Open Letter Re: Bill C-36
Currently, the House is considering a new Bill (Bill C-36) called the Anti-Terrorist Bill [1] intended to ``combat terrorism'' according to a Justice Department press release [2] .
[1] -- Found online at <www.parl.gc.ca>
[2] -- Found online at <canada.justice.gc.ca>
What is Terrorism?
One of the most alarming portions of this Bill is the over-broad definition of ``terrorism''. As the authors clearly were aware, even protest actions would be ``terrorism'' as defined by the Bill so a special exeption for ``legitimate protest'' was made. Of course, it's not clear who gets to define what a ``legitimate'' protest action is. Furthermore, a robust definition of terrorism should not need such special exemptions, which are fraught with the danger of abuse, wrong interpretation or the very real concern that more exemptions will be needed in future.
For example, someone is flying a plane (``the act or omission is committed on an aircraft'') and tows behind it a banner urging a boycott of a Canadian product (``an act [..] that is committed [..] in whole or in part with the intention of intimidating the public [..] with regard it its [economic] security''). Is this person a terrorist? Yes, unless someone deems this act a ``legitimate form of protest''. I think it is easy to see that such a broad definition of ``terrorist action'' would be easy to abuse.
Clearly, the definition of ``terrorism'' in the Bill is not good enough. In fact, the definition for the word ``terrorism'' has such little broad agreement that it's not clear that any definition will be usable.
Why?
Neither the Bill nor the press release make it clear why we might need new legistlation to ``combat terrorism''; any conceivable ``terrorist'' act (i.e. destruction of property, killing of people, planned killing of people, hijacking of aircraft, spreading of deadly disease) is already illegal under Canadian criminal law.
One should strive for a minimum of laws, not a maximum; without a clear and unfulfilled need for new laws, we should prefer to not make any. There is no clear need for Bill C-36, beyond giving the appearance of ``doing something''.
Additional Powers.
Bill C-36 doesn't appear to make any new potential ``terrorist'' acts illegal, but it does raise alarming concerns for the privacy of Canadian citizens and the granting of new powers to the Solicitor General.
For example, the Act gives the Governor In Council the power to make any group a ``terrorist group'' merely by ``listing'' that group. After a group is ``listed'', participation in that group becomes illegal, the group's property may be frozen or seized and no Canadian may ``instruct or harbour'' [members of] that group.
The criteria for being ``listed'' are alarmingly weak: the Solicitor General must merely suggest that the group is acting ``in association with'' some group which the Solicitor General thinks ``has carried out, attempted to carry out, participated in or facilitated a terrorist activity''. Remember the broad definition of ``terrorist activity'' and notice that no evidence needs to be presented in order for this to take place; the Solicitor General must only convince the Governor in Council.
This has extremely worrying implications; one may be quite tempted to list an unpopular group due to a popular movement against that group. The are only two criteria for a group to challenge their ``listed'' status. The first is to write to the Solicitor General. Presumably this will be fruitless, as the Solicitor General has already decided there are ``reasonable grounds'' to list the group.
The second is to apply for judicial review. Unfortunately, there are no methods mentioned to challenge the listing in a Court; the group may apply to a have a Judge review the matter ``in private'', but this is a far cry from presenting evidence for and against in a Court.
This addition power granted to the Solicitor General is worrisome.
The Solicitor General is granted more powers, however. At his sole discretion, the Solicitor General may exempt persons from freezing of property under Section 83.08. If Section 83.08 is indeed well-defined, there should be no need of any exemptions.
Security of Information Act
Part of Bill C-36 is the ``Security of Information Act'' which has even more grievous implications.
First of all, I am uncomfortable with the idea of any ``State Secrets''. In a supposedly free and democratic society, any public institution should be completely transparent to the people who fund and support it: the public. This means that no public institution should ever have call to keep any information from the people of Canada.
With that in mind, the ease with which one may make and prevent disclosure of so-called ``State Secrets'' is extremely disturbing.
