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practices have made the country better able to protect its citizens and which mea- sures have had relatively little value when the time, money, and threat to individual liberties have been taken into account. Issues they say merit examination include the Anti-terrorism Act, increased surveil- lance, accountability of national security agencies, the federal security certificate program, and how the courts have reacted to counter-terrorism laws and practices. The Anti-terrorism Act, adopted in three months after Sept. 11, haste just remains on trial on Parliament Hill and in Canadian courts, yet it has a relatively solid track record thus far in terms of surviving legal challenges and producing tough sentences. "The ATA, especially in comparative terms, has stood up as a pretty fair balance," says Roach. "Most of the act that has been challenged has been upheld by the courts, with a little bit of tweaking." The 2001 legislation, among other things, specifically defined terrorism, making it a criminal offence for the first time, and gave police new pre-emptive powers to detect plots and head off attacks. "The goal was to break up terrorist acts before they happened and that's not the normal purpose of the criminal law," says Anne McLellan, the former federal justice minister who ushered the changes to the Criminal Code through Parliament while New York's twin towers were still smol- dering. "We wanted to create offences that spoke to the planning of terrorist attacks and prevent them from happening in the first place." The act, despite enjoying relative legal success all the way up to the Supreme Court of Canada, has been denounced by some critics as a draconian piece of legislation that tramples civil liberties and Charter rights, mainly by threaten- ing presumed innocence and the right against self-incrimination. One of the most contentious and extraordinary pro- visions — which has never been used — gives police the power to arrest suspects before a terrorist attack occurs, and hold them for up to three days before receiving a judicial hearing. Authorities were also empowered to compel people to testify at closed-door "investigative hearings" if they were sus- pected of knowing something about a terrorist act, before or after the fact. The hearings survived a 2004 legal challenge in the Supreme Court of Canada when the bench ruled they do not breach the Charter right against self-incrimination. The top court, in other rulings outside the ATA that have touched on national security, has further disappointed the human rights community, such as over- turning a lower court decision that had ordered Canadian Omar Khadr's repa- triation from Guantanamo Bay, Cuba as repayment for Canadian officials violating his Charter rights when they interrogated him without a lawyer present. "I think the courts have been quite deferential to the Canadian government," says Michael Byers, a human rights activist who holds the Canadian research chair in interna- tional law at the University of British Columbia. "There is certainly an argu- ment that all these issues touch on nation- al security and the government needs leeway . . . but for the judiciary to take a deferential position is an abdication of the judicial role." 26 SEPTEMBER 2011 www. CANADIAN Lawyermag.com The Anti-terrorism Act will face anoth- er key legal test, likely early next year, when the Supreme Court hears an appeal from Momin Khawaja, a former Ottawa software developer who is serving a life sentence for his role in plotting to bomb London and other targets in 2004 and wage a jihad against the West. Khawaja will try to convince the court that the act's definition of terrorism violates his Charter right to religious freedom. The defini- tion of terrorism is still being sorted out worldwide and there is no international consensus on what it means, leaving coun- tries to battle it out domestically. "This will be the first opportunity for the Supreme Court, in a very direct and focused way, to take a look at a key part of the legislation," says McLellan, now a strategic adviser at Bennett Jones LLP in Edmonton. At issue is the act's "motive clause," which requires proof that terrorist crimes were committed for religious or political motives. While this has been defended as a way of restricting the ambit of crimes of terrorism, it also requires authori- ties to probe the religious and political beliefs of suspects. "We continue to have grave concerns about the way terrorism is defined," notes Nathalie Des Rosiers, general counsel for the Canadian Civil Liberties Association. "It has immense