AUTHOR: Faisal A. Bhabha *

SOURCE: Windsor Review of Legal and Social Issues

CITED: (November, 2003)  16 W.R.L.S.I. 95

LENGTH: 20934 words

BIOGRAPHY:

* B.A. (Toronto), LL.B. (Queen's), is an associate practicing human rights law and Charter litigation at the Toronto firm Bakerlaw. He thanks Professor Beverley Baines for her helpful comments and encouragement during the writing of this paper.

ABSTRACT:

 ...  The new law is central to Canada's so-called "antiterrorism" plan, which was co-ordinated with the United States and Britain following the attack on the World Trade Center and Pentagon. ... For the first time in Canada, the government has crafted a legal definition of "terrorist activity," as part of the legislative amendments contained in the Anti-Terrorism Act. ...  By introducing this legislation into a political climate in which Canada's participation in the so-called "war against terrorism" is akin to a war against Islam in the eyes of many, the overly inclusive definition of "terrorist activity" and broad administrative powers to blacklist "terrorist groups" is certain to disproportionately affect Muslims. ... Indeed, it seems that, absent a blatantly discriminatory objective or a complete lack of purpose, the courts will assume that the government has pursued a legitimate legislative aim. ...  Under current circumstances, the Act creates a palpable and unreasonable risk of discrimination for Muslims in Canada on the basis of race, religion, colour and ethnic or national origin. ...

HIGHLIGHTS:

This paper endeavours to show that the Anti-Terrorism Act that was enacted following the September 11, 2001 attacks on the World Trade Center and Pentagon, though neutral on its face, will be implemented in a way which discriminates on the basis of race, religion, colour and ethnic or national origin. More precisely, it will encroach upon the Charter's section 15(1) rights of Muslims, an identifiable and vulnerable segment of Canadian society. Any government justification cannot reasonably uphold the legislation, even though the stated government interest lies in protecting national security and public safety. The definition of "terrorist" offences is too vague, the objective of protecting Canadians cannot be rationally connected to measures that target Muslims and the means adopted are not minimally impairing.

In Part I of this paper, the author covers the history of "terrorism" in both international law and Canadian jurisprudence, focusing on the legacy of racism and bias in the interpretation of the word "terrorism". Part II examines the Anti-Terrorism Act and focuses on the provisions that define "terrorist activity" and provide for the listing of "terrorist groups". In Part III, the author undertakes a section 15(1) analysis of the legislation in light of relevant judgments of the Supreme Court of Canada and considers specific concerns affecting the equality rights of Muslims in Canada.  Part IV considers the constitutionality of the Anti-Terrorism Act in view of section 1 of the Charter. Finally in Part V the author examines laws that are applied in a discriminatory manner and the implications in prescribing a remedy. The author ends the paper by recommending that the Anti-Terrorism Act be struck down on the basis that it unjustifiably breaches the section 15(1) equality guarantee in the Charter.

TEXT:

I. INTRODUCTION

On October 15, 2001, then-Justice Minister Anne McLellan, unveiled Bill C-36  n1 in the House of Commons. The new law is central to Canada's so- called "antiterrorism" plan, which was co-ordinated with the United States and Britain following the attack on the World Trade Center and Pentagon.  n2 The four principal objectives of the government's plan included: to keep terrorists out of Canada and to protect Canadians from terrorist acts; to procure the tools to identify, prosecute, convict and punish terrorist acts; to ensure that the Canada-U.S. border remains free and safe for the sake of the Canadian economy; and, to co-ordinate efforts at an international level to prosecute terrorists and deal with the causes of hatred.  n3 Minister McLellan explained the rationale behind the proposed legislation: "The horrific events of September 11 remind us that we must continue to work with other nations to confront terrorism and ensure the full force of Canadian law is brought to bear against those who support, plan and carry out acts of terror -- we will cut off their money, find them and punish them."  n4

Based on this rationale, the government introduced a bill which proposed to revise a number of statutes, including the Criminal Code  n5, forming the basis for new "terrorist" offences, which cover not only "terrorists" themselves, but those who fundraise for, facilitate the activities of, instruct, or harbour them. The special investigatory provisions of the Criminal Code, including wiretaps and electronic surveillance, are extended to groups identified as "terrorist". Canada also undertook to ratify the only two United Nations counter-terrorism conventions to which it had not yet signed on, and incorporated them into the Criminal Code. Additionally, amendments would be made to the Canada Evidence Act, National Defence Act, Proceeds of Crime Act, and Official Secrets Act (renamed Security of Information Act).

Under the new legislation, people unfortunate enough to fall within the wide ambit of the "terrorism" definition will find themselves relegated to the periphery of accepted norms of criminal procedure: persons for whom there are "reasonable grounds to suspect" that they are about to commit an act of terror are subject to "preventive arrest" whereby they can be imprisoned without charge; persons accused of "facilitating" terrorism can be convicted even if they do not have criminal intent; procedures of "investigative hearings" can compel a person to provide evidence before a court in violation of the right to silence and the right against self-incrimination; finally, secret evidence from foreign sources is permitted at the trials of persons accused of terrorist-related offences.

All of this presents serious risks to the integrity of Canada's justice system.  The government apparently feels that the perceived-to-be imminent threat of terrorism in the wake of the September 11, 2001 attacks in the U.S. poses a danger that warrants such a sharp digression from accepted legal norms and from Canada's evolving Charter jurisprudence.  n6 Many Canadians voiced their support for the government's "anti-terrorism" strategy, particularly when couched in terms of Canada's need to "protect" the nation from "foreign infiltrators". However, dissenting voices also raised concern over the appropriation by government of excessive coercive powers that trample unnecessarily on people's rights and freedoms. Indeed, there is a case to be made that in claiming to secure Canadians from the threat of terrorism at home,  and in order to meet standards being set by Canada's more powerful allies, the government adopted extreme measures that tear at the seams of Charter protection, and target communities and individuals who already sit on the fringe of the law's protection.

The new legislation can be scrutinized and challenged on the basis of a number of Charter grounds, including, inter alia, freedom of expression (s. 2(b)), freedom of association (s. 2(d)), the right to life, liberty and security of the person (s. 7), the right to be secure against unreasonable search or seizure (s. 8), the right not to be arbitrarily detained or imprisoned (s. 9), and the right to a fair trial (s. 11).  n7 This paper will focus on the equality guarantee of section 15(1). Given the tendency of the right to equality to embrace and reinforce intersecting rights,   n8 as Mr. Justice McIntyre affirmed in describing it as the "broadest of all guarantees,"  n9 the challenge I intend to mount should not be read as negating, but rather integrating, the other constitutional issues.

This paper will advance the view that the Anti-Terrorism Act, though arguably neutral on its face, will undoubtedly be implemented in a way which discriminates on the basis of race, religion, colour and ethnic or national origin. More precisely, it will target Muslims, a community which suffers from historical disadvantage and ongoing stereotyping. The definition of "terrorist activity" and the designation of "terrorist groups", as outlined in the Act, will adversely impact on Muslims by subjecting them to differential treatment in the enforcement of criminal law provisions and administrative processes. An additional feature to consider will be the fact of intersecting inequalities, particularly those of a systemic nature, such as the case of non-citizen Muslims, who will be at an even greater risk of discrimination and for whom the adverse effects will be exceptionally grave.

Part II begins with an exploration of the background of "terrorism" in international law and in Canadian jurisprudence for the purpose of elucidating the broader historical and legal context into which the Anti-Terrorism Act emerges. This will lead into an examination of the Act itself in Part III, with a focus on the provisions which define "terrorist activity" and provide for the listing of "terrorist groups". Part IV will undertake a section 15(1) analysis of the legislation in light of relevant judgments of the Supreme Court of Canada and will consider specific concerns affecting the equality rights of Muslims in Canada. Part V will consolidate the argument of the unconstitutionality of the Act in view of section 1 of the Charter,  which involves balancing the relevant state/society interests and the right at stake. Finally, Part VI will briefly examine the issue of laws which are applied in a discriminatory manner, and the implications in prescribing a remedy. The paper concludes with a recommendation for the striking down of the Anti-Terrorism Act on the basis that it unjustifiably breaches the section 15(1) equality guarantee.

II. "TERRORISM" AND THE LAW

A. BACKGROUND

In his essay "Libya in US Demonology," Noam Chomsky traces the use of the term "terrorism" to the late eighteenth century, at which time it was used primarily to refer to "violent acts of governments designed to ensure popular submission."  n10 The Jacobin "Reign of Terror" following the French Revolution is perhaps the most illustrative example of this. At the same time, revolutionary violence to break the yoke of oppression has long been morally and legally recognized, from the Bible through Aristotle, Plutarch and Cicero.  n11 According to political philosopher John Stuart Mill: "Political liberties or rights which it was to be regarded as a breach of duty in the ruler to infringe, specified resistance, or general rebellion, was held to be justifiable."  n12

Despite its genesis as a concept associated with state aggression, terrorism in recent years has come to be applied almost exclusively to individuals and groups. This transition occurred in the early decades of the 20th century, in response to an increase in non-state political violence in Europe after the First World War.  n13 As a result of the assassination of Yugoslavia's King Alexander and France's foreign minister, Louis Barthou, in 1934 the League of Nations drafted the Convention for the Prevention and Punishment of Terrorism.  n14 In section 1(2) it defined "terrorism" as "criminal acts directed against a state and intended to or calculated to create a state of terror in the minds of particular persons, or a group of persons, or the general public."  n15 While the Convention never came into force, it represented the first concerted attempt of the international community to confront and define "terrorism". Moreover, it solidified the conception of "terrorism" as subversive violence perpetrated by non-state actors against a state.

With the ultimate collapse of the League of Nations and Europe's decline into yet another World War in which states were the perpetrators of some of the most heinous crimes ever witnessed by humanity, the question of "terrorism" was shuffled off the agenda of the international community. "Terrorism" as an issue of international concern re-emerged in the context of de-colonization in the post-WWII-era struggles for self-determination in the South, as non-state political violence was once again relevant. In an attempt to develop an international strategy and working definition on "terrorism", the UN General Assembly established an Ad Hoc Committee in 1972. When the Committee reported back to the General Assembly in 1979, the only consensus that had been reached was that further attempts to define "terrorism" ought to be resisted.  n16 This policy of avoidance suited the interests of both the developed and developing states: "If the West was nervous that a definition of terrorism could be used to include 'state terrorism', the third world was nervous that any definition which emphasized non-State actors would fail to differentiate between terrorism properly so called, and the struggle for national liberation. "  n17

While the UN has remained unable and unwilling to develop a legal definition of terrorism, it has crafted twelve separate treaties which criminalize specific acts, such as civil aircraft hijacking, attacks against ships and airports, hostage-taking, violence against internationally protected persons and diplomats, and theft of nuclear material.  n18 While these can be criticized for being state-centric and for failing to acknowledge the unique character of certain political crimes, this collection of treaties does represent a workable approach based on deeds, rather than on the identity or nationality of the perpetrator, in identifying certain acts which carry international criminal liability.

