Debates of the Senate (Hansard)
1st Session, 37th Parliament,
Volume 139, Issue 82
Thursday, December 13, 2001
Third Reading-Motion in Amendment- Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Carstairs, P.C., seconded by the Honourable Senator Fairbairn, P.C., for the third reading of Bill C-36, to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities in order to combat terrorism,
And on the motion in amendment of the Honourable Senator Lynch-Staunton, seconded by the Honourable Senator Forrestall, that the Bill be not now read a third time but that it be amended on page 183, by adding after line 28 the following:
147. (1) The provisions of this Act, except those referred to in subsection (2), cease to be in force five years after the day on which this Act receives royal assent or on any earlier day fixed by order of the Governor in Council.
(2) Subsection (1) does not apply to section 320.1 of the Criminal Code, as enacted by section 10, to subsection 430(4.1) of the Criminal Code, as enacted by section 12, to subsection 13(2) of the Canadian Human Rights Act, as enacted by section 88, or to the provisions of this Act that enable Canada to fulfill its commitments under the conventions referred to in the definition "United Nations operation" in subsection 2(2) and in the definition "terrorist activity" in subsection 83.01(1) of the Criminal Code, as enacted by section 4.".
Hon. Douglas Roche: Honourable senators, the representations I have received opposing Bill C-36 concern me greatly. A friend wrote to me to say that his long experience has instilled in him "a deep suspicion of security measures to safeguard liberty and democracy."
Larry R. Shaben, President of the Muslim Research Foundation in my home city of Edmonton, wrote to complain that the powers being given to the government under Bill C-36 "...are clearly being enacted to initially target Muslims." He added, "Next the target could be Jews or Asians or Aboriginals."
The Sisters of Charity in Calgary urged me to try to stop the bill because they claim there is no provision for an overseeing agency to have the authority to overrule the security forces. The Ukrainian-Canadian Congress said the bill is "...an affront to all Canadians who are proud of our way of life and cherish our civil liberties," adding that the Senate "...is being intimidated into passing this terrorist bill quickly."
These are just a sampling of the comments that I have received. Clearly there is great concern in the public. The question I have asked myself is: Is this opposition to Bill C-36 justified? Should the bill be stopped?
I followed the testimony before the Senate committee as best I could. Frankly, I have tried to reach a conscientious answer in the resolution of the great conflict between assuring security from terrorism and not violating civil rights and liberties.
I am conscious of the admonition of the UN High Commissioner for Human Rights, Mary Robinson, who said that governments must refrain from any excessive steps that would violate fundamental freedoms and undermine legitimate dissent.
I believe that history will record that what happened on September 11, 2001, was a watershed moment for humanity. On that day, we learned that the global security agenda became a human security agenda, and that no one, anywhere, was inviolate against terrorists in their own community, turning everyday means of transportation into weapons of mass destruction. On that day, it was driven home that terrorism has developed into a sophisticated network of political, economic and technical collusion which goes beyond national borders to embrace the whole world.
In fact, September 11 brought the world into a new paradigm. That was the word used by law Professor Errol P. Mendes of the University of Ottawa when he appeared before the Senate committee. I think the word is apt. I agree with him when he says that we have to use our wisdom to meet this new paradigm, "without allowing it to overwhelm our fundamental values of human rights, equality and multiculturalism."
Some of the responses to the new paradigm, such as the relentless bombing of Afghanistan, are wrong. I have said so many times in this chamber. My heart continues to go out to the countless innocent civilians in Afghanistan who have been killed, maimed or displaced by the bombing campaign. Canada has a responsibility to work to bring terrorists to justice without inflicting a parade of death and destruction on the innocent.
Other responses to the new paradigm, such as the roundup of many Muslims in the United States and the creation by presidential order of military tribunals to try and execute non-citizens in secret by majority vote, are also wrong.
Canada must not follow the U.S. response in which the rights of freedom are denied in order to attack terrorism. However, the part of the Canadian response to the new paradigm found in Bill C-36 is of another order. Though it may not be palatable, it is necessary. When terrorist organizations use their own followers as weapons to be launched against defenceless and unsuspecting people, it becomes necessary to build into society a right to defend oneself against terrorism. Terrorist activities in our country must be able to be identified before violence takes place.
