Mr. Chairman, on September 11, following the infamous attacks in New York and Washington, President George W. Bush described those events as attacks on freedom itself. Tonight I propose to speak about the implications for freedom of the anti-terrorism legislation that the government is proposing and has put forward today.
This is legislation designed to deal with some extraordinary threats to our freedom. It does so, necessarily perhaps, by limiting some fundamental freedoms. In particular, from my own quick reading of the bill, I take note of six specific limitations on freedoms which I think ought to be taken very seriously by all of us.
The first of these is a restriction on freedom of association. It would be an offence under the law to participate in a terrorist group. There is also a restriction on the right to privacy. As well, there would be easier use of electronic surveillance against terrorist groups, which necessarily means not only surveillance of terrorist groups but also of those who are suspected, not necessarily accurately, of being members of such groups or of being participants in such groups.
To make this last point, I will read from some of the background material provided by the government.
We see that the new law would eliminate the need to demonstrate that electronic surveillance is a last resort in the investigation of terrorists. We see as well that the proposed legislation would extend the period of validity of wiretap authorization as issued by a superior court judge, and finally, the requirement to notify a target after surveillance has taken place could be delayed for up to three years rather than the one year currently specified in law.
We see as well that the right to a public trial would be limited to some degree through amendments to the Canada Evidence Act which would forbid public disclosure of information that is considered to be of national interest and that might come up in court.
As well, the right not to be detained without charges being laid would be infringed to some degree. The criminal code would be amended to create a new category of what is called preventive arrest. This would be done where it is deemed appropriate for people who are suspected terrorists.
Freedom of speech would be restricted to some degree, with restrictions on the use of Internet and telephones for the promotion of hate.
Finally, property rights would be restricted to some degree through civil forfeiture laws.
It may well be that these are justified restrictions on freedoms given the emergency circumstances with which we are presented. Rights are never absolute. I think we all understand this when we think of the homely phrase “my right to swing my fist ends where your nose begins”.
Even in the United States where the bill of rights lays out the rights within it, subject to no restriction whatsoever, the practice has in fact been for the courts to find ways of defining restrictions into the definitions of these rights. For example, the right to freedom of speech was defined more narrowly by the creation by the courts of something known as speech acts, whereby a kind of speech is considered not to be speech but rather to be a kind of act and therefore not subject to protection under the bill of rights.
In Canada, section 1 of the charter of rights applies in this respect and provides limitations. If I may, I will read section 1 to the House to make this point. It states:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The Prime Minister and the Minister of Justice have stressed at great length that the new anti-terrorism act would conform to section 1 of the charter. I think what they are driving at is that insofar as the new anti-terrorism law restricts or would restrict individual freedoms it would do so only by placing reasonable limits prescribed within this law and doing so only to the extent that can be justified in a free and democratic society like Canada's.
However, this means that if they are to succeed in meeting the tests they are setting for themselves they must meet with what is known as the Oakes test. This is a test that was defined by the supreme court in a 1986 case, Regina v Oakes.
The standard of proof that the rights are being restricted in a manner that is not excessive is only the civil standard, that is to say, the balance of the probabilities must be in favour of the government should the government find itself in any kind of court proceeding where it is trying to demonstrate the constitutionality of one of these restrictions on rights. The balance of the probabilities essentially means that there has to be a better than 50% chance that the government is in fact justified. This is not a perfect test and it is certainly not a perfect protection for liberties.
Peter Hogg, the great constitutional scholar, says this is probably the only realistic test that is available to us, that is, the test applied by the civil law rather than the more restrictive test applied by the criminal law, but he does stress that it too has its dangers. To make this point, I would like to quote Peter Hogg, who states as follows:
--where the validity of a law turns on a finding of fact (for example, the existence of an emergency), that finding of fact need not be proved strictly by the government; it is sufficient that there be a “rational basis” for the finding.
Therefore we do see the potential for some restrictions that could in fact represent a genuine erosion of our overall freedoms and liberties, and after all, it is in protection of freedoms and liberties that we are trying to enact this legislation.
With all this being said, and remembering the extraordinary circumstances that we face today which justify this kind of legislation, it seems to me that there is an absolute need for a sunset clause in the legislation. We do believe that this emergency will pass in time, certainly that it has the potential to pass in time and that if it has not passed by the time that the sunset clause would take place or would kick in, it could be reenacted or some new version could be enacted that is perhaps a bit refined due to the experience we would have had in dealing with the law in practice and with the rights restrictions that it states in practice.
If, for example, the law were to say that this law would cease to be in force and effect after the passage of three years' time unless reenacted by parliament, I think that would be a very good idea. Instead we have in this legislation a review clause. Subclause 145(1) of the bill states:
“Within three years after this act receives royal assent, a comprehensive review of the provisions and operation of this act shall be undertaken by such committee of the Senate, of the House of Commons or of both houses of Parliament as may be designated or established by parliament for that purpose”.
Subclause 145(2) states:
“The committee referred to in subsection (1) shall, within a year after the review is undertaken pursuant to that subsection or within such further time as parliament may authorize, submit a report on the review to parliament, including a statement of any changes the committee recommends”.
All of which is well and good except for the fact that it imposes no sanctions should the government not arrange to have such a committee convened.
The problem we have is that in the past the government has failed, and failed regularly, to actually establish such committees and ensure such reviews when they have been called for. A perfectly good example is the Referendum Act. A review should have taken place by mid-June of 1995. In fact no review has taken place and we are now six years overdue. I worry that the same thing will happen here.
For this reason I strongly encourage the government to change the legislation and write in an actual sunset clause that will actually cause the legislation to cease to be in force and effect if no reenactment takes place. I think that would be a strong improvement to this law. I do urge the government to make that change.