Table Of ContentTHE SECURITY OF FREEDOM:
ESSAYS ON CANADA'S ANTI-TERRORISM BILL
EDITORS
Ronald J. Daniels is the seventh Dean of the modern Faculty of Law at
the University of Toronto. He has written extensively on the law and
economics of corporate law, securities law, and government regulation.
He is founder and current Chair of Pro Bono Students Canada. He has
served as Chair of the Ontario Task Force on Securities Regulation,
Chair of the Ontario Market Design Committee, and member of the
Toronto Stock Exchange Committee on Corporate Governance. He is
past-President of the Canadian Council of Law Deans.
Patrick Macklem is Professor of Law at the University of Toronto. After
articling with a Toronto law firm specializing in labour law, he served as
Law Clerk for Chief Justice Brian Dickson of the Supreme Court of
Canada. He served as a constitutional advisor to the Royal Commission
on Aboriginal Peoples, and was a Visiting Scholar at Stanford Law School
in 1988 and at U.C.L.A. School of Law in 1992, and a Visiting Professor
at Central European University in 2001. He is the author of Indigenous
Difference and the Constitution of Canada (2001), and co-editor of
Canadian Constitutional Law (1997).
Kent Roach is Professor of Law and Criminology at the University of
Toronto. Professor Roach is the author of Constitutional Remedies in
Canada (1994), which won the Walter Owen Prize as the best English
language law book published in 1994 and 1995, and Due Process and
Victims' Rights: The New Law and Politics of Criminal Justice (1999),
which was short-listed for the 1999 Donner Prize for best book on public
policy. He is also the author of Criminal Law 2nd ed. (2000), and The
Supreme Court on Trial: Judicial Activism and Democracy (2001). He is
also the editor-in-chief of the Criminal Law Quarterly.
Edited by Ronald J. Daniels, Patrick Macklem,
and Kent Roach
The Security of Freedom:
Essays on Canada's
Anti-Terrorism Bill
UNIVERSITY OF TORONTO PRESS
Toronto Buffalo London
www.utppublishing.com
© University of Toronto Press Incorporated 2001
Toronto Buffalo London
Printed in Canada
Reprinted 2002
ISBN 0-8020-8519-9
Printed on acid-free paper
National Library of Canada Cataloguing in Publication Data
Main entry under title:
The security of freedom : essays on Canada's anti-terrorism bill
Papers presented at a conference entitled: The security of
freedom: a conference on Canada's anti-terrorism bill, held
Nov. 9-10, 2001, and sponsored by the University of Toronto
Faculty of Law.
ISBN 0-8020-8519-9
1. Terrorism - Canada - Prevention. 2. Civil rights - Canada -
Congresses. I. Daniels, Ronald J. (Ronald Joel), 1959-
II. Macklem, Patrick III. Roach, Kent, 1961- IV. University of
Toronto. Faculty of Law.
KE9007.S42 2001 344.71'0532 C2001-903772-4
University of Toronto Press acknowledges the financial assistance to its publishing
program of the Canada Council for the Arts and the Ontario Arts Council.
University of Toronto Press acknowledges the financial support for its publishing
activities of the Government of Canada through the Book Publishing Industry
Development Program (BPIDP).
Contents
Introduction by Ronald J. Daniels / 3
The Security of Freedom
The Permanence of the Temporary:
Can Emergency Powers be Normalized?
DAVID DYZENHAUS 721
Cutting Down Trees: Law-Making
Under the Shadow of Great Calamities
OREN GROSS / 39
Terrorism and the Risk Society
DAVID SCHNEIDERMAN / 63
Network Wars
JANICE GROSS STEIN / 73
Governing Security, Governing Through Security
MARIANA VALVERDE / 83
Terrorism's Challenge to the Constitutional Order
LORRAINE E. WEINRIB / 93
vi / Contents
The Charter and Democratic Accountability
Thinking Outside the Box: Foundational Principles for a
Counter-Terrorism Law and Policy
IRWIN COTLER /111
The Dangers of a Charter-Proof and Crime-Based
Response to Terrorism
KENT ROACH / 131
Criminalizing Terrorism
The New Terrorism Offences and the Criminal Law
KENT ROACH / 151
Political Association and the Anti-Terrorism Bill
DAVID SCHNEIDERMAN and BRENDA COSSMAN / 173
Effectiveness of Anti-Terrorism Legislation: Does
Bill C-36 Give Us What We Need?
MARTHA SHAFFER / 195
The Dangers of Quick Fix Legislation in the Criminal Law:
The Anti-Terrorism Bill C-36 should be Withdrawn
DON STUART / 205
Terrorism and Criminal Justice
Rule of Law or Executive Fiat? Bill C-36 and
Public Interest Immunity
HAMISH STEWART / 217
The Anti-Terrorism Bill and Preventative Restraints on Liberty
GARY T. TROTTER / 239
Information Gathering
Is Privacy.a Casualty of the War on Terrorism?
