Canadian Jewish Political Affairs Committee
Anti-terror bill clears Commons, heads for Senate as deadline looms

The Canadian Press
Wed 06 Feb 2008
Section: National General News

OTTAWA _ New legislation to kick foreign-born terrorist suspects out of Canada has cleared the House of Commons and is headed for the Senate, as the minority Conservative government races to meet a court-imposed deadline.

The bill passed the lower house by a 196-71 vote Wednesday, with most Liberals supporting the Tory measure while the NDP and Bloc Quebecois were opposed.

“It’s not an ideal bill,” said the Liberal public safety critic, Ujjal Dosanjh. “But given the time constraints it was the best we could do.”

The Supreme Court of Canada, in a landmark judgment a year ago, struck down the security certificate system used by Ottawa to deport terror suspects who don’t hold Canadian citizenship.

A new system must be in place by Feb. 23, the end of the 12-month grace period the court gave the government to reform the process. If Parliament doesn’t act in time, five cases currently before the courts will be quashed and federal authorities will be left with a gaping hole in their anti-terrorist policy.

The matter now sits with the Liberal-dominated but unelected Senate, which Dosanjh said would likely be sensitive to the situation.

“The Senate is, of course, its own master (but) my sense is they will pass it,” he said. “Hopefully they do _ there is a deadline looming.”

Senior Liberals in the upper house expect the bill to pass handily. But at least one Grit _ Senator Colin Kenny _ signalled that there could be some bumps in the road.

Kenny said the bill is a step forward, but he’d like to see an amendment providing for a parliamentary review in three to five years to see how the law works in practice.

“That would certainly give me more comfort,” said Kenny, who maintained it would be possible to make the change and still get the law on the books by Feb. 23.

“I don’t see any procedural reasons why the deadline can’t be met.”

The old regime overturned by the Supreme Court allowed indefinite detention of suspects and eventual deportation based on secret intelligence presented at closed-door hearings. Defendants got summaries of the evidence, but rarely learned the key details of the case against them.

The new law would improve bail procedures and permit special, security-cleared lawyers to attend the secret hearings, challenge government evidence and protect the rights of the accused.

But many legal experts say the changes don’t go far enough and are sure to spark a new round of court cases under the Charter of Rights.

“Why would the government opt for a system that they know is going to be challenged?” said Toronto immigration layer Lorne Waldman. “There’s no reason, I guess, other than obstinacy.”

Paul Cavalluzzo, who served as chief counsel for the public inquiry into the Maher Arar affair, said there’s a “150 per cent chance” the law will be contested in court.

“And I’m talking about a challenge with a very reasonable prospect of success,” said Cavalluzzo. “Why they’re risking this kind of legal uncertainty is really beyond me.”

The special advocates who would test government evidence under the new regime are modelled on a system employed in Britain. But the regime there has been criticized as legal window-dressing that doesn’t really protect civil liberties.

The chief complaints are that the British advocates lack adequate resources, have a restricted legal mandate and can’t get access to all the material held by intelligence agencies on suspects.

Critics here say it would have been better to adopt a made-in-Canada approach, based on procedures used by the civilian review committee that oversees the Canadian Security Intelligence Service.

Lawyers appearing before the committee on non-deportation matters face fewer legal restrictions and have easier access to confidential material.

Many Liberals agree a home-grown system would have been better, but say they at least managed to improve the bill in other areas.

One of the amendments they’ve already won in the Commons outlaws the use of evidence obtained by torture abroad and then shared with CSIS by foreign intelligence agencies.

There are currently at least two terror cases before the courts in which the suspects claim Canadian authorities are relying on material collected overseas under duress.