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A question of balance
Canada's Justice minister says new anti-terror laws protect human rights. Critics beg to differ
Ian Macleod, with files from Andrew Duffy
The Ottawa Citizen

CREDIT: Rae Holtsbaum, The Canadian Press
Justice Minister Irwin Cotler says the Anti-Terrorism Law protects human rights by providing security.

Canada's far-reaching Anti-terrorism Act, which among other things sanctions arrest without warrant and limits the right to remain silent, is necessary to protect human rights, says federal Justice Minister Irwin Cotler.

"Anti-terrorism measures go to the core of protecting the most fundamental of our rights and that's the right to life, liberty and security of the person," he said during a Citizen interview.

"In that sense, anti-terrorism legislation is profoundly human rights legislation and human security legislation. There's no contradiction between the protection of national security and the protection of human rights."

His analysis is at considerable odds with the act's many critics, including legal scholars and security intelligence experts. They say many of its exceptional powers unnecessarily trample civil liberties in a rush to strengthen national security and undercut fundamental values about the rule of law, such as open courts and due process.

Canadian Louise Arbour, the United Nation's High Commissioner for Human Rights, expressed similar concerns Thursday.

National governments, she said, should be wary of undermining personal liberties in their fight against terrorism. "We must preserve the space that we have created, through our international human rights instruments and institutions. We seek an appropriate balance between security and liberty."

But Mr. Cotler calls the arguments of the act's critics "misleading."

"One cannot consider rights or limitations on rights in the abstract, only in the context in which the arise. And the context in which they arise here, is the context of the post 9/11, transnational terrorist threat.

"What we're dealing with is an increasing, lethal face of terrorism, the targeting of civilians in public places, the increasing incidents of suicide bombers associated or underpinned by radical or ideological fanaticism, the sophistication of transnational communication and transportation networks, the vulnerability of open and technologically sophisticated societies such as Canada, the continuing presence of state-sponsored terrorism.

"We're talking about an existential threat to the whole of the human family. You don't have to look as it as being a slippery slope down a path that's going to take away our liberties. See it as moving forward in a way to protect the most fundamental of our rights."

As Ms. Arbour issued her report Thursday, parliamentary committees in the House of Commons and Senate launched a mandatory review of the three-year-old Anti-terrorism Act, the most massive, controversial and complex legislation enacted in Canada. The committees are expected to call witnesses early in the new year.

The Citizen is using the occasion to publish a week-long series examining important changes to the country's national security apparatus since 9/11 -- and their impact on Canadians.

The Anti-terrorism Act was backed by $10 billion in spending to make the country a safer place. In the process, the Canadian approach to dealing with the terrorist threat has been completely retooled and the reach of the new anti-terrorism apparatus is considerable.

The government has refashioned the mandate of the RCMP and returned it to a central place on the national security stage, despite its long, inglorious record in intelligence gathering, without new oversight measures.

It has placed great emphasis on the need for Canada's foremost security agencies, the RCMP and Canadian Security Intelligence Service, to share information both with each other and with worldwide agencies in an attempt to deal with the mobile, global threat of terrorism.

Indeed, experts say, few Canadians understand the degree to which their most private personal information is now readily available to the FBI, CIA and other U.S. authorities.

That emphasis has had terrible consequences for at least nine Canadians, detained, and in some cases tortured, overseas on the strength of intelligence gathered here.

The government has turned with regularity to a secretive court process to deport suspected terrorists. And it has shown itself willing to skirt -- some say offend -- international law by seeking to deport those suspects to countries where they face a substantial risk of torture.

The Canadian security apparatus put in place since the airborne attacks on New York and Washington has necessarily been focused on Islamic terrorism since those enlisted by al-Qaeda consider themselves holy warriors, jihadis. Canada's Muslim community has, as a result, been the subject of intense scrutiny by the country's security agencies.

Mr. Cotler, while acknowledging the act raises civil liberty concerns -- he had several such worries himself as a Liberal backbencher when the proposed act was debated in the fall of 2001 -- said people should view it as a proportional and justifiable response to the threats posed by global terrorism, as well as fulfilling Canada's commitments to several UN anti-terrorism treaties.

"You have to look at the issues, not in the abstract, but in terms of the realities on the ground. So we're not talking here about your ordinary domestic criminal. We're talking about you're transnational super-terrorist. We're not talking about domestic crime, as serious as that it, we're talking about a transnational, existential threat of the character that 9/11 was.

"We're talking really about Nuremberg crimes and Nuremberg criminals. And when you're dealing with that kind of terrorist threat, then you need the kind of legislation that will be preventive and protective as well as prosecutorial and punitive."

Enforcement and application of the new laws, he said, must comport with the rule of law, that no individuals or groups should be singled out for differential or discriminatory treatment, that the Charter of Rights and other safeguards must be applied in every instance.

"So really you've got a human rights underpinning of both anti-terrorism law and policy in its purposes and sense and human rights unpinning the manner in which that anti-terrorism law and policy is enforced and applied."

He would not say what changes to the act the government wants as a result of the parliamentary review. But he suggested changes are coming, possibly dealing with the act's provisions allowing arrest without warrant and compelling people to testify in court.

"My sense is that act will probably, through the course of critical inquiry, result in certain refinements and, I hope, improvements to the legislation," he said. "I don't want to presume what the committee may wish to do by way of recommendations. I think the government may come with its own set of recommendations."

© The Ottawa Citizen 2004

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