Anti-terror provisions could rise once more

posted on March 07, 2007 | in Category Bill C-36 | PermaLink

Original author: Thomas Walkom Source: The Toronto Star URL: [link] Date: March 3, 2007 Despite rhetoric, Liberals could support new clauses

What are we to make of the Commons decision to ditch two elements of Canada's anti-terror laws? Prime Minister Stephen Harper would have us believe that the move has left Canada more vulnerable to terrorism. Stéphane Dion's Liberals, who combined forces with the New Democrats and Bloc Québécois to outvote the government on this issue, insist they are standing up for human rights. In fact, neither side is being totally straightforward. Harper notwithstanding, Canada still has robust laws that allow police to forestall terror attacks. For their part, the opposition parties are more amenable to eventually reinstituting some version of the measures they killed this week than their current rhetoric suggests.First, recall exactly what was done. The Commons did not kill the entire anti-terror bill enacted after the 9/11 attacks. The government can still arbitrarily proscribe, as terrorist, any organization it chooses. It is still illegal to belong to, fund or support in any way such an organization. The government still maintains the extraordinary power to demand that judicial hearings involving national security be held in secret. In some cases it is illegal to reveal the fact that such hearings are being held.

As the Supreme Court confirmed last week, the government can still detain non-citizens indefinitely without charge if it deems them security risks.

In short, it is still very illegal to be a terrorist in Canada. The only provisions of the anti-terror laws that died this week were two that had never been used.
One, the so-called preventative detention clause, allowed police to arrest without charge someone they thought might be planning a terror attack. The suspect could be held in jail for 72 hours. After that he could be confined to house arrest for up to a year.

The second let judges undertake what the act called investigative hearings, in order to question those who might know something about past or future terrorist acts. At such a hearing, the person under scrutiny would have no right to keep silent. But any information revealed could not be used against him in a criminal trial.

Supporters of these two now defunct measures say they were not unusual. Outside Canada, that's true. The U.S. grand jury system compels people who have not been charged with any crime to testify in secret. Britain allows police to hold terror suspects without charge for 28 days and lets judges impose so-called control orders (in some cases involving house arrest) on people who have never been charged with any crime.

But for many Canadians the two measures are far too reminiscent of other times in this country's history when the state, given extraordinary powers, systematically abused them.

During World War II, preventative detention powers were used to incarcerate innocent Canadians simply because they were of Japanese descent. In 1970, after Quebec terrorists kidnapped diplomat James Cross and provincial cabinet minister Pierre Laporte, Ottawa used the same wartime law to censor publications and jail citizens without charge.

As it turned out, in neither case did these draconian measures solve or forestall any crime.

So too today. Police have laid terrorism charges against Canadians since 9/11, most notably last June when 17 men and boys were arrested on suspicion of, among other things, plotting to cut off the Prime Minister's head. But in none of these cases have police used the two extraordinary powers that expired this week.

Does that mean such powers might not be needed later? Those able to predict the future can answer this question with confidence. The rest of us must be satisfied with making reasonable judgments on the basis of the historical record.

We know that preventative detention would not have stopped the 9/11 attacks. (Indeed, the U.S. had one of the plotters in jail at the time of the attack). We know that Britain's strict laws didn't prevent the 2005 terror attack on the London subway. When British police detained 24 people without charge last summer, initial reports suggested they had forestalled an imminent terrorist attack. But it later turned out that this wasn't true and that the alleged attack plans, if they existed at all, were in the very early stages.

Bob Rae, the failed Liberal leadership contender, argues that investigative hearings, by compelling reluctant witnesses to testify, might help to solve the 1985 Air India terror bombing.

He doesn't explain why, if this is the case, police investigators didn't take better advantage of that measure before it expired.

Still, don't assume preventative detention and investigative hearings are finished. The Conservatives certainly want these measures reinstated and will run in the next election campaign promising to do just that.

The Liberals, by contrast, will paint themselves as the champions of human rights. But the Liberals have also suggested they might be amenable to eventually reinstating the two contentious clauses, in the context of what they call a thorough re-examination of the entire "architecture" of Canada's anti-terror laws.

In the Commons this week, deputy Liberal leader Michael Ignatieff referred favourably to two committee reports, one from the Commons and one from the Senate, that would have kept both investigative hearings and preventative detention – with minor modifications.

"The government should come back with redrafted measures and a case to justify them to the House and to the people," he said then.

It's worth noting that Liberal MPs on the Commons committee looking into this matter last fall voted to continue preventative detention for another five years. All MPs on that committee – including those from the NDP and Bloc – were happy to keep investigative hearings for the same period.

The only proviso, again agreed to by all parties (including the Conservatives), was that such hearings shouldn't be used to investigate past terrorist acts, such as the Air India bombing.

So don't assume this is all over. The House of Commons made headlines around the world this week when it voted to buck world trends and support civil rights. But this is Canada, where political parties are infinitely elastic and the unthinkable, after a suitable massaging, often gets thought.

Round one in the battle over anti-terror laws may have gone to those who think people shouldn't be jailed without a trial. But there's a certain amount of accident in all of this. The struggle continues.

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