A Brief on Bill C-36, the Anti-Terrorism Bill
Submitted to the House of Commons Standing Committee on Justice
and Human Rights
November 9, 2001, and to the Special Senate Committee on the Subject matter
of Bill C-36, December 4, 2001
From the Civil Liberties Association, National Capital Region.
1. As civil libertarians we accept that threats to civil liberties can come from many sources. The events of September 11, 2001, reveal an appalling power and ruthlessness by at least one highly organized, well-financed group. It is possible that extraordinary measures may be necessary to counter-act such threats, and that these measures may require some restrictions on liberties we have been accustomed to prior to these events. But we are gravely concerned that such measures not be allowed to dismantle basic liberties which it has taken centuries to achieve.
2. We must not allow such restrictions on liberties to go beyond what is necessary
for rationally achieving the objective. The burden of proof lies with the government
to show that each proposed intrusion is necessary. It should also show that
each intrusion is no more than necessary, and that the restrictions are proportionate,
in the sense that the damage to civil liberties will not be greater than the
additional protection which the measures supposedly would bring about. In making
this judgement, care should be exercised to see what means might already exist
within the existing legislative framework for protecting Canadians and others
against the threat of terrorism. Increased expenditures on intelligence operations
is one such possibility. Infringement of civil liberties should be seen only
as a last resort, after all other methods have been considered.
3. In assessing the risks of legislation which infringes on civil liberties,
care should be taken to think beyond the intentions of the lawmakers to the
possible use or misuse of the new powers by law enforcers, or others. The passage
of this Bill will be a one-time act. However, its administration by law enforcement
officials will be a continuing activity which, once the Act and the resulting
bureaucratic processes and structures are in place and running, will be very
difficult to turn off and dismantle.
4. Some historical observations are appropriate. When the War Measures Act was
invoked on October 16, 1970, there were some 400 arrests and two weeks later
still no charges laid against the detainees, many of whom had little or no connection
with the FLQ. At the time the country’s editorialists spoke very feebly
in defence of civil liberties, possibly to avoid being blamed for any future
terorist acts. The big failure of the time was that of the police forces which
failed to infiltrate the FLQ. Once the War Measures Act was in place, police
acted lawlessly, involving themselves in illicit theft of Parti Québécois
membership lists, of barn-burning, mail opening, and other illegal acts revealed
in the Commission of Inquiry Concerning Certain Activities of the Royal Canadian
Mounted Police, August, 1981. W.H. Kelly, former Deputy Commisioner of the RCMP
made a speech to the Canadian Club October 28, 1970 in which he called for “imposition
of the death penalty for the murder of politicians, diplomats and judges, and
stiffer immigration procedures to keep those advocating separatism and terrorism
out of the country” (The Globe and Mail, Oct. 29). In the same speech,
Mr. Kelly said “Surely it is not asking too much to ask all non-Canadians
found to be advocating separatism and philosophies of the FLQ be given short
shrift by the Immigration Department and sent from the country immediately.”
What is notable about these statements is the blurring of the FLQ with the notion
of separatism. The Parti Québécois is and has been a legitimate
party in Canada, and this blurring interferes with the democratic right of people
to support such a legitimate party.
5. What possible blurring and confusions, contrary to the intent of the drafters
of Bill C-36, might result from its passage? The B.C. Civil Liberties Association
has said in speaking notes for this Committee October 30, 2001 that “the
government’s proposed definition of terrorist activity is simply too broad.
The definition would, among other things, count as terrorist activity any unlawful
politically motivated acts that threatened to seriously disrupt an essential
service.” This statement appears to overlook a key provision of the Bill,
under 83.01 (1)(b)(ii), namely, that the terrorist activity would have to include,
as a minimum, the intention “(C) to cause a serious risk to the health
or safety of the public or any segment of the public.” Notwithstanding
this apparent oversight, there is still a legitimate concern when the BCCLA
states that the definition “would brand as terrorist doctors, teachers,
nurses, or trade unionists who threatened to strike or withhold services in
the face of provincial orders deeming their work an essential service. It could
also brand as terrorist the civilly disobedient actions of First Nations citizens
who blockade an airport or highway.” The point is that “serious risk
to the health or safety of the public or any segment of the public,” will
be subject to interpretation by police, who can make arrests, and intimidate
workers groups, possibly dropping charges before the cases come before a judge.
Do Committee members need to be reminded that just such a scenario of, arrest,
detention and charges dropped, was played out this past year in the case of
the Cornwall area schoolboy charged with uttering death threats for an essay
titled “Twisted” that he read to his English class? How much greater
intimidation might take place given the powers to be placed at police disposal
under Bill C-36? If laws governing workers’ groups are in need of modification,
surely such questions should be dealt with directly, rather than indirectly
through amalgamation with the events of September 11 in New York and Washington.