According to the Act, a person is ``prejudicial to the safety or interests of the State'' if that person:
- ``interferes with the design, development or production of anyweapon or defence equipment''. This seems to imply that people who protest a weapon system, for example, are guilty. Is a mischief-maker who defaces a Department of Defence Web site now a terrorist?
- ``adversely affects the stability of the Canadian economy[..]'' If a large shareholder in an important Canadian business(say, Nortel) sells off all his shares causing a significant drop inCanadian stock markets, is this person ``prejudicial to the interestsof the State''? Why or why not?
- ``impairs or threatens the capability of the Government ofCanada to conduct diplomatic or consular relations, or conduct andmanage international negotiations''. Again, this implies thatprotesters against (for example) the Free Trade Area of the Americaswould be deemed ``prejudicial to the interests of the State'' sincethey are impairing the Goverment's capability to manage internationalnegotiations. This leaves unanswered the question as to why thegovernment should have sole control over international negotiations inthe first place.
``Economic Espionage''
The Bill goes on to define further criminal punishments for ``trade secret'' ``infringement''. So-called trade secrets should not be covered by criminal law at all, and so adding more criminal punishments is not a good thing.
If corporations wish to keep things secret, then they should do so. If they wish to prevent their employees (or ex-employees) from disclosing ``secrets'', then they should enter into civil contracts with them. Remedies for breach of such contracts are already available through the Civil Court system.
(As an aside, does making the ``stealing'' of ``trade secrets'' illegal imply that Canada would end participation in the ECHELON agreement? Thought not.)
Curious Amendments
There are some odd proposals for ammendments. For example, under section 13(1) of the Canadian Human Rights Act it is a ``descriminatory practice'' to communicate to others ``any matter that is likely to expose a person or persons to hatred or contempt'' (based on things like skin colour). Section 13(2) doesn't apply if the communicating is via ``facilities of a broadcasting undertaking''. Bill C-36 would make the Internet non-exempt, essentially redefining it as a non-broadcast medium. Why?
Conclusion
The Bill proposed as Bill C-36 has many exceedingly-broad definitions; it contains additional criminal laws covering areas which should not be covered by criminal law in the first place; it gives broad additional powers to the Solicitor General; and it sponsors additional punishments against people who disseminate so-called ``state secrets''.
The entire reason for initiating this Bill -- terrorism -- is an ill-defined concept against which laws already exist; the need for more legislation is not clear and has not been addressed by the House or the Government.
With so much against it, I find it hard to conceive that anyone would support this Bill.
I most certainly do not.
Your sincerely,
Mike Warren
Response from Joe Clark
Date: Fri, 16 Nov 2001 16:46:03 -0500
From: Clark, Joe - M.P. <Clark.J [at] parl.gc.ca>
Dear Mr. Warren,
Thank you for your e-mail. I appreciate your taking the time and the effort to write to me and share your thoughts on Bill C-36, the government's proposed anti-terrorism legislation.
Since the terrorist attacks of September 11, 2001 the new reality for Canadians is that our priorities have changed with respect to security in our country. Bill C-36 is a comprehensive, 175 page bill, which makes significant amendments to the following: the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime Act, the National Defence Act, the Access to Information Act, the Registration of Charities Act as well as other Acts. It is expected to become law before the end of November 2001.
The PC / DR Coalition is generally supportive of the principles behind this legislative response to fight terrorism. The attacks of September 11th were cowardly, inhumane acts, which have forced us to revisit and reaffirm all we hold dear. The bill attempts to achieve a balance between the measures needed to protect Canadians from acts of terrorism with the need to respect civil liberties and human rights that Canadians cherish. Our Coalition believes that a strong legislative response is necessary as are the resources to allow our law enforcement community to be proactive in the important task of fighting terrorism.
However, we intend to propose amendments to the existing legislation to ensure that in the efforts to protect Canadians, security and human rights can co-exist. The proposed legislation cannot needlessly infringe on individual rights and freedoms thus, the focus of our amendments will touch on four main areas: the need for accountability and oversight; the "sunsetting" of the application of the Act; minimizing infringement of rights and finally, greater clarity of new law enforcement powers. Bill C-36 was drafted quickly and is the first of at least two pieces of legislation that will address terrorism. There is nothing in the bill, which addresses immigration laws directly. The second bill is expected to be introduced shortly and will deal mainly with transportation and border issues.