Anyone who doubts this has not read UN Security Council Resolution 1373, adopted unanimously on September 28, 2001. This is a remarkably tough resolution, which makes strong demands on all states. The resolution orders states to prevent and suppress the financing of terrorist acts and freeze all funding thereto; deny safe haven to terrorists and prevent their movement by effective border controls; take appropriate measures in conformity with national and international law before granting refugee status; and strengthen coordination to stop transnational organized crime and the illegal movement of nuclear, chemical, biological and other potentially deadly materials and other measures. Under Resolution 1373 states are to report to the UN by December 28, 2001, on the steps they have taken to implement these measures. Resolution 1373 is the parent of Bill C-36.
Does Bill C-36 exceed the demands of Resolution 1373? That may be a judgment call. However, it cannot be denied that the Government of Canada responded to widespread apprehensions, including from the special Senate committee, that it had gone too far in the original bill, and it made important amendments. It is the amended bill that was passed in the House of Commons and which is now before the Senate. However, much of the criticism I am receiving is directed against the original bill and does not take account of the changes that have been made.
The definition of terrorist activity has been tightened to ensure that the focus is on the intended terrorist evil rather than the lawfulness or unlawfulness of the act that underpins it. Work stoppages, even if illegal, will not now be considered terrorism.
Preventive arrests and investigative hearings, two potential invasions of civil rights, have now been circumscribed. Before a police officer can arrest a person on suspicion of terrorist activity, the written consent of the Attorney General must be obtained. The detention after arrest must be subject to judicial review within 24 hours. Also, investigative hearings cannot be held without the prior consent of the Attorney General. Moreover, the Attorney General would be required to table annual reports in Parliament detailing how powers like the preventive arrest ones are being exercised. Both the preventive arrests and investigative hearings provisions now include, albeit weak, five-year sunset clauses, after which time they would have to come again before the House and the Senate.
It is important to note that a non-discriminatory provision has been included to ensure that political, ideological or religious expression cannot, by itself, be considered terrorist activity. Thus, visible minorities should not be singled out for differential discriminatory treatment. On this point, the Liberal majority in the Senate committee made an important observation in urging the government to enable minority groups to share in ongoing training to make security officers sensitive to the ethnic diversity of Canadian communities.
In their contribution to the observations of the committee, Progressive Conservative senators have continued to call for the application of a sunset clause to virtually all parts of the bill. I support Senator Lynch-Staunton's amendment.
Progressive Conservative senators are also calling for the appointment of an officer of Parliament to monitor the exercise of powers under this bill. The government does not want such an officer. However, the oversight mechanisms and review processes built into Bill C-36 are substantive; and, as Senator Carstairs said two days ago, it would be logical for the Standing Senate Committee on Human Rights to take on the responsibility of also reviewing the implementation of this important bill.
Finally, honourable senators, there remain two short points to make. First, Bill C-36 does not operate outside the Charter of Rights and Freedoms that is a hallmark of Canada's dedication to preserving civil liberties. Comparing Bill C-36 to the War Measures Act, when there was no Charter, is not valid. We must continue to put our faith in the judicial enforcement of the Charter of Rights and Freedoms. It is a near certainty that Bill C-36 will end up in the Supreme Court of Canada - and that is yet another safeguard.
Second, and here I return to the new paradigm, Canada is a vast geographical area adjacent to the United States, the most powerful country in the world, which has already suffered the massive attacks of terrorism. Canada cannot afford to become, or be seen to become, a staging ground for future terrorism directed at the U.S., let alone ourselves. Our economy, our trade, our way of life, depends on ready access to the U.S., and Canada must give assurance to the U.S. that future terrorists will not be spawned inside Canada.
Moreover, the UN Security Council commands us to take stringent steps.
Bill C-36 takes these steps without undue undermining of civil rights and liberties. Canada's ability to respond to the new paradigm with the building of a stronger body of international law requires us to ensure that Canada itself is secure.