Restrain

• Author: Craig Forcese/Leah West
• Pages: 577-607

577

CH AP TE R 14

RESTR AIN

Screening tools may re strict the access of threat actors to sensitive are as

or information, or entry into Canada. Prosecutions, discussed later in

this book, may results in outright incarceration under criminal sen-

tence. In between, however, are a separate class of legal tools permit-

ting the state to detain or other wise impose constraints on liberty, for

reasons other than criminal conduct. These tools are often appealing

to the state because they physically restrain threats, unlike the screen-

ing tools discussed in Chapter 13. At the same time, they are available

through administ rative or judicial processes on standards of evidence

that are less demanding than the proof of guilt beyond a reasonable

doubt required in crimin al proceedings.

A key dilemma, however, is that these restraint tools suer from

what we like to call a “Goldilocks” problem. They can be too restrictive

on liberty when imposed on those who are not truly a security thre at.

A particularly ag gressive form of house arrest or other forms of liber ty

constraint can impose real harm on detainees and their families. Con-

ditions such as bans on the use of computers and unrealistic curfews

may only result in dis putes over frequent breaches, on top of the hugely

expensive and intr usive process of monitoring the person’s behaviour.

At the same time, however, there is a bright line between restraint and

imprisonment; as a result, restraint may prove too weak for determined

adversaries. Indeed, ex perienced commentators ridiculed the idea of

NATIONAL SECUR ITY LAW578

“peace bonds for terrorists,” something of an afterthought in the post-

9/11 reforms, as manifestly ill-suited for suicide bombers.1

Therefore, restraint tools run a dual r isk from a national security

perspective: they can b e an overreaction when imposed on some indi-

viduals and may cre ate legitimacy problems not generally experienced

in criminal trials, decided in open court on robust ev identiary stan-

dards. At the same time, they may be an under reaction when levied

against determined t hreat actors who require long-term incapacitation

of the sort that the state ca n generally only impose following succe ssful

criminal prosecutions.

In this chapter, we describe t he various legal levers available to

the government that fall into t his “restrain” category. First, we exam-

ine immigration rest raint measures, an area with a long history as a

national securit y tool. We look then at “peace bonds” and their use

as an anti-terrorism device. Finally, we focus on so-called preventive

detention in anti-terrorism. We begin, however, with principles of law

governing detentions, of all sorts.

PART I: INTERNATIONAL PRINCIPLES

RELEVANT TO DETENTION

A. INTER NATIONAL HUM AN RIGHTS

STA NDARDS

A right to liberty, and the obligation not to interfere with the liberty

interest via arbitrary detention, are basic principles of international

human rights law2 and of the constitutional trad itions of liberal dem-

ocracies.3 Where one’s detention is the result of crim inal charges, the

state must subsequently provide the accused w ith a fair trial before an

1 Gary Trotter, “The Anti-Terrorism Bil l and Preventive Restrai nts on Liberty”

in Ronald J Dan iels, Patrick Macklem & Kent Roac h, The Security of Freedom:

Essays on Canada’s Anti-Terrorism Bill (Toronto: University of Toronto Pre ss,

2001) at 241.

2 See, for example, the Unive rsal Declaration of Human Rights, UN Doc A/810

(1948), arts 3 and 9; Internation al Covenant on Civil and Political Rights, 999

UNTS 171, Art 9 [ICCPR].

3 See, for example, Cana dian Charter of Rights and Freedoms, Par t I of the Constitu-

tion Act, 1982, being Schedule B to the Can ada Act 1982 (UK) 1982, c 11, ss 7, 9,

10; US Bill of Rights, 4th a nd 5th Amendments.