of these was mandated by United Nations Security Council Resolution 1373 of 28 September 2001. This resolution lays out what member states must do to prevent terrorism, and binds states to report back within 90 days of the resolution's adoption. In other words, Canada's anti-terrorism law had to be passed by the end of December 2001. In consideration of this deadline, the Bill was tabled two weeks before the planned date of 1 November.

The Bill was brought before the House of Commons Standing Committee on Justice and Human Rights on 18 October 2001, following approximately 8 hours of Second Reading debate and a vote expressing support for the Bill by a margin of 208-8 (with the NDP caucus opposed). …