Submission by the CAW to the House of Commons Standing Committee on Justice and Human Rights Regarding Bill C-36, Anti-Terrorism Act: November 9, 2001
November 9, 2001
National Automobile, Aerospace, Transportation
and General Workers Union of Canada (CAW-Canada)
November 9, 2001
Protecting Human Rights and Providing Security in Difficult Times
Anti-Terrorism Act (Bill C-36)
The Canadian Auto Workers (CAW) Union appreciates this opportunity to present our views to the Parliamentary Standing Committee on Justice and Human Rights. Our desire was to tell you in person about our concerns with the government's proposed Anti-Terrorism Act (Bill C-36) in its current form, but due to lack of an available time slot to appear front of the committee, we are submitting our written comments on some of the critical issues of the bill for your consideration.
The CAW is the largest private sector union in Canada. We are an organization of 250,000 workers across the country, employed in a broad range of industries and services of our economy, including automobile parts production and assembly, aerospace manufacturing and assembly, air, rail, road and marine transportation, mining, fishers, retail and hospitality services etc.
Our union has a history of fighting against the curtailment of our rights and freedoms to fully participate in the affairs of Canadian society, particularly in the areas of political debate and collective bargaining issues.
The September 11th attacks on the United States constitute a grave human rights tragedy. The CAW unequivocally condemns these attacks, the CAW National Executive Board has stated "Canadians in many ways are being deeply affected by the attack on the U. S. and the incredible number of lives lost during this senseless, barbaric, and cowardly act of terrorism." The aftermath of this tragedy has gripped our lives, and the terrorist attacks have forced us to confront the darkest side of humanity. It has created an atmosphere of unprecedented fear and anxiety.
In these very emotional times, overreaction can threaten the basis of our free and democratic society. For this reason, it is important to ensure that our response is not hasty. We must take the opportunity to reflect upon any changes to our laws which will impact on our human rights.
The CAW recognizes the right of the government to protect its citizens in the face of potential terrorist attacks like those of September 11th. However, we believe these initiatives should be carefully assessed to strike a balance between the need for security and the desire to protect civil liberties and due process. Bill C-36 grants law enforcement officials sweeping powers. For this reason, it represents a dangerous infringement on fundamental rights and freedoms.
We believe that such initiatives should be carefully assessed to strike a proper balance between the need for protection from terrorist attacks, and the need to protect human rights and civil liberties of Canadians. In assessing this bill, lawmakers should be mindful of our past experiences where the civil liberties of Canadians were curtailed. For example,Ukrainians during World War I, Socialists after WWI, Japanese Canadians during World War II and most recently the FLQ crisis in October 1970. In these cases amidst great emotional upheaval, the public supported the government actions at the time, but later, Canadians realized that it was a grievous error.
In light of this, the proposed Bill should:
Provide effective protection against human rights abuses in Canada;
Protect the right of individuals and organizations to engage in the defence of human rights and peaceful expression of dissent both domestically and internationally;
Be limited in duration to allow us to respond only to the current crisis;
Be consistent with the Canadian Charter of Rights and Freedoms and International Human Rights standards;
Provide enforcement against hate crimes and propaganda
1. Definition of "Terrorist Activity"
The definition of "terrorist activity" proposed in the bill is very broad and could be used to apply to many trade union activities and other social activist groups. Therefore, the definition of 'terrorist activity' creates potential for abuse and injustice.
Domestic Activities - The definition of a terrorist act includes "seriously interfere with or disrupt an essential service, facility or system." Many of the activities we participate in are for political purposes with the desire to change society for the better. We do not threaten national security or the public security. Given the present wording of this definition, trade union activities which are within the framework of our democratic society could be construed to fall within the definition. For example, the "Days of Action" in Ontario, anti-globalization demonstrations such as Quebec City earlier this year, or Windsor in 2000 could be caught by the definition. Law enforcement officials may consider such activities a violation of the Act and use the definition to justify using preventive detention (as defined by the bill) against protesters.
Although the government says that the new anti-terrorism bill will not be used to prosecute those engaged in lawful strikes or protests, a "wildcat strike" or any other kind of "work stoppage" particularly one with a political objective, may be construed to fall under the definition. For example, earlier this year, nurses engaged in peaceful workplace actions that may be characterized "illegal and disruptive" to essential services.
International Activities - The definition could also apply to people who have no other democratic outlets for dissent or change. In the past, CAW and many other human rights organizations have actively supported democratic movements around the world, i.e., South Africa, Nicaragua, Chile etc. Under the proposed legislation, the CAW's support for the African National Congress could have been construed as supporting or facilitating terrorist activities.
