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Can we hold you for a while?

Yesterday, BCCLA Counsel Carmen Cheung appeared before the House of Commons Committee on Public Safety and National Security to present the BCCLA’s position on Bill C-17, legislation seeking to resurrect the preventative detention and investigative hearing provisions from the 2001 Anti-terrorism Act.

The 2001 Anti-terrorism Act was made into law in the immediate aftermath of 9/11, and provided for the expiration of its preventative detention and investigative hearing provisions in early 2007. The government is now seeking to put these provisions into law again.

What do these two provisions do?

The preventative detention provision permits law enforcement officials to arrest — without a warrant — any individual, so long as law enforcement has reasonable suspicion that detaining the person is “necessary in order to prevent a terrorist activity.” This individual can be held up to 72 hours, without charge. And as Donald Piragoff, a senior assistant deputy minister from the Department of Justice, informed the Committee, “[t]hat doesn’t mean that the person who’s arrested is the perpetrator. It may be other individuals who are involved.”

Simply put — this piece of legislation would allow for the detention of individuals who are not even suspected of attempting to carry out a terrorist act. To appreciate just how attenuated this justification for detention is, keep in mind that the scope of what constitutes terrorism as currently defined in the Criminal Code is breathtakingly broad. Terrorism offences include everything from “facilitation” and “harbouring” to more traditional inchoate offences of conspiracy, attempts, or threats to commit a terrorist act, and of course, the actual terrorist act itself. This piece of legislation would allow for the warrantless detention of individuals who cannot even be shoehorned into the Criminal Code’s expansive view of terrorism.

The second prong of this bill — investigative hearings — creates an inquisitorial role for judges, permitting them to compel testimony from individuals in situations where no charges have been laid, and no pending controversy before the court at stake. Individuals must answer the judge’s questions, even if doing so would result in self-incrimination. The narrow exception to this mandatory disclosure is with respect to information that is considered privileged or otherwise protected  by law against disclosure. Individuals refusing to testify can be arrested and detained.

Perhaps unsurprisingly, the BCCLA is very concerned about attempts to put these provisions into law again, especially given their dubious efficacy in keeping Canadians safe. From 2001 to 2007, when these provisions were last in force, the preventative detention provision was never invoked, and the investigative hearing provision was used only once during the Air India inquiry (which was arguably not an intended use of that power). And when government witnesses, such as Justice Minister Rob Nicholson, were asked by the Committee whether they knew of any instances from 2007 to the present when law enforcement officials would have required the use of these two provisions in order to protect public safety, no examples were provided. This stands in contrast to the examples how the existing anti-terrorism provisions in the Criminal Code have successfully been used to prosecute past terrorism offences and to prevent future ones from taking place, as the case of the Toronto 18 and other similar prosecutions have shown.

For a rundown of the BCCLA’s arguments against adopting this legislation, please take a look at our submissions, available here: C17 Submissions.