This courtroom sketch shows Russell Defreitas, at his arraignment at federal court in the Brooklyn borough of New York, Saturday, June 2, 2007.Christine Cornell/The Associated Press
Preventive detention without charge sounds like the stuff of repressive regimes, but in the narrow terms in which it is cast in Canada's Anti-Terrorism Act, it respects the rule of law and is far more protective of civil liberties than the approaches used in Britain, Australia and the United States.
The provision for preventive detention in the ATA was up for renewal in 2007 and partisanship of the most petty kind on both sides of the House of Commons caused it to be defeated. It should be back on the national agenda. This week, two terrorists were convicted in Brooklyn of plotting to blow up fuel tanks and a pipeline through New York City. The threat may take new forms, but it has not otherwise changed since Sept. 11, 2001.
The Conservative government reintroduced the preventive-detention law in April. There is something terribly wrong when the politics of a minority government leave a gap in the country's defences. The law, originated by the Liberal government of Jean Chrétien in 2001, is a reasonable attempt to balance security and liberty. It is fatuous to think a country may simply choose between the two. One cannot exist without the other.
One observer who finds the preventive-detention law reasonable is Craig Forcese, a University of Ottawa law professor who is no slouch in defending civil liberties. He set out to examine what a system of preventive detention would look like if it respected due process and civil rights. His report, published by the Institute for Research on Public Policy, found that the lapsed preventive-detention law fit well into his picture of an acceptable system.
It is "extremely modest in its reach and impact," he said after comparing it to systems that give Britain and Australia a much wider set of reasons for holding individuals pre-emptively, and for much longer - 28 days in the Britain and 14 days in Australia. (The latest wrinkle in the U.S. is preventive, but much stronger than detention: the government is claiming it has the right to assassinate a U.S. citizen, Anwar Al-Awlaki, a Muslim cleric born in New Mexico, believed to be in Yemen; human-rights lawyers are contesting that authority.) In Canada, the upper limit on preventive detention is three days, the situation needs to be urgent and a judge considers the matter promptly.
When the preventive-detention law did exist, from 2001 to 2007, it was never used, and one reason might be that the government did not want to reveal its confidential intelligence in open court. Prof. Forcese would tweak the law so that it allows for the use of evidence in a closed hearing, but with a security-cleared special advocate to represent the detained individual.
Canada's system of preventive detention is, by the standards of the democratic world, a modest and reasonable attempt at an emergency measure when other protections fail. It should be made law once again.