6. One of the most important and long-standing features of the criminal law
as derived from England and codified in Canada using Fitzjames Stephen’s
draft bill is the requirement of mens rea for conviction of a genuinely
criminal offence. We would like to draw the attention of the Committee to what
we see as an ambiguity in the current draft of Bill C-36 that could severely
compromise that principle.
Section 83.03 states that “Every one who, directly or indirectly, collects
property, provides or invites a person to provide, or makes available property
or financial or other related services (a) intending that they be used, or knowing
that they will be used, in whole or in part, for the purpose of facilitating
or carrying out any terrorist activity, or for the purpose of benefitting any
person who is facilitating or carrying out such an activity ... is guilty of
an indictable offence and is liable to imprisonment for a term of not more than
10 years.”
The ambiguity in this drafting relates to the phrase “...or for the purpose
of benefitting any person who is facilitating or carrying out such an activity.”
This phrase could conceivably be used to convict a person who supplies financial
services (etc.) knowing that they will benefit a person who in fact is facilitating
or carrying out terrorist activity, but whom the accused did not know
was facilitating or carrying out such activity.
The ambiguity lies in the absence of clarity as to whether the scope of intention
or knowledge relates only to the identity of the person who happens to be a
facilitator (etc.) of terrorism, or whether it also includes knowledge that
the person is in fact facilitating or carrying out terrorist activity. So for
example a person could give money to a representative of an organization collecting
funds for Palestinians, intending and knowing that the money will benefit that
representative, but might be unaware that the representative was in fact also
facilitating terrorist activity. It must be stated unambiguously that the knowledge
must extend, not only to the identity of the person who collects the money,
but also to the fact (if it is a fact) that the person is using all or part
of those funds to finance terrorism.
The wording of this section also suggests the possibility that, if a representative
of an organization known to occasionally engage in acts of terrorism should
need assistance as a human being (say in a medical emergency) a person might
be guilty of a crime for extending compassionate help (say, driving the afflicted
person to hospital). Is that the intent of the Bill? Could the drafting not
distinguish between help that relates to a human individual’s personal
needs as distinct from help that will be passed on the the form of empowering
a terrorist organization?
7. One of the most cherished features of any democracy worthy of the name is
the principle of the rule of law. This principle implies that laws should apply
even-handedly to all persons, regardless of their position in a country’s
power structure. With Bill C-36 the reach of Canadian law extends outside its
borders, since Canadians can be guilty of criminal acts for supporting terrorism
in foreign lands. This being the case, there should be care taken that the definition
of “terrorism” should be applied even-handedly. But it is notoriously
the case that one person’s “freedom-fighter” is another person’s
“terrorist.” Many, if not most movements for independence in the last
century, retrospectively viewed as legitimate, had some component of terrorist
activity. It is not the figment of some wild-eyed leftist’s imagination,
but it is demonstrable fact that one of the largest supporters of terrorism
world-wide has been the United States of America, through, for example, what
used to be called the “School of the Americas,” in Fort Benning, Georgia,
currently re-named as the “Western Hemisphere Institute for Security Cooperation.”*
If Libya and Iraq are to be viewed as terrorist nations for training people
in the use of violence against other recognized governing bodies then so, too,
should the United States. Indeed, since the United States has supported Saddam
Hussein at one time, and the Taliban at another, the tragic events of September
11 can be seen in no small way as “blowback,” meaning the use of operatives
who turn against their supporters. In this light, Bill C-36 should be examined
to determine (a) whether there is ad hocery in a definition of terrorism
that would automatically disqualify the United States as a supporter of terrorism
anywhere, or (b) whether, if the United States could be included, the existence
of its training school or its dealings in arms worldwide might jeopardize trade
between Canadians and the United States, under this proposed Anti-Terrorism
Bill.
8. There has been much discussion of a “sunset clause” or time limit
for application of Bill C-36. This is a good idea, in the event that elements
of the Bill can be justified. But this concern should not be allowed to obscure
the fact that application of a sunset clause to unacceptable legislation does
not make it legitimate. We still need special care regarding what kind of “sunrise”
is involved and whether the ozone layer of civil liberties remains substantial
enough to prevent innocent citizens from getting burned.
9. Our comments in this brief have been limited to Part One of Bill C-36, in
the belief that problems with other parts of the Bill are being effectively
addressed by other bodies, such as Open Government Canada, the Canadian Bar
Association, The Privacy Commissioner of Canada, etc.
*The interested reader is referred to George Monbiot, "Backyard terrorism," The Guardian, October 30, 2001— http://www.guardian.co.uk/Print/0,3858,4287795,00.html
Respectfully submitted,
Randal Marlin,
President,
Civil Liberties Association,
National Capital Region
Tel. 520-2600 ext 3797
Fax: 520-3962
Home: 22 Third Avenue, Ottawa, K1S 2J6
e-mail: marlin@ncf.ca
To learn more about the Civil Liberties Association, National Capital Region,
visit our web-site at http://www.ncf.ca/civil-liberties/