There has been a move toward applying a laws-of-war framework to violent or military actions carried out by non-state actors. This functional approach would operate to resolve some of the perceived tension in law between political and non-political crimes. In the two 1977 Protocols to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, the UN extended the applicability of the treaty to include armed conflict by peoples fighting "in the exercise of their right of self- determination."  n19 Most Western governments feel uneasy about dealing with terrorism in a laws-of-war context as it is seen to implicitly endorse or lend legitimacy to the exercise of political violence by non-state actors. Indeed, the U.S. and its allies refused to ratify the Protocols, as the Reagan administration labelled the treaties a "terrorists' charter." n20 However, despite the fears of many states, international law does explicitly sanction the right of peoples to take up arms against oppression and to struggle for their right to self-determination. It follows, then, that in the quest to ascribe meaning to "terrorism" within an international law context, it is crucial to recognize that the right to rebel is a necessary correlative to the suppression of terrorism.  n21 Indeed, the common adage that one person's terrorist is another's freedom fighter is certainly germane to this analysis. But this politicized distinction becomes pleasantly irrelevant when the actions of all -- both state and non-state actors -- are held to the same functional standards of acceptable military conduct, regardless of their "justness".

In the same vein, Professor Beres identifies two interrelated jurisprudential standards useful in differentiating between lawful insurgency and terrorism. n22 The first is commonly known as "just cause" doctrine, meaning that where an individual state prevents the exercise of human rights, insurgency may express law-enforcing reactions under international law. The means used in that insurgency, however, must conform to the jurisprudential standard of "just means". Thus, the mere legitimacy of a cause does not justify the reckless use of violence. Each insurgency would have to be assessed individually and upon consideration of a number of factors, including discrimination, proportionality, military necessity and targets.  n23 For Beres, once force is applied broadly to any segment of the population, blurring the distinction between combatants and non-combatants, terrorism is taking place. It is important to remember that these standards apply equally to states and non-state actors. Thus, excessive counter-terrorist violence, as well as pre-emptive strikes by government military forces, may amount to acts of terrorism. Moreover, it imposes a duty on Western states to reconsider their foreign policies, disengage from support of authoritarian regimes, and end their sponsorship of brutal counter-revolutionary forces.

Until international consensus is reached on the application of the laws-of-war standards, or some other workable definition is reached, Professor Higgins's diagnosis that "terrorism" remains a term devoid of legal significance will remain true.  n24 At the same time, it would be a mistake to believe that the definitional problem is merely a struggle to find political consensus. Indeed, it has been argued that under the current international system, in which the inequality of states and peoples is entrenched, reaching a fair and objective legal definition of "terrorism" is an impossibility.  n25 In his essay, "The Selling of International Terrorism," Professor Perdue posits that there exists an ideology of terrorism -- what he calls "terrornoia" -- which reflects the interests and fears of the dominant Western states.  n26 Like all ideologies that legitimize official practice, Perdue argues, "terrornoia" must be sold because the liberal-democratic state requires the loyalty and confidence of the people. This confidence building inevitably becomes a process of political demonology, as the "terrorist" enemy is stigmatized as foreign, barbarous, and sub-human. The public is encouraged to deduce that the terrorist is irrational, a conclusion that is promoted by the selective use of such words as "fanatic", "fundamentalist", or "extremist". Because attempting to negotiate with the irrational is impossible, the only language understood by the terrorist is force.

For Purdue, the effect of this rhetorical exercise is to polarize conceptions of "us" and "them" and, consequently, to eliminate any possible middle ground so that the state's citizens and allies must make a very simple choice: to either support the Good (the Western state) or the Bad (the terrorists). We have witnessed this process occurring in the U.S. and amongst its closest allies, including Canada, in response to the heinous attacks of September 11, 2001. The wickedness of these crimes predictably provides fertile soil for the uncritical acceptance and nourishment of state ideology, as the "war against terrorism" is presented to the public as a moral battle not dissimilar to the fight against racism, drugs, or other social evils. However, the danger of this, according to Perdue, is that "terrorism" is used as "a label of defamation. When backed with the power of the state and the media, this label becomes a powerful weapon directed against the people, organizations and movements so typified."  n27

This paradigm reveals that control over the label of terrorism is to seize the moral high ground. Moreover, by securing a monopoly on righteousness and demonizing the "other", those who possess the power to label are able to conceal their own misdeeds. Perdue offers the example of slavery in the southern United States, where there were over four hundred recorded incidents of slave revolts. Often the newspapers reported that the plantation owners were terrified of the prospect. Similarly, in the early part of this century, European settlers throughout Africa also came to be terrified by national liberation movements. Thus, for Perdue:

B. CANADIAN JURISPRUDENCE

The Canadian courts have confronted the term "terrorism" almost exclusively within an immigration law context. Since 1992, Canada's Immigration Act   n29 has provided for the exclusion of persons who have engaged in terrorism or who are members of an organization that is engaged, was engaged, or is likely to engage in terrorism.  n30 Persons determined to fall within one of these classes are excluded or deported from Canada through the issuing of a Ministerial security certificate on the basis of information provided by the Canadian Security Intelligence Service (CSIS). The problem with this system is that "the absence of definition or discriminate content for the terms terrorism, membership in a terrorist organization and security of Canada, permits the Minister of Citizenship and Immigration unfettered discretion to issue security certificates."  n31 For permanent residents, a security certificate will not be issued until after a hearing before the Security Intelligence Review Committee (SIRC), a quasi- judicial administrative body that serves as an important check on the power of CSIS.  n32 Pursuant to section 39, the government's case is presented ex parte and in camera, although independent counsel to the SIRC represents the person by putting questions to the witnesses. The person whose case is being determined will later be permitted to make representations on his or her own behalf.

Although this process represents an attempt to balance interests, there are some serious drawbacks. Firstly, the person does not have the opportunity to test the authenticity or reliability of evidence presented by the government. While he may direct questions to the CSIS and RCMP officers, the scope of this examination is restricted by the overriding concern with security. Moreover, the individual is highly prejudiced by his inability to view and challenge the bulk of the printed materials used as evidence against him. Finally, once the security certificate is issued by the Governor in Council, on the recommendation of the SIRC, it is considered "conclusive proof of the matters stated therein."  n33

More concerning is that the Immigration Act distinguishes between residents of Canada and non-residents in affording procedural protections. Thus, for refugees and visitors, the Act's tenuous balancing act tips entirely to the side of "security". Pursuant to section 40.1, the Solicitor General and the Minister jointly issue a security certificate without notifying the person.  A hearing ex parte and in camera is then held before a designated Federal Court judge, after which the person is presented with a summary of the case against him or her and he or she may reply to the charges. Unlike the section 39/40 scheme, there is no independent counsel present at the hearing, the person does not have the opportunity to see any of the evidence against him or her, and he or she may not cross-examine CSIS or RCMP officers. Because the certificate is already issued, the matter before the judge is to determine whether that certificate is reasonable on the basis of the information received.

The exclusion process was challenged at the Federal Court on the grounds that it violates sections 7, 9 and 10(c) of the Charter in the case of Ahani  n34, a Convention refugee from Iran who had been excluded from Canada on the basis of secret evidence provided by CSIS. The scheme was held to satisfy section 9 of the Charter on the basis that the pre-determination detention of a named person is not arbitrary, as it is explicitly authorized by law and occurs only after both the Minister and Solicitor General have made a decision that a person has a propensity for terrorism. The Court, however, was unwilling to consider the fact that the intelligence reports upon which the Ministers base their decisions have a propensity for bias.  n35 The section 10(c) habeas corpus challenge was dismissed on the grounds that detention prior to a hearing is justifiable in such cases in which it is in the interests of public safety.

This Court's finding was supported by evidence given by CSIS officer Harry Southern, whose testimony is illustrative of the biases within CSIS: "Individuals who are engaged in terrorism are very dangerous, are frequently fanatical in their beliefs, have little regard for human lives, including their own, and are transient." n36 What we see here is that the "terrorist" is demonized with the label "fanatic", a term which, in recent years, has come to be attached almost exclusively to Muslims and which, like "fundamentalist", carries a similar connotation of imminent, alien danger. Moreover, the "terrorist" is de-humanized, characterized as a transient outsider having little regard for life,  a wandering predator with a taste for blood. This portrayal of the "terrorist" as someone inherently different from "us" -- an irrational, sub- human creature that must be controlled by force and expelled from our frontiers -- illustrates the manner in which popular perceptions are not only sold to the public, but adopted and entrenched by the courts.

David Matas has written that "we do not need racist laws to have racial discrimination in immigration; all we need is unlimited discretion. With an unsympathetic public, unmotivated public leadership, or racists in office, racism can make its way into the immigration process even with laws that appear neutral and fair."  n37 Racism and prejudice become even more insidious when the discriminatory exercise of administrative discretion receives unfettered endorsement by the courts. This was particularly evident in the Baroud case.  n38 Mr. Baroud had claimed refugee status as a Palestinian and former member of Fatah, the primary wing of the Palestine Liberation Organization (PLO). He was challenging the reasonableness of a security certificate issued pursuant to section 40.1, in which it was alleged that Fatah is an organization engaged in terrorism, that Mr. Baroud was a member of the group, and that he himself had engaged in terrorism.

In his defence, Dr. Graff, an expert on the Palestinian issue, submitted to the Federal Court that "terrorism" is a value-laden, pejorative term used selectively against certain groups to de-legitimize their cause. In pointing out that no universal definition for "terrorism" exists, Dr. Graff suggested that to reach a fair conclusion, the court must examine every act alleged to be "terrorist" and to determine whether the purpose, the use of violence, the modes of violence, and the targets are legitimate or not.  n39 This methodology resembles the law-of-war approach, outlined above.

