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CENTREPIECE
| 2002 |
Newsletter
of the Alberta Civil Liberties Research Centre |
Vol. 8 No. 1 |
 Inside.....
by Patricia Hughes
Guest
Opinion
Patricia Hughes is the Dean of the Faculty of Law, University of Calgary and a board member of the
Research Centre.
Canada's Anti-Terrorist
Act (S.C. 2001, c-41; the legislation was Bill C-36 prior to its
enactment and is sometimes still referred to that way) raises questions for Canadians about the cost to
civil liberties of engaging in the global efforts to eliminate terrorism led by the United States of
America. According to a newspaper report, in its annual report about the status of human rights and
civil liberties around the world, Amnesty International refers to legislation in a number of
countries, including Canada, with the potential to diminish established rights (For the Report, see http://web.amnesty.org/web/ar2002.nsf.
Also see "Rights eroded post-Sept. 11, Amnesty says,"
The Globe and Mail (May 29, 2002) A14).
Enacted in response to the terrorist acts of September 11, 2001 in New York and
Washington, the Anti-Terrorist Act reflects the impetus by the United States and the United Nations to
develop domestic engagement in the international effort to eliminate terrorism. Even before the
Anti-Terrorist Act was enacted, in fact, Canada had enacted United Nations Suppression of Terrorism
Regulations under the United Nations Act (R.S.C., c.
U-3). These regulations were published in the Canada
Gazette on October 4, 2001, having been passed two days earlier. A number of the provisions under the
Anti-Terrorist Act mirror these regulations (those relating to establishing "a list" of terrorist
groups, restrictions on collecting funds, provision for freezing property and disclosure
requirements), although the former did not receive assent until December 18, 2001. It must always be said at
the beginning of any critique of anti-terrorist legislation that we cannot ignore or be complacent
about terrorism, which has the potential to exact significant loss of human life and undermine the
global economy. Many countries endure terrorism on a regular basis, whether of domestic or
external origin. Nevertheless, there are many bases upon which one might criticize and challenge
Canada's Anti-Terrorist Act and related anti-terrorist legislation. I will concentrate on the way in which
the legislation's threat to civil liberties has the potential to "chill" our "civic conversation," that is,
the broad range of activities that encourage a country's self-awareness of societal values and actions.
Canada's political and legal culture is premised on the importance of a number of principles
with constitutional significance. However imperfectly realized, they provide a standard against
which government action vis-a-vis citizens is measured. Principles such as the rule of law, commitment
to civil liberties such as freedom of association and expression and the right of accused to
particular procedures are all ways in which individuals are meant to be protected against the
overweening power of the state. We should not readily deviate from these principles if we want Canada to
remain and improve as a democratic state. We should certainly not do so without awareness of
the consequences. Ultimately, the only real protection against an unruly exercise of state power is
a political culture that holds government to a high standard of civil protections and that insists
on room for a civic conversation which is the manifestation of that culture.
It is important to appreciate that the
Anti-Terrorist Act for the most part, although not
entirely, amends other legislation, most notably, the
Criminal Code. Thus these measures are themselves
given a veneer of normalcy and at the same time may easily become the standard against which
already existing Criminal Code provisions, heretofore subject to more stringent standards, are measured.
This is justified by government actors because it is said that the extraordinary events of September
11th have now become normal expectations and in the United States, at least, there are on-going
vague warnings about new terrorist threats. In Canada, it has been claimed by the Solicitor General
of Ontario that an al-Qaeda cell has been driven from Ontario by constant surveillance, a
report distressingly lacking in detail and apparently with a complacency that the cell will simply open
shop elsewhere ("Runciman stands by 'sleeper cell' statement,"
The Globe and Mail (May 29, 2002) A6.).
Yet including these measures in our "regular" legislation runs the risk of their helping to
define the parameters of other provisions. While this can, of course, work both ways, and these
measures may be limited by the interpretation given to the "every day" provisions, the former poses a
greater risk than does the latter. The anti-terrorist provisions have been criticized for their departure from the normal
protections available to accused, for provisions which impose different standards on persons who may
possess information about a possible terrorist activity, for the breadth of the definition of terrorist acts
and offences and for the process by which an individual or group may be included on a list of
terrorist groups; it is also argued that our current laws provide sufficient means to address the threat
of terrorism (Critiques of many aspects of the legislation are included in Ronald Daniels,
Patrick Macklem and Kent Roach, eds., (Toronto: University of Toronto Press, 2001. This book
was published prior to the amendments made to the legislation; nevertheless, much of what is
said remains valid. The book also contains justification for the legislation.). By their inclusion in
ordinary legislation, the anti-terrorist provisions may thus set a new standard for our expectations about
how government should treat citizens.
