Canada’s Anti-Terrorism Laws- Bills C36, C22, C35, C42

Presentation by Rocco Galati

Science for Peace Forum and Teach-In, University of Toronto, December 9, 2001

My name is Rocco Galati. I am a constitutional lawyer. I was a lawyer for the Crown for a few years before I went into private practice cases against the government. I was the counsel who brought the MAI case up through the courts to the Supreme Court of Canada, and argued the Quebec City injunction perimeter fence case up to the Supreme Court of Canada. I have been doing CSIS terrorist certificate cases under the Immigration Act, the so called secret trials that are now going to be part of C36 secret trial mechanism.

In a nutshell, what is in Bill C 36, and is undoubtedly not open for debate, what Bill C36 does is as follows. It has very little to do with terrorism. Terrorism is very easy to define. I have defined it for clients of mine appearing before parliamentary and senate committees.

Terrorism is a very simply definition. It is the application of terrorism that is all the problem. I define terrorism as the threat of or use of violence and arms by an armed group or individual against an unarmed group or individual for political, racial, religious, social, or economic reasons including state terrorism. You can take any other armed conflict whether it is two people duelling at dawn over a woman 200 years ago, or two groups in an insurrection or civil war, or war, or somebody doing it for profit, or drug running. We have laws to cover that, but that is not terrorism.

The only problem with a definition of that sort is that you have to apply it equally, and that’s where we get into problems, because certain states want to be able to support terrorism when it suits their needs. My only point is that this bill has very little to do with terrorism in the sense that the first speaker was speaking about.

1. What this bill does is really codify militarization and a police state, and further globalization interests. You see it right in the bill. The Bill is overly broad. Even though they took out the “lawful”, the Bill still catches dissent. It still catches protest. Protests that interrupt public facilities are acts of terrorism under this bill. No question about it, whether they are “lawful” or not, if they endanger life. Any protest that is going to cut off a part of the city from essential services like ambulances by definition endangers life. That is the price we pay in democracy. That is a terrorist act under this Bill.

2. The other thing the Bill does is that it can convict you of facilitating terrorism without any knowledge or intent. The government pretended that they changed the definition, but they didn’t. They changed it in one section and they took it away in another. Even if you don’t know you are facilitating, you are going to get caught. So the guy who sells the envelopes and the stamps at the corner store in my view is facilitating terrorism when the purchaser puts anthrax in them and mails them off, whether he knows it or not.

3. Then there is the 72 hour arrest on suspicion. The only test here is you can be held here for 72 hours without being charged on suspicion. That is not a test. That is not even a smell test. What is the suspicion going to be based on? It will be based on another portion of the Bill which allows the Court and police “in determining whether an accused participates in or contributes to any activity of a terrorist group the court may consider among other factors whether the accused uses a name, word, symbol, or other representation that identifies or is associated with the terrorist group”.

Now if I look around this room, I can probably pick out five or six women here who I find suspicious because the legislation allows it. So if you use the same religious or codeful symbols that some terrorist group has misappropriated for their own purpose, even though they are valid religious or cultural symbols of Islam or being Arab or being Tamil or being Sikh, then the legislation grants the police and the Courts the right to use that as the basis of suspicion. In my language that is just racist profiling. Racism, that is all it is.

So the 72 hour detentions are also problematic because there is no stop to the revolving door. One police officer on suspicion will arrest you for the 72 hours. You are released. That is not to say they can’t come back in 12 hours or 12 minutes and re-arrest you on another suspicion. So you can go around the revolving door this way. And they can put conditions on you similar to bail conditions even though you are not charged or arrested with anything, for a year at least without charging.

4. Investigative hearings are nothing short of Roman Catholic Inquisitions. That is all they are, maybe without the torture, maybe not. But who knows what people get tortured. Every group in this country has suffered torture at police hands. That’s documented.

So you are hauled in, and you have to answer questions. If you don’t answer questions, you are subject to criminal charge. They say they can’t use the answers against you in a court. Well, that’s not true because (1) they can use the answers to go engage in further investigation outside the answers, and that evidence can be used in court. (2) If you ever take the stand to defend yourself, the case law is clear they can use your answers to say that you are lying. So it is not true that they can haul you in and anything you say will never be used against you in court.

5. Really nasty provisions that no one seems to be talking about, quite frankly because they are so foreign to our law and our experience, are the secret trial provisions. Right now in Canada, there is only one instance where you get secret trials – that is on CSIS terrorist cases under the Immigration Act. That is where someone is accused of being a terrorist or associated with terrorism. What happens when they allege that you are a terrorist is that you never get to see the evidence. Your lawyer never gets to see the evidence. All you get is a summary of the allegations against you. And then the lawyer for the government sits with the judge and they review the evidence. And then you go into open court, and the judge says, “What do you have to say in response to the fact that we say you are a terrorist?”

And so the game goes something like this: “I was born in a little village” somewhere, wherever. “I knew all these people”, and you literally have to ransack through a person’s life and hope that in doing so that you are addressing whatever evidence, distorted rumour or hearsay evidence that is before the judge.

So these secret trials are really foreign. They’ve been around since 1990 in Canada (under Immigration cases, not the Criminal Law) . There has only been one case where it was fought and won. That was a case I fought and won two years ago. It was called Jibala. A case from Egypt. But lo and behold they re-arrested him again even though the federal court said there is nothing to the allegation. They re-arrested him this August and we are back on the merry go round.

