The rising clamour for a sunset clause to terminate the most odious aspects of the ChrÃ©tien governments so-called anti-terrorism bill unless Parliament re-enacts them by a fixed date obscures a more important problem:
Bill C-36 is ill-conceived and unnecessary. It should not be passed in its present form, with or without a best before date.
The events of September 11 shocked and horrified Canadians. We all want effective action to prevent anything similar ever happening again. But lets keep our wits about us and not be stampeded into finishing the terrorists freedom-shredding mission for them.
Security against acts of terror is, as UCLA Professor Philip Agre puts it, mainly a design problem. The conversion of four airliners into flying firebombs resulted not so much from inadequate policing as from inadequate design of airports and airplanes. Relatively simple and easily deployed design changes would render airplanes impervious to the tactics employed by the terrorists. Such changes should be pursued vigorously.
A realistic war against terror will make more use of architects, engineers, urban planners, sociologists, computer scientists, and psychologists than police. As a society, we need to think in an organized and concerted way about the vulnerabilities of likely terrorist targets, and about design improvements that would limit their susceptibility.
An iron-clad means of barring access to airplane cockpits would have prevented the September 11 atrocities. Reducing judicial supervision of search warrants, as proposed by Bill C-36, would not or at least no one has raised a persuasive argument as to how it would help.
The definition of terrorism in Bill C-36 is so sloppily drafted it would have encompassed Harry Flemmings celebrated bread knife assault on a compressor hose in Scotia Square. That incident met all the conditions: it was illegal; it was intended to disrupt a public or private institution (i.e., to shut down a major construction site); it was politically motivated (a protest against lax noise bylaws).
Police might never be foolish enough to apply the anti-terrorism powers in such a case, but thats no excuse for passing a law so poorly written as to permit doing so, even theoretically.
Experts have told Parliament the bill guts the protections of Freedom of Information Act and the Privacy Act. It permits secret proceedings to designate terrorist organizations. It enables an obscure law enforcement agency, the Communications Security Establishment, to eavesdrop on Canadian citizens without judicial review.
Bill C-36 grants police what the commissioner responsible for watching over the military intelligence calls exorbitantpower to eavesdrop on private citizens.
It permits police to arrest and detain for three days people they merely suspect of planning to commit a crime sometime in the future. If suspects so detained dont submit to restrictions and conditions imposed upon them, they can be detained for a full year. The bill authorizes star chamber proceedings at which citizens could be compelled to testify against others.
A bipartisan Senate committees appeal for a sunset clause to revoke these powers after five years unless Parliament re-enacts them received widespread press coverage last week. The committees recommendations to scale back most of these extraordinary police powers went all but unnoticed.
Just how these unprecedented police powers will forestall new terrorist attacks is unclear. That they will be abused is all but certain. Examples of misused powers abound. The Canadian Security Intelligence Service owes its creation to notorious abuses by the Royal Canadian Mounted Police Security Service following another terrorist attack that shocked Canada, the 1970 FLQ kidnappings.
The history of constitutional law is in large measure a continuing attempt to prevent governmental abuse of the citizenry. The protections enshrined in constitutional law are the warp and woof of freedom and democracy.
They were assembled painstakingly over centuries. We have fought world wars to defend them. We should not surrender them now in the name of combating freedoms enemies.
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