A misleading, Useless and Dangerous Law
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- Winston Churchill, 1956
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The Anti-terrorism Act, 2001: A Misleading, Useless and ... Dangerous Law Brief submitted to the Special Senate Committee on the Anti-terrorism Act and the Subcommittee on Public Safety and National Security of the House of Commons Committee on Justice, Human Rights, Public Safety and Emergency Preparedness Ligue des droits et libertés May 9, 2005 The Anti-terrorism Act, 2001: A Misleading, Useless and ... Dangerous Law Brief submitted to the Special Senate Committee on the Anti-terrorism Act and the Subcommittee on Public Safety and National Security of the House of Commons Committee on Justice, Human Rights, Public Safety and Emergency Preparedness TABLE OF CONTENTS ABOUT THE LIGUE DES DROITS ET LIBERTÉS 1 PREAMBLE 2 INTRODUCTION 4 PART 1
of protecting human rights and freedoms 5 PART 2
that does not respond to the real threats to human security 13 PART 3
the powers already exist 17 PART 4
that is contrary to the very foundations of democracy 19 CONCLUSION 27
The Ligue des droits et libertés is an independent, non-partisan not-for-profit corporation that was founded in 1963. Its objectives are to defend and promote the universal and indivisible rights recognized in the International Bill of Human Rights. The Ligue des droits et libertés, a member of the International Federation for Human Rights (FIDH), is one of the oldest rights organizations in the Americas. PreambleWhen Bill C-36 was introduced, in the weeks following September 11, 2001, and again after it was brought into force and when other security measures were announced (such as Bill C-24, identity cards or the Ridge-Manley “Smart Border” agreement), the Ligue des droits et libertés criticized the haste of the measures and the absence of any real public debate. Three years later, we believe that parliamentarians not only have a duty to question the Anti-terrorism Act, but also have a responsibility to generate and promote a real public debate in respect of both the full exercise of fundamental rights and the identity of the real threats to our security, and the causes of those threats and the means by which they may be eliminated. We are puzzled to see that the responsible ministers (Justice and Public Security) who testified before the Committee early in its deliberations were already calling for the main elements of the Anti-terrorism Act to be re-enacted without even having heard the testimony to be given. In their minds, it was important, and sufficient, to observe that over 50 percent of the population of Canada supported these measures, suggesting that the legislation is appropriate because a survey has said so.1 On the other hand, we would note that another recent survey pointed to Canadians’ general lack of knowledge about their rights and freedoms.2 Against this background, the Ligue des droits et libertés wonders whether we are to think that “the die is cast”, and that the re-enactment of these measures, with a few changes, is inevitable. We must not only take the true measure of a threat and ensure that we are indeed facing “a public emergency which threatens the life of the nation”,3 but also, and primarily, promote rights and freedoms as the foundation of society. It is not sufficient to incorporate a reference to the Canadian Charter of Rights and Freedoms into a statute, and then put everything in the hands of the courts. The courts are not, and must not be, the sole guardians of our fundamental values. Parliamentarians have the serious responsibility of considering the reasonableness and proportionality of legislation that interferes with rights and freedoms. As Dickson J. wrote, the values and principles essential to a free and democratic society embody “... respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society”.4 We therefore ask that parliamentarians generate a real public debate, one that is informed and transparent, about the need for all of the measures to combat terrorism and the extent to which those measures are consistent with the fundamental principles of our society. It is also the duty of parliamentarians to advance the effective implementation of the values essential to a democratic society. It is in this spirit that the Ligue des droits et libertés submits this brief to the Committees of each of the two Chambers that are responsible for reviewing the Anti-terrorism Act. IntroductionThe Anti-terrorism Act was assented to on December 18, 2001, in an atmosphere or urgency and after little discussion, barely three months after the events of September 11. The Act, which is 170 pages long, amends some twenty other statutes, primarily the Criminal Code, the Evidence Act and the Official Secrets Act. In addition, the Act, which is exceptional legislation, is unlimited in time and alters our judicial system in a significant and permanent manner. In this brief, we intend to show that the la Anti-terrorism Act is misleading, useless and dangerous:
