The Hill: Unbury your dead

The Harper government has resurrected two extreme police measures buried eight months ago by the Commons for violating civil liberties.

But things have changed. Now Prime Minister Stephen Harper has Liberal leader Stéphane Dion on the run; and Harper can do now what he couldn’t last spring, when the three opposition parties voted down two draconian police power provisions - investigative police hearings and preventive arrests.

They were in the 2001 Anti-Terrorism Act and were about to expire because of a five-year “sunset” clause.
The law gave police the power to force suspects to testify at special secret investigative hearings or face incarceration.

Police could also arrest people without warrants and jail them for up to three days at a time on the basis of “prevention” of terrorism.

But Harper has a twist this time. His Justice Minister and Attorney General Rob Nicholson will be going first to the Senate with his legislation, hoping to get a softer ride from crime-and-punishment Senators than from those Charter of Rights people in the Commons.

Nicholson is oh-so-sweet with the Senate these days. He won’t even call them “the Liberal-dominated Senate” and has stopped referring to them as “unelected.”

There’s another new twist. Last spring, Dion denounced the legislation as a threat to civil liberties and ordered his people to vote it down - which they did.

Now things are different. Harper has Dion on the run; Dion is afraid of an election. So Harper can say he will broach no amendments, no watering down of his legislation. Call it the “new-government” way of doing Parliament. Everything is non-confidence. It’s Harper’s way, or the hustings.

Funny how Dion’s fear of a threat to civil liberties has suddenly dissipated. Now Dion goes along with Harper. Vote against the legislation? Who? Me? Never!

The Anti-Terrorism Act goes back to the aftermath of the Sept. 11, 2001 terrorist attacks on New York and Washington.
In the panic that followed, the Canadian House of Commons passed a harsh, new Anti-Terrorist Act that included for the first time preventive arrests and forcing suspects to testify before a judge at a secret hearing or face a jail term. George Bush was pleased. He said so publicly.

But the politicians were aware that by going so far, the law would likely not stand up to a Charter of Rights challenge, so they put a five-year “sunset” clause on the two harshest provisions in the new law. They expired March 1.
And when Harper’s government tried to keep them on the books, they were voted down by the combined opposition last spring.

It didn’t help Harper’s case that the RCMP was caught using the extra powers to help them question witnesses about a terrorist cold case that went back more than 20 years - the Air India bombing. Give the Mounties a legislative inch, and they’ll take an investigative mile.

Neither the preventive-arrest nor forced-testimony provisions have ever been tested in court. Wisely, Harper is tacking on another five-year sunset clause provision in his resurrected legislation, which may discourage some hot-to-trot Charter lawyers who are not willing to bet Harper will still be around five years from now.

Nicholson says the new provisions are not all that draconian, that before the police can force someone to testify against their will at investigative hearings, they must convince a judge that they used “every other method to get the information they needed.”

“EVERY OTHER METHOD?” Hmmm? Surely Nicholson doesn’t include water-boarding, U.S. style. We should be grateful at least about that.

There’s an additional problem with the Nicholson draft. It doesn’t limit extra police powers to hold secret hearings for “imminent terrorism offences” - bad things they have heard may happen. It would allow police to use the secret hearings for anything to do with terrorism past, present or future.

Just to pacify the civil liberties people, Nicholson has changed the wording of “preventive arrests” to a much softer sounding “recognizance with conditions.” In reality, it’s the same bleeping thing.

A jailed suspect gets to see a judge within 24 hours, or if they can’t find a judge, stays in jail for up to 72 hours.
The judge can decide to impose strict release conditions - things like electronic leg monitors - or jail the suspect for 12 months. Talk about protecting society from something bad that police say they are afraid “might” happen.

Nicholson says a new clause in the legislation requires that once a year the attorney general (that’s him, right now) must tell Parliament how well the law is working, how the extra powers have been used, and whether they are still needed.

Want to bet on whether Nicholson will say it was all a big mistake and the extra police powers were not needed and they amounted to a violation of Charter Rights?

Richard Cleroux is a freelance reporter and columnist on Parliment Hill.

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