CKNW Editorial
for October 17, 2001

I’m going to talk about the new Terrorism legislation before parliament. It was, I think, Jefferson who observed that every derogation of freedom is done in the name of expediency. But the prime minister, the foreign minister, and the justice minister all say that we must have this legislation while the Alliance critic says it doesn’t go far enough.

Let me propose some tests for legislation of this sort.

1. what is the evil to be cured? It’s terrorism and no one would deny either that it’s not evil or that it doesn’t require curing so that test is met.

2. Is the evil to be cured such that legislation is necessary?

Here we need a lot more evidence. How much terrorism activity is there in Canada? What handicaps are the police legitimately under in seeking to root out terrorism? Would those handicaps be alleviated or even disappear with more money and better undercover work?

There has been one case a few years ago where a terrorist was caught crossing the border but that’s scarcely an epidemic. If we agree that we have a problem and that the problem is sufficient for legislation we have two sub questions

A. will the legislation be sufficient to get the job done?

B. Assuming the answer to A is yes, the Alliance Party notwithstanding, are there unforeseen consequences we should be concerned about and are they such as to outweigh the value of the legislation proposed?

Let me first off remind you that these powers are highly arbitrary and will be administered by police with, in the first instance, no judicial interference. Even if the judge does get involved after a suspect has been in custody for 24 hours, the question becomes what are the grounds for adding another 48 hours to the incarceration?

Now it is also well to note that the police are supervised by the same political offices, that is to say the solicitor-general and the prime minister, which is really to say the prime minister, as supervised the APEC matter. Also bear in mind that a terrorist by definition is going to be someone the policeman thinks is a terrorist and his thinking may well be clouded by a number of factors including his natural desire to make his own job easier and the need to please his political masters … as for example, where some pretty unsavoury dignitaries are going to be the subjects of protest.

Let’s segue from that into the section that allows an arrest without a warrant where police have reasonable grounds to believe that the arrest is necessary to prevent an act of terrorism they have reason to believe is about to happen. Is, was, Jaggi Singh a terrorist because he’s a communist? Ted Hughes was highly critical of the police arresting Mr Singh the day before the Apec protest, on a spurious charge, just so he could not be there to help lead the protest. Would his arrest, because he was a communist, now be justified because at least at some time communists favoured taking over governments by force? What about Craig Jones - about as pacific a person as you would want to meet – would he be a terrorist because he was once arrested holding up cloth signs saying "democracy" and "free speech" at the Apec protest?

Will there be a penalty against the crown if someone arrested and held incommunicado demonstrates that he was not a terrorist but just someone who wanted to make his point? Will the person arrested be immediately entitled to counsel? Does this bill suspend the right of habeas corpus when a cop thinks someone is a terrorist? Presumably yes, but why?

To knowingly harbour or conceal a terrorist will be punishable by ten years in prison. Now this is a bit scary. Your spouse, partner, friend whatever hasn’t been convicted of anything, presumably, yet in advance even of his trial you can be liable for harbouring or concealing him. Or does his conviction retroactively make you know that he was a terrorist when you took him to your bed? If the alleged terrorist in question is one who, to your knowledge, is planning to blow someone up that’s one thing … but what if he’s like Mr Singh, a communist in whose ancient dogma is a commitment to overthrow a government by force?

How about this one, and I paraphrase, someone, by persuasion a communist or anarchist, pickets a hospital or, in the near future, a schoolhouse? Terrorist activity as I read the Bill.

What about the folks who a few weeks ago picketed my church because, they said, the Anglican Church condones abortion. Is this "’mischief’ "in relation to religious property motivated by bias, prejudice, or hate based on religion, race, colour or national or ethnic origin"? Seems to me it would qualify.

Let’s stop and think about this. If in our minds eye we have the police dealing and only dealing with people actively planning to hijack planes or plant bombs, that’s one thing. The difficulty is that when you try to create an inclusive phrase and definition in order to catch that sort of person in legislation the language must invariably be broad enough so that it would catch Jaggi Singh, the protester at my church and probably Craig Jones just as well as Osuma bin Laden.

But isn’t this justified in view of September 11?

It may be … but the government hasn’t offered a shred of evidence that it is. I have no doubt that there have been terrorists in this country and probably are now. I have no doubt there are those plotting political assassinations too. But there’s the point – there hasn’t been a political assassination in Canada since D’Arcy McGee in 1868 not, I’m sure, because there haven’t been plenty of candidates for assassin and potential victims but because ordinary police work done within the precepts of a free society has been sufficient to prevent them.

It’s not that there aren’t presently laws against terrorists and all the things they do to plot. Killing people, hijacking planes, kidnapping and blowing things up are all very much against the law and carry with them substantial penalties. What we’re talking about here is making the policeman’s job a bit easier while at the same time not only taking away liberties but placing in the hands of what in Canada is a politically directed national police force the opportunity to take out troublemakers by calling them terrorists, with no penalty attaching if they’re wrong.

This is the War Measures Act all over again. With a frightened public to cow, the government grabs dictatorial power just as it did when a man was kidnapped and another murdered. There were laws against murder and kidnapping in 1970 eminently sufficient to bring the killers and kidnappers to justice – if you call exile and pardons justice – just as there are laws today well sufficient to handle whatever terrorism exists in this country.

One parting thought – it will be said that the police will never know what terrorism activity exists unless they have extraordinary powers to arrest and interrogate. Nonsense. Good police work is what’s needed. If we ever go down the road where the end justifies the means … that draconian measures can be justified if the police think it will make their job easier … we have sacrificed the very thing the terrorist attacks - the notion of a free society where citizens would far rather take risks of violence than yield their freedoms to the state – especially a state than no longer has an independent police force.