Original author: Thomas Walkom
Source: The Toronto star
URL: [link]
Date: October 24, 2006


We are casual about our liberties in Canada. Five years ago, Parliament rammed through new anti-terror laws that gave the state unprecedented powers to jail individuals without charging them or convicting them of any crime.

Now it looks as if the country's elected politicians are preparing to extend these remarkably draconian provisions for at least five more years.

Why? They don't say.

"They" are the Liberal and Conservative MPs who make up the majority on a Commons subcommittee looking into the anti-terror laws. Yesterday, they issued a report recommending that Parliament extend until 2011 the most controversial element of these laws — a provision for preventive detention.This allows police to arrest, without charge, anyone they believe may somehow be involved in what they think could be a future terrorist act.

Police don't have to have real evidence. But if they can convince a judge that their concerns have an "apparent" basis in fact, he in turn can jail the suspect — without trial and without charges — for a year.

After a year, the same thing can happen all over again.

It's a remarkable power to grant police and the courts. The mood of fear that gripped North America after 9/11 goes some way to explaining why this particular aspect of Canada's anti-terror laws got through Parliament in the first place. But it does not explain why the major parties seem so willing to keep it on the books.

In its report, the Liberal-Conservative majority on the Commons subcommittee gives no reason for its decision.

It does note that in five years the preventive detention provisions have never been used.

But it says this doesn't mean they are no longer required. "The subcommittee believes they should be retained with the arsenal of tools that should continue to be available to counter terrorist activities."

Why? The report doesn't say.

The implication, however, is that the power probably won't be used — that it's on the books just in case, and that Canadians should stop worrying.

If the state apparatus were perfect, this logic might hold. But as the Maher Arar affair has shown, it is not. In that sad episode, police armed with just ordinary powers set in motion a chain of events that ended with an innocent Canadian citizen being jailed and tortured in a foreign land.

Extraordinary powers contain the potential for even more extraordinary damage. The law gives considerable discretion to judges. But recent experience demonstrates that in cases involving national security, judges tend to defer to police.

Parliament itself recognized that after the Front de libération du Québec kidnappings of 1970. In that incident, the federal government used an emergency law, the War Measures Act, that had been on the books since the World War I to round up and jail scores of suspected separatists without charge.

Only after the dust cleared (and the kidnappers found through standard police methods) did Parliamentarians realize they had gone too far. The War Measures Act was retired and replaced with something more reasonable.

In a minority dissent, New Democrat MP Joe Comartin and Bloc Québécois MP Serge Ménard argue that preventive detention too should be scrapped. They make a compelling case that it is not even necessary.

Police already have the power to arrest someone they believe is about to commit crimes. But they can only do so if their belief is reasonable — that is, if they have some evidence.

In such cases, the suspect is charged (usually with conspiracy), held over for trial and either convicted or acquitted.

The preventive detention law, on the other hand, provides no definitive conclusion.

"It may be used to brand someone a terrorist on grounds of proof that are not sufficient to condemn him, but against which he will never be able to fully defend himself," the minority report points out.

A person tarred by preventive detention may be prevented from flying or travelling abroad. He may lose his job.

And yet, as with Maher Arar, there may be no real proof that he was involved in anything illegal.

So far, this is just a subcommittee report. In theory, the Commons could choose to override it. But the fact that MPs from the two major parties endorse the idea suggests that it will be adopted.

The Liberals and Conservatives are nervous enough about preventive detention that they want the Commons to renew this power for only five more years, pending another review. They should be more nervous. Citizens should be asked to give up liberties only if no other recourse is available.

Preventive detention does not meet this test.

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