Academic

Canada's New Terrorism Bills: Slow Down and Debate

Canadian Public Safety Minister Stockwell Day tabled new legislation in the House of Commons last Monday to allow British-style special advocates to play a role in security certificate cases that are used to detain and deport non-citizens suspected of involvement in terrorism. The bill responds to the Supreme Court of Canada's decision earlier this year that the existing legislation was unconstitutional.

On Tuesday the government tabled another bill in the Senate to revive investigative hearings and preventive arrests. These Criminal Code powers were introduced after 9/11 but expired in March, 2007 after the government failed to convince Parliament to renew them for three years. The government now proposes to include the powers in the Criminal Code, subject to a some changes and a 5 year renewable sunset.

The official opposition - the Liberal Party - has indicated some preliminary support for both bills and they appear likely to pass. There is a need to slow down and carefully consider both bills, as well as important work already done by Parliamentary committees on anti-terrorism law.

When it enacted the Anti-terrorism Act (ATA) in the aftermath of 9/11, Parliament knew it had acted quickly and without precedent. It required a comprehensive review of the act to be completed by December, 2004. Early this year, a Commons and a Senate committee finally completed their reviews and issued comprehensive reports. Unfortunately, their work was ignored by the media, the public and Parliament itself. Only some of the recommendations made by these committees have found their way into the new bills.

The last time Parliament debated security issues was in February of this year when the opposition parties defeated the government?s motion to extend preventive arrests and investigative hearings. Regardless of one?s views about the merits of the motion, the debate in Parliament was dismal.

The government accused the opposition of being unsympathetic to the victims of terrorism. The opposition accused the government of engaging in slurs. What got lost in all this partisan bickering was reasonable discussion of the merits of the two controversial provisions that expired. Parliament now has a second chance to debate these proposals on their merits. The task will not be easy and it should not be rushed.

Anti-terrorism law is complex and difficult. Fortunately, the reports of both the Commons and Senate committees explain many of the difficult issues. But before informed public debate about security legislation can start, people need to read and pay attention to the reports and the two new bills before Parliament.

The Senate committee warned that any new special advocate should be able to consult with the affected person after having seen the secret evidence. This, however, is neither prohibited or guaranteed in the bill before Parliament. The bill is also silent on whether special advocates will have adequate resources and be able to demand disclosure and call witnesses. These are crucial issues that require debate.

Both committees dealt with how to respond to the problems created by secret evidence used in security certificates and some other security proceedings. Both committees recommended that special advocates be available whenever the government makes secret submissions in security proceedings. The government?s bill, however, only applies to security certificates. There needs to be discussion of this issue.

The Senate Committee also provided some wise advice about how the government should respond to the legal quagmire created by security certificates. The current bill, however, is focused on the immediate task of responding to the Supreme Court?s decision in Charkaoui and must be enacted before the end of February 2008 before the Court?s remedy takes effect. The long term viability of the security certificate process needs to be debated.

The bill is based on the British special advocate model, but the British experience has not been altogether happy. Canada can learn from the British, but here the under-resourced Parliamentary committees unfortunately did not do their homework. There is also a need to consider other Canadian alternatives to British special advocates including those previously used by the Security Intelligence Review Commission and the Arar Commission. Security cleared counsel used in both these Canadian processes are more robust than the British special advocates because they can communicate with the affected parties after having seen the secret information and because they have the power to demand disclosure and call witnesses.

There are other details in the new special advocate bill that require consideration. The six month review of detention under security certificates is proposed to occur only following the conclusion of each preceding review. Does this mean that the six month clock only starts ticking after a judge has crafted and delivered his or her reasons?

A special advocate is allowed to make submissions about ?the relevance, reliability and sufficiency? of the information presented by the Minister to justify the security certificate, but has no explicit powers to call witnesses or seek disclosure. The judge is now asked to receive into evidence only ?reliable? information, but what about information that may be prejudicial but perhaps not relevant?

The new bill concerning investigative hearings and preventive arrests also requires careful consideration. A requirement of reasonable attempts to obtain information has been added as a safeguard, but the new legislation has not codified the Supreme Court?s 2004 ruling that immunity for compelled statements should be extended to extradition and immigration proceedings.

There is also a troubling new incorporation of an obscure provision in s.707 of the Criminal Code that could allow up to 90 days detention in a case in which an arrest warrant has been issued because of concerns that a person subject to an investigative hearing is about to abscond.

The requirement to bring a person subject to a preventive arrest before a judge has been changed from ?as soon as possible? to ?as soon is feasible?. Is there a difference? The arrestee can be still detained on any ?just cause? despite the fact that the Supreme Court has struck down the same phrase in Canadian bail laws as excessively vague.

The judge is still able to adjourn a hearing for 48 hours, but no reference is made to where arrestees will be held and whether they can be questioned during that time.

Both bills deserve careful and informed scrutiny in the committees.

Parliamentarians should also consider whether other recommendations made by the committees that conducted a comprehensive review of the ATA should be considered. Parliament has a chance to redeem itself from the partisan debate over investigative hearings earlier this year. But it must slow up and take the time and care that is necessary to consider these complex bills.

Canada will soon find out whether a minority Parliament is up to the task of conducting an intelligent debate about the merits of new anti-terrorism legislation. If Parliament fails again or becomes deadlocked, the courts will by default have to play the dominant role in reforming security legislation. Moreover, Canadians will be ill-served by their elected representatives on one of the defining issues of our times.

Full post as published by University of Toronto Law School Faculty Blog on October 29, 2007 (boomark / email).