Minority Views on the Canadian Anti-Terrorism Act

2.Report Highlights (continued)

2.2 Findings (continued)

2.2.3 Detailed Findings

2.2.3.1 Definition of Terrorist Activity

While participants had no idea that a definition of a terrorist activity even existed, most approved of this provision in principle, and some thought it was filling a gap, even though many were unsure of the details and had some concerns.

Those who approved saw the definition as a "good framework," which was "headed in the right direction." Some participants felt reassured they would not be seen as terrorists just because they were Muslims.  On the other hand, some found it too broad and vague, and thought it could harm the innocent in 3 ways:  (1) its ambiguity and numerous conditions were thought to leave it too open to interpretation, legal loopholes and potential abuse, and made it difficult to prove in terms of intention or motivation; 2) the line between legitimate protest and terrorism was blurry, and (3) participants in several Participants in Group 1 worried about ethnic minorities being targeted, given what had happened in the U.S. since 9/11.

Confusion emerged around 3 key issues.  First, participants were not sure if all 3 criteria had to be met.  Second, due to uncertainty about the need to meet all 3 criteria, participants struggled with the definition, and wondered, for example, if rioting sports fans, the uni-bomber, the anti-abortion doctor (motivated by his own goals), Ernst Zundel, hate crimes, acts of vandalism, Rwandan genocide, and even the invasion of Iraq would be considered terrorist acts.  Terrorism seemed to be generally defined as "violent acts against innocent people."  Third, some had difficulty understanding how a Canadian law could apply to threats outside Canada, in other countries.

Despite concerns, the definition of a terrorist activity was considered a useful tool to identify terrorists, but not necessarily to prevent terrorism.  Participants were interested in obtaining more information about it.

2.2.3.2 Listing of Terrorist Entities

Previous knowledge and awareness of this provision was low.  Participants approved of the intent or purpose of the listing, which was seen to offer protection but thought that it was unlikely to prevent terrorism.  Support was based on the public's right to know, so they could avoid unknowingly making financial donations and possibly opening themselves up to legal action.  Most found the listing provision useful, even with its limitations.

Overall, many concerns and questions were raised over the potential for harm due to both the "public nature" of the list, and to what were referred to as "grey areas". These included: (1) fear about the potential to stereotype ethnic minorities, reminiscent of the McCarthy era, where the list might contain common Middle Eastern names or names similar to those of known terrorists (this had already happened to one woman, whose passport had been held for a week after 9/11); (2) concern about credible sources of information, especially if it came from the U.S.; and (3) accuracy of information and safeguards.

Participants also worried about specific legislative aspects such as: (1)  "reasonable grounds", which could be subject to misinterpretation and/or abuse; (2) the public international sharing of the list, which was considered "a gross invasion of privacy" could have a major impact on your life even if you won an appeal; (3) the Federal Cabinet as decision-maker, which had the potential to be politically motivated or influenced – some preferred an "independent watchdog"; and (4) the loss of civil liberties -- mainly privacy. While participants saw the ability to appeal as a very positive aspect, its effectiveness was limited by the public nature of the listing. "You are stigmatized for life, even if you win the appeal."

The perceived link between listing and fundraising made sense to most participants. Some thought it would hinder terrorists' ability to raise funds, while others thought it would have no measurable effect.  Interest in information was high.

2.2.3.3 Financing of Terrorism

Previous knowledge or awareness of the financing provision was very low.  Several participants had heard of it, but only in vague terms (some were reminded of the "drug laws" and Criminal Code).

Participants approved of the financing provision mainly because it made sense -- the general public "needs to know" who they could be donating money to and who to avoid.

Special concerns emerged in all locations about (1) innocent people or organizations being either wrongly listed or targeted by false or erroneous information (worrisome to visible minority participants, especially those from the Middle East); and (2) the usual fairness in the Canadian justice system was diminished, because the burden of proof was on the accused, and the innocent needed to prove themselves innocent, which disturbed many.

Discussion focused on 5 legislative aspects: (1) the concept of where the money went sparked worried comments, such as "How could the public possibly know if money went to terrorism, especially if it was sent overseas?" (2) the reporting obligation was thought to wrongly place the onus on ordinary citizens (instead of on the legal system), and participants were not only uneasy about the danger of false reporting (if someone disliked you), but also thought people would be "too scared" to come forward; (3) the ability to appeal was seen in quite a positive light, except that the burden of proof was on the innocent-accused, and not-knowing about involvement could be a convenient loophole for real terrorists; (4) the 10-year maximum penalty was too light for some (mainly in Group 3 participants), who preferred life imprisonment as a maximum; and (5) property seizure was seen in different contexts – as a deterrent, as an infringement on the innocent, and as being similar to the "drug law."

