AN OPEN LETTER TO PRIME MINISTER JEAN CHRÉTIEN RE: BILL C-36 November 22, 2001 The Right Honourable Jean Chrétien Prime Minister of Canada Government of Canada House of Commons Ottawa, Ontario Dear Prime Minister, RE: Amendments to Bill C-36, Federal Anti-Terrorism Proposals We are writing to express our concern over the amendments proposed to Bill C-36 by your Justice Minister, the Honourable Anne McLellan, in her presentation to the Justice and Human Rights Committee on November 20th. While we think that the Justice Minister's amendments contain some important improvements to Bill C-36, we are deeply disappointed that her proposals did not go far enough to protect the fundamental rights and freedoms of Canadian citizens. It is natural, perhaps, to think that a civil liberties organization would hold these views about any legislation that authorizes the sort of extraordinary law enforcement powers that are contained in Bill C-36. However, we are not opposed in principle to significant and powerful anti-terrorism measures in response to recent events. Moreover, we strongly suspect that failure to find an appropriate balance between these measures and respect for fundamental rights and freedoms will threaten the legitimacy of the fight against terrorism and may undermine important aspects of it. If we are right about this, even those who are impatient with the expression of civil libertarian concerns about Bill C-36 have compelling reasons to heed our recommendations. Our main complaint stems from what is, in our view, the failure of the amendments to address reasonable concerns about the breadth of the definition of terrorist activity. The general failures of the current definition derive, in particular, from its incapacity to draw carefully enough the distinction between criminal activity, as understood in the context of the Criminal Code, and terrorism. This lack of distinction may produce surprising and unacceptable costs. The new proposals exempt "protests" (under section (E) of the definition) from the invasive measures of the legislation, and thereby attempt to rectify the gratuitous extension of the definition of terrorist activity to include certain familiar forms of civil disobedience and illegal work stoppages. This is an important step forward, but it leaves unaddressed a number of equally serious and readily resolvable problems with the definition. In our view, the problem with having protests referred to at all in the definition of terrorist activity is that if some criminal activity associated with a political protest does not fit within society’s considered views about what constitutes protest (as arguably riots such as those that took place recently in Genoa and Seattle do not), then the definition positively invites a reading of such activity as terrorist. That is, it is quite natural to read the sections (A)–(E) together as saying that any politically, ideologically or religiously motivated criminal activity that is not protest is therefore terrorism, particularly if it poses a threat of bodily harm. For example, tipping over a police cruiser in a crowd of demonstrators would clearly be a terrorist act under this definition, as would an attempt to engage police in a serious physical confrontation during a demonstration. Such acts are certainly heinous and criminal and not ever to be tolerated in a free and democratic society. But it is simply absurd and a dangerous exaggeration to describe them as terrorist, and thus as being on a par with events of September 11th and other acts of terrorism that this legislation is seeking to address. Indeed, counting as terrorists the criminal anarchist hoodlums and their ilk that show up in places like Genoa and Seattle to fight with police, rather than simply to protest or even commit peaceful civil disobedience, needlessly multiplies the number of terrorists on the ground in Canada. Among other things, that will distract from society's efforts at detecting and bringing to justice the real terrorists. It will instead place the activities of protest groups under extraordinary government scrutiny quite inevitably leading to a chill on protest itself. And it may well push the already socially disaffected over the edge into real terrorism, as has happened in other countries. These are costs we must make every reasonable effort to avoid. The underlying problem here clearly resides in the failure of the definition to draw an adequate distinction between criminal acts within the context of our current criminal law and terrorism. Unfortunately, this problem has another equally troubling instance in the legislation. For as we read the definition, disruptions to essential services under section (E) do not even have to threaten any harm to persons to be considered terrorism. How, then, could this be terrorism on any reasonable definition? Either the intent or the necessary result of these provisions is that cyber-attacks, such as one undertaken by an ideologically motivated "Mafia Boy", will undoubtedly fall within the definition of terrorist activity. But it is scarcely clear that such plainly criminal acts cross the threshold into terrorism. In our view, for such an act to cross into terrorist activity, it is because the conduct would be captured by sections (A) to (D) of the definition. What should be evident, then, is this: There is no demonstrated need for section (E). It fails to draw adequately the distinction between terrorism and other types of criminality. Where it does capture terrorist acts, those acts are also covered by (A) to (D). It must be recognized that it will not be Supreme Court justices who will be interpreting and applying this legislation in the first instance, but law enforcement and national security officials. These individuals will naturally undertake their duties to investigate and prevent terrorism consistent with the broadest possible interpretation of the legislation. This is not so much a criticism as a recognition that they will exercise their powers liberally given what is at stake. Therefore, it is especially important to constrain the current overbroad definition of terrorist activity as tightly as possible given the new and extraordinary powers that Bill C-36 gives to our security officials to combat terrorism. Even with a more narrow definition and the most scrupulous attention of Attorneys General and Solicitors General, there is nevertheless no guarantee that the remaining provisions will not be interpreted too broadly. And without our recommended change to the definition, it is indeed a certainty that there will be abuse. In addition to the change in the definition, the BCCLA again calls for a general sunset clause to apply to the entire legislation. The inevitability of capturing those who are not truly terrorists within the scope of Bill C-36 is a compelling argument alone for a general sunset clause. However, while it is certainly an improvement that investigative hearings and preventive arrests will be subject to a sunset clause, we believe that the extraordinary nature of other provisions of this legislation and the natural uncertainty, as with the definition, in how they will be interpreted and applied, underlines the necessity for a general sunset clause. In conclusion, we urge your government to drop section (E) from the definition of terrorist activity to ensure that some actions that are quite obviously not terrorist will not be caught. Removing (E) will also invite a more careful exercise of judgment about what sorts of criminal acts will count as terrorist by not appearing to propose a false dichotomy between political protest and terrorism. Finally, we urge you to introduce a general sunset clause of five years that would apply to the entire legislation. Yours sincerely, John Dixon President cc: The Honourable Anne McLellan Andy Scott, Chair, House of Commons Standing Committee on Justice and Human Rights