Unlike other jurisdictions, this detailed piece of legislation does not define terrorism but defines "terrorist activity" as activity with a "political, religious or ideological purpose". This has drawn some criticism as it may be interpreted to broadly. There is fear that legitimate peaceful dissent might fall under the definition. The bill does make the financing or the use of property in the furthering of terrorism a criminal act. It also provides for the listing of certain groups as terrorists thus, freezing and seizing their property. It will become a criminal offence to participate, facilitate or harbour members of a terrorist group and will criminalize the act of committing mischief to property or buildings owned or used for a religious purpose. In addition, spreading hate propaganda on the Internet and in other telecommunication systems will become a criminal offence. The bill expands methods for the taking of evidence outside the courtroom if it is felt that a witnesses' safety is at risk and gives new powers of investigation.
Sadly, this bill will tread on the concepts of openness and transparency in government by allowing the Minister of Justice the power to deny Canadians access to information. To deny a request, the Minister of Justice need only invoke a reference to reasons of protecting national security, defence or international relations. This broad and somewhat nebulous provision could prevent sensitive information from potentially falling into the hands of terrorists but it overlooks the significant safeguards and protections already in place.
Other changes include the modernization of the Official Secrets Act to make it an offence to divulge information that will prejudice the interests of Canada along with a provision to make economic espionage a crime. Under the Canada Evidence Act the Attorney General will be given the power to pursue a prosecution, and also prohibit the disclosure of information that could adversely affect the protection of international relations. The Attorney General could also determine whether the federal or provincial Crown attorney will prosecute charges.
The legislation for all intents and purposes nullifies the powers of the Information and Privacy Commissioners and removes judicial oversight, wherever the government chooses to invoke the use of certificates. Under the legislation, the powers will be permanently removed, given the reluctance of the government to sunset the application of these extraordinary powers.
The bill will also give the Defence Minister expanded power to grant wiretaps for a longer duration. This will give listening powers to police for phone calls inside and outside Canada to monitor situations that might compromise national defence. There is a discretionary provision to create an oversight commissioner at the will of the Minister.
Finally, the Minister of National Revenue will now be able to issue a certificate stating that there are reasonable grounds to believe that a charitable institution is engaged in funding a terrorist organization. This change is long overdue as it is necessary to cut off the lifeblood of terrorist organizations.
I do have serious concerns regarding the lack of oversight mechanisms found in bill C-36 and the aspects that will limit the free flow of government information to the public. Although I understand the need for certain government secrecy in matters of national security, Canadians should be alarmed by the potential loss of the right to government information affecting their lives. During committee proceedings dealing with bill C-36, both Information Commissioner, John Reid and Privacy Commissioner, George Radwanski have indicated that the bill goes too far in excluding disclosure of information to Canadians. They were clear in condemning the legislative cloak of secrecy. The proposed amendments to Section 70 of the Privacy Act and Section 87 of the Access to Information Act would grant over reaching powers to refuse disclosure of any information. This power would be open to abuse by a Liberal government and Prime Minister who do not have a good track record for openness and accountability. I need only reference the APEC Inquiry, the Grand Mere scandal and the recent performance of the Health Minister to highlight that point.
The Liberal government should not use the threat to public security to justify a Cabinet clamp down on the free flow of information. A permanent removal of the powers of review and disclosure vested in officers of Parliament is not necessary given the safeguards that currently exist. Neither these officials nor the judiciary have the ability to overturn Cabinet security. Contrary to the Justice Department's assertions, other countries such as the U.K., the U.S.A. and Australia are not moving to acts of secrecy, nor are they requesting Canada do the same. The American President is still subject to judicial and congressional checks on his power while our Prime Minister would become exempt. The privacy aspects of bill C-36 will nullify the powers of these independent officers of Parliament. As a result, future public attempts to obtain government held information and accountability could be rejected and hidden behind the broad language of these amendments.
