The federal government has said that it would introduce legislation on four main fronts to counter terrorism: providing anonymity to CSIS informants; expanding CSIS’ powers in terms of its ability to undertake investigations overseas; enhancing powers of preventative detention, and prohibiting speech that incites or condones terrorism.
The first of the two proposed powers were contained in Bill C-44, tabled today, entitled the Protection of Canada from Terrorists Act.
Protecting anonymous sources
The Bill amends the existing CSIS legislation by enabling CSIS to protect its sources, thus ensuring anonymity. Practically speaking this means that persons may be detained, charged, or even convicted based on information that they will never have the opportunity to see.
The relevant provision is section 18.1(2) which states that
“no person shall and, in a proceeding before a court, person or body with jurisdiction to compel the production of information, disclose the identity of a human source or any information from which the identity of the human source could be inferred.”
The Bill provides for exceptions, the most important of which allows for a party to seek an order to disclose the identity of a source provided that it is essential to establish the innocence of the accused and only in circumstances where the proceeding in question is a prosecution of an offense. This suggests that if an individual is detained under some form of preventative detention (where no charges have actually been laid), in deportation proceedings or in other proceedings that are not a “prosecution of an offence” that this type of order will not be available.
The Bill also says that CSIS is authorized to apply for a warrant to enable CSIS to investigate, within or outside Canada, threat to the security of Canada.
In the past, the Canadian government has strenuously objected to the application of the Canadian Charter of Rights and Freedoms to its personnel working overseas. In his remarks today when tabling the bill, the Minister stated that the government fully intends to comply with civil liberties and, by implication, the Charter. It will be very interesting to see whether the government will actually acknowledge the application of the Canadian Charter of Rights and Freedoms to the actions of Canadian security agencies acting abroad.
More legislation coming?
Media reports and statements from the government have suggested that the government will enhance its powers to detain individuals on a preventative basis. This means that the government will strengthen its power to arrest and imprison individuals without actually charging them with an offence. This would, on its face, fly in the face of Canada’s Charter protections against arbitrary arrest and detention.
If the government proceeds to introduce legislation to enhance powers of preventative detention, the question will then arise as to whether or not individuals will find themselves detained on the basis of information that may have been obtained as a result of torture (something the government has already said it was prepared to use if necessary), information that will now be confidential as a result of bill C-44. This is of particular concern if the evidentiary threshold is to be lowered.
It is noteworthy that there have been recent cases in the European context where preventative detentions have been declared contrary to human rights when the detainees had been arrested and imprisoned on the basis of information that they had not had the opportunity to see. The cases are Nedim Şener v. Turkey (application no. 38270/11) and Şık v. Turkey (application no. 53413/11). The Court held that Turkish authorities had detained journalists Mr Şener and Mr Şık for more than a year on the basis of evidence that neither the journalists nor their lawyers had had an opportunity to challenge. (see case summary: Holding two investigative journalists in pre-trial
detention for over a year breached the Convention: Judgments Nedim Sener v. Turkey and Sik v. Turkey. While it is not likely that any Canadian government would authorize such a lengthy period of pretrial detention, the comments by the court with regard to the use of confidential information in the context of pretrial detention are of particular interest.
Finally, there have been indications in the media that the government will attempt to make it an offence to publish material that incites or appears to support terrorism, effectively creating a new offense related to speech that condones terrorism. This may resemble similar legislation in the UK introduced after the 2005 bombings in London that made it an offense to condone terrorism. Early experience with the legislation in the UK has not met with success before the courts.
Categories: Civil Liberties