On September 11, 2001, Al-Qaeda terrorists orchestrated an attack of unmistakable significance on America. Horrific images are inscribed on our collective consciousness, disturbing everyone who lives in North America, everyone who has ever entered an office tower or travelled by air. The symbolism of coordinated attacks on global capitalism's nerve centre, on the hegemon's military headquarters and possibly on the centre of western political power is more frightening still.

The consequences have been dramatic and global: two wars (Afghanistan, Iraq and counting), a significant re-jigging of international relations, immense strain on longstanding alliances, increasingly clear American contempt for international law including the conventions governing warfare, revolutionary transformations of government, constitutionalism and policy in the U.S., and significant trickle-down effects everywhere. Canada, the mouse sleeping next to the elephant, has cause for concern.

Kent Roach's reflections on such matters in September 11: Consequences for Canada is partly a critique of legal changes rushed through Canada's Parliament immediately following September 11, 2001. However, the book also uses the events and consequences of September 11 as the basis for a thorough treatment of Canadian civics (a much-neglected subject).

A nationalist in the English Canadian tradition, Roach identifies essential Canadian values relating to law, democracy, sovereignty and security that he says are now under threat. Although long under pressure as a result of gradual social change, these values have been subjected to particularly powerful transformative forces since September 11, "driving Canada towards Americanized criminal justice, immigration, and military and foreign policies that depart from such Canadian values as multiculturalism, peacekeeping, and respect for international laws and institutions."

Canada's first, most obvious and most dramatic response to the war on terror was the hurried enactment, in the autumn of 2001, of Bill C-36, the Anti-Terrorism Act, a poorly drafted, terribly flawed piece of legislation. Roach criticizes the act as irrational and contrary to foundational principles of good law and ineffective. One can imagine the conversation that might have ensued between Roach and then Attorney General Anne McLellan:

McLellan: We will boldly and immediately confront this new horror of terrorism. We will make it a crime to hijack airplanes, fly them into office towers or perpetrate other acts of violence against anyone for religious, political or ideological purposes.

Roach: Terrorism isn't new. Remember the FLQ? Anti-abortion extremist shootings of doctors? Fire-bombed video stores? The Air India bombings? Isn't it already a crime to do those things?

McLellan: This will show terrorists we really mean business: we will now impose peace bonds on suicide bombers. And we can seize their assets.

Roach: Why is the purpose of the action relevant? Surely the crime is doing bad things and the purpose irrelevant.

McLellan: Terrorism is about politics, religion or ideology.

Roach: Won't this encourage police to target racial or religious minorities unfairly for scrutiny and investigation?

McLellan: The act does not say that security officials should engage in racial profiling.

Roach: Shouldn't it be explicitly prohibited?

McLellan: No.

Roach: Hmm. But wouldn't this law label heroic individuals such as Norman Bethune, Nelson Mandela, Mahatma Gandhi and even George Washington as "terrorists"? Freedom struggles sometimes involve disruption of services - even violence.

McLellan: No one can be prosecuted without the approval of the Attorney General: le droit, c'est moi.

Roach: What legal standards will you use in choosing which terrorists to prosecute and which to leave free?

McLellan: That will be for me to decide: le droit, c'est moi.

Roach: As a former law professor you will recall jurisprudential scholar Lon Fuller's argument that law must never degenerate to "umpire's discretion." Wouldn't the rule of law be more fully respected if the operational definition of terrorist were clearly set out in law instead of being left to the "Attorney General's discretion"?

McLellan: No statute can deal with every case: le droit, c'est moi!

Absurdity piles upon absurdity in this new legislation. Take, for example, the new offence of "knowingly" facilitating "a terrorist activity" (punishable by 14 years imprisonment). In wording Monty Python would be proud of, knowing facilitation can take place even if the facilitator did not know that a particular terrorist activity was being facilitated. Even leaving such blatant absurdities aside, Roach concludes that overall "the Anti-terrorism Act, with some exceptions in the financing area, largely made criminal conduct that was already criminal before September 11, and most of its new investigative powers and offences were not even used during the first year of the law's existence."