When we think about terrorism and terrorists, we think about the terrorist acts of
September 11th or their equivalents; we think about suicide bombers deliberately targeting civilians; we
think about rogue groups willing to use nuclear bombs or poisoning the water supply. And when
we picture these acts, it is hard to argue that we should not do whatever we can to prevent them or
that it does not make sense to cut off their source of funds, as the anti-terrorist legislation is designed
to do. Let me, however, indicate very briefly how the
Anti-Terrorist Act can sweep within its net individuals and groups whose activities are not themselves terrorist, but who become
terrorist groups or are deemed to engage in terrorist acts by virtue of the interconnected provisions of
the legislation.
A terrorist group is a group which engages in particular kinds of activities for specific
purposes as defined by section 83.01(1) of the Criminal
Code, an extremely complex provision. As well
as specified terrorist activities (such as hijacking, previously in the Code and terrorist financing, a
new offence), current Criminal Code or other offences may become terrorist offences if, for example,
they are carried out in association with a terrorist group, thereby increasing the penalty. It should also be
noted that facilitating a terrorist activity is a terrorist offence and that "a terrorist activity is
facilitated whether or not the facilitator knows that particular terrorist activity is facilitated" or "planned at
the time it was facilitated."
A terrorist group is also a group which has been added to a list of "terrorist entities" (an
entity can be an individual, as well as a group); procedures related to the list are found in section 83.05
of the Criminal Code. The list may include not only groups which are believed to have actually
carried out terrorist activity, but also individuals or groups "acting on behalf of, at the direction of or
in association with" an entity which has carried out or facilitated a terrorist activity.
Assume that a group has engaged in activity meeting the definition of terrorist activity
under section 83.01 of the Criminal Code, thus making it a terrorist group (membership in a terrorist
group is not itself illegal; engaging in the activities by which a group is defined constitutes the
offence). Quite apart from whether there are problems with the definition itself, this determination
may sweep in other protest groups who may, for example, engage in criminal trespass or
criminal contempt if their activities were carried out in association with the other persons who constitute
a terrorist group.
Furthermore, returning to the provision permitting the listing of groups, and remembering
that an entity can be an individual, there is nothing in the legislation which ensures that lawyers
acting on behalf of a listed group and taking instruction from its members would not also be
considered a listed group. (While it is possible to be removed from the list, this is after the fact and neither
the group nor its lawyer need to be provided with all the information on which the decision was
based.) Furthermore, anyone who possesses the property of a terrorist group must disclose that to the
RCMP and CSIS (Canadian Security Intelligence Service): does that include the lawyer's retainer?
These examples indicate the effect that the anti-terrorist legislation could have on a
particular form of our civic conversation. Much of the debate in our society derives from the actions of
those who dare to go further than most of us in challenging official actions. The vulnerability of those
who have exercised their right to free speech in legal ways was evidenced by the government's
response to the APEC protests at the University of British Columbia in November 1997. The
anti-terrorist legislation poses an even greater threat to protesters whose activities become terrorist offences
by virtue of their association, inadvertent or not, with those whose actions might fall within
the definition of terrorist activity or who might be listed as a terrorist entity.
Civil liberties are most at risk when the public are afraid and desirous of a firm hand
in addressing threats; yet it is exactly at such times that civil liberties are most important: they are
easy to lose and far too difficult to re-establish.
G6B Statement of Recommendations
June 25, 2002, Calgary, Alberta
Linda McKay-Panos was involved in the G6B People's Summit held at the University of Calgary just before the
G8 leaders met. The following are the recommendations to the G8 leaders. This collective wisdom is a product of
experts and the people who attended the various workshops and seminars conducted at the G6B.
From the environment
Workshop: For North America, unconditional ratification of the Kyoto Accord is an
important first step to the G8 countries recognizing that there are global ecological limits. Environmental policy must
include scientific findings and the impacts of all organisms (including humans) surrounding environmental damage.
From the Social Issues
Workshop: G8 policies have contributed greatly to the division and weakening of the
social justice movement. We ask G8 countries to stop their divide and conquer policies.
