(MuslimLink, May, 2013)
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 3 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, they
fear that individuals will be forced to testify in court, face detention, or be
subject to draconian bail conditions without charges being laid 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 by proxy
of Canadian citizens – 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 they pray, humanitarian organizations to which they have given
charitable donations, or their 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 December,
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.
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