On April 23, the Minister of Justice introduced in the House of Commons a bill to reenact the two most contentious powers in the 2001 Anti-Terrorism Act: investigative hearings and preventive arrests. Both powers had been allowed to expire when Parliament refused to renew them in 2007.
At that time, the Conservatives vowed to bring the powers back into force as part of their declared tough-on-crime and tough-on-terrorism agenda, but an election in 2008, and two prorogations of Parliament repeatedly knocked this agenda, and the return of the two powers, back to square one. So here we are, once again, looking at re-enacting two highly controversial powers that the majority in the previous Parliament thought unworthy of extension. The question must be: Why? Why now? The answer appears to have precious little to do with protecting Canadians from terrorism, but a great deal to do with partisan politics.
First, what are these powers?
Investigative hearings are for the purpose of gathering information concerning terrorist offences that have been committed or are likely to be committed. Where there are reasonable grounds to believe that a person has direct and material information or knows where someone is located who police believe may commit such an offence, that person may be compelled to appear before a judge, produce anything they are ordered to bring, and to answer all questions; they may not refuse to answer on the grounds of self-incrimination, although no evidence obtained may be used against them in any subsequent criminal proceedings.
Preventive arrests, or “recognizance with conditions”, permit the arrest without warrant of a person, if it is believed that this is necessary to prevent the carrying out of a terrorist activity. The person is to be brought before a judge, who must satisfy himself that detention is necessary for the protection or safety of the public from terrorist activity, or the person will be released. This process must take no more than 72 hours. If a person is found to represent a threat to public safety, they may be placed under recognizance with conditions for a period of up to a year. If they fail to meet these conditions, they may be imprisoned for up to a year.
When first introduced, these two proposed powers ignited much criticism from the law profession and civil libertarians, as well as from spokespersons for the Muslim Canadian community. Age-old protections against arbitrary state intrusions on individual liberty were being thrown into question, with no clear answers to questions about why such extraordinary measures were required.
The Chrétien government exploited these criticisms to finesse many other contentious elements of the anti-terrorism legislation through the hearing process. So much critical attention was focused by interveners on these lightning rods, to the detriment of other important questions, that the Liberals were able to offer sunset provisions as a major concession to mollify critics. As a result, the legislation as a whole emerged pretty much unscathed from the legislative process (although not, as we have subsequently learned, from the courts), with the two powers in question intact, except for the requirement that Parliament would have to renew them after five years.
Having succeeded in adding these powers to the anti-terrorist armory, what use did the government make of them over the five years of their legislative life? This is a somewhat embarrassing question, both for the Liberals who enacted them in 2001, and for the Conservatives who demanded their renewal in 2007. The answer is “none”. Neither power has ever actually been invoked. The Crown only once indicated an interest in holding an investigative hearing, but this was not in relation to current terrorist threats, but was to be applied retroactively in the Air India trial in Vancouver for the apparent purpose of forcing a recalcitrant witness to divulge pertinent information concerning the 1985 bombing. The Crown did secure a Supreme Court ruling indicating that the process was not in violation of the Charter. Oddly enough, despite this favourable ruling from the highest court, no hearing was ever convened.
The lack of interest in using a power said to be crucial to combating terrorism is difficult to explain. One answer came in a private session of the Arar Commission with former RCMP Commissioner Guiliano Zaccardelli, when he was asked about how important the Anti-Terrorism Act was to the RCMP’s capacity to fight terrorism. Not important at all, Zaccardelli responded; the force already had all the powers it needed. He added that contentious new powers only served to focus public criticism on the police while adding little to their ability to do their job.
Nor does CSIS seem any more impressed than the RCMP. Listen to former CSIS Director Reid Morden who told CBC News when the powers were reintroduced this year: “Speaking strictly of those two particular provisions, I confess I never thought that they should have been introduced in the first place and that they slipped in, in the kind of scrambling around that the government did after 9/11. … It seemed to me that it turned our judicial system somewhat on its head … I guess I’m sorry to hear that the government has decided to reintroduce them.”
Police and security forces might argue that even if they do not need these powers at this time, it could be useful to have them in the back drawer, as it were, to be pulled if the need ever arises. Needless to say, this would be seen as a scary argument by civil libertarians: extraordinary powers should only be given when the state can demonstrate that they are necessary to meet an extraordinary threat, and when any reduction of liberty is strictly proportionate to the gravity of the threat. Holding extraordinary powers in reserve ‘just in case’ is an invitation to abuse.
