|Montreal, April 27, 2002 / No 103|
by Ralph Maddocks
Following the disputed events of September 11th 2001, the main western democratic governments rushed to pass legislation ostensibly designed to deal with what we were told were new terrorist threats. Judging from the complexities of some of these Bills it is difficult to believe that they were written immediately after those epoch making events. When reading through some of their provisions it is quite obvious that many of the proposals had to have been written some considerable time ago. The siege mentality resulting from September 11th simply provided the opportunity to enact them.
The speed with which they were enacted too gives pause for thought. Very
little, if any, debate took place, with governments ramming their provisions
through virtually unopposed. Canada, no exception, passed its own Anti-terrorism
Act, Bill C-36, on November 28th 2001 receiving Royal Assent on December
18th 2001. As part of the same package there were two other bills, C-42
which deals with airline security and the Public Safety Act which permits
airlines to share passenger data with foreign governments. In the interests
of brevity, this article will deal with all the new legislation without
specifying which particular legislation is involved.
Bill C-36 was passed in the House 190 to 47 on third reading, with just one non-conformist, an Ontario Liberal, Kitchener-Waterloo MP Andrew Telegdi, voting against his own government. Canadians elect and send to Ottawa some 301 representatives and one might wonder why less than four fifths of them felt compelled to vote on such momentous and liberty destroying legislation. Most of the opposition came from the Bloc Québécois and the NDP (Canada's New Democratic Party) with the main opposition parties largely supporting the Liberal government. So eager were the oxymoronic Liberals to limit Canadians' liberties that they invoked a time allocation motion to limit debate.
We are asked to believe that this government, which usually takes forever to do anything – think Sea-King helicopters – was able to draft a piece of balanced legislation and get it assented within 98 days. Of course it hasn't produced a well thought out piece of even-handed legislation, it has simply granted sweeping powers to override the few protections enjoyed under our Charter of Rights and Freedoms. It has put political dissent at the risk of being criminalized. It grants Canadian police and other security personnel outrageously wide powers to snoop on, scrutinize, confine and blacklist Canadian citizens.
Much of Canada's new anti-terrorism legislation is undefined and leaves much to the imagination of those we have elected to be our political lords and masters. Whoever is in control will be able to designate an area – property, place or thing – as a military zone that the Canadian Forces can be directed to protect for up to one year. The army will also have the authority to remove an unauthorized person, animal, vehicle, vessel, aircraft or other thing (your home, cottage or apartment?) under that person's control. It is interesting to ponder too the neat conjuncture of the passage of this anti-terrorist legislation and the forthcoming G-8 summit in Alberta. It seems more than a coincidence that it deals so perfectly with the question of civil dissent. After the displays of unrestrained force put on by our police forces at the APEC summit in Vancouver and again last year in Quebec City, one might be forgiven for wondering why such additional draconian powers are thought to be needed.
In a talk before a forum, sponsored by the Scientists For Peace, held in Toronto last December, Rocco Galati, a constitutional lawyer and former Crown lawyer, said that what Bill C-36 does has very little to do with terrorism. He said that terrorism is very easy to define. It is the application of terrorism that is the problem. One can define terrorism as the threat of or use of violence and arms by an armed group or individual against an unarmed group or individual for political, racial, religious, social, or economic reasons including state terrorism. Any other armed conflict, whether it is a fight between two people, two groups in a civil war, or war itself, or someone using violence for profit, or drug trafficking is covered by existing laws and is not terrorism.
