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Momin Khawaja was the first person convicted under Canada's anti-terror law. The federal government wants to restore two controversial provisions of the law, neither of which had been used before they expired under a sunset clause. (Tom Hanson/Canadian Press)

Parliament began debate Monday on two anti-terrorism provisions that were never used and expired five years ago. It's also looking at new measures to deter acts of terrorism.

The two anti-terrorism measures were first brought in by the Liberal government in the wake of the Sept. 11 attacks, but were subject to "sunset" clauses that meant they had to be renewed after five years.

One of the controversial measures compels a suspect believed to have information relating to a terrorist offence to undergo an investigative hearing before a judge, without being charged with any offence. Another measure allows an individual to be preventively arrested without charge and then placed on recognizance, in which he or she would have to agree to certain conditions for up to 12 months.

Police have never resorted to either of these two measures. The cases of the Toronto 18, as well as Mohammed Momin Khawaja and three terrorist suspects in Ottawa were all dealt with using the Criminal Code, which has an extensive terrorism section.

The government has tried before to reintroduce both investigative hearings and preventive arrest, only to be defeated in the minority Parliament in 2007. Other attempts died on the order paper.

Now the government, with a majority, has brought the provisions back. Prime Minister Stephen Harper, in an interview with the CBC's Peter Mansbridge last fall, said: "We think those measures are necessary. We think they've been useful," he said. "And as you know … they're applied rarely, but there are times where they're needed."

The government has taken the somewhat unusual step of putting the anti-terrorism legislation first through the Senate, or, as NDP justice critic Françoise Boivin put it, "the back door."  The bill, known as S-7, the combating terrorism act, passed in the Senate in May and then was sent to the House of Commons.

Boivin argued that if the government considered this a serious and important bill, it should not have been debuted at the Senate level, but in the House of Commons, where the minister of justice could answer questions. 

'A threat that is not going away'

In the House debate Monday, Kerry-Lynne Findlay, parliamentary secretary for justice, admitted the two expired anti-terrorism measures had never been used, but said, "This is a threat that is not going away."

Boivin argued the bill has "a major shortcoming. It lacks a balance between security and fundamental rights."

Liberal MP Francis Scarpaleggia, critiquing a bill his own government had crafted in 2001, suggested the bill be amended to allow for a special advocate for terrorism suspects who find themselves at ex parte or emergency investigative hearings, where they have to agree to certain conditions without being charged with any offence.

Scarpaleggia also suggested creating a special committee of MPs, under oath, to study classified information about terrorism and national security.

New measures added

As part of S-7, the government has also introduced four new terrorism offences to the Criminal Code, all of which have to do with leaving or attempting to leave Canada to commit several of the existing terrorism offences in the Code.

Penalties range from a maximum of 10 to 14 years imprisonment for anyone leaving, or attempting to leave the country — or boarding a plane, for example — in order to commit or facilitate terrorism. 

Findlay, the government spokesperson for the bill Monday, noted that CSIS head Richard Fadden, testifying at a Senate committee, said that between 45 to 69 people have left Canada in order to  join "al-Qaeda type" organizations.

The nuclear terrorism act

Also Monday, the House of Commons debated another bill that was introduced in the Senate in March, called S-9, or the nuclear terrorism act.

The purpose of the bill is to create four new criminal offences so that Canada can ratify two international treaties on controlling the spread of nuclear materials. 

Canada no longer possesses any nuclear weapons, but they are widespread in parts of the world and could be sought by terrorists. Senator Roméo Dallaire, in a speech, described a kind of nuclear device that's "the size of a grapefruit but could take out half of Toronto."

The nuclear terrorism bill amends the Criminal Code so that possessing, altering, or trafficking in nuclear and radioactive material or devices would be punishable by life imprisonment. So would an attack against a nuclear facility. Trying to obtain nuclear material by an indictable offence would itself become an indictable offence, again, with a life imprisonment penalty. Anyone threatening to obtain nuclear material would be subject to a sentence of up to 14 years.

Once Canada makes these amendments, it can ratify an amendment to the over 30-year-old Convention on the Physical Protection of Nuclear Materials (CPNM), and sign on to the 2007 International Convention for Suppression of Acts of Nuclear Transmission (ICSANT).

Neither the NDP nor the Liberals oppose the nuclear terrorism bill and intend to vote in favour of it. That may be why the NDP kept asking in Monday's Commons debate why it took five years for the government to table a bill, and why it was the Senate that finally took action.