Sunset clause on anti-terror laws looms without 9-11 measures tested in court

Closing arguments have just been heard in a constitutional and procedural challenge to the Security of Information Act, used to obtain RCMP warrants to raid the home of Ottawa journalist Juliet O'Neill after she was apparently leaked details of a case file.

And next Monday - Sept. 11 - the lawyer for Momin Khawaja, an Ottawa software developer implicated in a British bombing plot, will be in Ontario Superior Court attempting to have Canada's anti-terrorist legislation itself struck down.

The extraordinary legal measures, Khawaja's lawyer Lawrence Greenspon argues in his factum filed with the court, are "yet another in a long list of crisis-style responses undertaken by the government of Canada not in crisis but during a time of stress."

It's an opening gambit that legal experts say is unlikely to forestall the scheduled January start of Khawaja's trial, even if - as some of those same experts argue - Greenspon has a legitimate point.

"It's historically observable and will always be true that courts are only going to interfere at the margins with government's judgments when it comes to national security," says Grant Huscroft, an expert on constitutional law at the University of Western Ontario.

"In retrospect, a lot of the (judicial) deference to the government looks like over-reaction - and civil libertarians are always most concerned in times of external threats to the country for that very reason."

In Canada, it means new anti-terrorist laws have been put on trial before any alleged terrorists.

In fact, Parliament is set to resume its review of the federal anti-terror legislation this fall, and a couple of its most draconian provisions have sunset clauses due in December.

When Bill C-36 was rushed into law in fall 2001, it created several new offences under the Criminal Code, including life sentences for counselling terrorist activity and 10-year sentences for terrorist financing.

The law allows preventive arrests and detention without charge for up to 72 hours and compels individuals to testify before a judge at investigative hearings (measures that are not known to have been used to date and that expire if not renewed this year).

It makes it easier for police to obtain wiretap warrants and permitted, for the first time, the top-secret Communications Security Establishment to conduct electronic surveillance on Canadian residents as well as foreign targets.

And yet, the government's top rationale for the tough measures was neither investigative nor prosecutorial.

Liberal justice minister Anne McLellan introduced Bill C-36 on Oct. 16, 2001, by premising the legislation on the Sept. 11 attacks: "These events challenged Canadians' sense of safety and security and it is this that we must address as our first priority."

Six weeks later, the Liberal chairman of the Commons justice committee reiterated the point when the Commons passed the legislation.

"The first fundamental human right is the right to feel a sense of personal security," said Andy Scott. "I think we had to act."

By such a measure, the anti-terror legislation has been a qualified failure.

Pollsters suggest Canadians today know little and think less about the tough anti-terror laws. We are also more likely to expect future terrorist attacks on Canadian soil than we were in those panicked autumn days of 2001.

The jury is still out on whether C-36 has been the bane of terrorists and a boon to security officials.

"To date, Canada's anti-terrorism efforts seem to have been largely conducted using pre-9-11 investigatory powers and criminal legislation," says Rex Brynen, who teaches political science at McGill University in Montreal.

Brynen doesn't necessarily see that as a critique of the anti-terror act, which he characterizes as a means to "plug holes" rather than a rewrite of terrorist law.

Jack Hooper, deputy director of the Canadian Security Intelligence Service, told a Senate committee in May that CSIS has two options in dealing with domestic terror suspects: "We can work in collaboration with law enforcement to prosecute them or we can work to disrupt their activities."

The public may never understand how great or how little the impact of disruption activities because they're obscured by a veil of security.

What's attracted more attention to date than the provisions of Bill C-36 are Canada's much-criticized security certificates, which Brynen notes were used before 9-11 for years with little public outcry.

Currently, five alleged Islamic terrorists are being held without charge under security certificates while fighting government attempts to deport them.

Critics say the government would prefer to ship terror suspects off to repressive overseas regimes with lax civil and legal codes, rather than take a chance on a failed prosecution in Canadian courts.

In the case of Momin Khawaja - arrested in Ottawa in the spring of 2004 in connection with a British investigation that also collared seven Britons - as in the case of the 17 terror suspects charged this June in Ontario, the government has no choice but to deal with Canadian citizens in Canada's courts.

Those cases will grind through the court system no sooner than 2007.

That timeline gives parliamentarians one other matter to consider this fall as they examine the five-year expiry date on some aspects of the anti-terror legislation.

Back in 2001, some MPs wanted a three-year sunset clause but the justice minister insisted on five: "We wanted to ensure that there would be a record for parliamentarians to consider," McLellan said at the time.

Make of it what you will, but five years after the Sept. 11 terrorist attacks, there remains no public record of C-36's success or failure.

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