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• Does listing meet our domestic needs and international obligations?

It is difficult to conceive how listing meets domestic needs, since for instance none of the listed entities pose a fundamental threat to Canada. Most listed entities are foreign groups involved in national or regional conflicts who would never direct their activities against Canada if we did not intervene in those conflicts (fuelling possible retaliation). Also, because the listing process rests on a sweeping definition of “terrorism,” it fails to distinguish between criminal terrorist entities and freedom fighters or liberation movements, whose legitimacy can shift depending on the time period and the dominant political interests concerned. Under the current definition, Nobel Peace prize recipients Nelson Mandela and Rigoberta Menchu would be considered terrorists. Members of the French resistance fighting against the Nazi occupation would have fallen into the same category. Inversely, the definition fails to address the issue of state terrorism that, in fact, is carried out against their own people by some of the very countries that have joined the U.S.-led campaign against terrorism.

• The Criminal Code allows the Government to list groups and individuals in Canada and abroad. Most listed entities are groups based overseas. On which types of individuals and groups should Canada focus its listing efforts in the future?

Because listing is fraught with problems related to the definition of terrorism and the subjectivity of political interests at any given point in time, it should be abandoned in favour of prosecution for concrete criminal acts, including conspiracy, which were already covered under Canada’s criminal code prior to the tragic events of September 2001 in the US. Furthermore, no listing regime can protect Canada from the threat of criminals seemingly suffering from mental health issues and acting alone, which is what we have faced so far in Canada.

• What could be done to improve the efficiency of the listing processes and how can listing be used more effectively to reduce terrorism?

It is difficult to conceive how listing contributes to reducing criminal acts labelled as “terrorism”. Listing cannot replace good intelligence and police work.

While we would argue for the abolishment of the listing process, we would also guard against moving towards the system currently used by Citizenship and Immigration Canada (CIC). While the CIC does not have a formal “terrorist entity” list, it does allow individual functionaries to evaluate and decide whether an individual’s political affiliations disqualify them from immigrating to Canada. Such an arbitrary procedure is even worse than listing, in that in this case there is no benefit of knowing which organizations are or are not listed.

We would argue, then, that the concept and definition of groups as terrorist entities be completely abolished, whether in the Criminal Code or in IRPA, in favour of evaluation based on concrete, clear criminal acts.

• Do current safeguards provide an appropriate balance to adequately protect the rights of Canadians? If not, what should be done?

The present listing process under the ATA, 2001 appears to violate the principle of procedural fairness guaranteed by the Charter of Rights and Freedoms. The process makes it impossible for an individual or an organization to challenge the listing since all their assets are seized and cannot even be used by the listed entity to retain legal counsel. Furthermore, the listing is often based on intelligence sources or information from other countries (rather than evidence) that cannot be cross-examined in court, especially in the context of secret hearings based on IRPA’s certificate regime. Listed entities should know the full case against them in order to be able to meet the case.