The danger of preventive counterterrorism powers
Kevin Omar Mohamed was arrested as a terrorist on Friday — but not, as one might expect, for an act of terrorism already committed. Instead, the arrest was initially described by police as “preventive,” based on a “fear” that Mohamed might engage in terrorism abroad; according to the police’s own statement, “there was no indication of any plans for a domestic attack.”
Even before being charged with any terrorism offence (as he eventually was), Mohamed was publicly branded a terrorist. His name and his face were broadcast on prime-time news as a “terror arrest,” all on the strength of a “fear.”
In the Kafkaesque world of preventive counterterrorism, one can be treated like a criminal without actually being accused of any crime.
Canadian law criminalizes a sweeping range of actions as terrorism offences, including preliminary steps only remotely connected to actual violence. But even those who have not been charged with any crime may be arrested and detained, their freedom abrogated not for what they have done in the past, but for what the state thinks they might do in the future.
Canada’s already-problematic regime of preventive arrest and detention was exacerbated by Bill C-51, the Anti-Terrorism Act, 2015. Bill C-51more than doubled the maximum time permitted for preventive detention (from three days to seven), while lowering the threshold for preventive arrest. Individuals may now be arrested if police believe that a terrorist activity may (not will) be carried out and that arrest is likely (not necessary) to prevent it.
Lawyers Clayton Ruby and Nader Hasan describe the type of scenario that could fall within the scope of the state’s newly expanded powers of arrest: “Six Muslim young adults stand in front of a mosque late at night in heated discussion in some foreign language. They may be talking about video games, or sports, or girls, or advocating the overthrow of the Harper government. Who knows? There is no evidence one way or the other. Just stereotypes . . . Yesterday, the Muslim men were freely exercising constitutional rights to freedom of expression and assembly. Today, they are arrestable.”
Bill C-51 also made it easier to impose peace bonds following preventive arrest, permitting them to be issued against people who may (not will) commit a terrorism offence. Under the Criminal Code’s “fear of terrorism offence” provision, peace bonds can be used to place severe limitations on an individual’s liberty — including prohibitions on Internet and cellphone use, electronic monitoring, curfews and geographic restrictions — without any criminal trial. (This is the provision Kevin Mohamed was originally arrested under.) Law enforcement agencies are increasingly relying on peace bonds to curtail the freedom of those such as Aaron Driver, Abdul Aziz Aldabous and Merouane Ghalmi: not accused of committing any crime, but bearing the burden of the state’s suspicion of dangerousness.
Lawyer Corey Shefman, head of the Manitoba Association for Rights and Liberties, likens our system of preventive arrest and peace bonds to the dystopian world of Minority Report. “It should shock every Canadian citizen that this is possible or is being done. I think it’s a Tom Cruise movie — Minority Report — where they arrest people for crimes people might commit in the future and that’s really what this is like to me.”
Real-world experiments with pre-emptive criminalization also provide a cautionary tale. In the United Kingdom, for example, only one-third of the more than 1,500 people arrested preventively since 9/11 have ever been charged with any offence. “The U.K. experience,” write law professors Kent Roach and Craig Forcese, “suggests that increased use of preventive arrests . . . will increase false positives in the form of detention of those who are never charged and may never have an opportunity to clear their name.”
Canadians are understandably afraid of terrorism in the wake of devastating attacks in cities around the world. But terrorism committed by non-state actors is not the only violence we should be concerned about. As Forcese reminds us, “The fact remains that even in the post-9/11 period, violence by states constitutes a much greater peril to the individual than acts of terror. Even the weakest states possess means of coercive force that are only occasionally matched by non-state actors.”
The perils of state violence and coercion mean we should be wary of the erosion of fundamental rights in the name of preventing terrorism. No matter how good the state claims its precog powers are.