Did September 11 Really Change Everything: Preserving Canadian Values in the Face of Terrorism

Abstract

The author critically examines the challenges of the terrorist attacks on September 11, 2001 to Canadian law, courts, sovereignty, and democracy. He compares these challenges to Canada's acceptance of nuclear arms in the wake of the Cuban Missile Crisis of 1962, an event that caused George Grant in his Lament for a Nation to declare Canadian sovereignty and a distinctive Canadian democracy to be dead. The Anti-terrorism Act is examined in comparison to other expansions of the criminal law in response to tragic crimes, as well as against the increased emphasis in Canada and the United States on crime as a political issue. The author differentiates between respecting non-discrimination as a value in the criminal law and accepting victims' rights as a reason for limiting the rights of the accused. He also examines the dangers of relying on the criminal law to prevent terrorism and evaluates alternative administrative measures, including some contemplated in the proposed Public Safety Act.

The challenges of September 11 for Canadian courts are related to American-style debates over judicial activism. The author argues that the recent decisions of the Supreme Court in Burns and Rafay and Suresh suggest possible judicial reactions to future challenges of anti-terrorism measures. The author also argues that debate after September 11 while maintaining an appropriate degree of openness to dissent did not pay sufficient attention to the importance of respecting international law in the treatment of detainees or anti-discrimination principles with respect to the possible profiling of particular minority groups. The struggle to maintain a distinctive and moderate Canadian approach to anti-terrorism measures can, in the author's view, be assisted by rejecting the idea that September 11 changed everything.