Troubling new anti-terror provisions pass into lawWritten by Matthew Behrens
In what some critics called an opportunistic move, the Harper government swiftly scheduled debate on, and passed, new anti-terrorism provisions (Bill S-7) in the wake of the Boston Marathon bombing and the subsequent Canadian arrests of two men alleged to be involved in a plot against VIA Rail.
The most controversial of the provisions – involving preventive arrests (detention without charge for up to three days, followed by release under draconian bail conditions) and secretive investigative hearings, both part of the original Anti-Terrorism Act in 2001 – expired after five years due to a sunset clause. The federal Liberals, who joined with other opposition parties to reject an attempt to revive the provisions in 2007, voted in favour of S-7 under leader Justin Trudeau.
The Harper government – whose four previous attempts to bring back the measures had ended because of prorogations and elections – claimed the events in Boston proved Canada needed the new law. But even the National Post’s Matt Gurney editorialized that “it’s hard to see how the Boston attacks say anything about the state of Canada’s anti-terror laws.”
A range of civil rights groups, including the International Civil Liberties Monitoring Group (ICLMG) and CAIR-CAN, declared in a public statement: “Individuals subject to these provisions do not necessarily have to be suspected of committing any crime. It is enough that they are alleged to have information relating to a terrorism offence, or that they are alleged to be associated with another individual suspected of committing (or about to commit) a terrorism offence, or that they are otherwise suspected of potential future involvement in a terrorism offence.”
Under an investigative hearing, they pointed out, the independence of the judiciary is undermined as it moves from an adversarial to an inquisitorial model, and the judge “becomes an actor at the service of police investigations.”
In addition, continued reliance on foreign intelligence could continue the use of information gleaned from torture. Ultimately, civil rights groups fear that individuals will be forced to testify in court, face detention, or be subject to draconian bail conditions without being charged based on secret allegations they will have no access to -- an eerie replication of the security certificate process used against refugees and permanent residents.
While Canada has been rapped on the knuckles by the UN and human rights bodies for its practice of torture of Canadian citizens by proxy – sending information to Syrian and Egyptian intelligence with the knowledge that such questioning of Canadians would result in torture, as in the cases of Maher Arar, Ahmad El Maati, Abdullah Almalki, and Muayyed Nureddin – the one-year detention clause serves, essentially, as a similar form of judicially sanctioned punishment for failure to answer certain questions.
Although such provisions were not directly used in their first five years, the threat of their use by Canadian authorities, as documented in the 2003 ICLMG report In the Shadow of the Law, proved an effective means of instilling fear and compliance in targeted communities. Given the commonplace CSIS practice in Arabic Muslim communities of pressuring individuals to act in the uncomfortable role of spies, refusal to do so could bring about the potential use of an investigative hearing and a year-long detention.
While the legislation states such individuals have the right to a lawyer, the NDP’s Deputy Justice Critic Craig Scott proposed that “anybody who’s not actually under suspicion and is brought in for an investigative hearing really should not have to pay for the costs of their legal representation.” That safety measure was deemed beyond the scope of the bill.
Also of concern are efforts to further regulate the travel of community members already subject to restrictive measures such as the no-fly list. S-7 appears to open the door to an exit-control system that would monitor the movements of anyone leaving the country. It may prove intimidating for travellers planning to visit family in Lebanon or Pakistan when they learn that they could be jailed for up to 10 years if the person “leaves or attempts to leave Canada, or goes or attempts to go on board a conveyance with the intent to leave Canada, for the purpose of committing an act or omission outside Canada” that would be considered a terrorism offence.
Given the overly broad manner in which Canadian agencies cast suspicion – based on the mosque at which one prays at, humanitarian organizations one gives charitable donations to, or one’s assumed knowledge of the alleged activities of a mere acquaintance – concerns have been raised about language that borders on the realm of thought-crime, allowing the state to determine why one intends to take a trip or concluding that someone is hiding something from authorities for nefarious reasons. (Notably, the Canadian Border Services Agency is, according to an April 2013 Canadian Press report, currently looking out for Iranians in Canada who may hold “sinister motives.”)
During Dec. 2012 Parliamentary questioning, the NDP’s Craig Scott listed a litany of problems with the legislation, including: failure to incorporate comprehensive oversight for all Canadian agencies involved in national security activities, a long-ignored recommendation of the Arar Inquiry; overly broad language with respect to what it means to “harbour” someone alleged to be involved in terrorism; and rejection of the idea that immunity from criminal prosecution based on evidence coerced in an investigative hearing should extend to extradition and deportation hearings.
Scott was particularly incensed to discover that someone could be placed on restrictive bail conditions “with respect to terrorist activity that is not their own terrorist activity.” All his concerns were dismissed as beyond the scope of the bill.
Groups such as CAIR-CAN and ICLMG will continue monitoring the effects of the new law.
Matthew Behrens is a freelance writer who has worked closely with the targets of Canadian and U.S. “national security” profiling.
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