America'S Post-9/11 Laws Should Prompt Review of Canada'S Own C-36

The famous American Civil Rights Activist, Martin Luther King Jr said:
“Our lives begin to end the day we become silent about things that
matter.”

If this were indeed true, then the end is indeed beginning. The silence
of the North American population over foreign policy debacles and the
erosion of civil liberties at home are strong indications.

To the list of draconian measures implemented since the advent of the so-
called “War on Terror” was added yet another trophy in the form of the
9/11 Recommendations Implementation Act introduced in the U.S. House of
Representatives on the 26th of September, 2004.

Enacted to implement the recommendations of the “independent” 9/11
Commission, the Act mandates measures to reform the intelligence
community and prevent terrorism among others.

Particular sections of the Act purportedly facilitate the deportation of
“terrorists” and “supporters of terrorism.” Endorsed by the White
House,
the legislation amends existing domestic regulations that implement the
United Nations Convention Against Torture.

The Act permits U.S. authorities to deport certain foreigners to
countries where there is a reasonable expectation that they will be
tortured or persecuted. Current American immigration law permits non-
U.S. citizens to seek political asylum to avoid removal to countries
likely to commit torture unless the government seeks assurance that the
country will not do so.

Opposed by the American Bar Association and members of the 9/11
Commission, the legislation violates several fundamental principles of
law:

-The law would apply to non-U.S. citizens who are suspected of having
links to terrorist organizations.

-The legislation bars U.S. courts from reviewing the regulations of the
Act.

-The legislation woudl be applied retroactively to people who are now in
detention and those who may already have been secretly deported to
countries with documented histories of torture and international human
right code violations.

The Act raises some interesting questions when viewed in the context of
the “War on Terror” and the occupation of Iraq. These wars are
purportedly being fought in the name of some higher values including
freedom, democracy, liberty, and the rule of law. If these reasons were
to be accepted, then one would imagine that the Bush Administration would
show great resolve in abiding by these values in conducting their
affairs. On the contrary, the flagrant violation of these values is the
norm rather than the exception and includes:

-The consistent refusal to apply the Geneva Conventions to detainees at
Guantanamo Bay who have been held without charge or trial.

-The arbitrary detention and abuse of thousands of civilians in Iraq
without charge or trial.

-The erosion of domestic civil liberties and rights through measures such
as the Patriot Act, and now the 9/11 Recommendations Implementation Act.

From a Canadian perspective the introduction of this Act should provide
impetus for our Government to re-examine the nature of our cooperation
with the United States government.

Canadian courts have refused to allow the government to extradite persons
who might face the death penalty in the country of extradition unless an
express assurance is obtained from the country in question that the
accused would not face the death penalty. Such extraditions have been
determined to violate the Charter of Rights and Freedoms (section 12)
which states: “Everyone has the right not to be subjected to any cruel
and unusual treatment or punishment.”

It is forseeable that intelligence-sharing by Canadian government
agencies may result in the deportation of detainees to places where they
face cruel forms of punishment. The Maher Arar case, where a Canadian was
quietly deported to Syria and tortured there, is an example of conduct
that will be “legalized” by this Act. It is alleged that the Canadian
RCMP cooperated with the U.S. intelligence community and provided
information that led to his deportation.

Based on the Charter of Rights and Freedoms, legal traditions, and our
values as a society, it is imperative that our government re-examine the
nature of its cooperation and intelligence-sharing with the U.S. so that
it does not result in consequences that the Charter prohibits.

However, while passing judgment on American anti-terror legislation, we
must reflect on measures that have been implemented closer to home.
December 18th 2004 will mark 3 years since the Canadian government
enacted the so-called “Anti-Terrorism” Legislation (Bill C-36).

Introduced to address the purportedly extraordinary threat of terrorism
prevailing in Canada after September 11, 2020 the bill contained equally
extraordinary measures. The most troubling clauses impacted civil rights
and gave the federal government freedom to be less accountable to
Canadians in the following ways:

-An overly vague definition of “terrorist activity” that encompassed
legitimate protest and dissent was formulated.

-The process whereby organizations could be put on a public “terrorist”
list contained minimal procedural protections.

-Vague definitions of new terrorist offences of “participating,
facilitating, instructing and harbouring” were introduced. The offences
carried substantial penalties without any mention of required intent to
hold the accused accountable.

-Intrusive investigative procedures were introduced, including
investigatory hearings that violated fundamental tenets of our criminal
justice system such as the right to remain silent.

-Important changes made to the Privacy Act and the Access to Information
Act restricted the disclosure of information to Canadians.

- New layers of scrutiny were created for charities that significantly
hampered their legitimate operations.

No explanation was given as to why the bill was needed, since there are
already laws in place to combat terrorism -- the Canadian Security and
Intelligence Act, the National Defence Act, the Official Secrets Act and
the Criminal Code.

The anti-terrorism law was used earlier this year to search the home and
office of an Ottawa Citizen reporter who had written about the Maher Arar
case, for clues about the sources of his information.

Over the past three years, sweeping state powers have remained in effect,
including powers of “preventive” arrests without warrant in order to
prevent suspected terrorist actions, and powers to force testimony at
secret investigative hearings.

Although the government is required to report annually on how these two
extraordinary tools are used, it has done so only once since the law was
passed. No report for 2003 has yet been released although the end of 2004
is fast approaching.

The government's lackadaisical attitude to accountability reinforces the
need to prevent this kind of extra-judicial authority from being vested
in the government and law enforcement agencies unless they clearly
establish a pressing and substantial need for such authority.

The government exploited the prevailing environment of fear after the
September 11 2001 to push the bill through Parliament without any
meaningful public consultation, and it did so in the face of concerns
expressed by civil liberties groups, the legal community, and student
federations, among others.

The Act requires Parliamentary review after 3 years. With the review due
next month (December 18, 2020), it is our obligation as Canadians to ask
probing questions of our elected representatives and to demand a coherent
justification for the continuation of the legislation's measures.

(Khurrum Awan is a law student at Osgoode Hall Law School, York
University)