The Anti Terrorism Act and the Canadian Charter of Rights and Freedoms

Gareth Davies

Certain provisions in the Canada Anti Terrorism Act, passed in the immediate aftermath of 9/11, are due to expire in this coming March after being in force for 5 years. These provisions have never been used and the House of Commons and the Senate must each pass a resolution keeping the provisions alive for a further 3 years.

What are these provisions?

Now, the Canadian Charter of Rights and Freedoms 1982 makes it abundantly clear what the rights of Canadians are.

Section 1 states:

    The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Consider the provisions of the Anti Terrorism Act in light of section 1. Do they constitute "reasonable limits"? Can they be "demonstrably justified"?

I consider the basic rule of law to reign supreme, that is to say, the provisions of section 1, given my belief that Canada is a free and democratic society. I will never allow such sacrosanct rights and freedoms to be smothered by the acts of terrorists, for that is precisely what they seek.

The only way to preserve a free and democratic society is the hard way. To give in to fear is to permit creeping servitude to invade our society like a cancer that will spread until we are living in a police state and our Charter is rendered meaningless, to be ruled by people as evil as those who they claim to be protecting us from.

Then there is section 2 of the Charter:

    2. Everyone has the following fundamental freedoms:
    (a) freedom of conscience and religion;
    (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
    (c) freedom of peaceful assembly; and
    (d) freedom of association.

Read these provisions carefully. They keep every one of us from living in a police state. The police or CSIS or whoever are in big trouble if they detain anyone contrary to these provisions without justification.

Sections 7, 8 and 9 are vital.

    7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

    8. Everyone has the right to be secure against unreasonable search or seizure.

    9. Everyone has the right not to be arbitrarily detained or imprisoned.

Ask yourself if detention without charge can ever be in accordance with the principles of fundamental justice.

Section 10 provides protection against any authority that would detain without charge:

    10. Everyone has the right on arrest or detention
    (a) to be informed promptly of the reasons therefor;
    (b) to retain and instruct counsel without delay and to be informed of that right; and
    (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Of course, one may argue that detention under the above provisions of the Anti Terrorism Act is necessarily lawful, it being an Act of Parliament. I don't buy that, because there are laws that are superior to every other law, which cannot be amended by a lesser statute. In other words, the Anti Terrorism Act cannot amend the Canadian Constitution, period. The only way to amend the Constitution is by way of amending process set out in the Constitution itself.

Section 52 of the Constitution of Canada states:

    52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

The Anti Terrorism Act provisions set out above have never been used and it is my belief that that is so because the government and police do not want those provisions challenged in court, all the way to the Supreme Court of Canada.

The equivalent court in the UK, the House of Lords, ruled in 2004 with regard to such provisions in UK legislation, saying:

    "Nothing could be more antithetical to the instincts and conditions of the people of the United Kingdom than indefinite detentions without charge or trial. The real threat to the life of the nation comes not from terrorism but from laws such as these."

Is it any wonder that the Anti terrorism Act provisions have never been used. Those who would want to use them would be quite content to see all manner of people just vanish, and don't kid yourselves that racial profiling doesn't play a big role here.

The National Post, the Vancouver Sun and all the other papers under the control of powerful monopolies call for renewal of the Anti Terrorism Act provisions. I can only think to say, "Go to hell!". That's how much I cherish my rights and freedoms.

If the government or police or CSIS wish to detain persons they suspect of breaking the law, for that is what terrorism does, then they themselves must follow the law, as set out in our blessed Canadian Charter of Rights and Freedoms.