A second expert witness, Reg Whitaker, testified that the intelligence reports relied upon in the determination of Mr. Baroud's case were a classic example of "disinformation", whereby facts are selectively presented in a manner designed to mislead. n40 Because CSIS is barred under Canadian law from information gathering in foreign countries, the security agency is entirely dependent on intelligence reports provided by foreign countries. Whitaker criticizes the process of security screening, submitting that: "it is not like medical screening for viruses. It reflects political biases, with very uneven impact on different kinds of refugees. The systematic political bias of the Cold War era has been replaced by a patchwork of specific biases."  n41 While acknowledging that intelligence reports are often biased and unreliable, the Court in Baroud upheld the security certificate despite the fact that there were no reasonable grounds to believe that Mr. Baroud himself had actually engaged in terrorist acts. He was essentially guilty by association. Moreover, in so holding, the Court indicated that since Parliament had chosen not to define the word "terrorism", it is not up to the Court to do so, beyond stating that "terrorism" must receive an "unrestrictive interpretation and will unavoidably include the political connotations which it entails."  n42

In the Suresh case, Mr. Justice Teitelbaum of the Federal Court of Canada echoed the opinion of the Court in Baroud in holding that "terrorism" is easily identifiable and does not require a legal definition:

Mr. Suresh was a Tamil refugee claimant from Sri Lanka who was deemed to be a member of a terrorist organization, the Liberation Tigers of Tamil Eelam (LTTE) . The Court failed to distinguish between LTTE attacks on military targets versus civilians, and refused to accept Mr. Suresh's submissions that the LTTE is a legitimate national liberation movement whose actions ought to be judged by the standards of the laws of war; this, despite the fact that the principal instrument of the laws of war, the Geneva Conventions, have been ratified and incorporated into Canadian law. Thus, while invoking the "eyes of a Canadian" as a standard for identifying alleged acts of "terrorism", the Court opted to look through a politicized lens rather than a legal one.

The Suresh case was heard at the Supreme Court and judgment was rendered in January 2002, just weeks following the adoption of the Anti- Terrorism Act.  n44 Although the decision is significant in many respects, particularly in the area of administrative law, the Supreme Court effectively came to the same conclusions as the lower courts on the issues of "terrorism" and "security". It held that the Charter is not violated by the provisions of the Immigration Act which provide for the exclusion of persons deemed to be "terrorists" or threats to the "security of Canada".  n45 Specifically, the Court held that "terrorism" is not a term sufficiently devoid of legal meaning to render section 19 of the Act unconstitutionally vague. Although recognizing the potential harm of employing a politicized definition, the Court stated its preference for a flexible approach:

Interestingly, the Court insisted that it is not convinced of the need to take a functional approach, as opposed to a "stipulative" one, in defining "terrorism". In fact, like the lower courts, the Supreme Court held that a clear legal definition is not necessary. However, it then proceeded to incorporate into the Act wording that sounds very much like a functional approach, offered by the International Convention for the Suppression of the Financing of Terrorism. The Convention describes "terrorism" as:

Thus, without explicitly saying so, the Supreme Court moved towards the adoption of a laws-of-war approach to identifying "terrorists". The definition in the Convention focuses on acts of aggression against civilians, not combatants; it does not appear to be restricted to the actions of non-state actors; and it looks to the purpose, target and effect of the act of violence, not just the identity of the perpetrator. This is precisely the type of "functional" approach the Court ostensibly opted to avoid. As a result, it may be easier for persons involved in legitimate anti-colonial or national liberation movements, who conduct themselves in accordance with the international laws of armed conflict, to escape the expansive reach of "terrorism" as typically interpreted by the Canadian courts.

The judgment nonetheless contains problematic features which may not so easily resolve the politicization and manipulation of the charge of "terrorism" by immigration officials and the courts. Throughout the judgment the Court continued to refer to the LTTE as a "terrorist" organization and failed to adequately consider Mr. Suresh's submission that it is an organization engaged in a legitimate struggle for national liberation through a variety of means. Indeed, the Court seemed willing to accept that even persons remotely connected to violent activity may still be captured by the definition of "terrorism" through the inclusion of "persons who are or have been associated with things directed at violence, if not violence itself."  n48

Thus, despite moving towards a less politicized understanding of "terrorism" in Canadian law, the Supreme Court failed to ensure that legitimate freedom fighters, humanitarian activists and political dissidents from abroad will not fall victim to biases in the Canadian immigration process. The decision in Suresh does nothing to allay fears of unfair and discriminatory enforcement of the security provisions against suspected "terrorists". While the Court adopted a restrictive, functional definition of "terrorism", it failed to provide guidance of how this is to be understood in the context of government conduct. Ultimately, the Court stressed the "broad" power of the state to refuse entry to non-residents, and indicated that a high degree of deference is owed to Ministerial discretion.  n49 As such, it cannot be expected that the problem of biased security intelligence and skewed political interests that disadvantage certain classes of persons will disappear. Nor can we expect a substantial change in the government's approach to labelling and excluding alleged "terrorists" under the security provisions of the Immigration Act. The implications of the Supreme Court's pronouncements on "terrorism" in the immigration context, particularly the Suresh decision, will undoubtedly inform the state's interpretation and enforcement of the Anti-Terrorism Act.

C. DIAGNOSIS

The usefulness of examining the security provisions of the Immigration Act for the purposes of this paper is to critically assess government procedures and court interpretations relating to "terrorism" in order to have an idea of what lies ahead under the Anti-Terrorism Act. The new legislation incorporates into the Canadian criminal justice system an expansion of the type of process established under the Immigration Act,  including the reliance on intelligence from foreign sources, the introduction of secret evidence and the labelling of "terrorists" without adequate scrutiny. There is one striking difference, however, which is that the Immigration Act applies almost exclusively to permanent residents, refugees and visitors, while the Anti-Terrorism Act will be applied against Canadian citizens as well. This can be seen as a cause for great concern: it is one thing to administer a process that excludes a person who has no prima facie right to remain in Canada; but it is quite another to apply a similar process against a Canadian citizen, or even a permanent resident  n50, subjecting the person to intrusive investigation, potential detention without trial and the use of secret evidence.

It may be argued that the new legislation will ensure higher standards of procedural fairness because of the degree of potential harm -- stigmatization and imprisonment -- as compared to the provisions of the Immigration Act,  which merely exclude people from Canada. However, the severity of potential consequences does not seem to have been a mitigating factor in deciding "terrorist" cases in the past. Indeed, many of the cases before the Federal Court have involved Convention refugees who face a serious risk of persecution, torture or even death in the country whence they came. In Singh, a seminal non-"terrorism" Supreme Court decision, Justice Wilson, writing for the Court, stated in obiter that: "... convention refugee is by definition a person who has a well-founded fear of persecution in the country from which he is fleeing. In my view, to deprive him of the avenues open to him under the Act to escape from that fear of persecution must, at the least, impair his right to life, liberty and security of the person".  n51

Despite the potentially grave consequences of deportation or exclusion from Canada -- indeed, in some cases, it can be said to be analogous to a severe sentence -- the courts have nonetheless persisted in their unwillingness to view "security" issues within a paradigm of fundamental justice, human rights and the rule of law. The double standard is striking: "When the spectre of 'terrorism' is conjured, government action tends to be endorsed in decisions that would otherwise be without legal foundation".  n52 Further, "where claims of privilege are asserted on the ground of national security, Canadian courts consistently treat such claims as conclusive."  n53

In choosing not to keep the powers of government in check and in conformity with accepted legal norms, the courts have been complicit in the ongoing politicization of "terrorism" and the entrenchment of discrimination against certain groups, with particularly grave implications for non-citizens. Given this reality, there is little reason to expect that the courts will judge government action with any greater degree of scrutiny when deciding cases under the anti-terrorism legislation. In fact, in the light of current political realities and the heightened importance of national "security", the forecast seems particularly grim for accused "terrorists", who can expect an ever-lower standard of rights protection from the courts.

III. THE ANTI-TERRORISM ACT AND SECTION 15(1)

A. DEFINING "TERRORIST ACTIVITY"

For the first time in Canada, the government has crafted a legal definition of "terrorist activity," as part of the legislative amendments contained in the Anti-Terrorism Act.  n54 The new definition has been incorporated into the Criminal Code, and includes acts, within or outside of Canada, that are taken or threatened for political, religious or ideological purposes and which threaten the public or national security by killing, seriously harming or endangering a person, causing substantial property damage that is likely to seriously harm people or by interfering with or disrupting an essential service, facility or system. Although there is an exception for "lawful" advocacy  n55 or work stoppages, many groups remain concerned that various non-terrorist acts can potentially fall within the ambit of this definition, including political protests, demonstrations and workers' strikes. Indeed, most Canadians would revile at the thought that even an "unlawful" or "violent" protest could be considered "terrorism". Not surprisingly, the definition was attacked for being vague and overly broad by, among others, the Canadian Bar Association (CBA): "The proposed definition is too inclusive and unwieldy. It could catch activity that is not terrorist conduct, such as wildcat strikes or public demonstrations."  n56 Moreover, it would fail to catch "terrorist"-type attacks which are not motivated by religious or ideological purposes. The CBA warned of the potential discriminatory impact of a definition that explicitly links religion or ideology to "terrorism": "terrorist acts of any scale can have purposes totally removed from either religion or ideology -- the nature of the act defines the offence, not the brand of motivation behind it."  n57

Furthermore, because the definition includes acts committed abroad, Canadians who are involved in supporting the plights of repressed peoples or refugees around the world through fundraising could be liable in Canada for financing "terrorism" based on information provided by foreign governments and agencies.  n58 It goes without saying that in many countries around the world, standards of evidence and respect for freedom of association and expression do not come close to what they are in Canada. Moreover, because many people who fled oppressive regimes for the safety and freedom of Canada maintain ties with dissident groups struggling for democracy and human rights, this will disproportionately impact on immigrant Canadians and their charity institutions. Indeed, a major concern is that "charities with links to cultural, religious or ethnic groups will be targeted based on unfair stereotypes. The Minister may single out certain charities for special scrutiny based on culture, race, religion, or national origin, with deregistration being the ultimate penalty."  n59 Moreover, the Anti- Terrorism Act "may negatively affect public perception of certain charities linked to particular cultures, regions and ethnic groups."  n60 Thus, in this bizarre alignment of interests, Canada could become complicit in bolstering governments that systematically violate human rights, while at the same time pursuing and defaming well-intentioned Canadians working to promote the values that this country claims to advance.

B. Listing of "Terrorists"

The Act defines "terrorist group" as "(a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or (b) a listed entity."  n61 The Governor in Council is empowered to make regulations to establish a list of groups upon which there are "reasonable grounds to believe" that they are directly or indirectly involved in "terrorism".  n62 An administrative process is established whereby the Solicitor General will place individuals or groups on the list, presumably on the basis of secret intelligence reports. Listed entities are permitted a single opportunity to be removed from the list by applying to the Solicitor General, and if that fails, they are afforded a right of judicial review. The reviewing judge may allow for an ex parte hearing if he or she is "of the opinion that the disclosure of the information would injure the national security or endanger the safety of any person."  n63 The Court is also permitted to accept into evidence information from foreign sources, without having to reveal the substance of the reports, nor the specific allegations against the applicant.

It is very likely that, as we have seen in the context of immigration law, the labelling of groups will be a highly politicized process, based on information from biased sources. Given the current political climate, coupled with the courts' history of deferring to "security" when faced with administrative decisions that otherwise would be considered offensive, there is a strong likelihood that the power to list "terrorist groups" will be exercised in a discriminatory fashion, receiving the complete and unquestioned endorsement of the courts. This is particularly disconcerting if we consider the fact that being listed will be, essentially, an invitation to criminal investigation, with a near presumption of guilt.

