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If you had to pick a day to oppose legislation that describes itself as anti-terrorist, Monday, April 22 might not have been the best one.

NDP MPs will be voting against the government’s Bill S-7 not because they are utterly opposed to giving the government any enhanced powers to thwart terrorists, but because they honestly believe there are serious flaws on this proposed legislation.

That is an honourable position to take.

But it is not the most politically expedient — not at this time, at any rate.

There will be those who find the coincidence of the RCMP arresting two suspected terrorists just as the Bill is being debated to be suspicious.

And there will be those who are outraged that the Conservatives postponed a Liberal Opposition Day in order to move debate on S-7 forward. The Liberals had been planning to introduce a motion that would put an end to Party hierarchies controlling Members’ statements. A number of Conservatives who have felt stifled by their own leadership were, it appears, ready to vote with the Liberals on that.

But the folks who are suspicious and those who are outraged are, sadly, a minority.

The Conservatives are betting that the vast majority of voters — especially the so-called “low-information voters” — will be quite happy to know that their government is “doing something” about terrorism. And there is a good chance the Conservatives are betting right.

Why the sudden urgency?

 In the House on Monday the NDP’s Foreign Affairs Critic, Paul Dewar, pointed out that the Conservatives had plenty of opportunity to push S-7 through, if they really thought it was all that crucial. The government only decided that it could not wait, Dewar said, when they saw an opportunity to exploit the recent deadly events in Boston.

S-7 is, in large part, a reprise of a Liberal law going back to the post 9/11 period, a law that expired after five years, in 2007.

Dewar and other Opposition members have pointed out that Canada’s security and intelligence services have been quite effective over the past few years in combating terrorism, using old-fashioned police work and without access to the special powers S-7 would give them.

In the House debate on Monday, Dewar used the example of the “Toronto 18,” whom the police managed to detain without the benefit of any extraordinary authority. Later in the day he cited another example: Monday’s two arrests.

Common sense amendments go nowhere

It’s too bad we cannot have a serene and mature debate about S-7, absent all the adrenalin provided by Boston and Monday’s arrests.

The NDP’s main over-arching argument — one that will certainly be lost on the vast majority of Canadians who are only vaguely paying attention — is that there are dangerous aspects to S-7 that the Conservatives could easily correct, if only they were open to some “friendly” amendments.

An amendment is friendly when it serves not to undermine the basic thrust of proposed legislation — which hostile amendments seek to do — but rather to render the legislation more effective and, in some cases, less open to court challenges.

In Committee, NDP MPs proposed 18 amendments, none of which, they say, would have negated the fundamental purpose of S-7. The Conservatives voted all of them down.

One amendment would have dealt with what Toronto NDP MP Mike Sullivan calls the “Uncle Albert” problem.

Bill S-7 would give law enforcement the power to compel individuals to answer questions and produce relevant information in circumstances where a terrorism offence is under investigation.

It also includes provisions allowing for so-called ‘preventive’ arrest, and the placing of conditions on individuals in circumstances where, the Bill says, it “is necessary to prevent a terrorist act.”

The Bill would allow the authorities to incarcerate a person notionally associated with terrorism for four days and then place conditions on him/her for one year. If the person refused to accept the conditions he/she could be jailed for a year.

The Bill would also allow the police and courts to simply place conditions on a person, without incarceration. Those conditions could include regular reports to police or a ban on foreign travel. This measure is known, in legal jargon, as “recognizance with conditions.”

And what about Uncle Albert?

NDP MPs point out that such draconian powers might be acceptable when dealing with a person actually associated with terrorism. But the way the Bill is written, they fear, those measures could also be also be used against friends, neighbours and relatives of people suspected of having associations with terrorism.

And that, they say, is dangerous, and goes too far.

On preventive detention and recognizance, the relevant section of S-7 says: “a peace officer may lay information before a provincial court judge if he or she believes that a terrorist act will be carried out and suspects that the imposition of a recognizance with conditions or the arrest of a person is required to prevent it … If the peace officer suspects that immediate detention is necessary, he or she may arrest a person without a warrant …”

That’s where Uncle Albert comes in.

Here’s how the NDP’s Sullivan put it in the House debate on Monday:

“I like to refer to good old Uncle Albert . . . whose nephew for whatever reason is suspected of some kind of terrorist act. Because they can’t find the nephew, the police come to Uncle Albert’s door and put him in jail, for a day.”

“Then [they] take him before a judge and argue that Uncle Albert might know where the nephew is so we can’t let Uncle Albert have any more guns. We can’t let Uncle Albert leave the country because we have to be able to interrogate [him] … The police don’t suspect him of any terrorism. He just happens to be the uncle of the nephew whom they do suspect.”

Sullivan concluded that Uncle Albert, who lives on a farm and needs his rifles to keep away animal intruders, would, understandably, balk at these conditions.

What would happen then, the NDP MP said, is that the authorities would put Albert in jail for a year.

It wouldn’t be because Uncle Alberta is suspected of association with terrorism. It would be, as Sullivan put it, “because he’s related to somebody the police are only investigating.”

Guilt by association is, in fact, the ‘policy intent’

In the House debate on this Bill last month, the NDP’s Democratic Reform Critic, Craig Scott, explained how his party tried to amend the detention and recognizance provision to make it clearer and more precise.

The NDP’s proposed wording would stipulate that “only persons determined to be potential participants in a terrorist activity could be subject to recognizance with conditions.”

“Our concern,” Scott told the House, “was that people who were not themselves suspected of terrorist activity should not be the subject of the restrictions of liberty that were part of the recognizance with conditions regime.”

To the Official Opposition, it seemed a very moderate and reasonable suggestion. After all, the NDP reasoned, surely no political party is in favour of incarcerating people whose only crime is, quite literally, guilt by association.

“We thought this was a friendly amendment on a badly-written provision,” Scott said.

But they were wrong. The government was, like the late Lady Thatcher, “not for turning.”

The Parliamentary Secretary to the Minister of Justice, Kerry Lynne Findlay, explained the government’s opposition to the NDP’s amendment this way:

“The [Bill] in its present form would provide the potential for a recognizance with conditions to be imposed … even where the person who would be subject to the recognizance with conditions is not necessarily the person carrying out a terrorist activity [italics added]. The [NDP] amendment would seek to restrict the application of this measure. Because that is inconsistent with the policy intent underpinning the provision, we are opposed to it.”

In the House debate, Craig Scott concluded: “The government is on record as wishing to permit conditions to be imposed on perfectly innocent people. Failure to comply can lead to 12 months imprisonment. Is that a regime we want in our country?”

And so it is “policy intent” of the Harper government to allow potentially innocent folks to be subject to “conditions” and possibly jailed for a year.

That might seem pretty extreme, and it would be quite simple to carefully draft a law that gave the authorities significant enhanced powers to deal with terrorism, without endangering the Uncle Alberts of this world.

However, the Conservatives are not interested in even slightly tweaking their Bill.

The Liberals will support this Bill, as is, in part because it is so similar to the predecessor, expired law Chrétien’s government enacted.

In addition, one suspects that the new Liberal Leader doesn’t want to give Prime Minister Harper more opportunities to attack him for being “soft on terrorism.”

When Uncle Albert gets sent away for a year, maybe then they’ll both have second thoughts.

Karl Nerenberg

Karl Nerenberg joined rabble in 2011 to cover Canadian politics. He has worked as a journalist and filmmaker for many decades, including two and a half decades at CBC/Radio-Canada. Among his career highlights...