Oct. 14, 2001. 02:00 AM
Sweeping police powers planned
Anti-terror bill includes phone, E-mail bugs
OTTAWA — Justice Minister Anne McLellan will introduce a bill tomorrow that proposes sweeping new police powers to bug telephones and monitor Internet communications as part of a package of anti-terror measures.
Taking a cue from American anti-terror proposals, federal justice lawyers have drafted new provisions that would give police broader wiretap powers for criminal "terrorist investigations" similar to those the Canadian Security Intelligence Service (CSIS) now has for security intelligence gathering, The Star has learned.
Under the proposals certain to be challenged right up to the Supreme Court of Canada if they become law, police could get warrants for open-ended wiretaps of telephone, wireless and online communications. Officers would not be required to notify the subject and reveal the interception, as they are now obliged to eventually do under criminal warrants, which may be extended with judicial approval to a maximum of three years.
In the United States, similar provisions, along with measures such as allowing indefinite detention of suspected terrorists, have sparked protests from civil libertarians.
Canadian officials, speaking on condition of anonymity, expect the same criticisms — that the federal government has gone too far and has stomped on individual freedoms in its zeal to fight the new "war on terrorism."
McLellan told reporters shortly after the Sept. 11 attacks in the United States that the delicate balance between protection of individual rights and collective security has shifted toward security.
Canadians are about to find out to what extent the federal government believes that is true.
The omnibus anti-terror bill proposes amending the Criminal Code, the Official Secrets Act, the Canada Evidence Act and the National Defence Act. The bill is expected to go to the justice committee as early as this week for study and possible amendment. The government has said it wants the bill passed before Christmas.
It would pave the way for the creation of a made-in-Canada terrorist list, a departure from Canada's traditional approach. For the first time, Canadian law would attempt to set out a definition of terrorism, one that sources say would be quite broad, and undoubtedly lead to challenges. The list would include not only organizations, but also individuals.
Right now, Canada does not list outlawed terrorist groups, or their "fronts." Naming groups has always been regarded as open to challenges based in part on constitutional guarantees of freedom of association. But Ottawa has recently adopted the U.S. list for the purposes of seizing terrorist assets.
The designation of who is or isn't a terrorist or what constitutes a terrorist group would be made much in the same way security risks are now identified under immigration law — by ministerial certification before a judge in secret, a process fraught with political pitfalls, insiders fear.
Experts in immigration and criminal law say the major problem with naming terrorist groups and targeting those who support them is the risk of sweeping up innocent people in the government net.
"Suppose Canadians raise money to help Kurds resist encroachments by Saddam Hussein," or raise money to help Israel resist the Palestinian intifada, said Alan Borovoy, general counsel of the Canadian Civil Liberties Association, suggesting they would risk being defined as terrorist supporters.
"At one time, I and many others supported blacks in South Africa," said lawyer Clayton Ruby, adding the African National Congress "was surely a terrorist organization. Now they're the government of South Africa."
Reid Morden, a former head of CSIS, suggested a high level of proof would be required to identify groups as terrorist fronts. Still, Morden believes laws need updating. Until now, he said, it hasn't been a crime for a terrorist to come here "for a cooling off period" and it hasn't been a crime to raise money for front groups that channel funds to terrorist organizations abroad. That would change under provisions of the new bill.
The proposed law would:
Create a new criminal offence that would outlaw fundraising for terrorist groups, instead of merely stripping such groups of charity status. This measure would bring Canada in line with the U.N. Convention on the Suppression of Terrorist Fundraising. McLellan is also expected to propose making it easier to seize frozen assets.
Create new Criminal Code offences relating to the targeting of public places, transportation systems, government or infrastructure facilities with explosives or other lethal devices. This would make Canadian law comply with the U.N. Convention on Bombing.
Target membership in terrorist organizations the same way the federal government has tackled organized crime.
The bill proposes making it a crime to be "part of a terrorist organization," and provides tougher penalties for acts committed as part of terrorist organizations. The question the courts would have to deal with is when does being part of an organization make you a terrorist.
Allow the prosecution in Canada or extradition from this country of those accused of terrorist acts committed abroad.
Amend the Official Secrets Act (a statute rushed through Parliament in 1939 and now so outdated it is rarely used) to prohibit disclosure of information to foreign states and terrorist groups that can threaten essential infrastructure.
Now, the act carries penalties of up to 14 years in jail, and provides for trials held partly or entirely in secret, except for sentencing. Critics say it is so broad it could be used to charge almost any civil servant for the kind of office chit-chat that takes place daily.
Amend the Canada Evidence Act to give new protection to information given Canadian officials in confidence by its allies.
Clarify a new role for the Communications Security Establishment (CSE) a highly secretive intelligence-gathering agency that comes under the Department of National Defence. CSE specializes in electronic espionage, monitoring radio and other transmissions, and is responsible for intercepting foreign intelligence.
Departmental officials fully expect constitutional challenges of many of the measures.
Already, Canadian civil libertarians are concerned about the direction the federal government has indicated it wants to go in expanding police powers.
--------------------------------------------------------------------------------"It's hard to imagine just what it is they (law enforcement agencies) are looking for that they don't already have," said Borovoy. "But I'm keeping an open mind." He said under the CSIS Act, the security service has extensive powers to get wiretaps to monitor activity "in support of acts of serious violence for the purposes of achieving a political objective within Canada or in a foreign state."
`It's hard to imagine just what it is they (law enforcement agencies) are looking for that they don't already have. But I'm keeping an open mind.'
- Alan Borovoy, general counsel of the Canadian Civil Liberties Association
"I'd say that's already wider than necessary," Borovoy said. In its last report, the watchdog committee that oversees CSIS criticized the security agency for casting an overly broad net in its investigations "with the result that politically active but peaceful and law-abiding nationalists were labelled as `terrorists.'"