Madam Speaker, the introduction of this legislation has generated a configurative response which tends to characterize if not stereotype the discussion as one of national security versus civil liberties. Accordingly, I would like to identify if not briefly comment upon a cluster of areas that have been configured as national security versus civil liberties concerns.
I would like to suggest that the appropriate optic should be that of human security, that the appreciation of this legislation should be approached from the perspective of the promotion and protection of human security and which sees the anti-terrorism law and policy as a priority on the human rights agenda and not simply on a national security agenda, and which jettisons the moral and legal shibboleth that one person's terrorist is another person's freedom fighter, which has blunted and blurred the moral and juridical divides and pre-empted and precluded effective anti-terrorism law and policy.
First, it has been said that the legislation is not unlike the War Measures Act, that it is violative of our guaranteed fundamental freedoms under the charter of rights and freedoms and that it will not pass constitutional muster.
It is important to recall that there was no charter of rights at the time of the War Measures Act, that the provisions authorizing preventive detention and the like under the War Measures Act have no parallel under the present legislation; that the rights and freedoms under the charter are not absolute but are subject to reasonable limitations prescribed by law, as can be demonstrably justified in a free and democratic society; and that the supreme court has developed a number of interpretative principles, such as the contextual principle, the internationalist principle and the comparativist principle, to determine whether any limitations are in fact demonstrably justified.
For example, under the contextual principle, the issue would not be examined under the abstractions of national security versus civil liberties, but under the concrete case and context of terrorist assaults on human security.
Under the internationalist principle, the court would look to see whether the legislation is in pursuit of our international treaty undertakings and the like.
Under the comparativist principle, the court would look to see what other free and democratic societies like the United States and the United Kingdom have done. Under the margin of deference principle the court might well defer to a parliamentary judgment respecting the overall promotion and protection of human security in the face of this international terrorist assault.
Second, the question arises whether the definition of what constitutes terrorist activity and terrorist offences and whether these definitions are over-broad or sufficiently circumscribed to pass constitutional muster. It is clear that in respecting the delineation of terrorist offences, pursuant to the 10 issue specific international anti-terrorism treaties, these offences are properly defined and circumscribed and they incorporate by reference definitions already under the international treaties and present in the criminal code.
With respect to new definitions of terrorist activity as set forth in proposed section 83.01 of the act, they appear to be clearly defined, both with respect to the character of the terrorist acts and the mens rea, or guilty intent, required for prosecutable purposes.
Third, with respect to the issue of participation and contribution offences, the burden of proof will be on the state to establish that there was intent on the part of the accused that the activities were for the purpose of facilitating or carrying out terrorist activity.
Fourth, there is the issue respecting the process of adding a group to the list of terrorists. Admittedly, it incorporates a number of protections, including provisions for removal, judicial review and safeguards to address cases of mistaken identity. As well, the list must be reviewed every two years by the solicitor general, but this well may become a politicized provision which would prejudice the integrity of the anti-terrorism law and policy and therefore should be approached with respect to appropriate findings of fact and conclusions of law.
Fifth, there is the civil forfeiture scheme, which raises the question as to whether the procedural safeguards respecting confiscation of property are sufficient. In that context it is important to note that the safeguards include court protection of the interests of family members in the principal residence, access to the property in order to meet reasonable living and business needs and legal expenses and appeal procedures.
Sixth, there is the issue of the financing of terrorism offences. Here it is important to appreciate that this offence has been established pursuant to our prospective ratification of the international convention for the suppression of the financing of terrorism, that it requires the consent of the attorney general to prosecute, and that the state must establish a mens rea threshold that the accused knew or intended that the moneys or resources were in fact being used to plan, facilitate or carry out terrorist acts.
Seventh, in fulfilling its mandate to collect information, the Communications Security Establishment must receive authorization from the Minister of National Defence to intercept any communication to or from a foreign target located outside Canada that originates or ends in Canada. Admittedly the minister must be satisfied before issuing such an authorization that measures are in place to protect the privacy of Canadians, but should there be a requirement for a judicial authorization cabinet ministers would delegate this authority.
There are three other points in the bill which I will identify. Eighth, is there a breach of the solicitor client privilege with respect to information disclosures mandated under the act? Ninth, what about the provisions respecting preventive arrest which admittedly required judicial authorization and consent of the attorney general but which are new procedural approaches in that regard? Tenth, are there investigative hearing provisions where the judge may order the examination of a material witness?
These are 10 neuralgic points which the Standing Committee of Justice and Human Rights will address in the days and weeks ahead.