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 Joe Clark on:
Why Bill C-36 the anti terrorist  legislation
must not be passed  
Here is Joe Clark's response. Quite long. I am  not sure it
was written actually by him but who  knows.

Thank you for your e-mail. I appreciate your  taking the
time and the effort to write to me  and share your thoughts
on Bill C-36, the  government's proposed anti-terrorism

Since the terrorist attacks of September 11,  2001 the new
reality for Canadians is that our  priorities have changed
with respect to security  in our country. Bill C-36 is a
comprehensive,  175 page bill, which makes significant
amendments to the following: the Criminal  Code, the
Official Secrets Act, the Canada  Evidence Act, the
Proceeds of Crime Act, the  National Defence Act, the
Access to  Information Act, the Registration of Charities
Act as well as other Acts. It is expected to  become law
before the end of November 2001.

The PC / DR Coalition is generally supportive  of the
principles behind this legislative  response to fight
terrorism. The attacks of  September 11th were cowardly,
inhumane acts,  which have forced us to revisit and
reaffirm all  we hold dear. The bill attempts to achieve a
balance between the measures needed to  protect
Canadians from acts of terrorism with  the need to respect
civil liberties and human  rights that Canadians cherish.
Our Coalition  believes that a strong legislative response is
 necessary as are the resources to allow our law
enforcement community to be proactive in the  important
task of fighting terrorism.

However, we intend to propose amendments to  the
existing legislation to ensure that in the  efforts to protect
Canadians, security and  human rights can co-exist. The
proposed  legislation cannot needlessly infringe on
individual rights and freedoms thus, the focus  of our
amendments will touch on four main  areas: the need for
accountability and  oversight; the "sunsetting" of the
application of  the Act; minimizing infringement of rights
and  finally, greater clarity of new law enforcement  powers.
Bill C-36 was drafted quickly and is the  first of at least two
pieces of legislation that  will address terrorism. There is
nothing in the  bill, which addresses immigration laws
directly.  The second bill is expected to be introduced
shortly and will deal mainly with transportation  and border

Unlike other jurisdictions, this detailed piece of  legislation
does not define terrorism but  defines “terrorist activity” as
activity with a  “political, religious or ideological purpose”.
This has drawn some criticism as it may be  interpreted to
broadly. There is fear that  legitimate peaceful dissent
might fall under the  definition. The bill does make the
financing or  the use of property in the furthering of
terrorism a criminal act. It also provides for the  listing of
certain groups as terrorists thus,  freezing and seizing
their property. It will  become a criminal offence to
participate,  facilitate or harbour members of a terrorist
group and will criminalize the act of committing  mischief
to property or buildings owned or used  for a religious
purpose. In addition, spreading  hate propaganda on the
Internet and in other  telecommunication systems will
become a  criminal offence. The bill expands methods for
the taking of evidence outside the courtroom if  it is felt
that a witnesses’ safety is at risk and  gives new powers of

Sadly, this bill will tread on the concepts of  openness and
transparency in government by  allowing the Minister of
Justice the power to  deny Canadians access to
information. To deny  a request, the Minister of Justice
need only  invoke a reference to reasons of protecting
national security, defence or international  relations. This
broad and somewhat nebulous  provision could prevent
sensitive information  from potentially falling into the
hands of  terrorists but it overlooks the significant
safeguards and protections already in place.

Other changes include the modernization of the  Official
Secrets Act to make it an offence to  divulge information
that will prejudice the  interests of Canada along with a
provision to  make economic espionage a crime. Under the
Canada Evidence Act the Attorney General will  be given
the power to pursue a prosecution, and  also prohibit the
disclosure of information that  could adversely affect the
protection of  international relations. The Attorney General
 could also determine whether the federal or  provincial
Crown attorney will prosecute  charges.

The legislation for all intents and purposes  nullifies the
powers of the Information and  Privacy Commissioners and
removes judicial  oversi
ght, wherever the government
chooses to  invoke the use of certificates. Under the
legislation, the powers will be permanently  removed, given
the reluctance of the  government to sunset the application
of these  extraordinary powers.

The bill will also give the Defence Minister  expanded
power to grant wiretaps for a longer  duration. This will give
listening powers to  police for phone calls inside and
outside  Canada to monitor situations that might
compromise national defence. There is a  discretionary
provision to create an oversight  commissioner at the will
of the Minister.

Finally, the Minister of National Revenue will  now be able
to issue a certificate stating that  there are reasonable
grounds to believe that a  charitable institution is engaged
in funding a  terrorist organization. This change is long
overdue as it is necessary to cut off the  lifeblood of
terrorist organizations.

I do have serious concerns regarding the lack of  oversight
mechanisms found in bill C-36 and  the aspects that will
limit the free flow of  government information to the public.
Although  I understand the need for certain government
secrecy in matters of national security,  Canadians should
be alarmed by the potential  loss of the right to government
information  affecting their lives. During committee
proceedings dealing with bill C-36, both  Information
Commissioner, John Reid and  Privacy Commissioner,
George Radwanski have  indicated that the bill goes too far
in excluding  disclosure of information to Canadians. They
were clear in condemning the legislative cloak  of secrecy.
The proposed amendments to  Section 70 of the Privacy Act
and Section 87 of  the Access to Information Act would
grant over  reaching powers to refuse disclosure of any
information. This power would be open to  abuse by a
Liberal government and Prime  Minister who do not have a
good track record  for openness and accountability. I need
only  reference the APEC Inquiry, the Grand Mere  scandal
and the recent performance of the  Health Minister to
highlight that point.

