From the Toronto Star Friday, October 12, 2001

NEW POWERS AREN’T REALLY NECESSARY
By A. Alan Borovoy, General Counsel, CCLA

Since the terrorist calamity of September 11th, we have been increasingly deluged about the possible need to abridge our civil liberties in the interests of greater security. The U.S. Congress is now debating government proposals to create sweeping new powers. Recently, Canadian Justice Minister Anne McLellan warned that additional measures were likely to be adopted here.

In view of the enormity of the disaster, we all seek to ensure that the authorities can do their job. But since politicians want to be seen as doing something, they could be tempted to enact new powers even when such action isn’t really necessary. The police and intelligence agencies, of course, would be happy to have additional power. (Who wouldn’t?) Besides, enacting new laws would create the impression that any intelligence failures have been caused by shortcomings in the law rather than in agency performance.

But once powers are adopted, they are hard to repeal. Moreover, such new powers could encroach on our fundamental freedoms. To the extent that they do, we should insist that our government demonstrate first why the existing powers are not adequate. The fact is that the existing powers are substantial and, in some respects, even excessive.

As for the ability to conduct surveillance, the Canadian Security Intelligence Service (CSIS) is already empowered - with judicial warrants - to electronically bug conversations, surreptitiously search property, secretly open mail, and clandestinely invade confidential records. And, without such warrants, CSIS may target covert spies at people. All of this intrusive surveillance is now potentially available to monitor what the Act calls “activities...in support...of acts of serious violence...for the purpose of achieving a political objective within Canada or a foreign state”.

It is obvious that this terminology is wide enough to include suspected terrorism. Indeed, since it includes all violence with political objectives, it reaches well beyond terrorism. This provision could conceivably authorize CSIS surveillance even of Canadian citizens who were raising money to help democrats to forcibly overthrow a dictatorship. It would not matter that the recipients of our citizens’ support made special efforts to avoid hurting innocent civilians - indeed, it would not matter even if they were fighting terrorism. (This doesn’t necessarily mean that CSIS will wind up investigating such situations; it simply means that the Act makes it potentially permissible.) In view of the strong argument that the current powers are wider than necessary, it becomes difficult to contend that, in this regard at least, anything more is needed.

It is also alleged that many foreign terrorists have entered the United States via Canada. According to this, our generous treatment of immigrants has made Canada an international patsy. Critics claim that there should be more deportations - or at least detentions - of suspected aliens. This too has generated demands for more power.

Again, however, quite a bit of such power already exists. Refugee claimants and even permanent residents are deportable if it is reasonable to believe they are “members” of organizations likely to commit certain acts of violence. The word “member” is not defined and such immigrants need not have broken any law. The role of the courts is confined essentially to determining whether the government’s predictions are “reasonable”.

This is not much protection - especially for anyone who has pulled up stakes on the strength of being allowed to reside here indefinitely. Moreover, there are powers to detain any immigrants under suspicion. While it can be compellingly argued that some of these powers are too wide, it is hard to maintain that they are not wide enough.

Thus, the government should focus on making better use of the powers that are already available. While it always behooves us to keep an open mind about any new measures, our open mind should be accompanied by a cool head and a skeptical disposition. If we were to needlessly surrender any of our precious freedoms, we could wind up awarding the terrorists a gratuitous victory.