Canada introduces anti-terrorism law that allows detention without a warrant or charges in cases of potential terrorist attack

by Christine Duhaime, BA, JD, Financial Crime Specialist

Today, Canada’s Parliament approved legislation to fight domestic and international terrorism which gives the government new powers that infringe certain legal civil liberties of Canadians, such as the power to compel a non-suspect to secretly disclose information to law enforcement in connection with terrorism, and to arrest and detain a person without a warrant and without charges for several days to prevent a terrorist act being committed.

The legislation, Bill S-7 – the “Combatting Terrorism Act,” (the “Act“) primarily amends Part II.1 of the Criminal Code of Canada (the “Criminal Code“), namely the terrorism provisions and amends the Canada Evidence Act and the Security of Information Act.

A summary of the material parts of the Act is as follows. The Act:

  • Amends the Criminal Code to allow Canadian courts to take jurisdiction over persons who are alleged to have committed terrorist activity in respect of aircraft, airports or air navigation facilities outside Canada provided the person is in Canada. These activities are now considered “terrorist activities”;
  • Amends the Criminal Code to create the offences of hijacking and endangering the safety of aircraft or safety of an airport when the offences listed above are committed in Canada or the relevant aircraft is registered in Canada. These offences are indictable and carry a maximum sentence of life imprisonment;
  • Amends the Criminal Code to add new terrorism offences to allow law enforcement to arrest and charge suspected terrorists at the planning stage of terrorist activity outside Canada before the person leaves Canada to commit terrorist acts. The new offences are in relation to leaving or attempting to leave Canada, or boarding or attempting to board a “conveyance” (boat, plane, car, train, etc.) with the intent to leave Canada to participate in or facilitate terrorist activity, or to commit a terrorist activity outside Canada;
  • Amends the Criminal Code to add offences to give peace officers the ability to apply to court for a warrant to intercept private communications of a person when there are reasonable grounds to believe that the person has committed or will commit certain offenses and to allow peace officers to apply for DNA warrants for the seizure of bodily substances when they are investigating a person for terrorism offences;
  • Amends the Criminal Code to allow the Attorney General to apply ex parte to require Canada Revenue Agency to disclose income tax information of suspected terrorists in certain circumstances;
  • Amends the Criminal Code to increase the sentences for harbouring and concealing terrorists to 14 years from 10 years;
  • Amends the Criminal Code to require that a non-suspect be compelled by court order, to provide information to law enforcement if, among other things, there are reasonable grounds to suspect that a terrorism offence was, or will be, committed;
  • Amends the Criminal Code to allow a peace officer to arrest a person before laying a charge without a warrant (with the consent of the Attorney General) if the peace officer believes that a terrorist act will be carried out and the person’s arrest is necessary to prevent it. In these situations, however, the person must be brought to court as soon as feasible and the Crown must hold a “show cause” hearing to show cause for the continued detention of the person. If a further detention is warranted, the government is only allowed to detain the person for an additional 48 hours;
  • Amends the Canada Evidence Act to suppress the disclosure of information in proceedings on grounds of public interest or because disclosure would be potentially injurious to international relations, national defense or national security; and
  • Amends the Security of Information Act to create new offences related to economic espionage, safeguarding of nationally important information and committing acts of violence or threatening persons to harm Canadian interests at the behest of terrorists or foreign entities.

As is evident from the amendments to the Act described above, the changes limit or infringe a person’s rights of freedom from search, seizure, arrest, imprisonment and unfair trial procedures, however those rights can be justifiably infringed, i.e., can be a reasonable limit prescribed by law that are demonstrably justified in a free and democratic society, such as in the case of preventing terrorism or even more broadly, to preserve the collective way of life. The ultimate constitutionality of the amendments has yet to be tested in the courts of Canada but no doubt in due course they will be.

The Act can be accessed here.

The Anti-Terrorism Report released by the Special Senate Committee on Anti-Terrorism in March 2011, can be accessed here.

Update December 2013 –>  US Courts have addressed the issue of the infringement of civil rights and national security in a case we summarized here, the salient portion of which aptly points out that constitutional rights are not a suicide pact, meaning that democracies are entitled to protect the collective, as much as the individual and often, the collective must be protected above the individual.