The spring session in Canada’s parliament was anything but dull. But while much of the attention was on senators’ unauthorized expenses, an important bill passed under the radar.
The so-called Antiterrorism Bill, which revives controversial sections of the Combating Terrorism Act, was passed into law during session. Two sections of the bill deserve a fuller look: investigative hearings and preventative arrests.
Justice Minister Rob Nicholson and police forces lauded the bill, presenting it as a necessary tool to prevent the loss of life in extreme circumstances where a terrorist attack is imminent. Prominent experts also backed these measures, saying they are warranted in extreme times.
Ray Boisvert, a former assistant director of the Canadian Security Intelligence Service, says it’s important to have “a tool box,” especially “when events happen very fast.” He points to the very effective and quick arrest of one of the alleged masterminds of the Boston Marathon attack.
That’s all fine, critics say. But they argue that civil liberties were sacrificed in the name of the War Against Terror. They feel there was no need to bring back investigative hearings and preventative arrests—which have never been used—even in the face of imminent attacks. For example, an investigative hearing intended to force a hostile witness to implicate one of the masterminds behind the Air India Flight 182 explosion in 1985 (all 329 passengers were killed, including many Canadian) was dropped halfway through the trial. One year earlier, the Supreme Court of Canada had deemed the investigative hearing constitutional.Both sections had originally expired in March 2007 due to a sunset clause in the first Antiterrorism bill enacted in December 2001 in the wake of the 9/11 attacks. Five years after this first Antiterrorism bill passed, and under fierce pressure from critics, the Liberal minority government of then-Prime Minister Paul Martin agreed to a parliamentary review of the bill’s measures. But even after an extensive review, they stayed dormant for years because Stephen Harper’s Conservative minority government didn’t have enough votes in the House of Commons to pass them.
But in April, Prime Minister Stephen Harper saw an opportunity. The conservatives sprang into action, fast-tracking the bill in the House of Commons a few days after a thwarted terrorist attack against a Via Rail train in Canada. The bill had initially been introduced in the Senate where the Harper government had an absolute majority.
For conservatives, the Via Rail incident demonstrated the need for those tough measures.
The New Provisions
Under the new law, with the prior consent of the attorney general, a person can be picked up by police “for the purpose of an investigation of a terrorism offence” and brought before a judge who will decide whether to issue an order. If that person has an investigative hearing, there’s no turning back. The individual must answer the judge’s questions and cannot exercise his right to silence. A lawyer can be present though responsibilities are ill-defined. The objective is not to prosecute an individual for a criminal offence but to gather information. The information provided cannot be used to incriminate that person except in the case of perjury or contradictory testimony.
The other provision in the bill aims “to disrupt, at a nascent stage, a potential terrorist attack,” explained Senator Linda Frum. This provision allows police to do preventative arrests without a warrant “in order to prevent a terrorist activity.” After 72 hours, the person is either charged or released.
The danger, says Denis Barrette, legal counsel for La Ligue des droits et libertés, is that people will be blacklisted by authorities or labeled as terrorists in their community even though they may not know anything. In these investigative hearings, the presumption of innocence has gone out the window, he says. Not to mention the independence of the judiciary.
Professor Wesley Wark from the University of Ottawa says the use of these tools would be restricted to a “ticking time-bomb scenario” where the police would have credible information about a terrorist threat but little time to gather all the evidence.
If that’s the case, by definition, the use of these tools would be “rare and maybe justifiable”, counters Eric Gottardi from the Canadian Bar Association. But if these tools start being used as “a routine investigative technique” in the hands of the police to go round up people when there’s no imminent loss of life, then Canada’s justice system and the rule of law are in trouble, he says.
The role of the judge in the secret investigative hearings has also raised questions.
“He is supposed to impartial,” says professor Pierre-Alain Clément, an expert in residence at the Université du Québec à Montréal. But Clément points out that since the judge decides whether to hold an investigative hearing based on the information provided by the police, he will basically be working for the police.
This is more of an inquisitorial-type of justice system, he says, where the role of the judge is one of judge and jury.
The new version of the Antiterrorism Bill also includes a new offense with a maximum penalty of 10 years in jail. It will now be a crime to leave or attempt to leave Canada to participate in a terrorist training camp or terrorist activities abroad.
Civil right groups say there’s one positive thing in the Combating Terrorism Act: the unpopular investigative hearing and preventative arrest provisions will expire and be reviewed again by Parliament in five years.