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Clement's comments on jailing people not accused of a crime 'undemocratic'

Canadian Press THE CANADIAN PRESS

OTTAWA – Conservative leadership candidate Tony Clement says if people at high risk of committing terrorist acts cannot be monitored around the clock, they should be behind bars.

Clement says court-ordered peace bonds – such as the one Aaron Driver was under while he planned his thwarted terrorist attack with explosives last month – are not enough unless security officials are able to monitor people 24 hours a day.

The RCMP has acknowledged that Driver was not under constant surveillance and that it was a tip from U.S. authorities that alerted them to his plans.

Clement says if non-stop monitoring is impossible, people who reach the evidentiary threshold of peace bonds should instead be incarcerated following a judicial process until they are no longer a threat to the public.

The Ontario MP and former cabinet minister revealed his position while unveiling his proposed plan for increasing national security to protect Canada from terrorist threats at home and abroad.

The plan includes enhanced screening with face-to-face video-conferencing for potential immigrants, revoking the Canadian citizenship of dual nationals convicted of terrorism and setting up an independent government agency to monitor the activities of all charities to make sure they are not contributing to terrorism or radicalization.

In an interview with AdvocateDaily.com, Toronto criminal lawyer John Rosen, founder of Rosen & Company, Barristers, says what Clement is suggesting simply isn’t legal in Canada and goes against the principles of fundamental justice enjoyed in any free and democratic country, including Canada.

“Not only is it not legal, it goes against our Charter of Rights and Freedoms, which is part of our Constitution,” he tells the online legal news service. “The Charter says that we live in a free and democratic society in which everyone has a right to life, liberty and security of the person and the right not to be deprived thereof except in the accordance with the principles of fundamental justice.”

Rosen points to the Supreme Court of Canada decision in R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571, in which the court noted, “The relevant principle of fundamental justice is that the parliamentary response must not be grossly disproportionate to the state interests sought to be protected.”  

Rosen says, “That response cannot ever allow for preventative detention of people who have done nothing wrong but are judged by the government of the day to be dangerous.”

The Criminal Code is generally reactive in terms of crime, he says. 

“In other words when somebody commits a crime, the Criminal Code clicks in,” he says. 

But under s. 810 of the Code, there are provisions that allow individuals and government to apply to a judicial officer and say, ‘Look, I have reason to believe that this person will cause personal injury to someone, will damage property, will commit some sort of sexual offence or an act of terrorism, Rosen says. 

“If the judicial officer accepts there are serious concerns, they can issue process to the targeted person to give them an opportunity to come to court and say whether this is true,” he says. “After a public hearing in which evidence may be called, the judicial officer will decide whether he/she is satisfied that there is a basis for concern, in which case an order will be made requiring the targeted person to enter into a recognizance of a period of one or two years. If the person refuses to enter into the recognizance then the judicial officer can send that person to jail for a period not exceeding 12 months.  Breach of the recognizance is itself a criminal offence.”

Rosen says it’s important to understand that the current preventative measures available to government, namely peace bonds, are constitutional because they impose limits of movement under certain specific circumstances short of detention.  

“Allowing government to impose preventative detention pushes us towards a totalitarianism, where such measures are used regularly to suppress freedoms, persecute minorities and silence opposition. The suggestion by Mr. Clement to remedy an alleged lack of resources is simply absurd.  It’s sad to see a politician who generally would have the public’s respect step into demagoguery. Perhaps it’s because we live in the time of [Donald] Trump.”

– With files from AdvocateDaily.com

© 2016 The Canadian Press

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