We write a regular column for LaPresse on policy issues through a western lense. Here is our most recently published offering.
A Relevant Decision
October 29, 2006
By Satya Das and Ken Chapman
Justice Douglas Rutherford’s decision striking down the “thought crime” portions of Canada’s anti-terror law is a belated and welcome restoration of fundamental freedoms in Canada.
It is especially relevant since the United States continues its inexorable slide into a Stalinist abyss, with its frightening new law allowing the indefinite detention of anyone who comes under suspicion of posing a threat to the state.
The section struck by Justice Rutherford enabled the detention of a Canadian on terror charges if there were religious, political or ideological motivations behind the act. The judge quite rightly rules this provision is a violation of the Canadian Charter of Rights and Freedoms.
Indeed, removing the “thought crime” requirement may make it easier to apply the rubric of terrorism to supplement other criminal charges. This is not necessarily a bad thing. Kimveer Gill’s murderous rampage was surely an act meant to terrorize. Had he survived to face trial, it would have been extremely useful to add terrorism charges.
Rutherford’s ruling should remind us our fundamental freedoms must not be subject to partisan filters. Let us remember that the portions of the law struck down were in fact introduced by a Liberal government, in the furious aftermath of the 11 September 2001 terror strikes in the United States. At the time, many of us with misgivings about the Draconian sweep of the law held our tongues, perhaps acceding to the argument famously made by Michael Ignatieff that we must sometimes feel necessary to use drastic measures to combat terrorism. Yet we now see where such thinking can lead.
With President George Bush signing into law his anti-terror bill, which enables the U.S. to hold anyone merely suspected of terrorist intent without ever bringing them to trial, the United States is abandoning the fundamental freedoms for which the West fought, in the decades-long struggle against Stalinism and other forms of totalitarianism. The truly frightening provision is that the accused need never be shown the evidence against them, nor to be informed of the specificity of the allegations and charges they face. In Canada, we have seen the tragedy of Maher Arar, and there may indeed be others similarly maltreated. Yet the Bush law means that hundreds and even thousands of people like Maher Arar may simply vanish into Kafkaesque darkness.
The abiding concern is whether Canada’s new government will uphold this necessary restoration of Canadian freedoms, given its readiness to seek accommodation and friendship with Bush regime. Indeed there is significant merit to the approach of being open and collaborative with our neighbour and trading partner to the south. This is a refreshing change from what sometimes appears to be a national sport of gratuitous criticism of the United States. Yet as we saw in softwood lumber, there is a difference between principled friendship, and an appeasing pact that surrendered every victory won under international trade law and defied the fundamental principles of free trade.
On the matter of fundamental freedoms, Canada’s new government must resist any temptation to appeal the Rutherford ruling. Indeed, as the anti-terror law comes up for review later this year, Prime Minister Stephen Harper can set a bold and distinctive course for Canada by refusing to renew a flawed law hastily drafted by a shocked and impetuous Liberal government. As we now see with time and distance, there is ample provision within Canada’s criminal code to deal with threats to our individual and collective security.
Canada’s new government must assert that we cannot compromise and sacrifice our fundamental freedoms for the convenience of the state, in the name of public security.
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