Government has no intention of altering anti terror law despite Charter ruling

Posted by admin on Sep 9th, 2007

Ian MacLeod, The Ottawa Citizen. Thursday, September 06, 2007

The federal government is holding firm in ignoring a court ruling that declared a central piece of the Anti-terrorism Act unconstitutional over the requirement that authorities prove terrorism offences are motivated by political and religious causes. The decision to spurn the 2006 Charter ruling of the Superior Court of Ontario, handed down in the case of accused Ottawa terrorist Momin Khawaja, is revealed in the government’s response to the recent recommendations of a Commons’ subcommittee that conducted a mandatory review of the sweeping 2001 anti-terror law.

The document, quietly tabled with the House of Commons clerk in July and which received little attention from a holidaying public, says the government has no current intention of amending the contentious political and religious “motive” provision, a move supported by the subcommittee.

The response document also outlines a few new directions the government is planning to take on the national security policy front, but is silent on several other contentious issues cited by the review subcommittee and national security experts as in need of fixes.

Not a word is devoted in the report to the government’s stated intention to re-introduce the extraordinary police powers of preventive arrest and investigative hearings, an issue that consumed parliamentary debate earlier this year.

Next to nothing is added to the government’s oft-stated commitment to consider reforming the Security of Information Act, a key section of which was struck down as unconstitutional by another Ontario court in 2006 in the case of Citizen reporter Juliet O’Neill.

And there is nothing to indicate that the government is rethinking Section 38 of the Canada Evidence Act (as amended by the anti-terror act), which allows the government to keep secret “potentially injurious … sensitive” information related to national security, dealings with foreign governments and defence.

The government attempted to invoke Section 38 to prevent Maher Arar case commissioner Justice Dennis O’Connor from using 1,500 words in his public report last fall because of national security concerns. That despite the judge’s insistence that the information posed no such threat, an opinion supported by Reid Morden, former head of the Canadian Security Intelligence Service.

In July, a federal court judge ruled that disclosure of some of the secret information would not be injurious to national security, international relations or national defence, as the government argued.

Among other things, the declassified information revealed that Canadian security officials suspected that Mr. Arar would be questioned “in a firm manner” when the U.S. deported the Ottawa engineer to his birth country of Syria, where he was imprisoned and tortured.

Many other anti-terror legal issues, meanwhile, including the subcommittee recommendation to create a new criminal offence outlawing the glorification of terrorism, require further study, says the government.

“The first impression one has is that they’re definitely treading water,” says Craig Forcese, a University of Ottawa national-security law expert.

One notable change to surface from the document is the suggestion that the government is considering independent special advocates, or security-cleared lawyers, who would be allowed access to classified security information the government uses as evidence in security certificate court cases against non-Canadians it wants deported as security risks.

Those individuals and their lawyers are now not allowed to know the security-sensitive details of the government’s case against them. Special advocates with that knowledge, however, would be in a stronger position to defend the individuals’ rights. The move follows a February Supreme Court of Canada decision that found the government could do more to safeguard the rights of individuals in such cases.

Still, the government’s apparent intention to establish special advocates is vague.

“Will it be established in legislation? Will the security-cleared lawyer be able to talk to the detainee after the security-cleared lawyer has seen the secret information? Will the security-cleared lawyer have the ability to demand full disclosure and to call witnesses?” asks Kent Roach, a University of Toronto law professor and a leading expert on the Anti-terrorism Act.

“These are critical procedural details and it would have been helpful, even if the government hadn’t made a final decision, to at least provide a framework for consultation going ahead.” But, “they deal with it in three paragraphs.”

The government also plans to adopt the subcommittee recommendation to amend the Immigration and Refugee Protection Act to state that only “reliable” and “appropriate” evidence be allowed to be used when assessing the need for a security certificate, in a bid to eliminate any evidence obtained by torture in another country.

While the government said the subcommittee’s review of the act was a “positive and useful exercise,” it says it “has yet to determine that a review process based on fixed time periods … is the best way to proceed. The government generally believes that such reviews should be conducted when they are needed, as opposed to having a pre-set timetable.”

Mr. Roach and Mr. Forcese believe such an extraordinary law should be subject to public, fixed-date reviews by parliamentarians.

“It keeps it front and centre, it stops it from being politically normalized,” says Mr. Forcese. “It’s a pretty extraordinary law, so you want to keep in the mind’s eye, and if you don’t have a fixed review date, then you risk normalization.”

On a similar front, the government has also nixed the subcommittee’s recommendation for the establishment of a national security committee of parliamentarians to review national security matters.

“The review of the practices of the officials and agencies who administer the legislation is a matter for specialized review bodies accountable to Parliament, and the government is presently considering other recommendations in respect of some of these mechanisms.”

Instead, the report says the government is working on a new national security review system that “will meet the basic objectives,” set out by Judge O’Connor, which call for a pair of bodies to monitor the RCMP, Canadian Security Intelligence Service and five other agencies involved with national security.

As part of that, the report says the government is “considering options for an enhanced role for parliamentarians as a key part of these proposals.”

The Khawaja ruling that impugned the motive provision of the act contained in the Criminal Code concluded that the “essential element” of what defines a terrorist activity — the motivation — “constitutes an infringement of certain fundamental freedoms … including those of religion, thought, belief, opinion, expression and association … and, therefore, democratic life.”

Allowing it to stand, said Judge Douglas Rutherford, would “promote fear and suspicion of targeted political or religious groups, and will result in racial or ethnic profiling by government authorities at many levels.”

The ruling is not binding on other courts, but legal experts believe it is only a matter of time before a higher court is asked to rule on the issue. Such a move would complicate and potentially delay future terrorism prosecutions unless, they say, the government reworks the definition of what makes terrorist activities unique from ordinary crimes and something that needs to be battled with special, extraordinary laws.

“The requirement that an act or omission must have been undertaken ‘in whole or in part for a political, religious, or ideological purpose, objective or cause’ operates to narrow the scope of the definition, helping to distinguish terrorist activity from other, more conventional forms of criminal activity,” says the report. “It also provides an additional safeguard for an accused, since the prosecution must prove this motive beyond a reasonable doubt.”

  • Anti Terror/Security
  • Comments Off on Government has no intention of altering anti terror law despite Charter ruling

Comments are closed.