Civil libertarians in Canada have criticized several different pieces of federal legislation over the past few months. The governing Liberals insist that these controversial laws are needed to fight organized crime and international terrorism.

Many critics, however, insist the government is acting like a dictatorial regime. Here’s an overview of five bills — C-24, C-35, C-36, C-42 and C-44 — and some of the criticisms that surround them.

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BILL C-24
Organized Crime Legislation

Passed by the House of Commons on June 13, 2001. Most of the provisions came into force on January 7, 2002. The remaining two sections — allowing police officers to commit crimes during a police investigation and the forfeit of the proceeds of crime section — will come into existence on Febuary 1, 2002.

This bill amends the Criminal Code by:

  • Introducing three new offences and tough sentences that target various degrees of involvement with criminal organizations.
  • Simplifying the definition of “criminal organization.”
  • Improving the protection of people who play a role in the justice system from intimidation against them and their families.
  • Broadening powers of law enforcement to forfeit the proceeds of crime and the profits of criminal organizations and seize property that was used in a crime.
  • Establishing an accountability process to protect law enforcement officers from criminal liability when they commit certain acts that would otherwise be considered illegal during the course of a criminal investigation.

According to the Justice Department, “The provisions can target anyone (not just members) who knowingly becomes involved in activities that further an organization’s criminal objectives.”

The new offences will target anyone who:

  • Participates in or contributes to activities that help a criminal organization achieve its criminal objectives. This offence can include people who recruit others to join a criminal organization or who facilitate illegal transactions of a criminal organization. The maximum penalty for this offence will be five years.
  • Is involved in committing indictable offences for the benefit of criminal organizations. The maximum penalty for this offence will be fourteen years.

The new provisions will also make it illegal to intimidate people involved in the justice system or a member of their family with the intention of impeding the administration of justice. Justice participants include witnesses, jurors, police, prosecutors, prison guards, judges, members of the media, members of Parliament and senators. The legislation will also contain provisions to protect the privacy of jurors. The offence of intimidation of a justice system participant will be punishable by up to fourteen years imprisonment.

The most controversial part of the bill is the section that is meant to protect legal authorities. This section applies to police officers who are investigating such crimes as people-smuggling, smuggling of contraband liquor, tobacco and firearms, hate crimes, international terrorism and environmental crimes. Officers involved in such investigations can now use a variety of techniques — including the commission of illegal acts — to infiltrate, destabilize and dismantle these operations.

These provisions, the government insists, do not give blanket immunity to police for any criminal conduct. Rather, individual officers must be personally designated by the relevant minister in order to benefit from the limited immunity. There will be no immunity for intentionally or recklessly causing death or bodily harm, sexual offences or deliberately obstructing the course of justice.

Source: December 18, 2001 Department of Justice press release.

Criticisms:
“Bill C-24 legalizes commission of offences by police,” wrote lawyer Connie Fogal in a December e-mail sent to activists. “A major aspect of the bill is that it authorizes the police (and others) to commit offences while they conduct police investigations and enforce the laws of Parliament.”

Fogal, the director of the Defence of Canadian Liberty Committee and president of the Canadian Action Party, pointed out that, “Bill C-24 amends section 25 of the Criminal Code of Canada to establish the following principle:

25.1 (2) It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their discretion to commit acts or omissions that would otherwise constitute offences.

Critics say the bill, which is aimed against organized crime, could end up justifying illegal police practices against average citizens. The government says the bill is a necessary tool to fight crime.

BILL C-35
An Act to Amend the Foreign Missions and International Organizations Act

Parliament is expected to resume debate on this bill in late-January or February.This short bill, which amends the Foreign Missions and International Organizations Act, expands the number of foreign officials who can receive diplomatic immunity in Canada. Under this law, the federal cabinet can give immunity to foreign delegates at any international conference in Canada. Such immunity is usually reserved for diplomats who are residing here.

Criticisms:
“The Liberal government is quietly trying to pass a law that will extend diplomatic immunity to include foreign officials in Canada, even if they are known criminals or terrorists,” wrote Richard Sanders, co-ordinator of the Coalition to Oppose the Arms Trade.

In a nutshell, critics like Sanders are worried this bill will protect foreign officials — including people who may be involved in terrorism or crime — from Canadian protesters. For example, a Canadian citizen protesting at an APEC-like summit in Canada could be arrested for demonstrating against a foreign dignitary.

Other opponents of the bill, like Globe and Mail columnist Naomi Klein, argue that Bill C-35 is part of a government strategy to use the powers in Bill C-36 — the controversial anti-terrorism law — against anti-globalization protesters.

“It works like this,” wrote Klein in a November 28 column in The Globe and Mail. “First, Bill C-35 sweepingly defines ‘internationally protected persons’ as ‘representatives of a foreign state that is a member of or participates in an international organization.’”