We would also submit that the Anti-terrorism Act must be evaluated in the context of all of the other measures that have been adopted since September 11 that also jeopardize the principles that must be taken as givens in our democratic societies. Creating data banks about entire populations and the sharing of those files between states, cross-tabulating those data in order to establish lists of suspect individuals, often relying on surnames that identify groups that are stereotypically associated with terrorism, broad powers of surveillance over travel and communications – these are all examples of the problem.5 The Ligue des droits et libertés also wishes to draw attention to the fact that the absence of political oversight of police services, widespread surveillance of the public and watering down the concept of the presumption of innocence are all characteristics of a police state. Part 1 A centuries-old tradition of protecting security of the person ...here is a law which is above the King and which even he must not break. This reaffirmation of a supreme law and its expression in a general charter is the great work of Magna Carta; and this alone justifies the respect in which men have held it. Winston Churchill, 1956Canadian society is hair to centuries of efforts to protect individuals against arbitrary action by the state, and of achievements in that regard. The origins of that process are found in Magna Carta, the agreement made between the lords and King John on June 14, 1215. That great document is where we find a principle that has since then always been regarded as sacred: the right not to be deprived of liberty unless that deprivation of liberty is subject to the limits permitted by the laws: (38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it. (39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. (40) To no one will we sell, to no one deny or delay right or justice. Without going into the historical development of legal rights in detail, we think it is important to note that the Charter of Rights and Freedoms that was incorporated into the Constitution Act, 1982 lists a number of legal guarantees (some of which are the descendants of the rights guaranteed by Magna Carta). Those legal guarantees are constitutionally protected – that is, under section 32 of the Charter, every Act of Parliament must honour those guarantees, except as provided in section 1: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Otherwise, under sections 32 and 33 of the Canadian Charter, every Act of Parliament must comply with the Charter, unless it expressly provides otherwise, and such an exception can be valid only for a period of five years. In the case of the Anti-terrorism Act, Parliament, probably wagering that the courts would find the numerous, serious violations of the legal guarantees that it presents as acceptable in a “free and democratic” society, did not make use of the “notwithstanding” clause. The following are some of the legal guarantees provided by the Charter: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention: (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
[Emphasis added.] As we shall see later, in Part 4, the Anti-terrorism Act has permanently endangered all of those rights. Moreover, it has done this in a context in which, if the Attorney General so decides, the accused can be convicted on secret evidence, which is disclosed only to the judge. Hugessen J. of the Federal Court of Canada, to whom the task falls of hearing this secret evidence in camera, outside the presence of the accused and his or her counsel, has publicly expressed his discomfort with the role he is being asked to play: We do not like this process of having to sit alone hearing only one party and looking at the materials produced by only one party and having to try to figure out for ourselves what is wrong with the case that is being presented before us and having to try for ourselves to see how the witnesses that appear before us ought to be cross-examined.6 We believe that be concerned when an eminent and respected judge, who is bound by judicial restraint, offers such remarks. We consider it important to set out the full text of Article 4 of the International Covenant on Civil and Political Rights, which Canada has ratified and has thus undertaken to comply with: Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. [Emphasis added.] It is clear to us that many of the provisions in the Anti-terrorism Act violate the Covenant. For example, Article 9, which contains a number of the rights recognized in the Canadian Charter, which we set out above, provides: Article 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Canada therefore evidently has an obligation, under Article 4, to “inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated”, and an obligation to give notice of the date on which it “terminates such derogation”. This implies that such derogations can only be temporary. From the judgment of the Supreme Court of Canada in the Air India case, we know that the courts are very reluctant to interfere in the assessment that the legislative and executive branches have done of the “public emergency” that the terrorist risk creates at present. In that judgment, released in the fall of 2004, Iacobucci and Arbour JJ., writing for the majority, said: Although terrorism necessarily changes the context in which the rule of law must operate, it does not call for the abdication of law. Yet, at the same time, while respect for the rule of law must be maintained in the response to terrorism, the Constitution is not a suicide pact, to paraphrase Jackson J.: Terminiello v. Chicago, 337 U.S. 1 (1949), at p. 37 (in dissent).7 [Emphasis added.] That means that Parliament cannot entirely look to the judges of the Supreme Court to narrow the scope of the provisions of a statute that grants broad discretion to law enforcement agencies: there is a serious risk that the Court will shelter behind deference to the political choices made by parliamentarians, as was also the case in a recent judgment of the Judicial Committee of the House of Lords.8 In that judgment, it was the discriminatory distinction between British citizens and foreigners that prompted the Committee to find that the British law was unenforceable, because it did not comply with the anti-discrimination provisions of the European Convention on Human Rights. The Lords supported the assessment of the risk that had been made by the Government and Parliament. In Canada, we also know, from very