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TO RUEHC/SECSTATE WASHDC IMMEDIATE 9539
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 03 OTTAWA 000452 
 
SENSITIVE 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PTER PGOV PREL CA
SUBJECT: CANADA SEEKS MORE ANTI-TERRORIST TOOLS 
 
REF:  A.  OTTAWA 338 
-     B.  OTTAWA 198 
-     C.  OTTAWA 079 
-     D.  08 OTTAWA 1578 
-     E.  08 TORONTO 286 
-     F.  08 TORONTO 114 
 
¶1. (SBU) Summary:  The federal government has begun a new 
legislative push to restore two anti-terrorism tools -- 
investigative hearings and preventive arrest -- that lapsed in 2007. 
 Separately, the government has introduced a bill to allow victims 
of state-sponsored terrorism to sue the perpetrators in Canadian 
courts.  The bill also mandates that the government create a list of 
foreign states that sponsor or support terrorism.  End summary. 
 
LIBERALS ON SIDE, SECOND TIME AROUND 
------------------------------------ 
 
¶2. (U) The federal government is again moving to restore two 
anti-terrorism tools -- investigative hearings and recognizance with 
conditions (preventive arrest) -- that lapsed in February 2007 under 
sunset provisions in the 2001 Anti-Terrorism Act (ATA).  The House 
of Commons began debate on the bill (C-19) to amend the ATA on June 
¶8.  The bill is the government's third attempt to reinstate the 
provisions, which security officials could use to disrupt imminent 
terrorist attacks or gather information about an attack that had or 
would have been committed.  In debate on June 9, Liberal Public 
Safety critic Mark Holland confirmed that Liberal MPs support the 
government's bid to refer the bill to a lower house committee before 
a late June recess, although they will work to amend it in committee 
better to balance civil rights.  Overall, however, Liberal MP Larry 
Bagnell agreed his caucus is "very supportive of the concepts of the 
bill." 
 
A BITTER HISTORY 
----------------- 
 
¶3. (U) The ATA, which the then-Liberal government brought into law 
in December 2001 in the wake of the 9/11 attacks, included 
investigative hearings and recognizance with conditions.  At the 
time, human rights groups and some politicians claimed that the 
legislation went too far in restraining civil liberties.  As a 
result, the government agreed to a five-year sunset clause on the 
new powers.  In a bitter debate in the House of Commons in February 
2007, Liberal MPs combined with the other opposition parties to 
defeat the minority Conservative government's motion to extend the 
powers.  Then-Liberal Party leader Stephane Dion argued that the 
powers were no longer necessary and posed too great a risk to civil 
liberties. 
 
¶4. (U) The Conservatives pledged to restore the powers, calling them 
"important tools" to enable law enforcement agencies to anticipate 
and respond effectively to terrorist threats.  In October 2007, the 
government, unusually, introduced the bill in the Senate rather than 
the lower house.  The government said the tactic reflected its 
desire to de-politicize the issue as well as to draw on the Senate's 
expertise in conducting a mandatory review of the ATA.  The bill 
reinstated the two expired powers in a substantially similar form as 
they had existed in the 2001 ATA, but added new safeguards for civil 
rights.  The Senate passed the legislation on March 6, 2008 and it 
moved to the House of Commons, which was not able to act upon it 
before the dissolution of Parliament for the October 2008 federal 
election. 
 
¶5. (U) The re-elected Conservative minority government reintroduced 
the current bill in March 2009, this time in the House of Commons. 
It is almost identical to the previous version, but with the extra 
provision that Commons and Senate committees could conduct a 
comprehensive review of the use or continuing need for the clauses 
(although their recommendations would not be binding on the 
government). 
Qgovernment). 
 
BALANCING SECURITY WITH CIVIL RIGHTS 
------------------------------------ 
 
 
¶6. (U) Investigative hearings compel a person with information or 
materials about a past or future terrorist offense to appear before 
a judge and answer questions or provide material.  The purpose is to 
gather information, not to prosecute.  The hearings are limited to 
cases where reasonable grounds exist to believe that a terrorism 
offense had been or would be committed.  A police officer must 
obtain the consent of the Attorney General to invoke the tool and 
apply to a provincial court or higher court judge of a superior 
court for an order for the hearing.  The person compelled to appear 
has the right to counsel at any stage of the proceedings.  A witness 
who evades the order, or is deemed by authorities about to abscond, 
can be arrested without warrant and detained for up to thirty days 
for the purpose of giving evidence at the hearing.  The information 
gained from the person cannot be used against him or her in any 
criminal proceeding, except for perjury.  An additional safeguard in 
 
OTTAWA 00000452  002 OF 003 
 
 
the bill requires police to satisfy the judge that "reasonable" 
attempts have been made to obtain the information by other means. 
 
