This article was originally published on Canada.com as part of their Real Agenda series
Canada’s anti-terrorism legislation is not a partisan issue. Laws were first introduced by the Liberals in 2001, and after they expired in 2007, the Conservatives in 2010 introduced a bill seeking to renew them.
Although that bill died when the election was called, the issue remains. Canadians must ask themselves: are these provisions necessary for Canada to effectively fight terrorism? Or do they create exceptional powers that seem “tough on terror” — but in practice, actually impede prosecution and conviction? And what about the potential harm to our constitutionally guaranteed civil liberties?
There is no argument that Canadian leaders must keep our country safe, and must proactively fight the terrorist threat. One clear, effective way to do this would be to rely on the existing criminal law process, which enables lawful evidence-gathering, prosecution, conviction and punishment — and simultaneously upholds our Charter rights of presumption of innocence, due process, and fair trial.
The anti-terrorism provisions, brought in ten years ago, were not consistent with these rights and don’t seem very effective in fighting terrorist activity. Renewing them — even if they’re again made subject to a sunset clause — threatens to normalize exceptional powers that run contrary to traditional democratic principles.
Following the 9/11 terrorist attacks, Canada passed anti-terrorism legislation with provisions for:
When these provisions were passed in 2001, they were considered so controversial they were subject to a sunset clause, and expired in 2007.
Historically, it has been fundamental to our Canadian understanding of democracy that:
These include the right of an individual to know and challenge any evidence being used against her. These anti-terror provisions do not conform to these legal traditions or safeguards. Our society could become one where, in the absence of any criminal charges being laid, an individual could be forced to testify in a court of law, arrested, detained or made subject to bail conditions. An individual has no opportunity to challenge the basis on which she is being forced into an investigative hearing or detention or conditions.
Furthermore, under the provisions, the individual has no right to know or challenge the evidence against her. It is very concerning that they strip an individual of the basic rights of an accused in criminal law proceedings, but then subjects that individual to the threat of criminal punishment.
Without the ability to challenge evidence used against you, there is no guarantee that the evidence is accurate, or was not obtained from a third country or source that elicits condones torture as a method to elicit information.
Unfortunately, since 9/11 in Canada, we have had several instances of innocent people being wrongfully implicated in terrorist activities, and these people have suffered serious injustices because of faulty intelligence or improper procedures.
A very low threshold is required to subject people to this, and there is no clear disclosure or appeal process. If a person has no way to learn why she is being targeted, how can she adequately demonstrate her innocence? Innocent persons, or their family members, can be subject to stigmatization in Canada, or abroad.
Further, even if compelled testimony cannot be used as derivative evidence against an individual in Canada, there is nothing to prevent a third country from relying on that testimony and laying charges against that individual, or family members, abroad.
Strong anti-terror laws must enable lawful surveillance, evidence-gathering, prosecution, conviction and punishment. These anti-terror provisions may actually do the opposite.
Investigative hearings can tip off actual perpetrators that they are being investigated. Second, detaining an individual, placing him under house arrest, or barring him from using the Internet or cellphone, all impede surveillance and evidence-gathering. In anti-terror investigations, electronic surveillance is an important evidence-gathering tool, as stated by the Air India Inquiry Report released in 2010.
And forcing testimony is not a guarantee that you will get the truth. What if the person is lying, or refuses to speak for any number of reasons?
These very points have been raised by lawyers and advocates in other jurisdictions, like the UK, where there is a strong movement against similar measures because they are undemocratic and actually may impede effective counter-terror efforts.
People (regardless of political affiliation) who support these anti-terror tools argue that these provisions have never been used, and therefore are not a threat to us. I disagree.
Renewing these provisions threatens to normalize anti-democratic procedures.
Second, the provisions aren’t necessary — the Criminal Code already contains adequate provisions and legal safeguards to arrest and detain suspects.
Third, these provisions may impede evidence-gathering and, ultimately, prosecution and conviction.
In this election, Canadians have the opportunity to ask the candidates where they stand on these important issues. Our country can take a leadership role on the international stage by keeping Canadians safe through effective counter-terror measures that uphold our Constitution, and work effectively to prosecute, convict, and punish terrorists. Renewing these controversial parts of our anti-terrorism legislation falls short of all of these objectives.