Mr. Galati said that, "The only problem with a definition of that sort is that you have to apply it equally, and that's where the problems begin, because certain states want to be able to support terrorism when it suits their needs. What this bill does is really codify militarization and a police state, and further globalization interests." "C-36 is unduly broad," he continued, "even though they took out the ‘lawful,' the Bill still catches dissent. It still catches protest. Protests that interrupt public facilities are acts of terrorism under this bill. No question about it, whether they are ‘lawful' or not, if they endanger life. Any protest that is going to cut off a part of the city from essential services like ambulances by definition endangers life. That is the price we pay in a democracy. That is a terrorist act under this Bill. The other thing the Bill does is that it can convict you of facilitating terrorism without any knowledge or intent. The government pretended that they changed the definition, but they didn't. They changed it in one section and they took it away in another. Even if you don't know you are facilitating, you are going to get caught. So the guy who sells the envelopes and the stamps at the corner store in my view is facilitating terrorism when the purchaser puts anthrax in them and mails them off, whether he knows it or not."
Galati continued, "Then there is the 72 hour arrest on suspicion. The only test here is you can be held here for 72 hours without being charged on suspicion. That is not a test. That is not even a smell test. What is the suspicion going to be based on? It will be based on another portion of the Bill which allows the Court and police ‘in determining whether an accused participates in or contributes to any activity of a terrorist group the court may consider among other factors whether the accused uses a name, word, symbol, or other representation that identifies or is associated with the terrorist group.' Now if I look around this room, I can probably pick out five or six women here who I find suspicious because the legislation allows it. So if you use the same religious or codeful (sic) symbols that some terrorist group has misappropriated for their own purpose, even though they are valid religious or cultural symbols of Islam or being Arab or being Tamil or being Sikh, then the legislation grants the police and the Courts the right to use that as the basis of suspicion. In my language that is just racist profiling. Racism, that is all it is. So the 72 hour detentions are also problematic because there is no stop to the revolving door. One police officer on suspicion will arrest you for the 72 hours. You are released. That is not to say they can't come back in 12 hours or 12 minutes and re-arrest you on another suspicion. So you can go around the revolving door this way. And they can put conditions on you similar to bail conditions even though you are not charged or arrested with anything, for a year at least without charging."
As I have opined before, the introduction of the "guilty until proven innocent" concept so beloved of the European Union, and now coming to Britain, was likely to appear here in Canada. The C-36 bill does nothing to reassure me that I am wrong in believing that this could happen. The tragedy for Canadians is that few of our elected representatives know the rule of law, the meaning of evidence, the process or the application of our law as it was before C-36. They have forgotten, if ever they knew, what a star chamber process or inquisitorial process of law is, nor do they seem to understand civil liberties.
One politician claimed, "As for investigative hearings, they are modelled after the preliminary inquiries that already exist in our Criminal Code. We are simply applying this concept in a different context." Investigative hearings under Bill C-36 though are an instrument to use the court to assist the police to gather evidence against a person whom the police define as a potential terrorist. The purpose of an investigative hearing is to force a suspect to answer police inquiries. This is unprecedented in Canada's present Criminal law. It is a process similar to the examining magistrate one finds in European countries. In this country, until now, a preliminary hearing cannot take place unless a charge against a person has been already made, served on the accused person, processed by the Crown prosecutor and until the accused has opportunity to obtain a defence lawyer.
Bill C-36 though permits a police officer to lay a charge of terrorism with the consent of the Attorney General. The police officer only needs reasonable grounds of belief that a terrorist activity will be carried out. This is unlike a normal charge under our Criminal code which requires that a police officer believes "on reasonable and probable grounds" that a crime has already been committed. The police officer goes before a justice of the peace and swears that reasonable and probable grounds exist to believe an offence has been already committed by a certain person. The charge is then served on that accused person. At some stage a Crown prosecutor will have to decide whether or not the police have sufficient evidence to proceed to a successful conviction. This may be before or after a preliminary hearing result.
In Section 83.28 (11) of Bill C-36 it says, in reference to investigative hearings, that "a person has the right to obtain and instruct counsel at any stage of the proceedings." This seems to be contradictory, because the police officer can make the application for the investigative hearing without notice to, or the knowledge of, or in the presence of the person being named. Although a lawyer can be present with the person named at the actual hearing, the statute is clear that the person named must answer the questions put to him or her, and produce the "things" the court has ordered to be brought. All that the defence lawyer can do for the person named is to inform them that C-36 compels that answers be given, that the "things" must be produced, and that they must stay for the duration of the hearing until the judge says they can leave.