The definition must be narrowed in scope. The wording "seriously interfering with or disrupting an essential service facility or system" should be eliminated and civil disobedience, advocacy, protest, dissent or work stoppage should be clearly excluded from the definition. The legislation must also recognize the distinction between "supporting terrorism" and democratic reform movements in their struggle and right to achieve justice and dignity.
2. Limiting Civil Liberties
The Right to a Fair and Public Trial- Investigative Hearing
Section 83.28 (10) of the Criminal Code
Bill C-36 proposes restrictions to well-established principles of the right to a fair and public trial. The Bill introduces the concept of "investigative hearing" by a judge into Canadian law in which a person is compelled to answer questions outside of a formal trial and in the absence of any charges having been laid against that person.
Currently, crimes are investigated by the police, if charges are laid by the police, then a judge conducts a trial. Persons under investigation are not compelled to answer questions outside the framework of a trial and without the right to legal counsel. Under the proposed Bill, accused persons would not be able to refuse to answer on the basis of self incrimination, this is a major expansion of the investigative powers given to law enforcement authorities.
Investigatory and Preventive Arrest and Detention
Section 83.28 & 30 of the Criminal Code
The Bill provides new powers to arrest and detain individuals for up to 72 hours without a warrant or the laying charges, with the consent of the Attorney General, or a peace officer. The authorities may arrest a person if they believe on reasonable grounds that a terrorist activity will be carried out, or that the detention of a person is necessary to prevent a terrorist activity from being carried out.
The Investigative Hearing and Preventive Detention provisions are a significant weakening of the civil liberties of Canadians, particularly with the proposed broad definition of terrorist activity.
In addition to a narrowing of the definition of "terrorist activity":
- Preventive Detention amendments must have a "sunset clause" with a three year expiry period.
- The Investigative Hearings amendments should be dropped from the proposed bill.
3. To Prohibit The Disclosure of Information
The Proposed Bill would amend several Acts to authorize the Attorney General of Canada to personally issue a certificate prohibiting disclosure of information for the purpose of international relations, or national defence or security. This would affect the Canada Evidence Act, the Personal Information ActPrivacy Act, which increases the likely hood of secretive criminal trials and would limit the information available to public.
Currently under Canadian law, there are checks and balances in the system, there are procedures for a complaint and review process. This would be replaced by a unilateral decision of the government.
A time limit of no more than three years should be imposed on the prohibition certificate (a "sunset clause"). Provisions for complaint and review processes continue to apply for all the Acts.
4.Hate Crimes and Propaganda
The CAW welcomes the provisions in Bill C-36 that would strengthen Canada's laws dealing with hate crimes and propaganda. The proposed amendments dealing with hate propaganda that is distributed by telephone and the internet requires active enforcement.
The new criminal offence of committing mischief in relation to property that is primarily used for religious worship, when the act is motivated by bias, prejudice or hate based on religion, race, colour, or national or ethnic origin, will also be an important tool in protecting communities as a whole.
Summary of Recommendations
The proposed legislation is to strengthen the protection afforded to Canadians against a grievous "terrorist activity," and also strengthening wider global capacity to provide that protection world wide. The measures proposed in the Bill C-36, although important, they will have serious negative implications for number of fundamental human rights values we cherish as Canadians. Since Bill C-36 is an omnibus Bill affecting a number of existing pieces of legislation, the CAW believes that there are many aspects of the Bill which require closer scrutiny by the public at large.
The CAW calls on the Parliamentary Committee to implement the following amendments with respect to the proposed bill;
Amend the definition of "terrorist activity" to narrow the scope of the activities to clearly exclude peaceful civil disobedience including advocacy, protest, dissent or stoppage of work, and other workplace related issues.
Recognize that, in many countries around the world, citizens' fundamental rights are violated, people live under oppressive regimes with no opportunity to seek democratic reform. The definition of "terrorist activity" should clearly exclude these situations.
Investigative Hearings provisions of the proposed Bill should be dropped. Preventive Detention provisions should expire within the three-year period "sunset clause".
Reinstate all complaint and review procedures and provisions pursuant to Bill C-36;
The time period for the Second Reading of the Bill should be extended, and public hearings throughout Canada should be held to give Canadians an opportunity to comment on what could be considered one of the most important and significant pieces of legislation dealing with the curtailment of civil and human rights to be introduced in the last number of years.