Though never before been used, a number of the provisions have been on the books before. Critics, who’ve raised concerns about the bill’s impact on civil liberties, say this week’s arrests are proof the measures are not needed, while experts offer mixed reviews.
With support from the Liberals, who introduced the first incarnation of the bill in the aftermath of the 9/11 terrorist attacks in the United States, the government’s Combating Terrorism Act will become law after clearing both chambers late Wednesday. According to the government, the final step — royal assent — could come as early as Thursday.
MPs voted 183 to 93 in favour of Bill S-7 which provides for the use of investigative hearings. It would allow courts to compel a witness to disclose information about a possible act of terrorism, even if that person has not been charged. The hearings could be held in secret and those who don’t comply could be subject to arrest.
Preventative arrest provisions will allow an individual suspected of engaging in terrorist activity to be brought before a judge who can impose conditions on their freedom, such as barring them from communicating with a particular person. An individual who refuses to abide by the conditions could be jailed for up to one year.
The original legislation had a sunset clause of 2007 so the measures could be reviewed and, if deemed necessary, reintroduced by Parliament. The Conservatives have since tried to resurrect the bill four times, but each time it died after an election was called.
New provisions will also make it a crime to leave the country or attempt to leave the country to engage in terrorist activities, crimes that could come with penalties of 10-14 years in prison. The bill also contains stiffer penalties for harbouring a person involved in terrorism.
Last week’s attack at the Boston Marathon prompted the government to fast-track the third and final reading of the bill, though some questioned the timing of the decision which came days before authorities announced they’d arrested two men in connection with the Via plot.
While terrorism experts largely support the bill, even if the original measures were never used in the five years they were at the disposal of law enforcement, it’s not without criticism.
NDP public safety critic Randall Garrison said the bill does little to add to the tools already available to law enforcement since it’s “already illegal” to leave Canada for the purposes of terrorism.
“This is a government that has cut back spending in critical areas like the border services, like 100 intelligence agents at the border services. So if we’re really going to attack terrorism, let’s have that proper balance between the resources we need and the existing laws,” he said hours before the bill passed.
“If we learned anything from what happened with the charges in the Via Rail case, is that we don’t need extra legislative measures to do this. When people are given the resources in law enforcement and security agencies, they can produce the results.”
Garrison also raised concerns about the balance between protecting one’s individual rights and preventing terrorism.
“There are some serious concerns about going against fundamental parts of our legal rights,” he said. “That’s the right not to have to give testimony against yourself and the right not to be detained without a specific charge or a criminal conviction.”
University of Toronto law professor Kent Roach also raised concerns about the investigative hearings and preventative arrest provisions. While the Supreme Court of Canada upheld investigative hearings as constitutional, he believes there is a “danger” that using them against an uncooperative witness might “alienate” them. He believes that’s exactly what happened during the Air India bombing investigation which ended in an acquittal in large part, he said, due to the fact “witnesses felt forced to testify.”
Preventative arrest measures could result in situations similar to the bungled security certificate process, he added. The immigration tool aimed at deporting non-Canadians over national security concerns or criminality has resulted in a number court challenges and several Muslim men detained without charge under the provision remain at large under tight supervision considered controversial by many.
He argues Canada has, in recent years, enacted a “large array” terrorism-related charges and that other Criminal Code offences like conspiracy to commit murder — a charged used against the men accused in the Via plot — can be used to better effect.
“In terms of legitimacy and the appearance of fairness, I think the public is going to accept a regular arrest much more easily than they will a preventive arrest,” he said, adding he believes making travel for the purpose of terrorism a new Criminal Code offence is a “relatively positive development.”
“It’s preferable to the sort of stuff we saw with (Maher) Arar and other Canadians who were tortured abroad, in part, because we were sharing information with countries that don’t respect human rights.”
Queen’s University and Royal Military College terrorism expert Christian Leuprecht said the bill does two key things. It “prevents the foreign fighter problem,” like the recent incident involving two Canadian youngsters who took part in a deadly attack in Algeria, and “lowers the threshold” of proof so those thinking of training abroad to commit an act of terror can be prosecuted, not just those who actually do it.
Leuprecht said this is a good thing as it becomes a means of deterrence.
“What much of the anti-terrorism legislation is meant to do is to catch people before they actually engage in this type of act and the courts have set a fairly high bar for evidence to that effect,” he said.
“Basically the courts have said, if you’re asking me to convict someone before they actually do something, you better have some pretty good evidence . . . So the courts take this legislation fairly seriously.”
While authorities never used the exceptional powers when they had them, Leuprecht said that doesn’t mean it won’t be necessary and useful in the future. He believes they are “reasonable tools to have in the tool box” and that measures are in place to ensure they aren’t abused.
For example, he said, peace officers can’t just jail an individual for three days, but must make a case before the courts for ongoing detention after 24 hours. He believes the plan to sunset the measures after five years pending another review is also a good safety net.
Original Article
Source: news.nationalpost.com
Author: Tobi Cohen
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