Prof. Kent Roach - "Two steps forward, one back in dealing with terrorism"

Although both Chiheb Esseghaier and Raed Jaser are not Canadian citizens, they have not been detained under the national security provisions of our immigration law. That is a good thing.

The use of criminal charges against the two men accused of a plot against passenger rail is a positive development for all concerned. It means that the accused are presumed innocent. Guilt will have to be proven beyond a reasonable doubt on the basis of public evidence. It allows society legitimately to expose, denounce and punish any attempt to do violence against innocent civilians.

As with the calls to subject the alleged Boston bomber to military custody and trial, the use of immigration law against the two men would have been wildly misguided. Canada’s use of immigration law security certificates since 2001 against five men alleged to be affiliated with al-Qaida has been a disaster for all concerned.

Some of the certificates have been quashed as unreasonable. Others have been abandoned to prevent the disclosure of secret evidence. The legislation is scheduled to make its second trip to the Supreme Court to review its constitutionality later this year. Attention has been diverted from guilt or innocence to the unfairness of evidence not disclosed to the detainees.

The new Combating Terrorism Act passed by the House of Commons Wednesday is also a positive development to the extent that it creates new criminal offences that would apply to those who leave Canada with the intent of committing a terrorism offence. The criminal law provides protections for the accused. It helps promote the legitimacy of our anti-terrorism efforts.

The only flaw in these provisions is their reliance on some of the overly broad definition of terrorist activities and offences first created by Parliament months after 9/11. It is notable that the lead charges against Esseghaier and Jaser do not rely on these broad provisions. They go with old standby that everyone understands: conspiracy to commit murder.

The new offences, if actually charged, are preferable to allowing suspected terrorists to leave Canada and then share information with countries that do not share our commitment to human rights, as was done in the case of Maher Arar and the other Canadians tortured in Syria after 9/11.

The criminal law is not without risks. A failure to prove guilt beyond a reasonable doubt will rightfully result in an acquittal. This is what happened in the case of an Afghan national who was acquitted in late 2011 of attempting to possess explosives, uttering threats and incitement in relation to an alleged plan to bomb CFB Petawawa.

Another risk is the disclosure of secret information, especially information that may have originated from American and other foreign officials. Canada uses an awkward system where government claims of secrecy must be reviewed in the Federal Court, and not before the trial judge.

The Air India commission called for the two court approach — which was avoided in the “Toronto 18” terrorism prosecution — to be streamlined, but the government has refused to act. The Supreme Court has held that the existing two court system is consistent with the Charter but only at the potentially steep price of having trial judges permanently halt prosecutions if they have any doubt whether secret information not disclosed to the accused is needed for a fair trial.

Criminal prosecutions require co-operative and courageous witnesses. The RCMP reportedly received vital assistance from the Muslim community in the recent investigation, as was the case in the Toronto terrorism prosecutions.

In both cases, the RCMP briefed representatives of the Muslim communities before publicly announcing arrests. This sort of outreach is the right and the smart thing to do. It rejects discriminatory attitudes of guilt by association. It helps keep open vital lines of communication.

Legitimate, transparent and sensitive counter-terrorism is good news.

But there is some bad news. The government will re-enact investigative hearings with the Combating Terrorism Act. This provision would allow a judge legally to compel those with information about terrorism to answer questions. Such coercive tactics can alienate potential informers. The Air India acquittals illustrate what happens when witnesses feel forced to testify.

Given open court presumptions, investigative hearings may risk premature public disclosure of investigations. Should those compelled to testify turn out to be hiding guilt, it may be impossible to prosecute them. Such hearings can make it more, not less, difficult to conduct criminal prosecutions.

On Wednesday, the preventive arrest provisions never used after 9/11, were also re-enacted. A preventive arrest that turns into a real arrest with a real trial may do little harm. A preventive arrest can, however, also result in a year-long “recognizance” without proof of guilt. Such control orders would be disturbingly similar to those imposed on the remaining security certificate detainees under our immigration law. They could undermine the legitimacy and co-operation that is won by relying on fair criminal trials as the best counter-terrorism strategy.