concrete experience, what happens when excessive and arbitrary powers are assigned to the executive branch and to law enforcement agencies. It was not so long ago – October, 1970 – when, in response to certain terrorist acts that had been committed in Quebec, Parliament invoked the War Measures Act, an old law that had been enacted in 1914 and invoked only during the two world wars. That was the first time that it had been used in peacetime. As a result of the War Measures Act being invoked, hundreds of individuals were arrested and incarcerated for no reason, on mere suspicion, with no charges ever laid against a majority of them. In response to the outrage that this situation brought about in the early 1980s, the federal government had to compensate those people and apologize to them publicly. To avert such situations in future, it was decided to repeal the War Measures Act and replace it with the Emergencies Act.9 We urge you to take another look at that Act, to see the infinite precaution taken in drafting it, to avert the excesses that had been brought about by using the former Act. First, there is a preamble, which reads as follows: WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government; AND WHEREAS the fulfilment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times; AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency; [Emphasis added.] Unlike the Anti-terrorism Act, that preamble makes express reference to the international commitments made by Canada under the International Covenant on Civil and Political Rights, and expressly submits to them. It is interesting to compare that preamble to the preamble to the Anti-terrorism Act, which clearly reflects the negligence demonstrated in December 2001: WHEREAS acts of terrorism constitute a substantial threat to both domestic and international peace and security; WHEREAS acts of terrorism threaten Canada's political institutions, the stability of the economy and the general welfare of the nation; WHEREAS the challenge of eradicating terrorism, with its sophisticated and trans-border nature, requires enhanced international cooperation and a strengthening of Canada's capacity to suppress, investigate and incapacitate terrorist activity; WHEREAS Canada must act in concert with other nations in combating terrorism, including fully implementing United Nations and other international instruments relating to terrorism; WHEREAS the Parliament of Canada, recognizing that terrorism is a matter of national concern that affects the security of the nation, is committed to taking comprehensive measures to protect Canadians against terrorist activity while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms; AND WHEREAS these comprehensive measures must include legislation to prevent and suppress the financing, preparation, facilitation and commission of acts of terrorism, as well as to protect the political, social and economic security of Canada and Canada's relations with its allies; ...10 Unlike the Anti-terrorism Act, the Emergencies Act provides that it can apply for a limited time only. It defines the kind of emergency that can give rise to a proclamation of a national or international emergency very stringently. This is how a public order emergency is defined in section 16: "public order emergency" means an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency; ... [Emphasis added.] There is no such reference to the concept of “national emergency” in the Anti-terrorism Act. The Emergencies Act even provides for an entire procedure for compensating individuals whose rights may have been affected by the application of the Act (sections 46 to 55). We must be concerned about the fact that when the Anti-terrorism Act, which permanently alters the protections of our rights and freedoms, was enacted, it did not include the series of precautions that were taken when the Emergencies Act was enacted. Part 2 A misleading law ... that does not respond to the real threats to human security In my view, climate change is the most severe problem we are facing today, more serious even than the threat of terrorism. As a consequence of continued warming, millions more people around the world may in future be exposed to the risk of hunger, drought, flooding, and debilitating diseases such as malaria. Sir David King11 The terrorist threat, and efforts to acquire the “security” that is incessantly invoked, must be assessed and viewed in a broader context. The important report submitted to the Secretary General of the United Nations in December 2004, A More Secure World: Our Shared Responsibility, identifies an impressive list of threats to peace and international security, as well as a number of major challenges:
Terrorism is not the only threat to the security of the planet and its inhabitants: it is all of the major global problems that must be attacked urgently, particularly when some situations where there is poverty or oppression create the conditions in which terrorism flourishes. Nor must the draconian measures that states adopt in their fight against terrorism come, themselves, to be a new planetary threat, this time to the rule of law and fundamental freedoms, which are the very foundation of our democracies and that in many cases have been achieved at a high price. More than three years have passed since the attacks of September 11, 2001. The attack of March 11, 2004, in Madrid, shows that we are not immune to further attacks. However, the fears that September 11, 2001, marked the start of a wave of unprecedented terrorist attacks, attacks that would be increasingly deadly and would use unheard of methods, have not materialized. No “weapon of mass destruction”, no secret laboratory for manufacturing such weapons, has been discovered in Afghanistan, in Iraq or in the western