Cheers, Ken Hanly
OTTAWA - Canadians could face arrest without warrant and be forced to testify before a judge without charge under sweeping anti-terrorism legislation tabled yesterday by Anne McLellan, the Minister of Justice.
The 171-page omnibus bill introduces unprecedented "preventive arrest" provisions allowing detention of suspected terrorists for up to 72 hours without charge and creates "investigative hearings" to compel material witnesses to disclose information about terrorism to a judge even in the absence of a formal trial.
The legislation -- which aims to "deter, disable and dismantle" terrorist activity -- expands a variety of government powers, ranging from seizing terrorist property to censoring the Internet.
Conceding that provisions such as arrest without a warrant are "basically new" to Canadian law, Ms. McLellan said she would be comfortable defending all the measures before any court as reasonable limits to individual rights.
"No legislation that I am aware of has gone through as rigorous Charter [of Rights and Freedoms] analysis as this," she said at a press conference.
"The Charter does not suggest for a minute that any rights are absolute," she said, noting that Section 1 of the Charter allows for limitations as justified in "free and democratic society."
"People who live in fear of their personal safety cannot live in a free and democratic society," she said.
"Either nothing changed on Sept. 11 or everything changed," said John Manley, Minister of Foreign Affairs and head of a Cabinet committee on national security. Without the controversial arrest power, he said, "It might be impossible to prevent a terrorist activity even if we had information [that it was to occur.]"
In a speech to the House of Commons last night, Jean Chrétien maintained the law was carefully drafted to respect the Charter, but promised all the same to listen to any criticism that surfaces as committee hearings unfold.
"Terrorists seek to undermine the rule of law and the preservation of human rights," he said. "The real test of our values is how they guide us in times of crisis.
"Quite frankly, in the past as a country we did not always pass that test. We must be vigilant today to make sure that we do not repeat past mistakes."
The bill introduces Canada's first definition of "terrorist activity." It is similar to the definition of terrorism used in British and U.S. laws, and allows the federal Cabinet to draw up a list of proscribed "terrorist groups" on the advice of the Solicitor-General.
The law stops short of criminalizing membership in the groups. Instead, "participating" in or "contributing" to their activities becomes a crime punishable by a maximum of 10 years in prison, even if the nature of the participation consists of otherwise legal activities. Leaders of terrorist groups face life in prison.
Some civil libertarians say the legislation will do little to make Canada safer but it could undermine basic freedoms that help define the country.
"Remember, this is all about preserving our way of life, in which we regard liberty as a prime example," said Alan Gold, president of the Ontario Criminal Lawyers Association. "We don't want to turn into a police state. To turn into a police state in the name of liberty is bizarre."
Terrorist activity is defined in the bill as acts taken or threatened for political, religious or ideological purposes that threaten public or national security by killing, seriously harming or endangering a person, causing substantial property damage that is likely to seriously harm people or by interfering with or disrupting an essential service, facility or system.
The definition includes violations of 10 UN anti-terrorism conventions that cover such things as aircraft hijacking, hostage taking, terrorist bombings and protection of nuclear material. To knowingly "facilitate" terrorist activity becomes a crime punishable by 14 years in prison, while instructing anyone to carry out terrorist activities leads to a maximum life sentence.
To knowingly harbour or conceal a terrorist will be punishable by 10 years in prison. Crimes committed for the benefit of terrorist groups will carry a maximum of life in prison. The sentences would be served consecutively.
The bill states plainly that terrorist activity does not include "lawful advocacy, protest, dissent or stoppage of work" that does not seriously harm or kill people. It also does not cover actions taken during an armed conflict in accordance with international law.
Bill Blaikie, the NDP justice critic, said yesterday he would reserve judgment on the legislation until he hears expert testimony as to whether the bill "might curtail legitimate dissent."
Vic Toews, the Canadian Alliance justice critic, called the legislation "an important first step," but without a complete ban on membership in terrorist groups, it remains "a half-measure."
"The bill is an important step forward and certainly reflects many of the issues that our party has been raising in this House, and unfortunately to little avail until the tragic events of Sept. 11," he said in the House of Commons. "It is unfortunate that we could not have moved much quicker in dealing with these issues."
Peter MacKay, the Tory justice critic, said the law "goes a long way to give law enforcement the powers they require," but the arrest and investigative hearings measures gave him "some cause for concern" and should be coupled with careful training of police officers.
Ms. McLellan said that because terrorists operate in isolated cells and because many are ready to die for their cause, the emphasis of the law must be on prevention through investigation and surveillance of terrorist groups and on cutting off their financial support.
Strengthened /0
n wers include(° Allowing arrest without a warrant where police have reasonable grounds to believe the arrest is necessary to prevent an act of terrorism they have reason to believe is about to happen.
- Detaining suspected terrorists without charges for up to 24 hours before facing a judge, and an additional 48 hours with the judge's permission.
- Creating new "investigative hearings," in which a material witness could be compelled to testify before a judge. In order to preserve the right of a person not to incriminate himself, any information could not be used as a basis for proceedings against that person.
- Increasing protections under the Evidence Act for classified evidence used in court proceedings.
- Extending to terrorism investigators electronic surveillance powers already available to police investigating organized crimes and contained in the anti-gang legislation now before the Senate. Police will no longer have to prove a wiretap is a tool of last resort in order to obtain a warrant and the warrant will be valid for one year, up from the current 60 days. The requirement to notify a suspect after surveillance has been concluded can be delayed up to three years from the current one year.
- The Communications Security Establishment, the government agency that monitors foreign communications, would be allowed for the first time to intercept the communications of foreign targets even while they are communicating with Canadians -- a move that would require permission of the Minister of National Defence.
- A new Security of Information Act will replace the Official Secrets Act to impose stronger measures to combat foreign spies.
The bill also ratifies the UN Convention on the Suppression of Terrorist Financing and will allow a Federal Court judge to order the seizure and forfeiture of terrorist property. It prohibits making money or financial services available to terrorists or terrorist groups, and denies such groups charitable status under the Income Tax Act.
Money laundering laws would be amended to authorize the detection of financial transactions that may constitute threats to the security of Canada and allow them to be disclosed to CSIS.
Other changes include:
- Sentences of up to 10 years for "mischief" in relation to religious property, such as churches, mosques, synagogues or temples that is "motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin."
- Amendments to the Firearms Act to allow the government to permit non-residents, such as foreign air marshals, to carry firearms while on duty in Canada.
To help enforce the new laws, the number of Federal Court judge positions will be increased by as many as 13 new trial judges and two appeal court judges.
Ms. McLellan said it is impossible to tell how much implementation of the laws will cost since it is unknown how many prosecutions may take place.
Mr. Manley said more legislation could still come as other departments review what they can do to fight terrorism.