IV. THE EQUALITY ANALYSIS

In this section, I will examine the general principles and purposes of the section 15(1) equality guarantee, as elucidated by the Supreme Court in its seminal decisions. This will lead to a consideration of the Anti- Terrorism Act in light of the section 15(1) test, as defined by the Supreme Court in Law.  n64

A. APPROACH AND PURPOSE

The Supreme Court of Canada has, since Andrews, emphasized the importance of taking a "purposive and contextual" approach to discrimination analysis in order to realize the strong remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or mechanical approach. n65 In Law, the Supreme Court stated that the general purpose of section 15(1) is:

As in all Charter jurisprudence, the burden of proof rests with the claimant, on a balance of probabilities, to prove all of the necessary elements in establishing a breach of a protected right. n67 While the overall purpose of the section 15(1) guarantee is to protect essential human dignity, the Supreme Court in Law held that the claimant's burden of proof does not extend to establishing a violation of human dignity or freedom. It is expected that judges, through judicial notice and logical reasoning, can deduce a violation of human dignity or freedom on the basis of a demonstrated disadvantage, stereotyping or prejudice.  n68 In other words, a violation of human dignity will be imputed if all of the elements of the test are satisfied.

B. INDIRECT/SYSTEMIC DISCRIMINATION  n69

Professor Magnet has characterized indirect discrimination as lacking the requisite intent of direct discrimination: "Adverse effect discrimination occurs where a rule, without any intent to do so, disproportionately affects a particular class of people." n70 The doctrine has its roots in American human rights jurisprudence  n71, was adopted in Canada in the reading of human rights statutes  n72, and has been specifically incorporated into the Supreme Court's interpretation of section 15(1). In Andrews, Justice McIntyre defined discrimination, for the purposes of section 15(1), as: "a distinction whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others...".  n73

This was elaborated upon in Eldridge, where the Supreme Court held: "A legal distinction need not be motivated by a desire to disadvantage an individual or group in order to violate section 15(1). It is sufficient if the effect of the legislation is to deny someone the equal protection or benefit of the law."  n74 Not only must legislation avoid making distinctions based on personal characteristics, the Court in Eldridge  emphasized that section 15(1) also imposes on government a positive duty to ameliorate the position of groups who have been historically disadvantaged: "In other words, to promote the objective of the more equal society, section 15(1) acts as a bar to the executive enacting provisions without taking into account their possible impact on already disadvantaged classes of persons."  n75 In the words of Justice McIntyre, the "accommodation of differences ... is the essence of true equality."  n76

C. THE SECTION 15(1) TEST

The Supreme Court of Canada refined the section 15(1) methodology in Law,  and calls for a three-step process of inquiry, involving the following questions  n77:

1. Distinction

The first part of the Law test clearly incorporates the doctrine of indirect discrimination into the section 15(1) analysis by creating a two- pronged question: either the impugned law draws an explicit distinction, or has the effect of creating differential treatment on the basis of one or more personal characteristics. On its face, the Anti-Terrorism Act can be said to apply equally to all Canadians. However, there is a strong likelihood that its effect will result in "substantively differential treatment" towards Muslims, based on their personal characteristics. By introducing this legislation into a political climate in which Canada's participation in the so-called "war against terrorism" is akin to a war against Islam in the eyes of many, the overly inclusive definition of "terrorist activity" and broad administrative powers to blacklist "terrorist groups" is certain to disproportionately affect Muslims. The Coalition of Muslim Organizations expressed this concern in its submission to the Parliamentary Standing Committee on Justice and Human Rights:

2. Enumerated or Analogous Grounds

The test also requires that the claimant be a member of a class either listed in section 15(1) or analogous to the listed grounds. The case at hand does not require much effort to establish that Muslims, as an identifiable group in society, do fall within the ambit of listed grounds, on the basis of race, national or ethnic origin, colour and religion. The Supreme Court has held that a claimant can articulate a discrimination claim under more than one of the enumerated and analogous grounds.  n79 Evidently, such an approach accords with the essential "purposive and contextual" nature of equality analysis under section 15(1). Muslims are bound together as a distinct and insular community on the basis of religion, but also represent a cross-section of races, national or ethnic origin, and colour. In effect, the adverse impacts of this legislation may be more injurious to certain members of the Muslim community by virtue of their particular national origin or colour. For example,  a Muslim of Palestinian or Iraqi heritage may be at greater risk than one of Bosnian or Chinese extraction. At the same time, non-Muslims of certain ethnic or national origins, such as Arab Christians or Indian Sikhs, may also be adversely affected by the legislation based on intersecting stereotypes or misguided assumptions. Finally, it is posited that non-citizen Muslims will suffer heightened discrimination, both as Muslims and as non-citizens. The Supreme Court in Andrews held that citizenship is an analogous ground for the purposes of section 15(1).  n80

3. Discrimination

This part of the test involves determining whether a particular distinction, whether intentional or in effect, constitutes discrimination. The Supreme Court has held that not every distinction on a prohibited ground will constitute discrimination.  n81 In order to mount a successful discrimination claim, "the existence of a conflict between the purpose or effect of an impugned law and the purpose of s. 15(1) is essential ...."  n82 The determination of whether such a conflict exists is to be made through an analysis of the full context surrounding the claim and the claimant. Contextual factors are to be viewed through a subjective-objective lens by assuming the perspective of a reasonable person in circumstances similar to those of the claimant.  n83

The Supreme Court in Law identified four principal contextual factors to consider when assessing a claim of discrimination. However, the Court was clear to state that the list of factors is not exhaustive, leaving open the possibility of analogous factors.  n84 The listed factors are: (i) evidence of pre-existing disadvantage, prejudice or stereotype; (ii) whether the impugned legislation takes into account the claimant's actual situation, capacity or need; (iii) whether the impugned legislation sets out an ameliorative programme; (iv) the nature and scope of the interest involved.

a. Disadvantage, prejudice or stereotype

Muslims in Canada (both citizens and non-citizens) have found themselves in a precarious situation following the attacks in the United States on September 11, 2001.  n85 Although they are victims of historical discrimination and stereotyping, the political climate has, since September 2001, become ardently Islamophobic. The roots of anti-Muslim sentiment can be traced as far back as the early contacts between Europe and the expanding Muslim empire in the eighth century. Over the course of history, Muslims have represented both a very real and an imagined presence in the Western mind that is exoticized, feared and protected against.  n86 This conception of Muslim societies as something inherently and fundamentally different from "us" has persisted over the years and was expounded in Samuel Huntington's 1993 article, "The Clash of Civilizations," in which the author predicted that conflict in the post-Cold War era would not be based on economics or ideology, but along "civilizational" fault lines.  n87 The most dangerous and explosive of these, he argued, would be between Islam and the West. Although Huntington's thesis was widely criticized for being culturally reductionistic and even racist, this type of characterization is sure to resonate in the hearts and minds of many Canadians in the wake of September 11, 2001.  n88

Adding fuel to the fire has been the fact that people apparently acting in the name of Islam carried out the attacks in the U.S. and adopted an explicitly Huntingtonesque approach themselves in portraying the conflict as one between "believers" and "infidels". Meanwhile, President Bush and other Western leaders, including Prime Minister Chretien, assumed a similarly Manichean worldview, presenting the so-called "war against terrorism" as a battle over the values of freedom and democracy. Compound these competing rhetorical forces and one is left to deduce that Muslims are crazed fanatics who seek to destroy the values that "we" so cherish.

In many senses, this scenario is not new for Muslims in Canada, who have been guilty by association in the minds of many Canadians (and even immigration officials and Federal Court judges) by mere fact of their origins in Palestine,  Iran or Libya. However, the impact of the events of September 11, 2001 on Muslims in Canada was markedly profound and striking. In the two-month period immediately ensuing, between September 11 and November 15, 2001, the Council on American Islamic Relations Canada (CAIR-Canada) documented 115 incidents n89 of various forms of hate against Muslims in Canada.  n90 The types of incidents included 10 death threats, 12 attacks on mosques, 13 incidents of physical harassment and assault, and 33 incidents of verbal harassment. The Council stressed that these figures did not even come close to revealing an accurate picture of the number of incidents, as most incidents likely went unreported due to victims' fear or lack of familiarity with the reporting process.

The familiar linking of Muslims to "terrorism", "fanaticism" and "fundamentalism" is sure to be augmented in the light of the political climate post September 11, 2001. Muslim groups in Canada had to take a defensive public stance, forced to distance themselves from attacks and to affirm their commitment to the "Canadian" values of freedom and democracy, as if rebutting a presumption of guilt by association.  n91 Introducing legislation that is explicitly politicized into a volatile climate in which Muslims are in a state of heightened vulnerability, is to invite discrimination against an entire segment of the Canadian population that is already disadvantaged

b. Claimant's needs

The Anti-Terrorism Act does not explicitly take into account the needs or actual situation of Muslims in Canada. It does, however, in an interesting appendage to the anti-terrorism provisions, include amendments to the Criminal Code and to the Canadian Human Rights Act  that incorporate stiffer laws relating to hate crimes and hate propaganda. These provisions empower the courts to order the deletion of hate propagating websites, and create a new offence of "mischief against places of religious worship or religious property", designed to specifically criminalize attacks against places of worship or community centres.  n92 Also, the Human Rights Act is to be amended to ensure that propagating hate through the use of telephones, the Internet or other means of communication is prohibited. These amendments are clearly in response to the rash of anti- Muslim sentiment that swept through Canada following the attacks in the United States. The Department of Justice has explained its tougher stance on hate crimes in this light, and insists that the government's campaign against terror is "not against any one community, group or faith. Diversity is one of Canada's greatest strengths and the Government of Canada is taking steps to protect it. Measures will be included in the bill to address the root causes of hatred and to ensure Canadian values of equality, tolerance and fairness are affirmed ..."  n93.