Why the fuss, then? How did Canada tie itself up in knots about this bill, and why did the government first enact some of its terms "secretly" by regulation (October 2, 2001) before invoking closure to rush it through Parliament at unprecedented speed? The answer, Roach tells us, is two-fold. First, in the aftermath of September 11, Canada felt immense pressure from the U.S. to be seen to be doing something. And for the U.S., doing something these days involves "governing through crime." (This trendy approach to governance means emphasizing dramatic moral judgements, symbolic actions and draconian laws - remember Bill Clinton's decision to execute a mental incompetent rather than be seen as soft on crime - while the idea of the state as a commonwealth diminishes to a vanishing point.) In terms of international relations, the symbolic importance of this Canadian bill was huge, trumping any question about its wisdom or legal value. The Bush administration had to be made happy.

Second, the bill fit an evolving pattern of law-making by means of reactive, ad hoc, criminal law reform. Although often ineffective, a "narrative and memorial style of criminal law" is cheap and easy: the media love it, the opposition never howls. No one ever argues in favour of domestic violence, kiddie porn, hateful speech or terrorism. "The criminal law," Roach says, "builds on itself, using previous expansions to justify further expansions. It also follows the pattern of new criminal law being fashioned as a response to particular crimes, and not on the basis of overarching principles." Because exceptional powers tend to become normalized, one incursion on civil liberties spawns another as surely as the inevitable sequence of dramatic and violent events generates a vicious circle of ever-escalating demands for memorial-style criminal law. That, however, is the road to tyranny. Criminal law reform should respect core "principles such as the need for a clearly defined and restrained criminal law, and respect for rights such as freedom of expression, the right to silence, and the presumption of innocence."

Two particularly insidious arguments were put forth by government members defending the Anti-Terrorism Act as it moved through Parliament. One was the idea that the bill must be good law because it had been "charter-proofed" by the Attorney General's staff. Even leaving aside the patronizing "trust me" attitude that such an assertion implies, charter proofing is not the whole story of constitutionalism. Taking steps to ensure that an act will survive scrutiny by the Supreme Court of Canada applying the Canadian Charter of Rights and Freedoms sets the bar very low, deflecting attention entirely from the wisdom of the statute. For a minister to say a bill will survive charter scrutiny implies nothing about the way in which police officers will use the act, nothing about the likelihood of the bill attaining its desired ends and nothing about its consonance with Canadian standards of civil liberties, justice, constitutionalism or the rule of law. Presenting draconian legislation as charter-proof is fundamentally a shell game wherein the public's eyes are focused on one spot while the action takes place elsewhere:

"Such a strategy may deceive a public who thinks that consistency with the Charter means that rights are not infringed … Constitutionalism in Canada before the Charter was built on the notion that those in power should not exercise their legal powers to the fullest extent possible even in times of perceived crisis. It was fundamental to British constitutionalism that what was legal might nevertheless be improper and unconstitutional … we are losing sight of this older sense that power must be restrained by decency, prudence, and tradition, not just the legal limits that lawyers and courts impose on us."

In the debate concerning the Anti-Terrorism Act, the charter became just another pivot-point for ministerial media spin. Selling bad laws as charter-proof is a particularly insidious and cynical political ploy.

The second bad argument the government developed was positively Orwellian. Whereas the conventional way of thinking about police powers in relation to civil liberties recognizes a need to reconcile conflicting demands between law enforcement or security on the one hand and the values of liberty on the other, the problem was made to go away entirely by the rhetorical magic trick of calling security a human right. Presto, now we have not a human right balanced against its opposite, but two human rights deserving of equal attention! "Even illiberal definitions of terrorism and strong police powers would now be defended in the name of human and equality rights." Although this obfuscatory word play probably fooled no one, the national embarrassment of seeing ministers and government-side MPs shamelessly mouthing such nonsense in the House of Commons and elsewhere, day in, day out, speaks poorly both of Canada's Parliament and the members of the media who cover it.