The Liberal government should not use the  threat to
public security to justify a Cabinet  clamp down on the free
flow of information. A  permanent removal of the powers of
review and  disclosure vested in officers of Parliament is
not necessary given the safeguards that  currently exist.
Neither these officials nor the  judiciary have the ability to
overturn Cabinet  security. Contrary to the Justice
Department’s  assertions, other countries such as the
U.K.,  the U.S.A. and Australia are not moving to acts  of
secrecy, nor are they requesting Canada do  the same. The
American President is still  subject to judicial and
congressional checks on  his power while our Prime
Minister would  become exempt. The privacy aspects of bill
C-36 will nullify the powers of these  independent officers
of Parliament. As a result,  future public attempts to obtain
government  held information and accountability could be
rejected and hidden behind the broad language  of these

The PC / DR Coalition believes that bill C-36 is  a good
initiative in Canada’s response to  terrorism. The
legislation addresses a number  of the concerns that have
been raised since  September 11th regarding the
inadequacies of a  variety of statues that deal with acts
which  threaten peace, order and good government in  this
country. Bill C-36 creates a series of new;  specialized
offences designed to more  particularly capture terrorist
crime and the  wilful, supportive activities. I feel that the
bill  takes some of the necessary steps to expand  the
scope of a criminal offence to include the  participation in,
facilitation of and harbouring of  a terrorist group. It is
similar to the organized  crime bill C-24 which criminalizes
participation  in organized crime as the offence, not simply
belonging to the organized group. In this case,  the
definition is wide enough to include those  who recruit and
train terrorists and it provides  for the offence whether or
not the group  actually participates in terrorist activity.

However, I remain concerned that the bill may  place too
much power in the hands of  government Ministers. Many
of the bill’s new  legislative measures are vested solely in
the  office of a single cabinet minister. I believe that  such
power should either be given to, or at  least checked by the
judiciary or an impartial  oversight committee placing such
power and  discretion in the hands of the executive could
be open to abuse for political purposes. As well,  many of
the new provisions require proof that  the Criminal Act was
committed for political,  religious or ideological reasons.
This places a  very high standard of proof, which is difficult
for  the Crown and police to meet in securing the
successful prosecution of offences.

I am also concerned with the Liberal tendency  to make
grandiose political announcements  without providing the
proper funding to enact  the legislative initiatives. The
practical reality  is that to implement this law, more
personnel,  training, equipment and overtime are needed to
 fulfill these new obligations and  responsibilities. The
additional authority and  powers that bill C-36 will give to
police must be  accompanied by the dedication of additional
 resources to train them how to use these new  tools. The
Solicitor General has recently  announced funding
increases to the RCMP and  CSIS but considering that the
Liberal  government had been financially starving these
groups for years, prior to September 11th, this  recent
funding will not even begin to address  the additional
responsibilities for Canada’s law  enforcement agencies.
The current  reassignment of over 2000 RCMP officers to
duties outside their current postings highlights  the
personnel shortages. The government’s  decision to put
RCMP in National Parks and at  boarders is stretching
security capacity to the  breaking point.

Clearly, there is a need for police to be able to  immediately
arrest someone they believe on  reasonable grounds to be a
terrorist threat.  Many Canadians are concerned that the
expanded powers of arrest and detention are in  some
instances open to government  interference as was
highlighted by the APEC  report presented by Mr. Justice
Ted Hughes.  Bill C-36 would enable police to arrest and
detain an individual for up to 72 hours without  charge.
This type of police power not only could  be used to curtail
the right of assembly and  demonstration but it is contrary
to the thrust  of the APEC Report.

The powers of investigative hearings require  further
definition and some reasonable  parameters. While a
person can be compelled to  give evidence and produce
physical evidence,  the traditional right to silence is
completely  overridden.

There is growing evidence that the more  intrusive sections
of the bill must be subject  to sunset clauses. A simple
review will not  suffice as it is not binding nor will it
provide  adequate protection. As we have seen in  current
“mandatory” reviews such as the  supposed review of the
mental disorder  provisions, which were to be reviewed
seven  years ago, they are simply not followed.  Therefore, I
feel that previously mentioned  sections of concern in the
Act, which I have  highlighted, should be subject to a
sunset  clause, forcing these provisions to expire at  the
end of three to five years. I support most  provisions of the
bill, which will fulfill  Canada’s commitments under the 12
United  Nations Conventions and Protocols related to
terrorism. These sections are aimed  specifically at
targeting terrorism without  infringing upon civil rights. It
is my belief that  these provisions with amendments
should be  passed quickly into law. The more controversial
sections of the bill should be subject to further  scrutiny
and sunset clauses providing a  mandatory re-introduction.
Inserting sunset  clauses would allow adequate time for
the  public to evaluate these sections of the bill  and force
the government to justify the need for  a re-implementation
of the bill in what we  hope will be a more stable, secure
period in the  future.

Despite these concerns, I feel that the  circumstances
facing Canadians since  September 11th necessitate a
heightened effort  to combat the threat of terrorism. The
very first  obligation of government and all
parliamentarians is human security. We will  present our
concerns to the Justice Committee  in the hopes of
improving Bill C-36 and  providing Canadians with strong
legislation to  protect the public and combat the threat of

Once again, thank you for your correspondence.


Joe Clark