It is not clear what happens if an accused person refuses to answer questions. Presumably they will be incarcerated until they do, as could be the case in a Contempt of Court citation by a judge. C-36 makes mention of a judge being able to "order a person to remain in attendance until excused by the presiding judge." If the accused does not appear then they can be arrested and detained to ensure that they do appear. I suspect that people with money will be able to hire counsel to litigate, with those without money being unable to obtain redress as usual, unless our caring government will allow legal aid for suspected terrorists.
At present there is no requirement, in either a preliminary hearing or in a full trial, that an accused person give any evidence or answer any questions if they do not wish to do so. Indeed in many cases they are advised by their defence lawyer to keep quiet. In a normal preliminary hearing the prosecutor presents only sufficient evidence to convince the judge that there is a case to answer. If there is, the judge orders a full trial, if there isn't then the case is dismissed. Under the investigative hearing process envisaged by Bill C-36 it is the police who will decide on reasonable, but not necessarily probable, grounds whether to arrest a suspect to prevent a terrorist act or to lay charges.
The new process neatly skips the Crown's lawyers and the police officer goes directly to the Attorney General to proceed. The role of judge has become that of an assistant to the police officer, helping to gather evidence against the accused potential terrorist. The above mentioned Rocco Galati pointed out that, "Investigative hearings are nothing short of Roman Catholic inquisitions. That's all they are. Maybe without the torture. Maybe not. Every group in this country has suffered torture at the hands of our police. That is well documented." A sombre view indeed.
Defenders of C-36 claim that at least it does not create military tribunals as the US Patriot Act does. They are perhaps unaware that the US legislation did not create such military tribunals, it was George W. himself who came up with that idea. He appointed himself as sole arbitrator when he created these tribunals, he gave himself the power to identify who is a suspect "abroad" which means he can come to your own country, call you a terrorist and lead you off to possible torture or death. As far as I know, only Spain declined this invitation saying that suspects will be turned over to a world tribunal operating under the rule of law.
Canada has created secret trials too, which is unprecedented. Once you are alleged to be a terrorist, you never get to see the evidence against you, and your lawyer doesn't get to see it either. All they give you is a summary of the evidence against you. It is thus impossible for defence lawyers to know the case they must defend. This is a fundamental and unwholesome violation of the human and Charter of rights of an accused person.
So it goes on, and on, demolishing the liberties and freedoms we all thought we enjoyed. This bill seems virtually "Charter Proof," and there is hardly one single right in the Charter that has not been entombed or undone. True, there are a couple of so-called "Sunset" clauses in the legislation, but given the standard of debate and the way legislation is normally dealt with by our frequently somnolent parliament the odds on these clauses being enacted are slim. Lest anyone blame the "Liberal" government for all these ideas they may be interested to learn that the secret CSIS trials used under our immigration laws were put into place by a former Prime Minister, the unlamented Brian Mulroney during the 1980s.
Similar anti-terrorism bills are being passed in various western former "democracies," including Britain and Australia. Not only have they eliminated civil liberties, they too have eliminated justice and many of the protections formerly enjoyed at the same time. The subject of the USA Patriot Act will be covered in the second and final part of this article and will appear in the next issue of QL.
As I was editing these two articles before publication I learned that a part of Bill-C42, one piece of the anti-terrorism effort, is to be withdrawn. Bill-C42 was introduced by Transport Minister David Collenette and was directed mainly towards tightening airline and airport security. At the time of writing though it is not clear why this has been done. Perhaps the government has finally forsaken its usual disdain for the concerns of electors and listened to civil liberties groups and others concerned about totalitarianism.
• Part two of THE LAST REFUGE >>
|<< retour au sommaire||