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Craig Forcese
Craig Forcese

CRAIG FORCESE

The politics of anti-terrorism Add to ...

Terrorism is back on the front page of Canada’s newspapers. And all over the back pages, and in the commentary and editorial pages. Sadly, some of that attention must now be directed at the politics of anti-terrorism, and the degree to which crime becomes a political “wedge” issue.

The latest victim of this political culture is consideration of Bill S-7 – the government’s Combating Terrorism Act.

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Bill S-7 includes a snappy title but is a modest variant of prior bills that have bounced around the parliamentary system for years, each dying with prorogations and elections and none generating very much controversy. All of these bills have been mostly about re-enacting two anti-terrorism powers provided to law enforcement after 9/11 that expired in 2007: investigative hearings and recognizance with conditions (better known as “preventive detention”).

These powers were relatively controversial at the time of their enactment in 2001. They became extremely contentious during the toxic 2007 debate over whether they would expire. The Conservatives and the Liberals chose these instruments to paint the other side as irresponsible in their own way.

Since history may now repeat itself, it’s worth understanding the real issues.

Investigative hearings enable a police officer investigating terrorism to question witnesses in front of a judge. The witness must answer, but nothing can then be used against him or her in a legal case. This provision was used once, in relation to the Air India investigation. That use sparked a 2004 Supreme Court decision adjudging the provision constitutional.

“Recognizance with conditions” is more controversial. Police may (theoretically) use the provision to detain a person in urgent situations on suspicions of terrorist activity for up to 24 hours and then, where a judge agrees, for another 48 hours. In this way, preventive arrest could endure for some 72 hours, after which the judge would decide whether to impose conditions on the person’s activities in the community.

Compared with the analogous provisions existing in other Western democracies, these measures are extremely modest. Some critics, nevertheless, have raised important doubts about their value, pointing to the fact that preventive detentions (at least) were not used between 2001 and 2007.

I believe they do have a role in the firmament of tools available to law enforcement to deal with the unpredictable demands of anti-terrorism. In relation especially to preventive detention, there’s the narrowest of gaps in Canadian law: specifically, a circumstance where a person is suspected of being connected to an imminent and serious terrorist threat (but not to the point of satisfying the conventional standards for criminal arrest) and where law enforcement considers that pre-emption is less risky to public safety than continued surveillance.

There are those who doubt such circumstances could arise. I do not. What’s needed is a system that fills this (and only this) space and focuses on disruption via short-term detention of persons tied to specific terrorist threats. This is a form of “catch and release,” one that does not involve detaining persons on the basis of perceived dangerousness, unconnected to specific threats. The latter is impossible to reconcile with civil liberties concerns and is prone to error – a point illustrated by the infamous immigration security certificate system.

Measured by these standards, the S-7 preventive detention model is generally a good one.

I believe, however, that debate over the bill should focus on safeguards that enhance preventive detention’s use as a last-ditch alternative. For instance, language should limit its overall use to circumstances where there’s a plausible case for serious and imminent harm. More than that, if the measure is used in error, there should be firm obligations to remedy those errors. Monetary compensation can never fully compensate the loss of freedom, but a public acknowledgment of error is important and may be enough to induce sober second thought.

Of course, there are others who view the prospect of “catch and release” as laughably inadequate. But a suspicion of executive detention that stretches back to the Magna Carta is not dismissed lightly. Those who would abandon that suspicion must demonstrate carefully that the gap in the state’s capacity to counter terrorism is bigger than I have suggested, and that more aggressive measures will be effective, necessary and responsive to civil liberties considerations. To date, no such case has been made.

Put another way, the debate over Bill S-7’s key provisions should be about fine-tuning. It remains to be seen if that will happen, on this the fourth time the matter has come to Parliament since 2007.

Craig Forcese is an associate professor and vice-dean at the University of Ottawa’s law school, where he teaches national security law.

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