Proposed anti-terrorism measures ‘alarming’ and ‘concerning’

Canadians should be alarmed by the expanded powers given to law-enforcement agencies in the Conservative government’s proposed new anti-terrorism measures, says Toronto criminal lawyer Aaron Harnett. 

“This is a piece of ‘trust-us’ legislation where the public is being asked to trust that those agencies that have increased – and secret – powers are going to exercise them in a way that’s reasonable and in the best interests of the Canadian public,” he tells AdvocateDaily.com.

Harnett says Canadians should be skeptical on that point.

“It’s about powers that this proposed legislation grants and that can be exercised fairly liberally and without any obvious mechanism for review,” he says. “Canadians should be alarmed that new powers are being given to organizations, such as Canada’s spy agency, the Canadian Security Intelligence Service (CSIS), that operate essentially in secret and for which there appears to be no transparent process of accountability.”

Among the increased powers Harnett is concerned about is the expansion to the no-fly list parameters.

“How does somebody find out if they’re on that list and challenge the conclusion that they should be on it?” he asks. “If they are going to challenge it, what information can they access to challenge it? Will it all be secret? Will he/she just simply have to trust that those implementing those powers have done so appropriately?

“Trust-us legislation is only as healthy for the public as the mechanisms for open and transparent review of those powers.”

The Globe and Mail has reported that the changes represent the most sweeping increase in power for Canadian security agencies since Sept. 11, 2001. They include jail time for encouraging terrorism on the Internet and a new offence for advocating “the commission of terrorist offences in general,” would carry penalties of up to five years in prison, says the newspaper. 

The changes follow two deadly attacks on soldiers last October, which included a gunman storming Parliament.

The newspaper says the Anti-Terrorism Act has ignited a renewed national debate about the appropriate balance between freedom and public security in Canada. Critics have questioned whether there is adequate scrutiny of the law-enforcement agencies that would be granted additional powers under the law.

The legislation would also grant CSIS the power to intervene and disrupt threats to national security, a major change from merely collecting intelligence and handing off the matter to the RCMP.

Other proposed measures include giving courts the power to order the removal of “terrorist propaganda” from websites using Canadian Internet service providers; granting government departments explicit authority to share private information, including passport applications or confidential commercial data, with law-enforcement agencies. The law would make it easier for authorities to restrict the movements of suspected jihadis, meaning they can apply to a court if they only believe terrorist activity “may be carried out.” The previous threshold called on law-enforcement authorities to state they believed an act “will be carried out,” says The Globe.

Harnett says the bill’s extension of the length of time authorities can detain suspected terrorists for – up to seven days from three – is particularly concerning.

“Therein lies what may well be the most ripe target for Constitutional challenge,” he says. “Pre-charge detention is something that is contrary to the overall structure of Canadian criminal law. In general, courts have been extremely uncomfortable with this, which is why investigative detention tends to be extremely short in duration. I would ask the question: what pressing circumstances is the government relying on to justify this very unsettling expansion of its pre-charge detention powers.”

And while some of the new powers may become the subject of Constitutional challenges, Harnett says it remains unclear as to what exactly the effects of the legislation, if passed, will have on Canadians.

“It’s also hard to tell in advance whether it’s going to have any real impact on improving the safety of Canadians in the face of terrorist threats,” he says.