The preventative detention provision, which permits holding an individual without charge for up to 72 hours, is based on mere suspicion of dangerousness. When this provision was last in force in the Criminal Code, it was never invoked. Advocates for preventative detention point to this statistic as demonstrating restraint on the part of law enforcement agencies. We view this as evidence that such sweeping powers of preventative detention are simply unnecessary.
Protection of personal liberty is a fundamental value in Canadian society, and indeed, in any free society. Expanding the powers of the executive to detain people must be examined with the utmost scrutiny. Canadian principles of fundamental justice impose limits – both procedural and substantive – on deprivations of liberty. This means two things. First, the process through which any individual is subjected to detention must meet the requirements of fundamental justice. Second, the substantive reasons for any detention must be justifiable in a free and democratic society.
Detention without charge or conviction is deeply problematic because it is based on a hypothetical – it depends upon speculating on the future dangerousness of an individual because of assumed propensity. Preventative detention is necessarily based on propensity reasoning because if there was actual evidence of preparation to commit a terrorist act, of a conspiracy to commit a terrorist act, then there would be grounds to lay charges for committing a criminal offence and suspected individuals could be detained under the usual criminal law procedures. Stripping an individual’s liberty where no offence has been found to have been committed – or where no offence is even suspected to have been committed – runs counter to basic principles of fundamental justice.
Author: Carmen Cheung
