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At the urging of the United States after September 11th, governments in Europe and North America adopted stringent anti-terrorism measures. Canada responded to the call by passing tough new legislation. Bill C-36, now the Anti-terrorism Act (S. C. 2001, c. 41, online at: http://www.parl.gc.ca/common/Bills_House_Government.asp?Language=E&Parl=37&Ses=1) received Royal Assent on December 18, 2001.
NAWL and the National Organization of Immigrant and Visible Minority Women of Canada voiced our concerns about Bill C-36 and its impact on the civil and political rights, and the equality rights of persons living in Canada. We presented our opinions to a special Senate Committee on December 6, 2001 (transcript available online at: http://www.parl.gc.ca/common/committee_SenProceed.asp?Language=E&Parl=37&Ses=1&comm_ id=90). The following is a summary of our comments. As there were no changes to the bill, these comments apply equally to the Act as passed.
Bill C-36 threatens human rights in Canada and does not strike the necessary balance between collective security and individual liberties. We fear the limitations on rights and freedoms will have a disparate impact on racialized minorities, immigrants and other historically disadvantaged communities in Canada. We are also concerned that it will restrict legitimate political protest in Canada, and will have a chilling effect, limiting free speech, freedom of association and political participation.
As an omnibus bill, C-36 integrates the anti-terrorist provisions into the Criminal Code, the Canada Evidence Act, the National Defense Act, the Access to Information Act, the Privacy Act, and other legislation. It therefore risks contaminating our basic legal safeguards and rules. Simply adopting a sunset clause is not sufficient because much harm will be done in the first years of the operation of the bill.
While we are relieved that the Minister of Justice amended the initially proposed definition of “terrorist activities,” we think the current definition is still too vague, allowing for the arrest and detention of persons who are not terrorists.
Indeed, the definition of terrorist activities also includes an act or omission that causes “serious interference with or serious disruption of an essential service, facility or system, whether public or private.” This definition is much too broad, and will result in confusion leading to the inappropriate characterization of activities as “terrorist acts.” In addition, the introduction of the notion of intimidation with regard to “economic security” in the definition of a terrorist act is vague, inappropriate and may have untold ramifications.
Bill C-36 introduces the new concept of “facilitating” a terrorist activity into the Criminal Code. This new concept departs from the accepted and understood notions of aiding and abetting contained in section 21 of the Code. The concept of “facilitating” is not clear, and its introduction might “contaminate” the Criminal Code, bringing about confusion with respect to the interpretation of aiding and abetting. Indeed, the concept is so vague that it might dissuade lawyers from representing accused persons or groups out of fear of being accused themselves of providing a skill or expertise for the benefit of a terrorist group. This directly affects the most basic right to legal representation.
Bill C-36 allows for the creation of a government list of terrorist groups to include any entity that the Solicitor General has reasonable grounds to believe carried out, participated in, or facilitated a terrorist activity. Despite the fact that being placed on such a list will no doubt have drastic consequences for any organization, there are not adequate procedural safeguards to challenge the decision. On the contrary, the bill includes a presumption that if the Solicitor General does not respond within 60 days to an application challenging the placement of a group on the list, he is deemed to have decided to that the applicant will remain listed. Although the applicant may apply to a judge for judicial review of this “decision,” the judge may examine in private all security or intelligence reports submitted by the Solicitor General if the judge is of the opinion that the disclosure of the information would injure national security or endanger the safety of any person. The applicant only has a right to receive a statement summarizing the information available to the judge.
In addition, the judge may receive any evidence “even if it would not otherwise be admissible under Canadian law” and may base his or her decision on that evidence. There is no mechanism to appeal evidentiary decisions. This type of procedure is completely inconsistent with basic principles of fundamental justice, and is reminiscent of Star Chamber principles.
We are also very concerned with the preventive arrest and detention provisions of the bill, as well as the new investigative procedures. Persons under investigation are presently not compelled to answer questions outside the framework of a trial. The changes in the Bill represent a major expansion of investigative powers of law enforcement agencies. The right to silence is a hallmark of fundamental justice under common law and the bill’s provisions effectively abrogate that right, forcing persons to speak and provide evidence against their will.
These provisions violate basic Charter protections, such as the right to silence. We are dismayed that this bill allows for arrest on mere suspicion. This is a highly subjective criteria that will allow for uncontrolled abuse. Given the current climate, it may also give rise to a wave of discriminatory arrests against racialized persons and groups.
The increasing secrecy of criminal trials and the expanded list of reasons why the public may be barred from aspects of a trial, along with bans on publication of proceedings are of great concern. Our worries are compounded by the power to exclude the application of access to information and privacy legislation in the interest of national security and protecting international relations. In addition, we consider that the provisions around disclosure of information regarding terrorist property offend the rights of clients to confidentiality and solicitor-client privilege. Indeed, the proposed provisions would subject lawyers to criminal charges for performing their professional duty to keep client information confidential. This would most certainly be a violation of solicitor-client confidentiality and privilege.
We are also apprehensive about the fact that the bill facilitates spying on Canadians by providing the Canadian Security Establishment with increased powers, without any provision for independent review or judicial scrutiny.
The sections prohibiting the financing of terrorist activities prevents fundraising on behalf of groups resisting oppressive regimes, or simply providing funds for community survival. The lack of protection from abuse of process in decertifying charitable organizations may also have a very negative impact on the capacity of communities to organize and provide essential support to their members.
Bill C-36 amends the Canada Evidence Act by abolishing sections 37 and 38, and replacing them with provisions that
would allow for the exclusion of evidence on the grounds of a “specified public interest” or because it may be “potentially injurious information” that could injure “international relations or national defence or national security.” The new provisions allow for the complete exclusion of evidence in some cases, or the disclosure of only a part or a summary of the information. In addition, the bill provides that in making decisions on these issues, the court may receive into evidence anything that is appropriate “even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence.” This reform is being proposed without any evidence that there are problems with the current provisions of the Canada Evidence Act that were adopted after extensive consultation, litigation and law reform work.
While we understand the need to protect Canadians from acts of terrorism, we ask the Senate to send a clear message to the House of Commons that these draconian measures, adopted in haste without time for a democratic debate and considered analysis, is unacceptable. This bill will profoundly alter Canadian law in many different domains, yet the government has not even established that we are faced with a real threat of terrorism.
As women and as feminists, we certainly understand the need to take action against terrorism. As a movement, we have been fighting against domestic sexual terrorism that forces approximately 100,000 abused women and children to flee from their home and seek refuge in shelters every year. Women know what terror feels like, and we have been urging our governments to take effective measures against violence against women for over 30 years. Yet we have never recommended that government infringe basic civil liberties to do so. Even though it is frustrating to see that abusers always benefit from the presumption of innocence, that guilty abusers are often freed because of procedural issues, and that it can be very difficult to obtain legal sanctions that effectively guarantee a woman’s security, or that validate her experience as a victim, feminists have never called for the kind of measures that we now see in Bill C-36.
Andrée Côté is NAWL’s Director of Legislation and Law Reform.