So now under, C36 at various stages, if the police or the CSIS or RCMP say, “I can’t answer that question, I can’t divulge that evidence because it’s “national security” (they usually lower their voice to say that) then you don’t get to see it. That’s very dangerous because our whole system is based on testing the evidence against you.
6. That also goes for the confiscation of property. These secret trials allow for the confiscation of property as well. So your daughter has a friend who is Muslim who has a brother who may be associated with a group that is on the list. Let’s say there is any money that transfers. Let’s say your daughter is helping you with the mortgage, but she gets some help from her brother to pay the mortgage. They can and will confiscate your house. You will never know why.

Because that money is coming indirectly from a terrorist source, even though you don’t know that your daughter is getting money from her brother, and he’s associated with somebody, that property can and will be confiscated, and you will never know why. You will never see the evidence, and nobody will know why your property is getting confiscated, except for a bald allegation that is tied to terrorism.

7. Lastly, I want to say I personally find all this legislation C36, C35, C22, C 42 offensive: C35 which broadens state immunity to state terrorists or dignitaries from abroad from international organization. If they are terrorists its OK. They are immune from our law; C22 that makes lawyers spies for the government. They have to report suspicious activity and not tell their client; and C42 that’s just been introduced which allows ministers to delegate authority to their officers to declare military security zones on the spot, issue orders on the spot, and nobody can discuss the orders, even the subject of the order, because if you discuss it or publicize it, that’s a separate criminal offence;

If you take all these bills together, it doesn’t take a rocket scientist to see that what we have here is a road map for, essentially, I am not exaggerating, a military junta, really in the hands of four cabinet ministers who can delegate right down to the ground. That what’s happening. If you look at, and there’s no argument against this if you look at the legislation, it is so offensive.

8. The last point I want to make about this globalization and the militarization of that agenda is that if you look at the definition of terrorism, what they have done is very reptilian, very slippery, so nasty. They have included in the definition of terrorism “threats to and including its economic security”. So if you do anything that threatens the economic security of Canada, you are engaging in a terrorist act. Now, in addition to all the problems of protest, there is something even more insidious than this than just what is found in the definition of terrorism. Another part of this omnibus bill (Bill C 36) is that they’ve re-defined the Official Secrets Act and renamed it the State Security Act. Under that legislation, S3 of that act (Official Secrets Act) which is S.27 of this Bill C36, it says “for the purpose of this act a purpose is prejudicial to the safety or interest of the state if a person…” Then there are various thing that a person can do to endanger the security of the state:

(a) “interferes with the service facility or system or computer program”

(b) “damages property”

© (really offensive) “adversely affects the stability of the Canadian economy, a financial system, or any financial market in Canada without reasonable economic or financial justification” So boycotts of the markets or the banks on ethical or environmental grounds are now an act of terrorism. When you grasp that that’s “the economic security of the country” via the Official Secrets Act, now the State Security Act, you can’t even have financial dissent.

And then, here are the ones that are really nice.

(d) “impairs or threatens the capability of the government or the Bank of Canada to protect against or respond to economic or financial threats or instability

(e) “impairs or threatens the capability of the government of Canada to conduct diplomatic or consular relations or conduct and manage international negotiation.

So, no more Quebec city protests. They are all an act of terrorism. No protesting any stock market any financial market, or ethical or environment laws. So that’s how broad this bill is, and that’s how broad the net has been cast.
Answers to questions:

1.Q; Charter Rights:
A: There is not one single right in the Charter that has been developed from the Magna Carta to the English Bill of Rights, to the French Declaration of the Rights of Man, to the U.S. Bill of Rights, to the U.N. Charter, to the Canadian Bill of Rights, and to our Charter that has not been urinated upon and buried. There is not one right that it does not completely undo. You name me the right and I will tell you how it does it.

2. Q;
A: CSIS secret trials: CSIS secret trials in our Immigration law resulted from pressure from the USA against the Muslim and Arab communities. The Mulroney government put in the secret trial provisions back in the 80’s.

3. Q: Can these Bills be overruled?
A: Once you get handcuffed, and you get a lawyer, and you spend so much time in pre-hearing custody in the Metro West Detention Center where they put you in a hole for 18 out of 24 , you get 5 minutes in the yard if you are lucky. You do not get to phone your family or your lawyer. That is what is happening now with an immigration hold. Then you go in front of judge and you can make a Charter challenge. Then the court may or may not strike it. But you know, charter challenges and judicial court review are no substitutes for proper political debate and social economic balance in a society.

We were in front of the Senate the other day, and they sighed in relief that of course we were going to challenge it in the Courts and we said, “That is not a proper substitute. Do not be going to sleep hoping that we challenge it. It is your job to put in a proper bill.” This is where it is offensive.

4. A: I was an ex Crown Attorney. I read this bill as if I were prosecuting.

5. A: C42 is even worse than C36 .

6. Q: What motivated our government to put in these Bills?
A: I am not shy in saying this given my work on the MAI case and the Quebec city case. Anyone in tune with globalization protests and the agenda of the government (whether or not globalization is a good or bad thing, I am not going to reveal my true beliefs cause I don’t want to get fired by my clients but ) it became clear to the government of Canada that they were losing the handle on the globalization issue and I think they stomped on us.In fact, I know from friends of friends from the Justice Department in Ottawa that they were just foaming at the mouth when they got this opportunity, (hundreds of justice lawyers working on this). This thing has to do with giving globalization a military and police state so that nobody can protest. They can bash our heads now legally. They’ve been doing it anyway. So that’s what motivated the government.

If you read the Bill, this Bill (C36) should be 10 pages thick. You go to the Criminal Code. You enact terrorism, and you’re done.