Letter to the Editor – Anti-Terror Act (Liberal Candidate)

Letter to the Editor – Anti-Terror Act (Received via E-mail)

In the past few weeks, a furor has erupted in Ottawa over the expiration of two provisions of the Anti-Terror Act passed five years ago. Stephen Harper has argued that any one opposing the extension is “soft of terror” while Stéphane Dion has argued that “we can’t worry about extending today and worry about rights tomorrow.” In the avalanche of overheated rhetoric and name-calling that has engulfed this debate, an explanation of the controversial measures in question seems necessary.

The first measure in question is the provision for investigative hearings as covered in Section 83.28 and 83.29 of the Criminal Code of Canada. The purpose of these hearings is to compel individuals to give up information that may reveal the location of a person suspected by the police of having committed a terrorist act or who may commit a terrorist act in the near future. Some commentators have argued that compelling an individual to testify may force him to incriminate himself, contradicting a central safeguard of our legal system. However, Section 83.28(10) prevents that danger by decreeing that the evidence obtained from the witness can be used against that witness in a court of law, other than perjury. In other words, a suspect can walk into an investigative hearing, confess, and then walk away scot-free as his concession would be inadmissible in a court of law. Thus, it is of little surprise that our police forces have never used this provision, as it would give terror suspects a “Get Out of Jail Free” card. Instead, our police and security forces have used the other tools they have at their disposal to stop almost twenty terrorist attacks since 2001, including the arrest of 17 individuals in Toronto last year.

The Conservatives have tried to buttress public support for the provisions by arguing that investigative hearings could be used by the Air India Inquiry. This is false. According to the terms of reference of the Air India inquiry as set down by the Conservative government, the purpose of the inquiry is to make findings and recommendations to improve the assessment, investigation and prosecution of terrorist threats by the Canadian government, RCMP, and CSIS. Nowhere in the Terms of Reference does it state that the inquiry will be investigating the individuals responsible for the attack. Thus the provision for investigative hearings is legally incompatible with the Air India inquiry.

Furthermore, the Conservatives have argued that the provision for investigative hearings could be used for the Air India investigation and that the expiration of this provision could imperil the investigation. This is false. Section 83.33(1) inserts a “grandfather clause” into the provision that allows an investigative hearing to continue beyond the “sunsetting” of the provisions. All the RCMP had to do was to make an application for an investigative hearing before March 1 and the hearing would have been allowed to continue past the date of expiry. In the five years that this provision has been on the books, the RCMP bombing, choosing to use far more effective tools in their toolbox. Thus, contrary to the Conservative position, investigative hearings are an ineffective tool for investigating previous terrorist attacks. Taken together, these arguments concur with the Liberal position that this provision is useless in the fight against terror.

The second controversial provision is the allowance of “preventative arrests” under Section 83.3 of the Criminal Code. Under 83.3, the police can arrest an individual without a warrant if they suspect it is necessary to stop a terrorist attack. The suspect must then be brought before a judge within 24 hours or, if not available, as soon as possible. If the judge is convinced by the evidence supplied by the Crown, the judge can then order the suspect to prison for up to twelve months. Nowhere in the provision does it allow the suspect to retain counsel who could examine the evidence used to imprison the suspect, for reasons of national security. Thus a suspect could sit for a year in prison without once examining or questioning the evidence used to imprison him. It was for this very reason that the Supreme Court of Canada struck down the use of security certificates as unconstitutional last month. In this sense, this provision certainly is “dangerous” to the freedoms and civil liberties that we hold dear.

Some commentators have criticized the Liberal party for arguing that these measures are both “useless” and “dangerous”, two seemingly contradictory statements. But as this letter has explained, this criticism is misplaced. One provision is useless, the other is dangerous. Thus the decision of Stéphane Dion to allow these provisions to expire and to pressure the government to carry out a comprehensive review of Canada’s anti-terror legislation is the correct course of action – not only to protect our civil liberties, but also to improve the security of our nation.

Scott Blurton
Enderby
Candidate for the Federal Liberal Nomination in Okanagan-Shuswap