This could form the basis for a government argument that the legislation accounts for the disadvantage suffered by the claimant and that the law actually takes steps to redress the situation. Indeed, this argument may seem rather persuasive. However, it is important to remember Justice Iacobucci's caution that "the mere fact of the impugned legislation's having to some degree take into account the actual situation of persons like the claimant will necessarily be sufficient to defeat a s. 15(1) claim."  n94 The chief question must remain whether the differential treatment caused by the legislation, from the claimant's perspective, will have the effect of violating human dignity.  n95

Moreover, the central concern with the Anti-Terrorism Act is that
government action will adversely impact on Muslims.
The listing of "terrorist groups" and the prosecution of persons
suspected of engaging in "terrorist activity" will be carried out
by administrative bodies and law enforcement officials,
respectively. The anti-hate crime provisions do nothing to allay
the serious and well-founded fear that these government agents
will target members of the Muslim community disproportionately,
instilling a sense of insecurity amongst an already vulnerable
community and devaluing the status of Muslims as full members of
Canadian society. Viewed in this light, therefore, it appears
likely that, notwithstanding the inclusion of provisions
sensitive to the interests of Muslims and other minority groups,
the Act will have the effect of demeaning basic human dignity.

c. Ameliorative purpose

A further contextual factor to consider is whether the impugned legislation has an ameliorative purpose or effect for a historically disadvantaged group. Professor Martin interprets this as follows: "The existence of an ameliorative purpose or effect may help to establish that human dignity is not violated. This may happen when the person or group that is excluded is more advantaged with respect to the circumstances addressed by the legislation ...."  n96 This factor is somewhat confusing because it seems to conflate the section 15(1) analysis with section 15(2), which shields affirmative action programmes from section 15(1) challenges. Moreover, it has been criticized for inviting a balancing of interests at the breach stage, allowing legislative objectives to sneak into the analysis without the concomitant burden of proof on the government.  n97

The ameliorative purpose test has proved a stumbling block for claimants challenging the under-inclusiveness of government-funded programs.  n98 It is unlikely however that this contextual factor will be relevant in cases other than those involving targeted programs. It is difficult to imagine a situation in which an incidental ameliorative purpose could bring the judicial enquiry to a close at this early stage. Certainly, government attempts to save discriminatory legislation at the rights-definition stage under the pretext of amelioration should be vigilantly resisted by the courts, or at least deferred to section 1, where the government will bear the burden of proving the importance and value of the legislation.

In the instant case, the government could argue that the anti-hate crime provisions of the Anti-Terrorism Act serve an ameliorative purpose by advancing the interests of vulnerable minorities. However, this function is peripheral, not central, to the law's overall purpose, and addresses the needs of the very group alleging the section 15(1) violation. For this reason, a consideration of the potential ameliorative purpose of the Act is best left to the second contextual factor: the degree to which the legislation accounts for the claimant's needs, discussed above. Beyond that, the Act does not provide for the amelioration of any other specific group that can be said to be more disadvantaged than Muslims.

d. Nature and scope of the interest

The final contextual factor listed in Law is a consideration of whether the distinction drawn in the impugned legislation "restricts access to a fundamental social institution, or affects a basic aspect of full membership in Canadian society, or constitutes a complete non-recognition of a particular group." n99 The Supreme Court held that "the more severe and localized the consequences of the legislation for the affected group, the more likely that the differential treatment responsible for these consequences is discriminatory within the meaning of s. 15(1)." n100

The nature and scope of the interest affected by the Anti-Terrorism Act  is indeed severe and localized. Muslims were already living in a state of tension and fear in the wake of rising xenophobia and official mistrust of members of the Muslim community, and the effects of stigmatization were apparent almost instantly. Illustrative of this was the arrest of three men in Alberta shortly after the September 11, 2001 attacks. The men were detained on charges of being in Canada illegally and the immigration department immediately raised concern that the men could have "terrorist" connections. n101 The allegations, however, were dropped when it was revealed that the Ministry's concern was completely unsubstantiated. The men's lawyer, Sid Tarrabain, was certain as to the cause of this mistake: "Racial profiling and religious beliefs - that's the only reason they were targeted .... Because they're of Middle Eastern background and because they're of the Muslim religion, it equals possible linking to terrorism? That's a real bad road we're going down." n102

Similarly, in November 2001, a Palestinian refugee claimant was released after being detained for 57 days, 23 of which were spent in solitary confinement. The man, Ribhi Jamel Sheikha, was arrested at Pearson International Airport on September 27, 2001 and held because government lawyers asserted that he was from a country listed by CSIS as "terrorist-harbouring".  n103 The Immigration and Refugee Board, however, determined that there was no legal basis to detain him, calling the government's handling of the case "deplorable."  n104

Such cases were widespread, and went mostly unreported, following the attacks of September 11, 2001. The impact of over-zealous law enforcement, which, in the current context amounts to racial profiling, is tremendous, and can cause irreparable damage to a person's reputation and dignity. The stigma that adheres to a person who has been labelled a suspected "terrorist" will be difficult to remove, and the humiliation of such a designation, particularly in the current social and political climate, should be considered a violation of essential human dignity within the Supreme Court's understanding of the term. Moreover, the inherent damage to a community as a result of racial or religious profiling would certainly operate to exclude individuals of the targeted group from the enjoyment of full membership in Canadian society. The Court in Law stated unequivocally that "any demonstration by a claimant that a legislative provision or other state action has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society ... will suffice to establish an infringement of s. 15(1)." n105

The Coalition of Muslim Organizations expressed the importance of the interest at stake in the proposed legislation in their submission to the Parliamentary Standing Committee on Justice and Human Rights:

For Muslims, the nature of the interest that is threatened by the new legislation is their ability to live in tranquillity as full members of Canadian society, free from unnecessary harassment, malicious prosecution and invasions of privacy based solely on their membership in a particular social and religious group. The implications of the legislation are severe and the focus is localized.

V. SECTION 1 OF THE CHARTER

A. APPROACH

Thus far, this paper has given very little legal weight, if any, to the circumstances precipitating the adoption of the Anti-Terrorism Act,  specifically, the horrific attacks of September 11, 2001 and the increased sense of insecurity across North America. Certainly the law permits the government to take measures, sometimes drastic, to fulfil its duty to protect its citizens from the threat of invasion, attack or subversion. The Charter provides at section 1 the appropriate mechanism for weighing social interests against individual rights. There are some salient features of the analysis which deserve highlighting. First, any balancing of interests must be reserved for this latter part of the analysis. According to Justice McLachlin as echoed by Professor Martin, "there are no inherent limits or internal qualifications which authorize the explicit balancing of interests at the rights definition stage."  n107 Thus, only after establishing that a breach of a Charter right has been occasioned can we begin to consider the rationale, purposes and aims behind the offending conduct. Second,  it should be remembered that at section 1 the burden of proof switches to the government to adduce evidence in defence of the impugned legislation. The Supreme Court has held that the government's burden in justifying a breach of section 15(1) is no less exacting than in other Charter contexts. In Andrews, Justice Wilson stated: "Given that section 15 is designed to protect those groups who suffer social, political and legal disadvantage in our society, the burden resting on the government to justify the type of discrimination against such groups is appropriately an onerous one. "  n108

Having established that the Anti-Terrorism Act does violate the section 15(1) rights of Muslims in Canada, we can now move to section 1 to assess the issue of justification. The central question in this case will be whether the government can show that violating the equality rights of Muslims in Canada is both a "reasonable limit prescribed by law" and that it is "demonstrably justifiable in a free and democratic society." The Oakes test is the authoritative analytical tool to measure the government's justificatory arguments.  n109 Under the Oakes framework, the government must establish, on a balance of probabilities, that the law's objective is sufficiently pressing and substantial to warrant overriding a constitutionally protected right, and that the means chosen to implement the objective are proportional to the objective. While it is conceded that the government is likely to advance a persuasively important objective behind the adoption of the anti-terrorism legislation, the means chosen are misplaced and disproportionate to the Act's stated aims.

B. "PRESCRIBED BY LAW"

Before embarking on an analysis of the government's prospective justifications for the violation of section 15(1), it must first be established that the infringement of the right is "prescribed by law." In Little Sisters,  Justice Binnie stated that "violative conduct by government officials that is not authorized by statute is not 'prescribed by law' and cannot therefore be justified under s. 1."  n110 The government can fail this threshold test where the law is found to be sufficiently imprecise or vague, in which case the court's examination will proceed no further and the Charter violation will be considered unjustifiable ab initio.  n111

In the case of the Anti-Terrorism Act, it can be argued that the definition of "terrorist activity" is so unclear and expansive as to render it devoid of legal meaning. In the words of Justice Gonthier, writing for the Court in Nova Scotia Pharmaceuticals:

The Act fails on both grounds in that it confers an overly general amount of discretion on police and governmental authorities, while it also uses language that is obscure and overly broad. As discussed above in Part III, the Act purports to define "terrorist activity" for the first time in Canadian legal history. Jurists around the world have struggled unsuccessfully for decades to reach a workable definition. The definition adopted in the Act could capture a range of activities, from throwing teddy bears at an anti-globalization rally, to raising charity for developing countries. Meanwhile, the proposed legislation establishes an administrative process for listing "terrorist groups", and effectively places a reverse onus on members of such groups to disprove the label without the benefit of being able to challenge the information upon which the determination was made.

The amount and generality of discretion placed in the hands of law enforcement agencies and administrative bodies is so great that the public will be unable to know with any degree of certainty whether they are conducting themselves within the boundaries of the law. Moreover, in light of the discriminatory impact that the legislation will have on Muslims in Canada, the vagueness of the law is likely to lead not only to arbitrary and unpredictable enforcement against an identifiable group, but a corresponding chilling effect on the activities of members of that group for fear that any number of their activities may be caught by the expansive reach of the law.

The legal ambiguity that arises from the enactment of the Anti-Terrorism Act flies in the face of the two rationales underlying the "doctrine of vagueness": fair notice to the citizen and limitation of enforcement discretion.  n113 Both of these rationales stem, at least philosophically, from the rule of law,  n114 which has been characterized by the Supreme Court as an underlying principle of the Canadian constitutional structure. n115 Fair notice consists of a procedural as well as a substantive element, requiring more than formal dissemination of the text of the law. Especially in cases where knowledge cannot be presumed, the government is under an obligation to provide fair notice of the substantive content in order to ensure that the public is informed of the kind of conduct that falls within the scope of criminality.  n116 Given the ambiguity surrounding the term "terrorist" and the conflicting values and assumptions inherent therein, the failure of the Anti-Terrorism Act to provide a limited and precise definition of acts considered to be "terrorist" amounts to a deficient discharge of the government's burden of "fair notice".

The second rationale upon which the doctrine of vagueness is built is the limitation of enforcement discretion. In the Prostitution Reference,  Justice Lamer (as he then was) described the test as, "whether the impugned sections of the Criminal Code can be or have been given sensible meanings by the courts. In other words is the statute so pervasively vague that it permits a 'standardless sweep' allowing law enforcement officials to pursue their personal predilections?"  n117 Justice Lamer adopted the Court's view in Morgentaler, that "flexibility and vagueness are not synonymous."  n118 All legislation mandates a certain degree of enforcement discretion to enable the law to be applied effectively. However, where the law employs terms or concepts that have not been given "sensible meanings by the courts", those provisions can be said to be vague. As discussed at Part II, the courts in Canada have failed, in the immigration context, to ascribe a discernible legal meaning to the term "terrorist". This failure is more than mere "flexibility" in the law; it amounts to a "standardless sweep" in which alleged "terrorists" are determined not by a rigorous judicial enquiry, but rather on the personal opinions and secret information of governmental authorities.

