Backroom deal rushes omnibus legislation

OTTAWA – The Liberal majority in the Senate is threatening to confront Prime Minister Stephen Harper over two key criminal justice bills he has declared will be  a test of confidence for his minority government.
The cash-strapped and divided Liberal party is in no position to make trouble in the Commons over the legislation.

In fact, the Liberal caucus took part in a backroom deal with the government and the other two opposition parties to rush one of the bills - sweeping omnibus legislation that a high-profile Ottawa lawyer predicts will guarantee a frenzy of Charter challenges - through committee hearings in only three weeks. They even skipped the vote to send it into a special legislative committee whose inquiry breadth will be limited compared to the authority of the Commons justice committee.

The other bill, legislation to renew Anti-Terrorism Act clauses that expired when the Liberals refused to agree to renew them in the last parliamentary session, contains provisions so contentious that same Ottawa lawyer, Heather Perkins-McVey, compares them to the state of legal affairs in some of the countries at the other end of the war on terror.

But, says Liberal Senator George Baker, Liberal senators will not be bound by the same political constraints as their elected colleagues. They will insist on amendments to both bills, regardless of Harper’s election threat.
“We’re suggesting, ‘Okay, government, do it,” he said after he suggested government changes during his Senate speech on the terrorism bill. “But if the government does not do it, then we’ll have to do it, and then you’re running into a real confrontation with the prime minister.”

The terror bill contains two key measures Baker and his fellow Liberal senators, along with Perkins-McVey, past chair of the national criminal justice section of the Canadian Bar Association, cannot accept because of their perceived violations of fundamental principles of justice. Other troublesome aspects are dispersed within the main sections.

The legislation will reintroduce Criminal Code provisions for secret “investigative hearings” - ex parte sessions police could request even if they are merely “suspicious” of terrorist activity or knowledge. With an attorney general’s consent, they could ask a superior or even provincial court judge to call the hearing to grill people who might have information about anyone suspected to have committed an act of terrorism, or their “whereabouts,” or anyone who may commit an act of terrorism, or their “whereabouts.”

“Nowhere in this bill do they talk about a reasonable belief that someone has committed a crime,” says Baker. “What they’re talking about is just suspicion. You can arrest somebody on suspicion, you can hold them without bail on suspicion.”

Surprisingly, the Conservative government reintroduced the measure for investigative hearings despite a 2004 Supreme Court of Canada ruling in Vancouver Sun (Re) that partially upheld a challenge to a secret hearing in the Air India investigation and vigorously advocated the need for an open justice system.

“Public access to the courts guarantees the integrity of the judicial process and is integral to public confidence in the justice system and the public’s understanding of the administration of justice,” the majority of six justices agreed. “In this case, the level of secrecy imposed was unnecessary.”

The Liberal senators also plan to join battle over a section that would allow a suspect to be arrested, without warrant, if a peace officer suspects the arrest is necessary to prevent terrorist activity. The suspect could be detained without being charged for up to three days initially and, if he or she fails or refuses to accept terms of a release on recognizance, up to 12 months.

“This is not Iraq, or Iran, or a country where persons are kept indefinitely, China, where persons are jailed for long periods of time and then let go mysteriously in the gulag,” says Perkins-McVey. “I said that in jest, but I think the concern is if you look at the possible effect of somebody refusing to sign a recognizance, indeed that could be the outcome.”

The much more voluminous omnibus bill, for what might be termed everyday crime as opposed to real or apprehended terrorism, is equally riddled with provisions that run counter to fundamental principles of justice and the Charter, say Baker and Perkins-McVey, who has made several appearances at the Commons justice committee to offer advice on justice legislation.

The omnibus bill is an amalgamation of five separate crime bills that had either passed through the Commons into the Senate or through committee hearings in the last session of Parliament. But, when the Harper Conservatives reintroduced them as one piece of legislation under threat of a snap election, they included some of the tougher clauses that were watered down in the last go-around, including higher mandatory minimum sentences for crimes involving firearms.

Also included are new reverse onus provisions for bail in gun crimes, and reverse onus for convicted people who face dangerous-offender designations following a third offence in a range of crimes, including, oddly, breaking and entering with intent. The convicted person has to prove he or she should not be locked away indefinitely, possibly for life.

The changes will jam up courts, pile up legal bills, and demand construction of new penitentiaries to handle the inevitable uptake, says Perkins-McVey.
“We’re talking about a great cost to the justice system,” she argues. “The legal aid system is going to be taxed, there will be lengthy hearings, there will need to be increased judges, Crown attorneys, court space, penitentiaries to hold these people.

A member of the International Criminal Bar who has argued in the Supreme Court of Canada and the trial and appeal divisions of Federal Court and also holds membership in the International Chinese Law Reform and Advocacy Project, Perkins-McVey says the title Harper chose for his omnibus crime bill reveals its political underpinnings: the Tackling Violent Crime Act.

“One thing that concerns me is the Conservatives have done a very good job of creating a bit of hysteria, quite frankly, suggesting our communities will not be safe unless these bills pass,” she says. “Many of these are extraordinary measures that have not been looked at before. Some of them may be justified, and some of them may be needed. But there are many of them that cause concern in terms of constitutionality and restriction on rights.”

Ms. Perkins-McVey adds, “Many see it as the beginning of a slippery slope.”

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