When the House of Commons was first asked to renew the powers in 2007, partisan politics, rather than sober debate on national security law, took front and centre.
A primary argument advanced in favour of extension was that investigative hearings were necessary to bring about criminal convictions in the 1985 Air India bombing. The showcase Vancouver trial of two suspected perpetrators had already resulted in acquittals in 2005. A public inquiry under former Supreme Court Justice John Major was underway. But supporters of extension now argued that investigative hearings were crucial to the ongoing criminal investigation, which would be seriously impeded in the absence of such a power. This argument appears rather thin in light of the history of the investigation. If, armed with a court ruling and with all the weight that hung on the outcome of the Air India criminal trial, the Crown had not actually utilized an investigative hearing at that time; it was difficult to see why hearings would suddenly be required in 2007.
The Conservatives, who were taking credit for appointing the Major Commission, were quite prepared to exploit the emotions surrounding the Air India tragedy to get the powers extended. Prime Minister Harper even drafted victims’ relatives to come to Parliament to make the emotional point. In a lamentable display of McCarthyism, the Prime Minister waved a Vancouver Sun piece by Kim Bolen alleging that the father-in-law of a Sikh Liberal MP (a supporter of Stéphane Dion at the Liberal leadership convention that elected Dion) might be the subject of an investigative hearing due to his alleged association with Sikh extremism in the 1980s, and that Dion in opposing renewal was thus protecting Sikh extremists who may have been implicated in the Air India atrocity. By extension, the Conservatives alleged, the Liberals were “soft on terrorism”, linked with the parallel charge that the Liberals were “soft on crime.”
Faced with smear tactics, it is hardly surprising that the Liberals stiffened their resolve to oppose renewal — probably the very political optics that the Conservatives actually sought. As for the BQ and the NDP, they were already incensed by the refusal of the government to consider the report of the Commons Committee that had recommended modifications to the two powers if they to be renewed. The Committee had voted to reject retroactive use of investigative hearings, which would have made them useless for Air India. The government simply ignored this and all other recommendations, instead opting for simple extension of the original powers.
In the end, the opposition parties shot down renewal on partisan grounds, which is not surprising given that the government deliberately framed the issue in a partisan fashion. Not that the opposition parties supplied many, if any, strong arguments of their own for refusing to renew. It was as if the partisanship of the government called forth an equivalent partisanship, equally devoid of substantive content, in the opposition ranks. Preventive arrest and investigative hearings were collateral damage in a partisan punch-up. Not much of a tribute to Parliament’s role in debating the country’s national security.
In any event, no good case was made for renewing powers that had never been used, only a bad partisan case, which is particularly worrisome in the context of national security measures where partisan arguments can quickly turn into loyalty/disloyalty arguments, a sure way to poison the well of public deliberation and debate (George Bush’s war on terror offers a case in point).
It does not appear that the “soft on terrorism” charge has worked any Karl Rove-like magic for the Conservatives. Most Canadians seem blissfully unaware that the opposition parties left them unprotected from Al Qaida for the past three years. Consequently, with the Conservatives attempting now to restore the powers, they are doing so in a somewhat more conciliatory mode. Some changes have been made reflecting recommendations made by a Senate committee. For instance, an amendment stipulates that an investigative hearing should not be invoked unless “reasonable attempts have been made to obtain the information by other means.” Both powers are subjected to further five year sunset clauses, with debate on extension following a “comprehensive review” by parliamentary committee.
It will be interesting to see whether more persuasive arguments on behalf of renewal can be mustered by the government as the proposed legislation goes through committee hearings. Already the British Columbia Civil Liberties Association has served party leaders notice that they intend to oppose the legislation as unnecessary and in violation of long standing legal and constitutional protections. We can expect more voices of opposition from civil society. The Liberal opposition, however, seems to be wavering and may end by supporting renewal. It is to be hoped that any change in their position is motivated not by fear of appearing soft on terror and crime, but by sound and convincing arguments on behalf of the need for these powers. So far, however, no such arguments have been advanced. In their absence, Parliament should once again reject an unnecessary and unwise abridgment of Canadian liberties.
Reg Whitaker is Distinguished Research Professor Emeritus at York University, and Adjunct Professor of Political Science at the University of Victoria. He has published extensively about Canadian politics; security, intelligence, and politics of information issues.