In Nova Scotia Pharmaceuticals, the Supreme Court explained that "[a] law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute."  n119 This is precisely the kind of situation that the Anti-Terrorism Act creates. The expansiveness of the definition of "terrorist activity" and the offences of "facilitation" and "financing" give law enforcement officials an overly wide degree of latitude to determine whom to prosecute. This invites abuse through the selective targeting of members of a particular community - in this instance, Muslims. Due to the lack of legislative precision to carefully limit the ambit of the law, convictions are virtually guaranteed in every case, even in circumstances where there has been no criminal intent.

The importance of limiting enforcement discretion lies in the aim to preserve the judiciary's role as final arbiter, an essential feature of the rule of law.  Substantive notice can be seen as test of forseeability.  n120 Thus, when prosecution inevitably leads to conviction; when accused persons are unaware of the conduct that has rendered them criminally liable; when the law is so general and expansive as to make compliance indiscernible, the legislation can be said to be devoid of legal meaning. This is the reality that is created by the Anti-Terrorism Act.

Although there are solid grounds of vagueness upon which to dismiss the government's section 1 justification, the case law indicates that courts are very reluctant to dispose of a matter at the preliminary stage of the analysis.   n121 This appears to be particularly true in cases such as this, where the government is pursuing specific social aims that seek to protect citizens from harm.  n122 Such aims are weighed at the next stage of the section 1 test.

C. PRESSING AND SUBSTANTIAL LEGISLATIVE OBJECTIVE

The stated motivations and objectives of the government in adopting its "anti- terrorism" plan are well known. The legislation was introduced one month after the notorious events of September 11, 2001 and the then-Justice Minister, Anne McLellan, was unequivocal and unapologetic about the government's aim to use the strength of the law against "those who support, plan and carry out acts of terror ...."  n123 The first of the government's four objectives is to "stop terrorists from getting into Canada and protect Canadians from terrorist acts. "  n124 The other objectives focus on identifying and prosecuting "terrorists",  protecting the Canadian economy and working with international partners (particularly the U.S.) in the global "war on terror".

These objectives are, at first glance, legitimate if not laudable. The fact that the government elucidated and publicized its objectives so actively may assist in what is typically a critical stage of the section 1 analysis: characterization of the objectives. The court reserves the right to characterize governmental intent in whatever way that it chooses.  n125 However, in this instance, the government went to such great lengths to explain and justify the adoption of the Anti-Terrorism Act that the issue of characterization is likely not to be contested. Moreover, judges have in the past shown a high degree of deference to governmental objectives, placing them within the sphere of legislative discretion, and as such, the courts have rarely ended their examination at this stage.  n126 Indeed, it seems that, absent a blatantly discriminatory objective  n127 or a complete lack of purpose,  n128 the courts will assume that the government has pursued a legitimate legislative aim.

D. RATIONAL CONNECTION

Despite a finding that the objectives of the impugned legislation are pressing and substantial, the government is next required to establish that the measures it has adopted are rationally connected to the objectives it is pursuing. The test calls for an assessment of how well the government has tailored its legislation to its purpose. It must be "carefully designed to achieve the objective in question" and it should not be "arbitrary, unfair, or based on irrational considerations." n129

Professor Hogg has written that "the essence of rational connection is a causal relationship between the objective of the law and the measures enacted by the law."  n130 This necessitates an elaborate enquiry, which often depends heavily on social science evidence, but also on a considerable amount of stretching of the judicial imagination. The Supreme Court has ruled that a high standard of hard evidence is not necessary at this stage of the analysis, and that judges may substitute their own perceptions of "logic" or "common sense" to satisfy the rational connection test.  n131 This elastic interpretation of rational connection raises serious concerns about the infusion of personal opinion (and prejudices) into the judicial enquiry. It allows the court to effectively adopt positions, in the absence of proper evidence, which may be founded on discriminatory assumptions.

With that in mind, it is possible that the courts will see a rational connection between preventing terrorism and adopting measures that disproportionately impact on a particular community, namely Muslims. It is common knowledge that the attacks on the World Trade Center and Pentagon were perpetrated by Muslim extremists. In fact, the perception of an "Islamic threat" pre-dated these notorious events and has been a central security concern for quite some time. In 1999, CSIS reported that, whereas security risks previously reflected "a largely left-wing ideological foundation, today's terrorists are increasingly likely to be motivated by campaigns of ethnic nationalism or religious extremism .... Islamic extremists literally pose the largest danger in terms of religious terrorism."  n132 This was echoed in its Public Report of 2000, in which CSIS warned that "one of the prime motivators of contemporary terrorism is Islamic religious extremism".  n133 The Report went on to describe how the greatest threats of political violence in Canada stem from foreign conflicts, and as such, "mass migration, combined with the growth of transnational criminal activity, remains a security concern."  n134 It can be presumed that government policy has been informed by CSIS reports, which draw a direct link between "Islamic religious extremism", Canadian immigration and threats to Canadian security.

It is difficult to critically assess the veracity of information provided by CSIS given the cover of secrecy under which the agency operates. However, as discussed above in Part II, expert testimony before the Federal Court in the immigration context has criticized CSIS information as often biased, unreliable and politically motivated. In cases such as Baroud and Suresh, we have seen how persons remotely connected to militant groups have been excluded from Canada on the basis of CSIS information identifying them as "terrorists". Moreover, it should be considered that, despite the apparent prevalence of Muslim extremism as a threat to security, this does not lead to the conclusion that all Muslims are "terrorists", or that discriminating against Muslims will necessarily protect Canadians from "terrorism".

A law should not pass the rational connection test if it is arbitrary, unfair, based on irrational considerations or not well designed.  n135 Many commentators have impugned the Anti-Terrorism Act on some, or all,  of these grounds. In its Submission on Bill C-36, the Canadian Bar Association stated that the proposed definition of "terrorist activity" is "too inclusive and extremely unwieldy."  n136 It went on to warn against the dangers of adopting a definition which explicitly links "terrorist" offences to a religious or ideological context, for this provides a statutory basis for unfair enforcement based on discriminatory considerations.

Nonetheless, given the Supreme Court's adoption of a flexible test to determine rational connection, including the use of "common sense" and "logic",  it is possible that the Act could pass the threshold of causation. Of course it is misguided to accept the causation argument, which essentially characterizes all Muslims as potential "terrorists"; but given the tenor of current day "common sense", the courts are not likely to contest government assertions. Rational connection has, in most Charter cases, been a relatively simple hurdle to surmount, leading directly to the next stage, minimal impairment, which has been a much more determinative step in the analysis. However, Professor Martin has noted that "the rational connection test has figured much more prominently in equality cases and has been relied upon as frequently as minimum impairment."  n137 This is presumably unique to section 15(1) because, having established that discrimination has occurred, it should be a most onerous task to explain it rationally.

Thus, it is not advisable to concede a rational connection in the instant case,  despite the possibility that one may be found. In any case, if my arguments contesting the causal link between the impugned legislative means and the objective sought do not succeed, these same arguments can be extended to challenging the degree of intrusion effected by the legislation at the next stage.

E. MINIMAL IMPAIRMENT

This test requires the government to adopt the "least drastic means" of achieving its stated objective, although the courts may use flexible standards and afford the government some discretion in selecting means.  n138 In McKinney, the Supreme Court held that, when forced to balance the interests of competing social groups and values, the question to be asked is, "whether the government had a reasonable basis for concluding that it impaired the relevant right as little as possible given the government's pressing and substantial objectives."  n139 The argument is likely to be made that the Anti-Terrorism Act is precisely the kind of situation addressed in McKinney, where the interests of the law's beneficiaries are equally legitimate and in need of protection as the rights of those adversely affected by the law. In such a case, it would be argued, the government must be allowed to waver from the strict standard of "least drastic means".

However, it should be remembered that the Act constitutes an amendment to the Criminal Code, and the consequences to personal liberty are of the most extreme nature. In such cases, where the state is the "singular antagonist", the Supreme Court has held that the minimal impairment standard must remain the "least drastic means".  n140 The criminalization of "terrorist activity" is not analogous to restricting children's advertising or mandatory retirement; there are no competing social groups or interests at stake. The legislation pits the state against the individual, not in an attempt to protect a specific disadvantaged group, but for the interests of society as a whole. The consequences to the individual whose rights are infringed by the state include the potential loss of liberty and stigmatization. For these reasons, the government should be held to the strictest minimal impairment standard.

Assuming that the enquiry will proceed on this basis, it is clear that the Act cannot withstand such scrutiny. The government was not required to attempt a definition of "terrorist activity" in order to track and prosecute persons involved in violent political crime. There were a number of legal instruments already in place that could be employed to achieve the same objectives, without the necessary discriminatory impact. Such tools include vast investigative powers under the Canadian Security Intelligence Service Act and the National Defence Act, as well as Criminal Code provisions targeting "criminal organizations".

Attempting to reach a neutral, non-politicized definition of "terrorist" was an impossible undertaking, and indeed an unnecessary one, when one considers that "terrorists" could simply be prosecuted under the law of organized crime. Such provisions are not only accessible for apprehending and imprisoning "terrorists", but also for monitoring their activities to prevent the commission of violent crimes. Existing law covered a wide spectrum of criminal activity including conspiracies, attempts and accessories. In certain circumstances, it is recognized that extreme measures are sometimes necessary: warrantless searches and arrests; highly invasive investigative techniques, including surveillance; the power to keep information secret; and the denial of interim release. The sentencing provisions under the Criminal Code  allow the courts to impose heavy penalties where appropriate, and non- citizens are subject to even more rigorous law enforcement practices under the Immigration Act.

It is not necessary to provide a detailed list of existing legal tools available to achieve the aims of the Anti-Terrorism Act. The Canadian Bar Association included a comprehensive list in its Submission.   n141 All that is required at this stage of the section 1 analysis is to establish that less intrusive means are available -- which they certainly were. It should be warned that these less intrusive tools could nonetheless be applied in a discriminatory fashion, and the government should remain vigilant to guard against law enforcement abuses. However, Canadian criminal law (prior to the enactment of the Anti-Terrorism Act) did not necessarily lead to a violation of section 15(1), while the anti- terrorism provisions do.

F. DELETERIOUS AND SALUTARY EFFECTS

It is unlikely that the judicial enquiry would reach the final step of the section 1 test, and if it were to, the issues would not be dissimilar to those at the earlier stages. According to Professor Hogg, "this step has never had any influence on the outcome of any case."  n142 Thus, for the purposes of this analysis, suffice it to say that the negative effects of the section 15(1)  breach far outweigh the potential benefit of the Anti-Terrorism Act.  The enforcement of the Act is certain to undermine the basic human dignity of Muslims in Canada, who will be subject to increased suspicion and scrutiny, and whose role in Canadian society will be severely undermined. Meanwhile, the benefits are questionable. There is no guarantee that "terrorism" will be eradicated, or even that some or all "terrorists" will be caught. If Canada is indeed living under an increased threat of "terrorism", it is impossible to say with any degree of certainty that the Anti- Terrorism Act will alleviate or remove that threat.