Then, continued Klein, “C-36 steps in, defining interference with ‘protected persons,’ including visiting dictators, as not just criminal acts but terrorist ones.”

In other words, protesting against a foreign diplomat could get you arrested for terrorism. This argument, it must be noted, was severely criticized by conservative columnist Andrew Coyne. In a November 30 column for the National Post, Coyne accused Klein of lying.

Moreover, say government officials, the claim that this bill will grant immunity to terrorists or criminals is absurd. Foreign Affairs insist that the bill will not grant immunity to anybody indicted by an international tribunal for war crimes or crimes against humanity. However, the situation is not as clear for any foreign officials who has been accused but not formally indicted with a crime, the Canadian Press reported in late-November.

BILL C-36
The Anti-Terrorism Act

Most of the provisions of this Bill came into force on December 24, 2001, with the exception of some provisions amending the Proceeds of Crime (Money Laundering) and Terrorism Financing Act, which will be proclaimed in the near future.

This massive law is arguably the most important piece of legislation passed by Parliament since the Second World War. It amends several different statutes and gives legal authorities a whole range of new powers. Due to space constraints, only certain parts of the bill will be looked at.

(To get a fuller picture of what this bill does, you can surf this section of The University of Toronto faculty of law Website.)

The most controversial provisions in this bill consist of the new powers given to legal authorities to fight terrorism. These measures include:

  • Forcing people to testify in court. Anybody suspected of having information relevant to an ongoing terrorist investigation can now be brought before a judge and forced to testify. Such an action would have to be approved by the Attorney General. Moreover, any information obtained under this process would not be used against the witness in any current or future criminal proceedings. (See criticism below).
  • Authorizing preventative arrests. Anybody who police suspect on reasonable grounds will commit a terrorist act can be arrested before committing any alleged act. In exigent circumstances police would not need a warrant to make such an arrest. A person detained under this provision must be brought before a judge within 24 hours of the arrest. This will require the consent of the Attorney General.
  • A person suspected of engaging in or abetting terrorism can now be held in detention for seventy-two hours without charge.
  • New powers of electronic surveillance. In the past police had to renew a wiretap warrant every sixty days. With this new law police would have to renew a wiretap warrant once a year. A Superior Court judge, however, will still have to approve the use of electronic surveillance to ensure that these powers are used appropriately. On the other hand, the requirement to notify a target after surveillance has taken place can be delayed for up to three years.

  • The bill also includes specific new offences dealing with unauthorized communication, or purported communication, of special operational information — as for example, the identity of confidential sources, covert agents or targets of CSIS — by persons permanently bound to secrecy.

Other Aspects of the Bill:

Withholding Information
Information from judicial or other proceedings could be kept secret in the name of national security. This section of the bill arises from an amendment to the Canada Evidence Act. Information that could be protected from disclosure might include information that would, in the opinion of the government, threaten another country’s vital interests or jeopardize intelligence networks.

Intercepting Communications
The National Defence Act has been amended to clarify the mandate of the Communications Security Establishment. This amendment now allows the CSE to intercept the communications of foreign targets abroad, while undertaking security checks of government computer networks to protect them from terrorist activity.

The permission of the Minister of National Defence will be required to authorize any interception of private communications of foreign targets abroad in order to ensure that the privacy of individual Canadians is protected.

Money Laundering
The Proceeds of Crime (Money Laundering) Act will be amended to authorize the Financial Transactions and Reports and Analysis Centre to detect financial transactions that may constitute threats to the security of Canada and to disclose this information to the Canadian Security Intelligence Service and other law enforcement agencies.

Hate Crimes Laws
The Criminal Code has been amended to allow the courts to order the deletion of publicly available hate propaganda from computer systems such as an Internet site. Individuals who post the material will be given the opportunity to convince the court that the material is not hate propaganda. The provision applies to hate propaganda that is located on Canadian computer systems, regardless of where the owner of the material is located or whether he or she can be identified. As well:

  • Criminal Code amendments that create a new offence of mischief motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin, committed against a place of religious worship or associated religious property, including cemeteries. This offence carries a maximum penalty of ten years when prosecuted on indictment, or to a maximum penalty of eighteen months on summary conviction.
  • Amending the Canadian Human Rights Act to clarify that the prohibition against spreading repeated hate messages by telephonic communications includes all telecommunications technologies.

Ratifying International Conventions
Canada has signed all 12 UN Conventions and under Bill C-36 will ratify the remaining two counter-terrorism conventions: The Suppression of Terrorist Financing Convention and the Suppression of Terrorist Bombings Convention.

