Bill C-51 anti-terror arrests without a crime concern legal experts

Some members of Canada's legal community are criticizing a provision introduced by anti-terrorism Bill C-51 that gives police more leeway to arrest people who haven't committed any crimes and bring them before judges who can restrict their liberty.

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A new provision of the Criminal Code created by Bill C-51 makes it easier for Canadian police to arrest people they fear 'may' commit a terrorism offence. (Blair Gable/Reuters)

Some Canadian legal experts are concerned about police use of an anti-terrorism provision in Bill C-51 that makes it easier for them to arrest people who haven't committed any crime.

The use of the new provision, Section 810.011 of the Criminal Code, in recent cases such as that of Ontario man Kevin Omar Mohamed is drawing criticism that the law is both redundant and over-powerful.

"The Criminal Code already had provisions in place whereby the police could detain individuals for a number of inchoate offences," says Sukanya Pillay, executive director of the Canadian Civil Liberties Association.

"In particular, we're concerned that by doing this, we're normalizing these exceptional powers, and the case hasn't been made that they're needed," says Pillay.

Peace bonds have been used against terrorism suspects since before Bill C-51, although it's difficult to pin down the exact number of times. Craig Forcese, a legal scholar at the University of Ottawa who has studied Bill C-51 extensively, estimates they have been used in terrorism cases 16 times since 2001.

I think you need a measure that allows law enforcement to exercise some control over an individual on a standard that's short of the criminal law standard required for an arrest and prosecution.- Craig Forcese, University of Ottawa faculty of law

A spokeswoman for the Public Prosecution Service of Canada told CBC News there were 16 applications for peace bonds in such cases as of March 29, but later said 10 peace bonds "have been issued" since 2001 — one of which was issued under Section 810.011.

Although the contentious Bill C-51 was passed under the previous Conservative federal government, the new Liberal government indicates it is unlikely to change Section 810.011 of the code.

The section makes it easier for police to arrest terror suspects and bring them before a judge, who can then issue a so-called peace bond against them for up to 12 months, or up to five years if they have a previous terrorism conviction.

The subject of such a peace bond can be required to surrender their passport, obey a curfew, participate in treatment programs, wear an electronic monitoring device, and abide by other restrictions. Although the subject has to agree to sign the peace bond, they face up to a year of prison time if they choose not to.

A lower standard for arrests

Although the use of peace bonds against terrorism suspects predates Bill C-51, the new provision significantly weakens the standard required for police to arrest someone and bring them before a judge.

Previously, police had to show they feared "on reasonable grounds" that the person "will" commit a terrorism offence in order to bring them before a judge for a peace bond hearing. Now, police must only show their fear that the person "may" commit a terrorism offence.

Section 810.011 of the Criminal Code was introduced under contentious anti-terrorism Bill C-51, which has been the subject of considerable protest. (Jonathan Hayward/Canadian Press)

In one of the most recent cases, this section was used by the RCMP to effect a "preventive arrest" of Kevin Omar Mohamed, a 23-year-old Ontario man.

However, Mohamed never got a chance to agree to a peace bond. After detaining Mohamed, the RCMP withdrew the peace bond application and replaced it with charges under Section 83.18 of the Criminal Code, titled "Participation in activity of terrorist group."

Mohamed's lawyer, Anser Farooq, says his client was ready to sign the peace bond before it was withdrawn.

"We were going to take it," says Farooq. "We had clothing there ready to take him out [of custody] that day."

A 'Goldilocks' problem

The use of peace bonds against terrorism suspects has increased in recent years, according to Craig Forcese of the University of Ottawa. They were imposed on some members of the Toronto 18, and also on Aaron Driver, a Winnipeg man who supported ISIS online.

Forcese says peace bonds under Section 810.011 suffer from a "Goldilocks"-style dilemma, describing them as potentially too powerful and yet not powerful enough. He says peace bonds "won't necessarily stop a determined, dangerous person" who is truly intent on doing harm.

"On the other hand, it's potentially too aggressive a measure for someone who may never actually gravitate to the feared conduct," says Forcese.

Although Forcese is critical of certain aspects of peace bonds, he does believe they ought to exist.

"In the current threat environment, I think you need a measure that allows law enforcement to exercise some control over an individual on a standard that's short of the criminal law standard required for an arrest and prosecution," says Forcese.

Already challenged in court

So far, Section 810.011 has been challenged once in Canadian court, without much success.

Aaron Driver was never charged with a crime for voicing his support for ISIS over the internet, but the RCMP applied for a peace bond against him in June 2015. His lawyer challenged the law behind that peace bond, arguing that the legislation was "arbitrary and indefensible by virtue of being vague and overbroad," according to the ruling from Manitoba provincial court Justice Ryan Rolston.

Although he was not found guilty of any crime, Winnipeg ISIS supporter Aaron Driver signed a peace bond restricting his activities. (John Woods/Canadian Press)

Rolston found that Section 810.011 was not unconstitutional, although he did strike down the peace bond's requirement that Driver take part in a treatment program. Driver ended up signing the peace bond after a negotiation with the Crown that loosened some of the other conditions, according to his attorney Leonard Tailleur, who describes the section as "problematic."

Tailleur says, "The threshold is so low that it's going to get some people agreeing to [peace bond] conditions because it's the easy thing to do, rather than the right thing to do."

The future of Section 810.011

A spokesman for Public Safety Minister Ralph Goodale suggests the government will likely leave Section 810.011 intact, despite an election-time pledge to modify Bill C-51.

"With C-51, we made a number of core commitments to reform it as part of our election platform," says Scott Bardsley. "Changes to Section 810 of the Criminal Code were not among those commitments."

Bardsley adds, however, that upcoming consultations on national security policy will offer Canadians an opportunity to provide the government with feedback on Section 810.011.