world. Despite the fact that no terrorist attack has occurred in North America since September 11, 2001, the Minister of Public Security, Anne McLellan, says, without offering a shred of evidence, that the terrorist threat has not diminished since September 11 and that it has even grown. The Minister of Justice, Irwin Cotler, went even farther when he said: “We’re talking about an existential threat to the whole of the human family.”13 In a symposium on counter-terrorism, David Harris, who was formerly in charge of strategic planning at CSIS, said that the ordinary Canadian, an educated and discerning person, which includes the average judge, is a generation behind in understanding the nature, extent and severity of the threat that we are facing today, and how we could wake up one morning and discover that two or three major cities have disappeared. In an article published in April 2005, the Washington Post referred to a “dramatic increase” in terrorism in 2004.14 A detailed analysis of the results from one of the sources referred to in the article sheds some interesting light on those figures, which are alarming at first sight.15 First, the rise in the number of deaths, from 7,256 to 10,337 between 2002 and 2004, is virtually entirely due to the war in Iraq, where deaths attributed to terrorism rose from 3 to 2,354 for those years.16 Also during that period, from January 1, 2002, to December 21, 2004, terrorism caused 3 deaths in North America, none of them in Canada.17 Over a much longer period – January 1, 1968, to May 5, 2005 – terrorism caused 338 deaths in Canada and 3,573 in the United States, virtually all of which are attributable to a single event in each country: the Air India bombing in Canada (329 deaths) and the attacks of September 11, 2001, in the United States (about 3,000 deaths). The data in the study also show that terrorism is prevalent in regions where human rights are systematically flouted, as in Chechnya, and confirm what was said by the UN Special Rapporteur, Kalliopi K. Koufa, in her interim report, Terrorism and Human Rights: In reviewing contemporary terrorism, one might roughly observe that those States with the best human rights records are the States with the least likelihood of problems with domestic terrorism [and] the States least affected by international terrorism. It follows that an obvious step to reduce terrorism is the full realization of human rights and the practice of genuine democratic processes throughout the world, among States and in every State. All efforts must be made to address better the realization of human rights, in particular in relation to self-determination, racism, internal ethnic and political representation, and class-based economic or cultural divisions in society.18 [Emphasis added.] It is difficult to reconcile the alarmist words about terrorism quoted earlier with the objective results of the study we quoted above. However, by identifying terrorism as the most important threat to human security, other threats that claim many more victims are relegated to the back burner. Infections diseases, AIDS and the scarcity of drinking water, to name only those few, kill millions of people every year. The billions that have been invested, in Canada and elsewhere, in the fight against terrorism could save hundreds of thousands of lives if they were invested in eliminating those scourges. Reaction to the attacks of September 11, 2001, make us think of how an individual reacts when his or her weakened immune system goes into overdrive when confronted with a pathogen. The damage inflicted by the reaction of the immune system is much more serious than the damage caused by the pathogen. The entire body of measures taken in the name of fighting terrorism, including the Anti-terrorism Act, seems to us, in some ways, to represent a greater threat to the future of our democratic societies than terrorism itself. The Secretary General of the United Nations, Kofi Annan, once again said, at the plenary closing session of the International Summit on Democracy, Terrorism and Security in Madrid, on March 10, 2005: “Because terrorism is a threat to all states, to all peoples.” He added: [Terrorism] is a direct attack on the core values the United Nations stands for: the rule of law; the protection of civilians; mutual respect between people of different faiths and cultures; and peaceful resolution of conflicts. The Ligue des droits et libertés endorses that statement entirely: terrorism threatens fundamental values. It is also true that Canadian and Quebec society cannot think themselves immune to potential terrorist acts. But the Ligue des droits et libertés also endorses the important caveat expressed by Kofi Annan in that same declaration, concerning the way to combat terrorism. If governments sacrifice human rights and the rule of law in that fight, the Secretary General said, they will be handing victory to the terrorists. The Ligue also places the greatest weight on the harsh judgment that the Secretary General expressed regarding the body of measures that have been adopted recently, in the world, to combat terrorism: I regret to say that international human rights experts, including those of the UN system, are unanimous in finding that many measures which States are currently adopting to counter terrorism infringe on human rights and fundamental freedoms. [Emphasis added.] For Kofi Annan, this was an opportunity to reiterate a fundamental principle: “Upholding human rights is not merely compatible with successful counter-terrorism strategy. It is an essential element.” There is no indication that this principle was considered when the Anti-terrorism Act was enacted, and it is imperative that it be considered when the Act is reviewed. 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