The Rush to Pass Extreme Legislation

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Horrific events foment panic. Otherwise sensible people recoil in terror from chalk dust. Veteran travellers cancel airline tickets. Seasoned politicians act in haste, regret at leisure.

The October, 1970, kidnappings of James Cross and Pierre Laporte by radical Quebec separatists panicked then-prime minister Pierre Trudeau into believing an “apprehended insurrection” required imposing the War Measures Act.

The act allowed police to enter private homes without warrant, to arrest citizens on mere suspicion, and to detain them without bail and without laying charges. While Parliament and most Canadians cheered, 400 Quebecers were rounded up and jailed.

The apprehended insurrection turned out to be a figment of the authorities’ fevered imaginations. Only twenty people were ever convicted of anything. New Democratic Party leader Tommy Douglas’s lonely opposition to the crackdown eventually came to be recognized as a defining example of political courage.

Stung by its lack of reliable information about separatist activities, the government ordered the Royal Canadian Mounted Police to adopt a “proactive” stance by spying on nationalist groups to “discern, monitor, investigate, deter, prevent, and counter” subversive activity.

The RCMP Security Service embraced this mandate with alacrity. It began infiltrating, harassing and disrupting nationalist groups in Quebec, without distinguishing legitimate dissent from violent or subversive activity. It interpreted the cabinet directive as a licence to break the law.

In the years that followed, Mounties committed a host of crimes in the name of national security. They burned down a barn to prevent a meeting between separatists and radicals from the United States. They broke into the offices of the Parti Québeçois and stole the its membership lists. They broke into the offices of a leftwing news agency and stole its records.

None of the targeted groups posed much of a threat, and none of the illegal police activities produced much useful intelligence.

When some of the crimes came to light, the government appointed a Royal Commission, headed by Alberta Supreme Court Justice David C. McDonald, to uncover the scope of the illegal activity, and to recommend steps to safeguard national security consistent with the rule of law and the rights of Canadians.

The McDonald Commission’s recommendations led to the creation of a civilian agency, the Canadian Security and Intelligence Service (CSIS), to take over the Mounties’ intelligence-gathering functions. An independent watchdog would guard against abuses.

St. Mary’s University political science professor Leonard Preyra, who served as a researcher on the McDonald Commission, sees parallels between the Trudeau government’s reaction to the Front de libération du Québec (FLQ) kidnappings and the Chrétien government’s response to the September 11 terrorists attacks.

“In the aftermath of the October Crisis, there was general panic at the cabinet level that caused them to take measures they would later come to regret,” Preyra said. The government gave police powers that were “ill-defined, too broad, and not thought through — and that led to activities that were illegal."

A parade of expert witnesses has voiced similar cautions about the Chrétien government’s anti-terrorism bill, which would allow police to arrest and detain persons suspected of crimes that haven’t even taken place, to compel testimony at secret proceedings, and to carry out lengthy wiretaps with little judicial supervision.

Former Quebec chief justice Claude Bisson, who now serves as commissioner responsible for watching over the military’s Communications Intelligence Service, warns that the bill will give government “exorbitant” power to eavesdrop on private citizens.

Federal privacy commissioner George Radwanski complains that the bill eviscerates the protections of the Privacy Act. The federal information commissioner voices similar concerns about its impact on citizen access to information.

Of course police welcome the new powers. As Alan Borovoy, general counsel to the Canadian Civil Liberties Association, put it, new laws “create the impression that any intelligence failures have been caused by shortcomings in the law rather than in agency performance."

Borovoy points out that CSIS already has the power, with judicial warrants, “to electronically bug conversations, surreptitiously search property, secretly open mail, and clandestinely invade confidential records” — all in pursuit of what the act calls “activities ... in support ... of acts of serious violence ... for the purpose of achieving a political objective within Canada or a foreign state.”

So why is there a need for even greater powers with even less judicial supervision? The police excesses following the October Crisis did not enhance Canada’s national security, but they did subject hundreds of citizens to the tactics of a police state.

Misgivings about the anti-terrorism bill’s intrusion on hard won civil liberties are now so widespread that even Canada’s rightwing press has begun urging a sunset clause to terminate various sections of the act after a set period unless Parliament specifically renews them.

A better idea would be to stop and think before rushing to pass extreme legislation. Panicky politicians, inspired by patriotism and revolted by terrorist atrocities, do not make wise decisions.

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