Saturday, November 1, 2008

Citizenship and Due Process

There are multiple Acts that address terrorism, but none that I found provide for the indefinite detention of citizens without due process. Many people facing criminal charges are detained for long periods of time before their trials, but they are charged and given disclosure in a shorter period of time. They also can have lawyers who get to see the evidence and make arguments for them. Each of these processes can be slow, but there are time-limited provisions to guide them. If a judge decides the process was too slow, the charges can be thrown out.

The criminal code contains provisions against terrorism including prohibitions against fund raising, participation, and holding property for terrorist groups. Related to this is the creation of a list of groups deemed terrorist by the federal government, which changes over time. The so-called Toronto 18 were charged under these provisions of the criminal code. The potential sentence is life in jail. Included are the usual due process rules around the right to retain counsel at any time during the proceeding, having to see a judge within a certain amount of time, and the right to be released, unless they think you won’t show up for court or you’re a safety risk. It seems this section applies to both citizens and permanent residents. Permanent residents can be prosecuted either way, presumably at the discretion of those investigating (or perhaps who is investigating). The criminal code process is quite different from the security certificate process which only non-citizens face.

Wesley Wark wrote a paper for the Canadian Human Rights Commission about National Security and Human Rights. The Minister of Public Safety and the Minister of Citizenship and Immigration are supposed to issue a security certificate where there is a threat to Canadian security, a violation of human or international rights, serious criminality, or organized criminality by a non-citizen. The CHRC is very concerned about the broad definition of terrorism combined with the removal of civil rights for those accused of terrorism. The combination of these two things could result in it being used to stifle opposition or target people based on the political and social climate, rather than any real threat. I’m being pretty gentle saying ‘could.’ As described before, the historical detention of people with certificates has focused on certain groups, for example, the detention of Iraqi people during the early 1990s. “The right to liberty and freedom from arbitrary arrest and detention are fundamental human rights to which Canada has subscribed under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in our Charter of Rights and Freedoms.” The rights under these agreements are supposed to apply to everyone within Canada, as well as everyone affected by Canada’s actions.

Depriving certain people of these rights by using a different mechanism to pursue terrorism charges doesn’t appear to meet any reasonable goals. If the goal is to deport ‘criminals’ an application could be made after conviction. If the concern is that spreading knowledge will endanger security, then why is it only terrorism by non-citizens that poses this risk? Either it should apply to all people, or no one. The discretionary powers and the different types of terrorism charges demonstrate how the laws are based in a xenophobic belief system. We obviously not just talking about security here. If there actually is a threat, than a coherent argument needs to be made.

Wark’s paper:


Just A Thought then said...

I wonder if the gvt has outlined anywhere why the criminal code fell short in dealing with this matter.
And if it does fall short, I wonder what that implies about our criminal code.
Surely if it is sufficient, it should justly deal with the matter of national security and non-citizens.
Dont ya think?

Kay Thoms said...

The criminal code provisions are actually newer than the security certificate provisions. The fed gov't created an anti-terrorism act in 2001 which was later incorporated into the CC. Perhaps it's a case of too many ministries wanting control of all issues within their scope instead of acknowledging that another ministry is dealing with it. I guess it's an acknowledgment in some ways that they are trying to address terrorism by citizens. They don't only envision a threat as coming from non-citizens. The duplication is just including permanant residents under both Acts. And its approached much differently here.