From the Trade and Economy
Workshop: The actualization of the 100% debt cancellation for impoverished
nations without further delays and without harmful World Bank and IMF conditions. Democratization of the international
trade and financial organizations including a tax on foreign currency speculation. The adoption of binding legislation
ton ensure that multi-national corporations are penalized for violating International agreements and conventions on
the environment, human rights, indigenous peoples and workers' rights.
From the Health
Workshop: Increased development assistance to a level required to build and maintain health
systems in poor countries at triple the current levels. Fulfill the Doha Declaration on obligations of the TRIPS and Public
Health and ensure that trade agreements deny no access to essential drugs. Raise G8 contributions to the Global Fund to a
level proportionate to UN contribution rates, or $7.3 billion annually for all the G8 countries.
From the Education
Workshop: Increase Official Development Assistance by $4 billion annually aimed at
primary education, with a focus on efficient and consultative implementation, including a coordinated effort by donor
countries to distribute resources equitably and in response to barriers faced by individual recipient countries.
From the Faith in Peace
Workshop: We strongly urge the G8 countries to firmly commit to prohibiting any direct
or indirect sale or transfer of small arms to any government or armed group likely to use those arms to commit serious
human rights violations.
From the First Nations
Workshop: The time-honoured and traditional relationship indigenous people's
everywhere have now and have had to the land is under attack in an aggressive trans-national corporate scorched-earth
strategy supported by hand-maidens who are the host of corrupt governments. The assault on this fragile and intimate
relationship has caused displacement and poverty combined with the collapse of one eco-system after another, thereby producing
at times a permanent loss of the ethno-botanical and other reservoirs of knowledge.
From the Criminalization of Dissent
Panel: Dissent must not be criminalized and the exercise of democratic rights
must be protected. Stereotyping and ethnic profiling under the pretext of « anti-terrorism » must stop.
From the Africa Panel
: Increased transparency in policy-making regarding Africa is imperative. Noting that the «
New Partnership for African Development » (NEPAD) was formulated by a handful of African government
officials representing just five countries, and lacking consultation with civil society, it is suggested that NEPAD be viewed as
a starting point, rather than the final word, in developing and African-led development initiative. Further, affordable
drugs for HIV must be a critical component.
From the Media
Workshop: We believe that G8 policies that have led to the concentration and corporatization of
the media ownership and undermined democracy must be dismantled.
From the Political Issues
Workshop: We believe that the neo-liberal theory with its commodification of all
human activity and the application of this assumption to the social realm as well as the ideological replacement of the
so-called « War Against Communism » with the « War on Terrorism » to uproot all ideological opposition to global capitalism
is the underlying cause of the major political burdens. As a solution we recommend the abolition of the
illegitimate international financial institutions and their replacement with more democratic organizations.
From the Democracy and Governance
Workshop: Considering that the establishment of genuine democracies in
Africa is contingent upon increased social justice in a post-cold war uni-polar global environment, where decisions
affecting the lives of more than six billion people are taken in an increasingly unilateral fashion, we call on citizens and
governments of the G8 countries to step up efforts for democratic reforms of the international decision-making system and
its multilateral institutions.
From the Labour
Workshop: Job creation and respect for core labour standards, including the rights of unions
to represent workers and the critical involvement of unions and other civil society groups is essential to any
meaningful strategy of poverty eradication and true social and economic development in Africa. This is global truth.
Volunteers
We are fortunate to be working with excellent volunteers for the last few
months--including Justin Dos Ramos, Krishna Koul, Katie Frank,
Erin Bickell, Tracy Arnell, Sandra Smyth, Scott
Smith, Janet McLeod, Veronika Vozarik, Susan
Blackman, Melanie Matias, Jill Eslinger, Kristen
Read, Allison Eng, Tyler
Lord, Kristina Guest, Jan Goodwin, Emily Smith and Stamatina
Nikolaou. Thanks!! - Linda McKay-Panos
We have been busy these past few months. Congratulations to Human Rights Educator
Melissa Luhtanen and partner Vicki LaLonde on the birth of their daughter Ruby, who was born in March. We are very happy for the family,
which is doing very well! Pamela Dos Ramos is filling in for Melissa while Melissa is on maternity leave. Pamela also
continues to be our educator for the Southern Alberta region and Elizabeth Seale continues to be in charge of the Northern section.
We welcome Carmen Dowhaniuk as our new Research Associate!
We have Penelope Hamilton working for us on our human rights conference and
Susan Blackman helping to update our website. Summer law students Jan Goodwin and
Mary Ann Bendfeld have joined us!