While it would be bad enough if Roach's book only illuminated an illiberal bill passed into law by means of particularly unpleasant political manoeuvring, a further theme is more disturbing still; terrorism, after all, presents real threats to public safety, but it turns out that the Canadian government has actually done little to increase public safety. Horrific acts of terror are not hard to pull off: an angry individual with fertilizer and a rental truck can blow up a building in Oklahoma City; a man and a boy with a gun and a car can terrorize a city; a suicidal killer armed with office tools can crash an airplane into a highrise; a dirty nuclear device can be assembled from readily available industrial dynamite and radioactive materials used in laboratories and hospitals across the country. Simply put, no system of policing and security, no matter how draconian, can provide 100 per cent protection against such acts of terrorism. Real security requires enhancing the security of places and systems, target hardening and better emergency preparedness. The false sense of security produced by a tough-on-crime approach to the threat of terrorism (peace bonds for terrorists! stiffer penalties for suicide bombers!) "makes Canada vulnerable to a non-rational and even counter-productive allocation of resources to security." In a major contribution to the thinking about this subject, Roach develops a public health or disaster-based approach to terrorism that, through reliance on "technology, better emergency responses, and the control of weapons and other hazardous substances also poses less threat to liberty, privacy, and equality than one that relies on criminal investigations and prosecutions." The Public Safety Act, a much-delayed bill that has appeared in Parliament in several forms now, is, Roach says, a step in the right direction.

Roach's analysis will run into heavy criticism on several grounds. In criticizing American policy in many areas he will (unfairly, in my view) be labelled as anti-American. Others will balk at his defence of anti-majoritarian judicial policing of civil liberties. Others still will react angrily to the book because they reject the idea of civil liberties altogether. These, I think, are fundamentally wrong-headed criticisms that could only be sustained by a biased reading of the text and in ignorance of Canadian constitutionalism.

Roach is on thinner ice, however, in three respects. First, he may be overly optimistic about the ability of Canada - a fine place but a smallish economy and third-tier power at best - to withstand either American diplomatic pressure or American cultural logic.

Second, he has glossed over the failures of Canadian democracy (better dealt with by Donald Savoie or Jeffrey Simpson) rather badly. This allows him, in a particularly unfortunate blooper, to pen these words: "Some government backbenchers, senators, and even Cabinet ministers courageously voiced their concerns about the bill" before collapsing under party discipline on final reading. This, of course, entirely overlooks the point that the whole idea of parliamentary democracy is that MPs are supposed to act in the public interest and in fear or favour of no one, especially not of the executive branch of government. To single a few out for courage in doing what they are constitutionally bound to do is to demonstrate the hollowed-out, corrupted shell that Canada's Parliament has become.

Third, Roach is insufficiently critical of the proposed Public Safety Act, a bill that operates by creating huge areas for ministerial discretion. It does so without providing the safeguard implicit in the principle of collective Cabinet responsibility (ministers are authorized to act on their own and without Order-in-Council) and without the kinds of constraints, checks and accountability mechanisms provided for by the Emergencies Act, for example. Although the focus on safety is undoubtedly a good thing, the mechanisms provided are themselves a threat to Canadian constitutional values and democracy. It is not altogether clear that the massively expanded ministerial authority this act would create is gentler than the criminal law enforcement that Roach so effectively criticizes.

These are not inconsequential matters, but pointing them out does nothing to detract from this invaluable book. Roach has produced an excellent Canadian history of the year passed, an insightful and highly readable analysis of some really tricky stuff, a valuable blueprint for confronting the challenges of terrorism and a primer on Canadian civics. This is an outstanding work, and a must-read for anyone who would understand Canada's role in the new circumstances of the early 21st century.

W. Wesley Pue is Nemetz Professor of Legal History at the University of British Columbia. He researches in the fields of law and society, legal history and constitutionalism and the rule of law in Canada.

This book review was originally printed in the Literary Review of Canada, www.reviewcanada.ca.