A Hard Act to Follow

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The federal government has a responsibility to protect Canadians from actual and potential human-rights abuses of the sort that took place in New York and Washington on September 11. However, it must also strike a delicate balance between collective security and individual rights. This task is never easy, but is made more difficult in times of heightened fear and tension. It is, though, precisely at such times that the need to protect fundamental rights and freedoms is the greatest.

Bill C-36 creates far-reaching powers with major implications for civil liberties. It provides a sweeping definition of terrorism that risks capturing legitimate political dissent. It departs from key tenets of our criminal justice system, such as the right to remain silent. It empowers the Solicitor General to recommend that groups be put on a public terrorist list without any advance notice or an opportunity for response prior to listing. It significantly reduces the openness of our judicial system and of government.

Unlike the War Measures Act, Bill C-36 is not emergency legislation. This Bill will forever change laws such as the Criminal Code, the Official Secrets Act, the Privacy Act and the Canada Evidence Act. These changes — which could substantially alter the operation of Canada’s judicial system — have been drafted quickly, without the benefit of meaningful public consultation and discussion. Key questions must be asked in determining what the Bill’s future should be.

  • Is this Bill necessary in order to combat terrorism? Has the government demonstrated satisfactorily that existing domestic legislation, including the Criminal Code, the Immigration Act, the National Defence Act, the Security Offences Act and the Official Secrets Act, is not adequate?
  • Will the measures in Bill C-36 make Canadians safer? Are there not more effective responses, such as better enforcement of existing laws and measures to improve communication between, for example, the RCMP and the Canadian Security Intelligence Service?
  • Will key provisions of the Bill withstand scrutiny under the Canadian Charter of Rights and Freedoms? Will Canadians have to challenge any rights’ violations at a high personal and financial cost?
  • If the Bill is fundamentally flawed, can it be saved by the addition of a sunset clause, or are substantive amendments needed to ensure fairness?

Unfortunately, the broad scope of this Bill and the short timeframe for responding, have precluded a comprehensive analysis of its complex provisions. This brief is, therefore, directed at an examination of those parts of Bill C-36 that have the greatest potential for civil liberties’ violations, or for rendering our justice system and government more secretive and less accountable.

Those parts of Bill C-36 causing the greatest concern are:

  • the definition of “terrorist activity” which could encompass legitimate protest and dissent;
  • the process whereby organisations are put on a public “terrorist” list without procedural protections;
  • the vague definitions of the new terrorist offences of “participating, facilitating, instructing and harbouring,” offences that carry substantial penalties;
  • intrusive new investigative procedures, including a new investigatory hearing that removes the right to silence;
  • important changes to the Privacy Act and the Access to Information Act that would prohibit the disclosure of information to Canadians;
  • the creation of new layers of scrutiny for charities which will significantly hamper their legitimate operations.

Tomorrow: terror, dissent, privacy and charity — why Bill C-36 is a threat to the fundamental rights and freedoms of those living in Canada.

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