Brian Seaman, Elaine
Ward and Elizabeth Seale have been performing contract research for
ACLRC.
We have also been working closely with
the Canadian Institute of Resources Law on a joint human rights
and resource development project. A conference will be held in October.
Finally, a special thanks to all staff and volunteers for their help in making the G6B Conference a wonderful success
We really appreciate all of your extra efforts.
-Linda McKay-Panos
Video Review
by Mary Ann Bendfeld
View From the SUMMIT
(75 mins.) is a National Film Board of Canada video release portraying the events of the three
day Summit of the Americas conference in Quebec City in April 2001. The film's goal is to reveal a
disturbing reality: the meanings of "freedom" and "democracy" are up for grabs. The seductive power of these two
words is utilized by all Summit participants to sway an undecided and perhaps uninformed audience to their
particular point of view. If this film has a definitive message, it is that it is vital to our future as citizens to
understand the different meanings that are being ascribed to these concepts so that Canadians can exercise their right
to decide for themselves what freedom means for them and what form of democracy they want to live in.
Powerful images of the luxurious and grand setting of the Summit
conference--its elegant
furnishings, gourmet food and well dressed guests--are juxtaposed against the somewhat chaotic and carnival
atmosphere engendered by the protesters and the threatening presence of police in full riot gear. Separating them is the
four kilometre chain link fence, the "wall of shame," a powerful symbol of the changes taking place in the Americas.
As one protester put it, the fight is no longer just a battle of ideologies, it has taken on a physical
dimension, and the fence is symbolic of that transformation. Various approaches are adopted by different groups to
express their resistance to the existence of the fence: women's groups hang banners on it as a sign of solidarity
and peaceful resistance; others march peacefully outside it, singing and dancing; while still others
violently challenge its existence and finally pull a section down. The film reveals the enmity that erupts between
the different protesters because of their diverse responses--those who believe in peaceful demonstration
express anger at those who become violent, and vice versa.
Although voices from various Summit participants use similar language, they convey different
messages. Politicians, police, protesters, businessmen and academics express their views of democracy and freedom.
Clips of Prime Minister Jean Chretien and President George Bush advance the merits of "democracy"
and "economic integration" and promote the purported goals of the Summit: the "strengthening of
democracy," the "creation of prosperity" and the "fulfillment of human potential." "Economic democracy," they claim,
will make the Americas more "competitive" and "just." The protesters chant that people are more important
than profits--that "economic democracy" is an oxymoron: If you emphasize economics to the detriment of
people, democracy has been abandoned. The police assert they are there to protect the rights of all Summit
participants, but protesters challenge their purported neutrality and remind them they are all citizens of this country.
The President of the Business Council on International Issues expresses his opposition to citizens bringing
action into the streets instead of exercising their rights within the confines of the parliamentary system, which in
his view democracy demands. And finally, Richard Feinberg, an academic from California, characterizes
the Summit and the FTAA (Free Trade Area of the Americas) as an "opportunity," where governments
and politicians must be accountable for the promises they make--that democracy means accountable leadership.
In my view, The View From the
SUMMIT presents a balanced perspective of the different
positions adopted by participants in the Summit itself and in the events that surrounded it. The film alerts viewers to
the language that is being used to advance particular positions, but encourages the viewer to understand what
those different positions may mean for them as individual Canadian and world citizens, and what meanings they
think concepts such as "democracy" and "freedom" should accommodate and advance.
This video can be borrowed from the Research Centre, or to order your own copy, call the National
Film Board, at 1-800-267-7710. Free catalogues are also available.
Mary Ann Bendfeld is entering her third year of law school at the University of Calgary, Faculty of Law.
Quote
In Germany they came first for the Communists and I didn't speak up because I wasn't a Communist. Then
they came for the Jews and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists
and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak
up because I was a Protestant. Then they came for me--and by that time no one was left to speak up.
Martin Niemöller 1892-1984.
Centrepiece
c/o Alberta Civil Liberties Research Centre
University of Calgary
Faculty of Law
2500 University Drive N.W.
Calgary, Alberta T2N 1N4
Publisher and Editor:
Linda McKay-Panos
Regular contributors:
Linda McKay-Panos
Melissa Luhtanen
Carmen Dowhaniuk
Centrepiece is the newsletter of the Alberta Civil Liberties
Research Centre. The views expressed in Centrepiece are the
opinions of the author, and not necessarily the views of the Research
Centre; its Board, staff, or volunteers; or its funders.
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