In the fall of 2001, in haste to respond to the Trade Tower attacks, Canada cobbled together a bit of anti-terrorist legislation that all involved agreed was nasty, but necessary.
But even in their haste to give police and security agencies new tools to combat the suddenly-apparent terrorist threat, parliamentarians of the day took the time to add sunset clauses to two particularly insidious clauses.
The two clauses in question permit “preventative arrests” and a kind of kangaroo court called “special investigative hearings,” and were quite rightly recognized as a gross violation of the Canadian Charter of Rights and Freedoms.
Sunset has arrived for these clauses, and today’s parliamentarians disagree on whether it’s necessary to extend them into the future.
One curious aspect of Canada’s extreme reaction to a terrorist attack on a foreign country was that we had in our own recent history an attack of similar magnitude, proportionate to our population, and had hardly reacted at all.
In 1985, 329 people travelling from Canada were killed when an Air India jet was blown up. In a related bombing obviously intended to cause equal devastation, two baggage handlers were killed in Tokyo.
In the words of Bob Rae’s 2005 report, “It was at that point, and up until 9/11, the worst attack on the travelling public in history.”
In response, Canada made no changes to our laws, sent no soldiers to war, didn’t even create a commission of inquiry until two decades after the fact.
A police investigation produced suspects, but after two key witness were murdered, a third refused to testify, and the case fell apart.
In the aftermath of the 2001 Trade Centre attacks, with Canada leaping into war in Afghanistan and rushing to abandon treasured civil rights, it was hard not to wonder, if the country didn’t respond this way to the air India bombing, why now?
Last week, Air India went front-and-centre in the debate over those sunset clauses, when Harper made the bizarre allegation that the Liberals were trying to quash the anti-terror act to protect an in-law of one of their members. Having read in the Vancouver Sun that the father-in-law of Liberal MP Navdeep Bains had been asked to testify at the Air India Inquiry, the prime minister was suggesting that this was the reason for Liberal opposition to extend the two clauses.
Not only was the attack on Bains incomprehensible — who did Harper expect would believe it? — it was transparently thuggish on several counts.
First, from the safe ground of parliamentary immunity he implied that to be asked to speak to an inquiry implies guilt, and a need for protection.
Next he suggested that Bains would be so foolish as to ask the party to make a major policy decision on his father-in-law’s behalf, and the party would be so collectively insane as to agree.
Harper’s broad-brushed smear was all the more unconvincing in light of the fact that just last week the Air India inquiry judge, Supreme Court Justice John Major, announced that he was ready to shut down because government secrecy was making it impossible to do his job.
It is, in fact, the anti-terrorist frenzy that’s holding up the inquiry.
Page after page of evidence is blacked out for security reasons, to the point where entire documents are meaningless.
Now the Supreme Court of Canada has quashed another nasty piece of anti-terrorist policy, the so-called “security certificates” that made it possible to hold foreign suspects indefinitely without trial, and without telling them the charges against them.
Chief Justice Beverley McLachlan, speaking on behalf of all nine judges, said, “The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process.”
It’s one of the main reasons that democracy was created — to put a stop to the kingly practice of locking one’s enemies up in dungeons to rot.
The Supreme Court was ruling on cases brought by three men who were detained between 2001 and 2003 on suspicion they were connected to al-Qaeda.
Two of the three are out on bail under strict conditions.
There’s no way of commenting on their claims of innocence, or the government’s insistence on their guilt, since the case against them is secret.
Every country needs to protect itself against terror attacks. Countries at war are more at risk, because terrorism tends to be retaliatory in nature.
This has always been true, and regimes have often used evil means to protect themselves from perceived threat.
That’s why modern democracies need to enforce civil rights.
To create a necessary social tool like the Charter and then to make laws to circumvent it is foolishness.
The police have all the powers the Charter allows to watch, investigate and prosecute terrorists. They would like more powers, but then the police always would.
A wise society doesn’t give the police everything they ask for. It formulates a civil code, and then sticks by it.