VI. DISCRIMINATORY APPLICATION AND PREVENTION

A significant degree of uncertainty has entered the law on the issue of discriminatory effects flowing from the administration of a legislative scheme.  In Little Sisters, the Court found that Customs officers had, pursuant to provisions in the Customs Act, systematically targeted materials imported by the complainant gay and lesbian bookstore. There was no doubt that the Charter rights of the complainant had been violated. However, on the issue of the appropriate remedy, the majority of the Court held that the proper cure for the discriminatory administration of the law was not a declaration of invalidity under section 52(1) of the Constitution, but rather a Charter section 24(1) remedy aimed at improving implementation. The result of this ruling was that after many years of costly litigation, the "successful" appellants were left with a declaration from the Court that their rights had been infringed, and the vague hope that the government would feel obliged to alter its discriminatory conduct. Meanwhile, the judgment did little to ensure that other vulnerable groups would not be subject to debilitating discrimination at the hands of government officials, nor was it sympathetic to the immense costs of litigating such a complaint.

A more persuasive judgment in the case was rendered by Justice Iacobucci, in dissent. He stated that Parliament is under a duty to take reasonable steps to prevent the violation of Charter rights in the application of the law, and not merely to ensure that the law is neutral on its face.  n143 The mere possibility that the legislation could conceivably be administered in accordance with the Charter was insufficient protection for potential victims of discrimination. Justice Iacobucci's line of reasoning is consistent with the Court's ruling in Morgentaler, where the Court held: "Even if the purpose of the legislation is unobjectionable, the administrative procedures created by law to bring that purpose into operation may produce unconstitutional effects, and the legislation should then be struck down."  n144

As discussed in Part IV, indirect or adverse effect discrimination is a core element of section 15(1) jurisprudence and gives rise to the same remedial options as "direct" discrimination. In Big M Drug Mart, the Supreme Court established the principle that the section 52(1) "striking down" remedy is available where the general discriminatory effects of a legislation render it unconstitutional.  n145 Indeed, if Charter rights are to be infused with substantive meaning, there is no reasonable alternative. The Supreme Court clearly established in Andrews that section 15(1) can equally be violated either directly or indirectly. The natural extension of this interpretation must be that, in dealing with administrative schemes which lead to the systematic violation of Charter rights, the statutory framework that facilitates the rights infringements must be open to constitutional attack as a whole. Despite Justice Binnie's concern that "there is a great deal of legislation concerning Charter-sensitive conduct -- by the police, for example -- that is constitutionally deficient",  n146 the Supreme Court has already affirmed that some legislative schemes are simply overly conducive to abuse and must be invalidated.

The Anti-Terrorism Act is an example of a legislative package which is fundamentally flawed and deserves striking down, despite the fact that it may be neutral on its face, and notwithstanding that in a perfect world, it may be administered fairly. Under current circumstances, the Act creates a palpable and unreasonable risk of discrimination for Muslims in Canada on the basis of race, religion, colour and ethnic or national origin.

Section 15(1) purports to protect against discrimination, which implies that steps be taken prior to the violation of rights in order to prevent the undermining of fundamental human dignity. For this reason, the majority judgment in Little Sisters is disturbing, for it seems to avail the government of any responsibility to ensure not only that the law is facially neutral, but that it will not be applied in a discriminatory manner. Must potential victims of government discrimination wait for a pattern of abuse to emerge before they can even begin the lengthy and costly process seeking constitutional remedies? Certainly, the Charter, and section 15(1) in particular, must provide a mechanism with which to fulfil its preventative function. This is a particularly pressing concern in an instance such as this, where the Act occasions a harm that is potentially life destroying, and a risk of harm that is virtually certain. In Hunter,  the Supreme Court interpreted the purpose of section 8 of the Charter to include the prevention of unjustified searches before they happen, not only providing remedies after the fact.  n147 Such a preventative approach should be similarly incorporated into the judiciary's interpretation of section 15(1).

Under the Anti-Terrorism Act, the prosecution of alleged "terrorist" offences and the listing of "terrorist groups" by administrative decree will have highly prejudicial effects on those targeted. Eventual vindication will do little to alleviate the harm inflicted, while all members of vulnerable groups will have to live with the anxiety and insecurity of systemic discrimination. Thus, if the government refuses to submit the Act to the Supreme Court for a constitutional reference,  n148 a public interest challenge should be permitted to proceed, and the section 52(1) remedy of invalidation should be available to the applicants.

VII. CONCLUSION

Section 15(1) is a guarantee of non-discrimination, setting essential human dignity as its defining standard. It follows that members of vulnerable minorities should not be placed in the position of having a well-founded fear that a statutory scheme will be applied against them in a discriminatory manner. Moreover, the Canadian public, as a whole, should be able to feel confident that the law will be administered in accordance with the principle of equality. Indeed, legislation should not create concern that discrimination will take place. Canada's Anti-Terrorism Act does not meet these bare requirements. In fact, it instils a well-founded fear amongst members of a disadvantaged group not only that the law will adversely affect them, but also that, in implementation, it will actually target them on the basis of their race, religion, colour and ethnic or national origin.

This paper has surveyed the history of "terrorism" in both international law and Canadian jurisprudence, focusing on the legacy of racism and bias in the interpretation of the word "terrorism". I have argued that the definition of "terrorist activity" in the Act is over-inclusive and carries the risk that it will capture both unlawful activities that should not be characterized as "terrorism" and the perfectly lawful activities of well-intentioned individuals. I have also argued that the process of listing "terrorist groups" confers a dangerous amount of discretion on government officials and carries the risk of bringing the reputation of innocent persons into disrepute on the basis of secret and often biased intelligence information.

Considering the objective and purpose behind the equality guarantee, concerned about the potential for differential treatment under the Act, and taking into account relevant contextual factors, this paper has endeavoured to show that the Anti-Terrorism Act encroaches upon the section 15(1) rights of Muslims, an identifiable and vulnerable segment of Canadian society. Any government justification cannot reasonably uphold the legislation, even though the stated government interest lies in protecting national security and public safety. The definition of "terrorist" offences is likely too vague to be considered "prescribed by law", the objective of protecting Canadians cannot be rationally connected to measures which target Muslims, and the means adopted are not minimally impairing. The balance the government has attempted to strike is simply misguided. It can only be hoped that sober judicial reasoning will prevail over alarmist political reflexes, and that the offending provisions will be struck down on the first possible occasion.

FOOTNOTES :

n1 Bill C-36, An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism, 1st Sess., 37th Parl., 2001, (assented to December 18, 2001), S.C., 2001 c. 41 [Anti-Terrorism Act].

n2 Department of Justice Canada, "Government of Canada Introduces Anti- Terrorism Act," online: http:// canada.justice.gc.ca/en/news/nr/2001/doc_27785. html, 15 October 2001.

n3 Ibid.

n4 Ibid.

n5 Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code ].

n6 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 [Charter].

n7 For a good collection of articles discussing the legislation's
Charter failings, see Daniels, Macklem & Roach, eds.
The Security of Freedom: Essays on Canada's Anti-Terrorism
Bill (Toronto: University of Toronto Press, 2001).

n8 New Brunswick (Minister of Health and Community Services) v. G.(J),  [1999] 3 S.C.R. 46 at 99.

n9 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 185 [Andrews].

n10 Noam Chomsky, "Libya in US Demonology" in Noam Chomsky, Pirates and Emperors: International Terrorism in the Real World (Montreal: Black Rose Books, 1987) at 113.

n11 Louis Rene Beres, "The Question of Terrorism within the Framework of International Law" in Hans Koechler ed., Terrorism and National Liberation (Frankfurt: Verlag Peter Lang, 1988) 253 at 254.

n12 John Stuart Mill, On Liberty (1847) cited in Christopher L. Blakesley, Terrorism, Drugs, International Law, and the Protection of Human Liberty (New York: Transnational Publishers, 1992) at 20.

n13 John F. Murphy, State Support of International Terrorism (Boulder: Westview Press, 1989) at 5 [Murphy].

n14 Ibid.

n15 Cited in Murphy, supra note 13.

n16 Rosalyn Higgins, "The General International Law of Terrorism" in Rosalyn Higgins & Maurice Flory, eds., Terrorism and International Law (New York: Routledge, 1997) at 15.

n17 Murphy, supra note 13 at 16.

n18 These are: International Convention for the Suppression of the Financing of Terrorism (1999), the International Convention for the Suppression of Terrorist Bombings (1998), Montreal Convention on the Marketing of Plastic Explosives for the Purpose of Detection (1991), Protocol on the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (1988), Rome Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988), Protocol to the Montreal Convention for the Suppression of Unlawful Acts of Violence at Airports serving Civil Aviation  (1988), the Vienna Convention on the Physical Protection of Nuclear Material (1980), International Convention against the Taking of Hostages (1979), International Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973), Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971) , Hague Convention for the Suppression of the Illegal Seizure of Unlawful Acts against the Safety of Civil Aviation (1970), and Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft (1963). Canada has signed and ratified ten of these twelve treaties and plans to ratify the most recent two as part of the proposed legislation.

n19 Laurence Freedman et. al., Terrorism and International Order (London: Routledge, 1986) at 14.

n20 Ibid.

n21 Beres, supra note 11 at 254.

n22 Ibid.

n23 Ibid.

n24 Higgins, supra note 16 at 28.

n25 William D. Perdue, "The Selling of International Terrorism" in Koechler, ed., supra note 10 at 217.

n26 Ibid. at 218.

n27 Perdue, supra note 25 at 217.

n28 Ibid. at 230.

n29 Immigration Act, R.S.C. 1985, c. I-2 [Immigration Act ]. On November 1, 2001, Parliament enacted the Immigration and Refugee Protection Act, S.C. 2001, c.27. The new Act entered into force on June 28, 2002, replacing the old Act as of that date.

n30 See Immigration Act, s. 19(1), (e) and (f).

n31 Sharryn Aiken, "Manufacturing 'Terrorists': Refugees, National Security, and Canadian Law" (December 2000) 19 Refuge 54 at 64 [emphasis in original].

n32 See Immigration Act, supra note 29, s. 39, 40 and 40.1.

n33 Immigration Act, supra note 29 at s. 40(2).

n34 Ahani v. Canada (1995) 3 F.C. 669 (T.D.).

n35 This issue was specifically addressed in the case by expert witness Professor Reg Whitaker, who testified to the unreliability of CSIS information concerning Middle Eastern and Muslim countries.

n36 Ahani, supra note 33 at 677 [emphasis added].

n37 David Matas, Closing the Doors: The Failure of Refugee Protection  (Toronto: Summerhill Press, 1989) at 33.

n38 Re Baroud [1995] F.C.J. No. 829 (T.D.) [Baroud].

n39 Ibid. at para. 18.

n40 Ibid. at para. 21.

