AMR 20/C05/2007
23 February 2007
Anti-Terrorism Act’s investigatory hearings and preventive arrest provisions should not be renewed
Public Statement
Amnesty International calls on the House of Commons not to renew the powers under sections 83.28 and 83.3 of the Criminal Code, allowing investigatory hearings and preventive arrest (recognizance with conditions) in anti-terrorism cases. These provisions should be allowed to expire on March 1, 2007, pursuant to the five-year sunset clause in s. 83.32 of the Criminal Code.
Investigatory hearings
- Individuals summoned to appear before investigatory hearings are not charged with an offence but they must answer questions, provide documents and cannot refuse to answer on grounds of self-incrimination. It is a broad power which represents a wide-ranging intrusion into privacy rights and erodes the important protection against self-incrimination.
Preventive arrest (recognizance with conditions)
- If a police officer suspects that a terrorist act is going to be carried out and suspects that the arrest of someone is necessary to prevent it, that person can be arrested without charge and without a warrant. The person arrested must be brought before a judge within 24 hours or as soon as possible thereafter, and a “show cause” hearing must held to determine whether he or she should be released or detained for a further period of time. That hearing can be delayed a further 48 hours.
These two powers circumvent traditional criminal law approaches to investigations, charges and arrests. Existing Criminal Code provisions already very clearly allow for the arrest of individuals who are suspected of being about to commit an offence, including offences related to terrorist activity. The government has never demonstrated why those provisions are inadequate. Those provisions include important safeguards that protect essential due process rights and help ensure that innocent people are less likely to be caught up in anti-terrorism investigations. The case of Maher Arar is a stark reminder of how easily disastrous mistakes can happen when there are inadequate safeguards in place; and how devastating the consequences can be for a person’s safety and reputation.
Consistently, since the fall of 2001 when the Canadian government moved rapidly to adopt the Anti-Terrorism Act, Amnesty International has highlighted concerns about provisions in the Act that violate or undermine Canada’s international human rights obligations. We have stressed the importance of ensuring that Canada’s counter-terrorism laws, policies and practices do fully comply with those obligations and how necessary it is that Canada set an example for other countries as to the need and value of doing so.
Other reforms and changes are needed to ensure that human rights are fully protected in the context of Canada’s approach to counter-terrorism. Aspects of the Anti-Terrorism Act beyond the two powers up for renewal remain a concern, including the need to:
- amend the definition of terrorist activities,
- introduce safeguards such as prior notice and an appeal mechanism in the listing procedure for "entities" deemed to be supporters of terrorist activities, and
- bring the grounds for national security confidentiality in legal proceedings into line with international fair trial standards.