The perceived impact of the financing provision on legitimate charities ranged widely, from high to moderate to no effect at all.  Participants were also split about its usefulness.  Some saw cutting off the money and giving more clout to authorities as useful, but others doubted the credibility of the listing evidence and thought terrorists could circumvent any law.  Interest in information was high, especially between Group 1 and 2 participants, the most likely to be impacted (because they send money "back home").  However, Montrealers of Group 1 strongly opposed publicizing information about financing, fearing the detrimental impact on what they saw as legitimate "innocent people fighting for their rights."

2.2.3.4 New Investigative and Preventive Powers

Overall, only a few participants had heard of these new police powers.  Most accepted the provisions in principle.  Participants in all groups who supported the new powers seemed to understand the compromises needed to deal with terrorism, and felt that "those with nothing to hide" need not worry.

Concerns voiced in most groups focused on 4 main application issues:  (1) participants worried that anyone could be arrested anytime, especially innocent people; (2) targeting of ethnic minorities was a strong expectation in all locations; (3) the potential for misinterpretation and misuse was attributed to the fairly broad powers and vague language and terms, which needed greater clarity; and (4) the potential abuse by police frightened a fair number of respondents, who had not only heard about police abuses in the U.S., but who themselves had personal experience of this, or knew someone or about someone who had a similar experience.

Discussions centred on 2 main investigative powers rather than on preventive powers:  (1) the wiretap provision and (2) the offence of refusing to give information.  The wiretap provision garnered general approval (even by participants of Group 1, who were considered and considered themselves to be the most likely wiretap targets), although some disliked the "big brother" aspects, specifically the "invasion of privacy" and the fact that a wiretap was permissible even if other methods would work.  In addition, some thought the 1-year non-notification period was too long, and some could not understand why police would "just listen" to terrorists, instead of arresting them. 

Refusing to give information as an offence generated confusion and apprehension, mainly over the potential for abuse, based on guilt by association ("How do they know if you know something or not? ")  Questions were raised about the media's right to protect a source, the possible punishment for refusing to give information, and government protection for someone who was threatened not to divulge information. 

The new police powers were seen as useful only as a preventive tool but with a potential for misuse.  Some thought they were the most important element of the ATA, with a far-reaching impact on citizens in general and on minority groups in particular.  Interest in information was high, especially among Group 1 participants, who felt they needed to adapt and protect themselves. Some said they would stop discussing certain topics publicly or on the phone.

2.2.3.5 Mechanisms to Prevent Abuse of Police Powers

The sunset clause was virtually unheard of by participants. Only those who understood it as a safeguard gave approval, because it was a "step in the right direction" to ensure that the new police powers would not be unfairly applied and that the rights of individuals would be upheld.  However, most participants did not understand the clause or its intent, and had 4 basic misinterpretations:  (1) as a government expectation that terrorism would not be a problem after 5 years, or that anti-terrorism laws would not be necessary; (2) as reinforcement for the perception that the new police powers were dangerous; (3) as an opportunity to review, update and replace the entire law, if necessary, at the 5-year mark; and (4) as a worry that amendments to the law could not be made during this period.

Previous knowledge of the reporting obligation to Parliament was non-existent.  Participants voiced strong approval for the much needed "accountability", and "checks and balances" it would provide, and because it gave some control over the application of the special police powers.  The only criticism was that the annual report to Parliament was not enough to curb potential abuse.  Discussions centered around 4 issues:  (1) while most felt the annual reporting frequency was sufficient, some preferred more frequent or ad hoc reporting; (2) some participants hoped reporting information would be accurate, comprehensive and unbiased; (3) some wondered if the report would be made public in its entirety or if it would contain only what the government wanted to reveal; and (4) some stated that an "independent watchdog" would provide greater accountability.

Overall, participants were hopeful that the two mechanisms would prevent abuse.  While these protections were seen to lessen some negativity about the police, their existence essentially provided relief and greater confidence in the Canadian approach.

2.2.4 Additional Comments

Having looked at participants reaction to the Anti-Terrorism Act, Créatec suggests that some factors may have influenced discussion outcomes such as the timing of discussions (i.e. war with Iraq), media consumption, views on Canada's role in the world and participants own perceptions of terrorism.