n41 Reg Whitaker, "Refugees: The Security Dimension" (1998) 2 Citizenship Studies 413 at 427.

n42 Baroud, supra note 37 at para. 30.

n43 Re Suresh [1997] F.C.J. No. 1537 (T.D.) at para. 26.

n44 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 [Suresh]. See also Ahani v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 72 [ Ahani].

n45 The Court did, however, hold that section 7 rights are engaged where a person is subject to deportation to a state where he will face a substantial risk of torture.

n46 Suresh, supra note 44 at 55.

n47 Cited in Suresh, supra note 44 at 55.

n48 Ibid. at 59.

n49 Ibid. at 57.

n50 The Supreme Court has ruled that differential treatment between citizens and non-citizens is permitted under the "security" provisions of the Immigration Act in view of the fact that permanent residents do not enjoy a right to remain in Canada under section 6 of the Charter. See Chiarelli v. Canada (Minister of Employment and Immigration) [1992] 1 S.C.R. 711. This differentiation, however, only means that the option of deporting a permanent resident is not in itself a violation of the Charter, but does not relieve government of its duty to uphold the Charter rights of permanent residents in the determination process.

n51 Singh v. Canada (Minister of Employment and Immigration) [1985] 1 S.C.R. 177 at 206 [Singh].

n52 Sharryn Aiken, "Manufacturing 'Terrorists': Refugees, National Security, and Canadian Law, Part 2" (February 2001) 19 Refuge 116 at 117.

n53 Ibid.

n54 Criminal Code, supra note 5 at s. 83.01(1).

n55 Prior to its entering into force, the Justice Minister announced a number of amendments to Bill C-36, including inter alia, the removal of the term "lawful" from "lawful advocacy" and a clear statement that non-violent expressions of political, religious or ideological beliefs do not constitute terrorist acts. Despite these amendments, the definition as adopted remained problematic in linking religion or ideology to "terrorism". The potential for discriminatory impact remains substantial.

n56 Canadian Bar Association, Submission on Bill C-36 Anti-terrorism Act  (October 2001) at 2 [CBA Submission].

n57 Ibid. at 19.

n58 Criminal Code, supra note 5 at ss. 83.02 - 83.04. (The types of bodies from which information will be sought are listed in section 83.06, and include: government, an institution, or an agency of a foreign state, an international organization of states or an institution of an agency of an international organization of states. Such information is guaranteed secrecy and is shielded from disclosure.)

n59 CBA Submission, supra note 56 at 54.

n60 Ibid.

n61 Criminal Code, supra note 5 at s. 83.01(1).

n62 Ibid., s. 83.03.

n63 Ibid., s. 83.05(6).

n64 Law v. Canada (Minister of Employment and Immigration), [1999 ] 1 S.C.R. 497 [Law].

n65 Ibid. at 509.

n66 Ibid. at 529.

n67 Sheilah Martin, "Balancing Individual Rights to Equality and Social Goals" (2001) 80 Can. Bar Rev. 299 at 303 [Martin].

n68 Law, supra note 64 at 510.

n69 "Indirect", "adverse effect", "de facto", and "systemic" discrimination all refer to discrimination which is not direct. These terms have often been used interchangeably and, for the purposes of this paper, will not be distinguished from one another.

n70 Joseph E. Magnet, Constitutional Law of Canada, 7th ed., (Montreal: Les Editions Yvon Blais, Inc., 1998) at 836.

n71 Ibid.

n72 See Ontario Human Rights Commission v. Simpson Sears, [1985] 2 S.C.R. 531.

n73 Andrews, supra note 9 at 175 [emphasis added].

n74 Eldridge v. British Columbia, [1997] 3 S.C.R. 624 at 671 [emphasis in original].

n75 Rodriguez v. British Columbia, [1993] 3 S.C.R. 519 at 549.

n76 Andrews, supra note 9 at 169.

n77 Law, supra note 64 at 523-524.

n78 Coalition of Muslim Organizations, Submission on Bill C-36 Anti- terrorism Act, November 8, at 22-23.

n79 Law, supra note 64 at 523.

n80 Andrews, supra note 9.

n81 Ibid. at 168.

n82 Law, supra note 64 at 525.

n83 Ibid. at 533.

n84 See Corbiere v. Canada, [1999] 2 S.C.R. 203. An additional contextual factor was added in order to account for the specific circumstances of that case.

n85 Online: CAIR-Canada <www.caircan.ca/itn_more.ph?id=p277_0_2_0_c>. It is reported by CAIR-Canada that there are an estimated 600,000 Muslims residing in Canada.

n86 See generally Orientalism (New York: Pantheon Books, 1978) and Covering Islam (New York: Pantheon Books, 1981). (Professor E.  Said has written extensively on the West's perceptions of Islam and the East.)

n87 Samuel P. Huntington, "The Clash of Civilizations" (Summer 1993) 72 Foreign Affairs 22.

n88 See, for example, Salim Mansur, "Two Solitudes that Aren't" The Globe and Mail (19 November 2001), A11. (A critique of Huntington's thesis since the September attacks.)

n89 See Online: CAIR-Canada <www.caircan.ca>.

n90 It should be noted here that non-Muslim minorities also fell victim to hate crimes intended for Muslims. Attacks on Sikhs, Hindus and Arab Christians,  and on their places of worship, were documented in the aftermath of 11 September 2001. By no means does my argument intend to claim a Muslim monopoly on discrimination. On the contrary, Muslims may be the most visible of this Act's indirect targets, but without a doubt, numerous other communities will also suffer adverse effects.

n91 In "Neighbours as Collateral Damage" The Globe and Mail (14 September 2001) A26, the national president of the Canadian Islamic Congress, Mohamed Elmasry, wrote: "Because most media people and government officials were so quick to link these skillfully orchestrated disasters to the expertise and influence of a militant Saudi dissident, Osama bin Laden, I and all Muslims were clearly 'marked' as guilty by association.".

n92 Department of Justice, supra note 3.

n93 Ibid.

n94 Law, supra note 64 at 551.

n95 Martin, supra note 67 at 321.

n96 Ibid.

n97 Ibid. at 332.

n98 See Law, supra note 64 and Lovelace v. Ontario, [2000] 1 S.C.R. 950.

n99 Martin, supra note 67 at 320.

n100 Law, supra note 64 at 552.

n101 "Treatment of three accused 'race profiling', lawyer says," Toronto Star (25 October 2001) A15.

n102 Ibid.

n103 Phinjo Gombu, "Palestinian refugee claimant celebrates release after 57 days," Toronto Star (23 November 2001), A16.

n104 Ibid.

n105 Law, supra note 64 at 535.

n106 Coalition of Muslim Organizations, supra note 78 at 26.

n107 Martin, supra note 67 at 304. See also Miron v. Trudel [1995] 2 S.C.R. 418.

n108 Andrews, supra note 9 at 154.

n109 R. v. Oakes, [1986] 1 S.C.R. 103.

n110 Little Sisters Book and Art Emporium v. Canada (Minister of Justice) , [2000] 2 S.C.R. 1120 at 1196.

n111 The "doctrine of vagueness" has been particularly instrumental in defeating government attempts to legislate censorship. See Re Ont. Film and Video Appreciation Society (1984), 41 O.R. (2d) 583 (C.A.) [film censorship law] and Luscher v. Revenue Can., [1985] 1 F.C. 85 (C. A.) [ban on importing "immoral" or "indecent" books].

n112 R. v. Nova Scotia Pharmaceuticals, [1992] 2 S.C.R. 606 at 625-626 [Nova Scotia Pharmaceuticals].

n113 See Reference Re ss. 193 and 195.1(c) of Criminal Code (Man.),  [1990] 1 S.C.R.. 1123 [Prostitution Reference], and Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C. R. 139.

n114 Nova Scotia Pharmaceuticals, supra note 112 at 632.

n115 Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 at 239- 240.

n116 Nova Scotia Pharmaceuticals, supra note 112 at 635.

n117 Prostitution Reference, supra note 111 at 1157, adopting the "standardless sweep" test from the American case of Smith v. Goguen,  415 U.S. 566 (1974).

n118 R. v. Morgentaler, [1988] 1 S.C.R. 30 at 107.

n119 Nova Scotia Pharmaceuticals, supra note 112 at 636.

n120 Ibid. at 637, adopting the position of the European Court of Human Rights in the Sunday Times case, judgment of 26 April 1979, Series A No. 30. at paras. 49-50.

n121 Peter Hogg, Constitutional Law of Canada, 2001 Student Edition  (Toronto: Carswell, 2001) at 741.

n122 See, for example, R. v. Butler, [1992] 1 S.C.R. 452 and Little Sisters, supra note 108, (on the meaning of "obscene"); the Prostitution Reference, supra note 111 (on communicating for the purpose of prostitution); and Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 (on communicating "hatred" and "contempt" towards minorities).

n123 Department of Justice Press Release, supra note 2.

n124 Ibid.

n125 Martin, supra note 67 at 338.

n126 Ibid. at 340-341.

n127 See for example, Big M Drug Mart, [1985] 1 S.C.R. 295 at 351 (the objective was "to compel the observance of the Christian Sabbath").

n128 See Vriend v. Alberta, [1998] 1 S.C.R. 493 at 557 (legislative omission was "on its face the very antithesis of the principles embodied in the legislation as a whole, [therefore] the Act itself cannot be said to indicate any discernible objective for the omission").

n129 Oakes, supra note 109 at 139.

n130 Hogg, supra note 121 at 758.

n131 See RJR-MacDonald v. Canada, [1995] 3 S.C.R. 199 [per McLachlin J.].

n132 Canadian Security Intelligence Service, "Perspectives: Trends in Terrorism," Report # 2000/01 (18 December 1999), at para. 5-6.

n133 Canadian Security Intelligence Service, 2000 Public Report (12 June 2001) at 4.

n134 Ibid.

n135 Oakes, supra note 109 at 139.

n136 CBA Submission, supra note 56 at 19.

n137 Martin, supra note 67 at 346.

n138 See R. v. Edwards Books, [1986] 2 S.C.R. 713 (per Dickson C. J.).

n139 McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at 286 [emphasis in original], adopting the reasoning of the Court in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 and Edwards Books, supra note 138.

n140 Irwin Toy, Ibid. at 994.

n141 See CBA Submission, supra note 56.

n142 Hogg, supra note 121 at 765.

n143 Little Sisters, supra note 110 at 1229 (addressing the violation of s. 2(b) freedom of expression).

n144 Morgentaler, supra note 118 at 62 [emphasis in original].

n145 Big M Drug Mart, supra note 127 at 313.

n146 Little Sisters, supra note 110 at 1192.

n147 Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 160.

n148 This was one of the recommendations of the Coalition of Muslim Organizations in its written brief, "Special Senate Committee on the Subject Matter Bill C-36" (5 December 2001) at 15.