LISA AUSTIN 7251
Police Powers in Bill C-36
MARTIN L. FRIEDLAND / 269
Intelligence Requirements and Anti-Terrorism Legislation
WESLEY K. WARK 7287
Contents / vii
Financing Terrorism
Cutting off the Flow of Funds to Terrorists: Whose Funds?
Which Funds? Who Decides?
KEVIN E. DAVIS / 299
Charitable Status and Terrorist Financing: Rethinking the Proposed
Charities Registration (Security Information) Act
DAVID G. DUFF / 321
International Dimensions of the Response to Terrorism
Terrorism and Legal Change: An International Law Lesson
JUTTA BRUNNEE/ 341
Canada's Obligations at International Criminal Law
PATRICK MACKLEM / 353
Administering Security in a Multicultural Society
Protecting Equality in the Face of Terror: Ethnic and
Racial Profiling and s. 15 of the Charter
SUJIT CHOUDHRY / 367
Borderline Security
AUDREY MACKLIN / 383
A Thousand and One Rights
EDWARD MORGAN / 405
The Intersection of Administrative Law with the Anti-Terrorism Bill
LORNE SOSSIN / 419
Concluding Comments from the Department of Justice / 435
Appendix A: Annotated and Selected Excerpts of Bill C-36 / 447
Appendix B: Public Order Regulations, October, 1970 / 495
ACKNOWLEDGMENTS
The organization of the Security of Freedom conference, and the production of this
book, took place in the space of less than three weeks. Such an achievement in such a
short time is the result of the incredible energy and dedication of a number of people.
First and foremost, we want to thank Kate Hilton, the Director of Special Projects at
the Faculty, for serving as Conference Coordinator. The task of successfully mounting
the conference, of coordinating with the University of Toronto Press, of working with
our numerous authors fell to Kate, who discharged all of these responsibilities with her
characteristic skill, diligence, commitment, and good cheer.
We want to also thank the staff of University of Toronto Press for embracing the
challenge of delivering a finished book one week after the beginning of the conference.
George Meadows and Bill Harnum, along with Melissa Pitts, Roy Schoenberger, Molly
Schlosser, Malgosia Halliop, Bruce Peters, and Virgil Duff, all worked long and hard to
make the impossible possible. In this they were motivated, as so many others were, to
demonstrate the capacity of the academy to contribute to public debate and deliberation
on a pressing policy issue in a timely and effective manner.
We also want to thank Robert Birgeneau, President of the University of Toronto, and
Adel Sedra, Vice-President and Provost of the University of Toronto, for lending
financial support for the publication of the proceedings of the conference. On very short
notice, Paul Gooch, the President of Victoria University, and his staff, graciously al-
lowed us to hold our conference in the Isabel Bader Theatre when we found our
registrations had soared beyond what we could accommodate at the Faculty of Law.
Members of the administrative staff at the Faculty of Law worked tirelessly to put on a
major conference with little notice. We wish to thank Jennifer Tarn, the Events Coordina-
tor at the Faculty, and Cheryl Sullivan, Director of Communications, for their invaluable
assistance. We also want to thank Ivana Kadic and Jill Given-King for lending support
when it was needed. We also want to thank Marylin Raisch and Shikha Sharma of the
Faculty's Law Library, who were responsible for compiling on-line research materials
and the Appendix to this book. We also want to express our appreciation to Susan Barker
who was responsible for creating the conference website.
In mounting the conference, we were ably assisted by the support and participation of
several prominent members of the legal and academic communities who agreed to chair
panels at the conference. Specifically, we wish to thank Ronald Atkey, Alan Borovoy,
Michael Code, Nathalie Des Rosiers, Allan Gotlieb, Andrew Petter, and Peter Russell
for their invaluable contributions.
Many of the chapters of the book were critical of certain aspects-of the proposed
legislation (some of the entire legislative project), but we were struck by the commit-
ment, decency, and good faith of members of the Department of Justice who traveled to
Toronto to participate in the conference. We are particularly appreciative of the involve-
ment of Messrs. Richard Mosley and Stan Cohen of the Department of Justice who
offered their comments at the end of the conference.
Finally, we want to express our deepest gratitude to our academic colleagues in and
outside of the University of Toronto who participated in this endeavour. By elevating
this enterprise to the top of their research priorities, and for embracing so readily the
challenges and the opportunities for contributing to public debate on this most urgent of
public policy matters, they demonstrated in vivid terms their collective and enduring
commitment to the public weal.
Ronald Daniels, Patrick Macklem, and Kent Roach
Toronto, November 12, 2001
THE SECURITY OF FREEDOM:
ESSAYS ON CANADA'S ANTI-TERRORISM BILL
