The Tories announced in their campaign platform that they planned to bring back legislation giving law enforcement officials the power to arrest someone without a warrant and force individuals to testify before a judge. Prime Minister Stephen Harper told the CBC earlier this month that, despite being rarely applied, there were times when preventative arrests and investigative hearings were needed to combat terrorism.
The use of preventative arrests, however, has never been reported.
Investigative hearings were almost used once, when authorities tried to compel an unco-operative witness to testify in the Air India case. The evidence was never used and Parliament was never told an investigative hearing took place.
Mandatory reporting was part of the checks and balances the majority Liberals included in the Anti-terrorism Act, which set out the controversial provisions in the wake of 9/11. The measures expired five years later after Parliamentarians reviewed them and the NDP and Liberals voted against reinstating them.
Now, the Conservative government is not convinced those checks and balances are needed.
While government officials insist they haven't yet decided on whether to include a sunset clause, a parliamentary review or a reporting mechanism in their upcoming legislation, sources say the Tories believe a sunset clause is a bad idea.
"The reason a sunset clause may be problematic is that, while a parliamentary review can be delayed for a variety of reasons (especially in an election-prone series of minority parliaments), once a sunset clause is activated, powers cease to be available to police and prosecutors, regardless of whether or not Parliamentarians have turned their minds to the utility of those powers. That kind of abrupt end to a particular power may be very detrimental to public safety — right at the moment when the power may be needed most," said an individual familiar with the file.
Opposition politicians, however, insist that since the government has never successfully used the powers, they aren't needed and certainly should not be made available for use indefinitely.
"Our position has always been that they were of no use, and there was too much potential abuse," the NDP's justice critic Joe Comartin said.
"Incarcerating people for 72 hours and possibly longer without any explanation … and the accused not being told why he or she are being held, I think those provisions fly so much in the face of our existing democratic rights and civil liberties. We've never had a case made for the need for it," Comartin said.
"This is just part of the leftover paranoia feelings that we have from 9/11 that has really never been justified in the 10 years since," he added.
"When you think of the Toronto 18, they didn't use them [the measures] then, and that was probably the most widespread potential terrorism that we've had ... The balance of the convictions were all gotten by the conventional use of our criminal code and our evidence act and clearly showed no need for it."
Comartin added that, at the very least, if the Tories were going to press ahead with "draconian legislation," the measures should be automatically sunsetted if they fail to pass a parliamentary review. "There has to be a review component in so that the legislature can have the opportunity to take a look at it and see if there is any justification for continuing, and if not they just let (the powers) be sunsetted," he said.
In a heated Senate debate this week, Leader of the Government in the Senate Marjory LeBreton appeared to have no idea the anti-terrorism measures had never successfully been deployed or that the government was forced to report to Parliament on their use.
Liberal leader James Cowan repeatedly asked LeBreton to justify the need for the controversial measures.
She told the upper chamber she didn't know how often the powers of investigate hearings and preventative arrests had been used.
"I am not privy to this information. I am not on the Cabinet Committee on National Security," LeBreton told Cowan Wednesday.
Cowan told LeBreton that to his knowledge the federal government had never used the provisions and if it had, he said amid heckling from Conservative senators, authorities would have had to disclose their use to Parliament.
"The Attorney General and the Solicitor General of Canada, along with provincial ministers responsible for policing, were subject to strict reporting requirements, notably with respect to the use of these two provisions we spoke about — investigative hearing and preventative arrest. They were required to report to Parliament if and when those provisions were used," he said.
"This is serious business. Honourable senators on the other side may find it amusing, but it is not," Cowan continued.
"There is a very difficult balance to be struck between privacy and national security concerns. Safeguards were built into this legislation 10 years ago. The Prime Minister [Harper], when he answered that question [on CBC], indicated to any fair-minded listener that while the provisions were not widely used, they had been rarely used. Yet, there are no reports of them having been used," Cowan said.
Public Safety Minister Vic Toews' office confirmed the measures were never used.
Despite that, Justice Minister Rob Nicholson is expected to soon table legislation bringing back the contentious powers.
"Terrorism is one of the greatest threats our country faces. We must give law enforcement the tools they need to safeguard our national security while protecting the fundamental rights and freedoms of all Canadians," Nicholson’s press secretary Pamela Stephens said in an email.
"Our Government committed to Canadians to reintroduce these measures during the recent election; we will deliver on that promise," she wrote.