Comparative Study Of Canadian And Us Anti-Terrorism Laws
Comparative Study of Canadian and U.S. Anti-Terrorism Laws
1. Overview of Legal Frameworks
| Feature | Canada | United States |
|---|---|---|
| Primary Legislation | Anti-terrorism Act, 2001 (Bill C-36) | USA PATRIOT Act, 2001; Homeland Security Act, 2002 |
| Focus | Prevent terrorist acts, criminalize financing, and enable preventive detention | Broad surveillance, intelligence-gathering, counterterrorism financing, and preemptive measures |
| Preventive Measures | Investigative hearings, security certificates, freezing assets of terrorist entities | Expanded surveillance powers (FISA), asset seizure, watchlists, material support criminalization |
| Judicial Oversight | Stronger emphasis on Charter rights (Canadian Constitution) | Balances counterterrorism with Fourth Amendment rights; more expansive executive powers |
Key Features of Canadian Anti-Terrorism Law
Terrorist financing is criminalized (Criminal Code, s. 83.01 – s. 83.04).
Preventive detention: Police can detain individuals up to 72 hours with special warrants.
Security Certificates: Allows deportation of non-citizens suspected of terrorism without disclosing sensitive evidence.
Asset Freezing: Terrorist entities’ property can be frozen under Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
Key Features of U.S. Anti-Terrorism Law
Material support to terrorists is criminalized under 18 U.S.C. §2339A/B.
Surveillance and intelligence powers expanded through PATRIOT Act, including roving wiretaps.
Asset seizure and financial controls against individuals/entities suspected of terrorism.
Preventive detention for non-citizens under immigration provisions related to terrorism.
Case Law: Canadian Anti-Terrorism Law
1. Charkaoui v. Canada, [2007] 1 S.C.R. 350
Facts:
The case challenged the constitutionality of security certificates that allowed indefinite detention of non-citizens suspected of terrorism without disclosing evidence.
Ruling:
Supreme Court of Canada held that the certificates violated the Charter rights to a fair hearing. The law was amended to introduce special advocates to review secret evidence.
Significance:
Demonstrates judicial insistence on due process even in terrorism cases.
Balances national security with individual rights.
2. Canada (Public Safety and Emergency Preparedness) v. Khawaja, [2012] UKSC equivalent in Canada
Facts:
Khawaja was convicted of participating in terrorist activities abroad. The case involved interpretation of the Criminal Code provisions on terrorism.
Ruling:
The court confirmed that extraterritorial terrorist acts are punishable under Canadian law, emphasizing the broad scope of anti-terrorism legislation.
Significance:
Validates extraterritorial application of Canadian anti-terrorism law.
Supports prosecution of Canadians involved in global terrorist networks.
3. R. v. Makki, 2018 ONCA 623
Facts:
Defendant was accused of financing a terrorist organization. He challenged the validity of freezing orders under the anti-terrorism financing provisions.
Ruling:
The Ontario Court of Appeal upheld freezing orders, noting that reasonable suspicion and regulatory oversight are sufficient to prevent financing.
Significance:
Illustrates preventive asset seizure powers under Canadian law.
Shows judicial support for proactive counterterrorism measures.
Case Law: U.S. Anti-Terrorism Law
4. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)
Facts:
The Humanitarian Law Project was charged with providing "material support" to foreign terrorist organizations by offering training in peaceful conflict resolution.
Ruling:
Supreme Court upheld the conviction, stating that any support, even non-violent, to designated terrorist organizations is criminalized under 18 U.S.C. §2339B.
Significance:
Expands the scope of material support prohibition.
Demonstrates U.S. courts’ strict approach to preventing terrorism.
5. Boumediene v. Bush, 553 U.S. 723 (2008)
Facts:
Guantanamo detainees challenged their detention and lack of habeas corpus rights.
Ruling:
Supreme Court recognized that non-citizens detained as enemy combatants have constitutional habeas rights, even outside U.S. territory.
Significance:
Shows judicial oversight of preventive detention powers.
Balances national security with fundamental legal protections.
6. United States v. Sattar, 314 F. Supp. 2d 279 (S.D.N.Y. 2004)
Facts:
Defendants were accused of plotting terrorist attacks and providing financial support to terrorist organizations.
Ruling:
Court upheld convictions and asset forfeitures, emphasizing preventive seizure of funds and property connected to terrorism.
Significance:
Demonstrates aggressive asset seizure under U.S. anti-terrorism laws.
Shows how courts enforce preventive measures alongside criminal prosecution.
7. National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)
Facts:
Although predating PATRIOT Act, this case involved drug testing and preventive security measures for customs agents post-terrorism concerns.
Ruling:
Court upheld preventive security measures for high-risk roles under the government’s security prerogatives.
Significance:
Illustrates U.S. judicial support for preventive measures in national security, a principle extended to terrorism post-9/11.
Comparative Insights
| Aspect | Canada | U.S. |
|---|---|---|
| Due process | Strong Charter protections; special advocates review secret evidence (Charkaoui) | Habeas rights recognized (Boumediene) but preventive detention and surveillance are broader |
| Asset seizure | Preventive seizure with judicial oversight (Makki) | Aggressive seizure powers, less constrained (Sattar) |
| Material support | Limited but includes terrorist financing (Makki) | Broad interpretation including non-violent support (Humanitarian Law Project) |
| Extraterritorial reach | Criminalizes acts abroad by Canadians (Khawaja) | Applies to U.S. citizens and foreign terrorists posing threat to U.S. (Humanitarian Law Project) |
| Judicial balance | Courts emphasize proportionality and rights | Courts generally defer to executive on security but recognize limits (Boumediene) |
Key Observations:
Canada prioritizes Charter rights and judicial oversight, even in preventive measures.
U.S. emphasizes preventive and expansive measures, often giving deference to the executive branch.
Both countries criminalize terrorist financing, support asset seizure, and permit extraterritorial jurisdiction, but the scope and judicial scrutiny differ.
Canadian courts have introduced special advocacy systems to protect rights, while U.S. courts enforce strict anti-material support laws.
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