U of T law professors are pleased with many of the recent amendments to the anti-terrorism bill C-36 but worry the act still includes provisions which violate many assumed rights of Canadians. Professor Patrick Macklem, who participated in the recent conference “The Security of Freedom,” is mostly pleased with the amendments, although he remains worried about the bill’s allowance of preventative arrests for those suspected of any association with terrorism. Co-editor of the recent book based on the conference, Macklem is also concerned by the part of the bill which forces those who are suspected of knowing something about terrorism to be forced to testify. Failure to speak at these investigative hearings can result in being jailed for a year.

“It goes against the grain of the right to silence,” he said. That said, he is pleased with the re-definition of terrorism, which originally was too broad.

“It applied to too many types of activity, including unlawful but legitimate forms of protest,” Macklem said of the definition. “The justice department has responded by tightening that.”

The government stands by its amendments, saying they address the concerns of Canadians.

“[Preventative] detention is based on the reasonable belief that someone will commit a terrorist attack and detaining this particular person would prevent that particular incident from occurring,” said Minister of Justice spokesperson Farah Mohammed.

“The bill has been carefully designed to ensure that [it] meets the requirements of the Charter of Rights and Freedoms,” she added.

But just because it squeaks by the legal test shouldn’t comfort Canadians, says law professor Kent Roach in his chapter of the book. “Charter-proofing is now an entrenched part of the legislative process in Canada, but it presents dangers, especially if governments become more concerned about avoiding invalidation of legislation under the Charter, than living up to its broader purposes and spirit.”

The new sunset clause in the bill would ensure that the preventative arrest and investigative hearing powers would be rendered void after five years, unless another Parliamentary resolution would pass, making those parts of the bill valid for another five years. Macklem said he believes the powers would indeed sunset, as there would be huge public pressure on the government to remove them.

Anti-Terrorism Bill
In Brief

In addition to compliance with the Canadian Charter of Rights, some have raised concerns that the terrorism bill doesn’t comply with the UN’s Universal Declaration of Human Rights, which Canada has signed. The Globe and Mail raised the following concerns.

The legislation permits “preventative arrest” for 72 hours without charge, but the UDHR states “no one shall be subjected to arbitrary arrest, detention or exile.”
The legislation permits secret trials, but the UDHR states “everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”
Surveillance and wiretapping remain in the proposed bill, but the UDHR states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor attacks upon his honour and reputation.”