The PC / DR Coalition believes that bill C-36 is a good initiative in Canada's response to terrorism. The legislation addresses a number of the concerns that have been raised since September 11th regarding the inadequacies of a variety of statues that deal with acts which threaten peace, order and good government in this country. Bill C-36 creates a series of new; specialized offences designed to more particularly capture terrorist crime and the wilful, supportive activities. I feel that the bill takes some of the necessary steps to expand the scope of a criminal offence to include the participation in, facilitation of and harbouring of a terrorist group. It is similar to the organized crime bill C-24 which criminalizes participation in organized crime as the offence, not simply belonging to the organized group. In this case, the definition is wide enough to include those who recruit and train terrorists and it provides for the offence whether or not the group actually participates in terrorist activity.
However, I remain concerned that the bill may place too much power in the hands of government Ministers. Many of the bill's new legislative measures are vested solely in the office of a single cabinet minister. I believe that such power should either be given to, or at least checked by the judiciary or an impartial oversight committee placing such power and discretion in the hands of the executive could be open to abuse for political purposes. As well, many of the new provisions require proof that the Criminal Act was committed for political, religious or ideological reasons. This places a very high standard of proof, which is difficult for the Crown and police to meet in securing the successful prosecution of offences.
I am also concerned with the Liberal tendency to make grandiose political announcements without providing the proper funding to enact the legislative initiatives. The practical reality is that to implement this law, more personnel, training, equipment and overtime are needed to fulfill these new obligations and responsibilities. The additional authority and powers that bill C-36 will give to police must be accompanied by the dedication of additional resources to train them how to use these new tools. The Solicitor General has recently announced funding increases to the RCMP and CSIS but considering that the Liberal government had been financially starving these groups for years, prior to September 11th, this recent funding will not even begin to address the additional responsibilities for Canada's law enforcement agencies. The current reassignment of over 2000 RCMP officers to duties outside their current postings highlights the personnel shortages. The government's decision to put RCMP in National Parks and at boarders is stretching security capacity to the breaking point.
Clearly, there is a need for police to be able to immediately arrest someone they believe on reasonable grounds to be a terrorist threat. Many Canadians are concerned that the expanded powers of arrest and detention are in some instances open to government interference as was highlighted by the APEC report presented by Mr. Justice Ted Hughes. Bill C-36 would enable police to arrest and detain an individual for up to 72 hours without charge. This type of police power not only could be used to curtail the right of assembly and demonstration but it is contrary to the thrust of the APEC Report.
The powers of investigative hearings require further definition and some reasonable parameters. While a person can be compelled to give evidence and produce physical evidence, the traditional right to silence is completely overridden.
There is growing evidence that the more intrusive sections of the bill must be subject to sunset clauses. A simple review will not suffice as it is not binding nor will it provide adequate protection. As we have seen in current "mandatory" reviews such as the supposed review of the mental disorder provisions, which were to be reviewed seven years ago, they are simply not followed. Therefore, I feel that previously mentioned sections of concern in the Act, which I have highlighted, should be subject to a sunset clause, forcing these provisions to expire at the end of three to five years. I support most provisions of the bill, which will fulfill Canada's commitments under the 12 United Nations Conventions and Protocols related to terrorism. These sections are aimed specifically at targeting terrorism without infringing upon civil rights. It is my belief that these provisions with amendments should be passed quickly into law. The more controversial sections of the bill should be subject to further scrutiny and sunset clauses providing a mandatory re-introduction. Inserting sunset clauses would allow adequate time for the public to evaluate these sections of the bill and force the government to justify the need for a re-implementation of the bill in what we hope will be a more stable, secure period in the future.
Despite these concerns, I feel that the circumstances facing Canadians since September 11th necessitate a heightened effort to combat the threat of terrorism. The very first obligation of government and all parliamentarians is human security. We will present our concerns to the Justice Committee in the hopes of improving Bill C-36 and providing Canadians with strong legislation to protect the public and combat the threat of terrorism.
Once again, thank you for your correspondence.
Sincerely,
Joe Clark