Ten years after the September 11 attacks, terrorism remains a serious threat to Canadian security. While there have been no attacks in Canada since 2001, the RCMP and CSIS have foiled several plots. The most serious of these plots was hatched by the “Toronto 18,” who planned to detonate truck-bombs and to kidnap and execute Prime Minister Stephen Harper. Arguably, the risk of terrorism has increased since Canada stepped up its involvement in the war in Afghanistan in 2006. In order to meet the threat of Islamist terrorism, the Conservative government plans to reintroduce extraordinary post­–9/11 security legislation this fall.

The legislation, which had expired in 2007 due to a sunset clause, granted two controversial powers to the courts and the police. First, the police can detain anyone they suspect of being associated with terrorism for three days without charge. This lets the police prevent people whom they suspect of planning attacks from doing so while they gather enough evidence to charge them. Second, the courts can compel potential witnesses to testify terror-related activities by imprisoning them. This allows the courts to bypass the usual procedure, which would require a trial and conviction for contempt of court.

While both powers are hypothetically useful in support of Canada’s counter-terrorism efforts, they were not used during the period in which they were in force. However, it may be that the types of threats that Canada faces in the future, such as an increased number of so-called “homegrown” terror plots, will require the use of these powers. Thus, what is disturbing is not that the government plans to reintroduce these powers, but that Public Safety minister Vic Toews hopes to do so without including a sunset clause or substantial judicial or legislative oversight.

Most laws passed by Parliament remain in force until they are repealed. However, some controversial or time-sensitive laws are subject to sunset clauses, legislative self-destruct buttons which ensure that they expire after a period of time. Thus, no matter what Parliament is doing at the time, the sunset clause forces the government to consider whether they will reintroduce the legislation, and gives the opposition a chance to decide whether they will resist it. That way, it is hard for these laws to outlive their utility and, more importantly, ensures they will not be used for purposes other than those for which they were intended.

Past Canadian governments not only interned “enemy aliens” during the First and Second World Wars but also made plans to arrest thousands of communists and communist sympathizers if war had broke out with the Soviet Union during the Cold War. These arrests and plans for arrest were authorized under similar legislation to that which the Conservatives plan to reintroduce. They are now widely considered to be an overreaction, as the threats to Canadian security were vastly exaggerated. Unless these anti-terror powers are limited, they could be used in similar ways by future governments.

Moreover, aside from the requirement that the Public Safety minister report annually on the use of these powers, the government has no plans to provide real accountability. The opposition should demand that the government only be allowed to reintroduce these powers if it agrees to provide ongoing and substantial oversight. Since these powers will largely be used by the RCMP and the federal justice system, the government should make the RCMP more accountable for its national security activities by creating an external committee, modeled on the one which oversees CSIS, to scrutinize its operations and recommend policy changes.
It may be that radical Islamic terrorism is actually a significant threat to Canadian security, and the courts and the police require these new powers to meet it. Granting these powers without giving them an expiry date and providing for real accountability, however, leaves too much room for abuse. Canadians want to see our society kept safe, but not at the expense of fundamental rights.