The primary responsibility of a democratic state is to protect its citizens against all threats to security, including international and domestic terrorism. However, contemporary forms of global, transnational terrorism pose unique legal and moral challenges for democratic societies. At essence, such challenges turn on the tension between two competing democratic rights: The right of an individual to personal civil liberties, and the right of the overwhelming majority of civil society to collective security.
The Government of Canada balanced these competing democratic rights in the Anti-Terrorism Act (ATA) of December 2001. With this legislation, Canadians “have called for a renewed commitment to values of respect, equality, diversity and fairness and a strong condemnation of hate-motivated violence. Bill C-36 [the implementing legislation for the ATA] contains legislation that addresses the root causes of hatred, reaffirms Canadian values and ensures that Canada’s respect for justice and diversity is reinforced.”
The ATA was subject to much debate. Specifically, some Canadians viewed as threatening to civil liberties those sections of the Act that empower judicial authorities to arrest and detain suspects without warrant if there is a reasonable belief this may prevent an imminent terror attack, and the legal authority to undertake investigative hearings and compel suspects to provide information regarding a terror offense. In Charkaoui v. Canada (February 23, 2007), the Supreme Court of Canada gave Parliament one year to review the “security certificates” and the “detention review procedure” sections of the ATA, which the Court held to contravene the Canadian Charter of Rights and Freedoms. Four days later, on February 27, 2007, a divided Parliament voted to “sunset” those two controversial provisions of the Act.
While recognizing that every effort should be made by a democratic society to protect and respect civil liberties, the fact remains that terrorism is a clear, present, and indeed escalating threat to the collective security of Canadians.The imperative challenge before Parliament is to pass new legislation that ensures that the state retains the capacity to defend its citizens against threats of terrorism while at the same time respecting civil rights in ways consistent with the Charter of Rights and Freedoms.