 
¶7. (U) Recognizance with conditions (preventive arrest) gives the 
police the authority to arrest a person without a warrant to disrupt 
nascent terrorist activity and prevent aQ,%>|Qfer.  A detained person must be 
brought before a judge within 24 hours of his/her arrest or "as soon 
as possible" up to a maximum of 72 hours of detention before a 
hearing.  If the judge is satisfied that reasonable grounds for 
suspicion exist, the person could be required to enter into a 
recognizance of conditions or conditional commitment (such as having 
no contact with specified persons).  The person could be imprisoned 
for up to 12 months if he/she refuses to enter into the 
recognizance. 
 
 
¶8. (U) The bill includes another five-year sunset clause for both 
provisions, as well as new annual reporting rules for the Attorney 
General and the Minister of Public Safety to report to Parliament on 
use of the powers, as well as their justification for extending the 
provision. 
 
¶9. (U) The two powers were never used when in force between 2001 and 
¶2007.  In 2004, the Supreme Court of Canada ruled investigative 
hearings constitutional when it upheld an order for a hearing 
arising from the Air India terrorist trial.  However, the hearing 
never took place, as the trial ended before the Court delivered its 
ruling. 
 
SECURING CONVICTIONS 
-------------------- 
 
¶10. (U) The government has secured two convictions and one guilty 
plea under the ATA (reftels): 
 
-- an Ontario court convicted Momin Khawaja in October 2008 of 
participating in terrorist training, financing, and facilitating 
terrorism for his role in a conspiracy to bomb sites in London, U.K. 
 In March, the judge sentenced him to ten-and-a-half years 
imprisonment, with no chance of parole for five years.  Khawaja was 
the first Canadian to be charged under the ATA; 
 
-- a Toronto court convicted one youth (whose identify was publicly 
protected under Canadian laws due to his age) in September 2008 of 
participating in a terrorist activity and sentenced him in May 2009 
to two-and-a-half years imprisonment.  With credit for time served 
since his arrest in June 2006, he was freed immediately, but on 
probation.  Another youth pled guilty in May 2009 to the same charge 
and is awaiting sentencing.  Both were members of the "Toronto 18," 
whom police arrested in June 2006 for allegedly conspiring to attack 
Parliament and politicians as well as to bomb the Toronto offices of 
CSIS, the RCMP, and CBC.  Police have stayed charges against three 
youths and four adults in the case, but nine other adults are 
awaiting trial; and, 
 
-- Moroccan-born Said Namouh came to Canada in 2003 and was arrested 
in September 2007.  He is currently in custody pending trial on 
charges of creating and distributing jihad propaganda, and four 
charges related to plotting terror attacks in Canada and Austria. 
His bid to have the propaganda charges against him dropped on the 
grounds that they infringed on his constitutional right to freedom 
of speech failed on June 10, when a Montreal judge upheld the 
constitutionality of the ATA. 
 
 
LIFTING STATE IMMUNITY FOR SUPPORTERS OF TERRORISM 
--------------------------------------------- ----- 
 
¶11. (U) In June, the government introduced a "Justice for Victims of 
Terrorism" bill (C-35) to complement existing counter-terrorism 
QTerrorism" bill (C-35) to complement existing counter-terrorism 
measures and to allow victims of terrorism to sue perpetrators and 
supporters of terrorism.  The proposed bill would lift the immunity 
of foreign states that the government designates as terrorism 
supporters.  The bill also establishes a listing mechanism for state 
sponsors of terror.  If the bill becomes law, the Minister of 
Foreign Affairs, in consultation with the Minister of Public Safety, 
would advise the government on the establishment of the list. 
 
¶12. (U) The legislation would allow victims of terrorism who can 
demonstrate a "real and substantial" connection between their case 
and Canada to sue in a Canadian court those foreign states included 
on the government's list.  Plaintiffs would be able to seek redress 
for terrorist acts committed anywhere in the world on, or after, 1 
January 1985.  Successful convictions could result in seizure of 
assets and property.  For claims related to terrorist acts committed 
outside Canada, plaintiffs would have to give the foreign state in 
which the incident occurred "reasonable opportunity" to submit the 
 
OTTAWA 00000452  003 OF 003 
 
 
dispute to arbitration in accordance with accepted international 
rules of arbitration before applying to a Canadian court.  In 
tabling the legislation, Minister of Public Safety Peter Van Loan 
insisted that Canada is sending a "clear message" that perpetrators 
of terrorism and their supporters will be held accountable. 
 
COMMENT 
 
¶13.  (SBU) Thus far, the debate on the ATA amendments has been 
uncontroversial and, crucially, the Liberals appear supportive. 
Debate on C-35 has not yet begun.  Under new leader Michael 
Ignatieff, the Liberals have been careful quietly to support the 
robust Conservative anti-crime agenda in order to deprive the 
Conservatives of a wedge issue in the next election.  Similarly, 
they are unlikely in principle to oppose, or substantially modify, 
the anti-terrorism bills.  The biggest worry now is whether the 
bills -- notably the ATA amendments -- can make it through both 
houses of Parliament before Canada faces another election, in which 
case the draft legislation would again die and the next government 
would face the choice of yet another re-introduction. 
BREESE