Through the Anti-Terrorism Act, Canada will also ratify the Safety of United Nations and Associated Personnel Convention, which relates to ensuring the safety of UN personnel, including peacekeepers, from attacks against their person, official premises, private accommodation and modes of transport.

Safeguards
In response to criticism, the government put in the following provisions:

  • The Attorney General and Solicitor General of Canada, provincial Attorneys General and Ministers responsible for policing will be required to report annually to Parliament on the use of preventive arrest and investigative hearing provisions under Bill C-36.
  • A Parliamentary review of the anti-terrorism legislation as a whole in three years.
  • Provisions dealing with preventive arrest and investigative hearing powers will sunset after five years unless a resolution is passed by both the House of Commons and Senate to extend either or both of these powers for up to five more years.
  • Proceedings that have already started prior to the sunset date will be grandfathered so that they could be completed, if the powers are not extended.
  • Attorney General certificates prohibiting the release of information from judicial proceedings will be subject to review by a judge of the Federal Court of Appeal. In addition, the existing provisions and process for the collection, use and protection of information will be preserved under the Privacy Act and the Personal Information Protection and Electronic Documents Act.

Criticisms:
“Bill C 36 … has very little to do with terrorism,” said Rocco Galati, a constitutional lawyer, at a forum sponsored by the Scientists For Peace in Toronto in December. “What this bill does is really codify militarization and a police state, and further globalization interests. You see it right in the bill.”

Like many government critics, Galati — the lawyer who brought the MAI case up through the courts to the Supreme Court of Canada and argued the Quebec City injunction perimeter fence case up to the Supreme Court — argues that the government is using the war on terrorism to stifle dissent.

Here are some of the specific critiques of Bill C-36:

Forcing People to Testify in Court
“Investigative hearings are nothing short of Roman Catholic Inquisitions,” said Galati. “That is all they are, maybe without the torture, maybe not … You are hauled in and you have to answer questions. If you don’t answer questions, you are subject to criminal charge. They (the government) say they can’t use the answers against you in a court. Well, that’s not true because, one, they can use the answers to go engage in further investigation outside the answers, and that evidence can be used in court. Two, if you ever take the stand to defend yourself the case law is clear they can use your answers to say that you are lying. So it is not true that they can haul you in and anything you say will never be used against you in court.”

Preventative Arrests
In all criminal cases the Crown must prove actus reus (the physical act of committing the crime). This provision, say critics, creates a situation where police can arrest someone even though the person in question has not committed any crime.

Detaining Suspects For Seventy-Two Hours Without Charge
“The only test here is you can be held here for seventy-two hours without being charged on suspicion,” said Galati.

“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 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 seventy-two hour detentions are also problematic because there is no stop to the revolving door. One police officer on suspicion will arrest you for the seventy-two hours. You are released. That is not to say they can’t come back in twelve hours or twelve 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.”

BILL C-42

Parliament is expected to resume debate on this bill in late-January or February.

The main purpose of this bill is to enhance airline and airport security following the September 11 terrorist attacks. What has critics really worried, however, are the provisions that empower the federal cabinet to issue sweeping emergency decrees.

In particular, this bill gives Art Eggleton, the defence minister, the right to create military exclusion zones. Under the proposed law, authorities could potentially confiscate property and arrest or expel people in the zone. Eggleton told Parliament in November that the provision could be used in Alberta’s Kananaskis Country, the setting of this year’s G-8 summit.

Criticisms:
This bill gives the government the right to suspend civil liberties in designated areas. Such a provision could be used to stop protests like the ones that took place at the APEC summit in Vancouver and the Summit of the Americas in Quebec City.

BILL C-44

This bill received royal assent on December 18.

It forces Canadian airlines and reservation services to share passenger information with the U.S. and other foreign governments. The law, which was split off from Bill C-42 when it became clear that the bigger bill would not pass Parliament until the new year, is meant to screen out potential terrorists.

The bill also allows Ottawa to obtain private information — including names, travel information and passport numbers of passengers — on the grounds of national security, defence or public safety.

Criticisms:
Critics are worried that sensitive information could be shared with unscrupulous governments. For instance, what would happen to an activist who is critical of a dictatorial state? Would the federal government give information about a Canadian citizen to the secret police of a repressive regime if that citizen travelled to the dictatorial country?

Privacy Commissioner George Radwanski also expressed concern that U.S. authorities could share the information with third parties who might use it for purposes other than security. In response, the government agreed to one amendment to the bill to address Radwanski’s concerns.

“The amendment says Canadian government departments can’t have access to the data from U.S. officials to use in Canada for non-security reasons,” reported the Canadian Press. “In effect, the amendment shut a possible back-door strategy that would have let Canadian officials obtain information from the U.S. that they couldn’t get directly under Canadian privacy law.”