CAPturing Courage:
News of the Canadian Action Party
Presenting , for your information, a speech on Canada's anti-terrorism laws: Bills C36, C22, C35, C42 by constitutional lawyer Rocco Galati.

Mr. Galati was the counsel who brought the MAI case up through the courts to the Supreme Court of Canada. He also argued the Quebec city injunction perimeter fence case up to the Supreme Court of Canada. He has 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. This speech was delivered at an event sponsored by the Scientists for Peace in Toronto, December 2001

Bill C36 has very little to do with terrorism. Terrorism is easy to define. It is the application of terrorism that is the problem.

Terrorism is 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 -- two people dueling at dawn over a woman 200 years ago, or two groups in an insurrection or civil war, or somebody doing it for profit or drug running -- we have laws to cover that. But that is not terrorism.

The 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.

First, this bill codifies militarization and a police state and further globalization interests. The bill is overly broad; it still catches dissent and protest. Protests that interrupt public facilities are acts of terrorism under this bill. Any protest that cuts off a part of the city from essential services like ambulances by definition endangers life. That is the price we pay in a democracy. That is a terrorist act under this bill.

Bill C36 can convict you of facilitating terrorism without any knowledge or intent. Even if you don't know you are facilitating, you are going to get caught. The guy who sells the envelopes and the stamps at the corner store is, in my view, facilitating terrorism when the purchaser puts anthrax in them and mails them off, whether he knows it or not.

Then there is the 72-hour arrest on suspicion without being charged. 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."

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 racial profiling. Racism.

The 72-hour detentions are also problematic because there is no stop to the revolving door. One police officer will arrest you on suspicion for the 72 hours. You are released. They can come back in 12 hours or 12 minutes and re-arrest you on another suspicion. They can put conditions on you, similar to bail conditions, for a year at least without charging or arresting you.

Investigative hearings are nothing short of Roman Catholic Inquisitions. That is all they are, maybe without the torture, maybe not. 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 them, you are subject to criminal charge. They say thay can't use the answers against you in court. Well, that's not true because, one, they can use the answers to go engage in further investigation outside the answers, and that evidence can be used in court; and two, 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.

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 or your lawyer never get to see the evidence. All you get is a summary of the allegations against you. Then the lawyer for the government sits with the judge and they review the evidence. 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?"

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

These secret trials are really foreign. They've been around since 1990 in Canada -- under Immigration cases, not Criminal Law. There has only been one case where it was fought and won -- 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, even though the federal court said there is nothing to the allegation. We are back on the merry-go-round.

Now under C36 at various stages, if the police or CSIS or the RCMP say, "I can't answer that question. I can't divulge that evidence because of 'national security' -- they usually lower their voice to say that -- then you don't get to see it. That's dangerous because our whole system is based on testing the evidence against you.

These secret trials also allow for confiscation of property. Say your daughter has a Muslim friend whose brother may be associated with a group that is on the list. Let's say money is transferred, that your daughter helps you with the mortgage with money she has borrowed from her friend or his brother. They can and will confiscate your house. You will never know why, except for, possibly, a bald allegation that is tied to terrorism. The money came, indirectly, from a possible terrorist source, even though you didn't know about it.

I personally find all this legislation C36, C35, C22, C42 offensive:

  • C35 broadens state immunity to state terrorists or dignitaries from abroad from international organization. If they are terrorists, it's okay; they are immune from our law.
  • C22 makes lawyers spies for the government. They have to report suspicious activity and not tell their client.
  • C42 allows ministers to delegate authority to their officers to declare military security zones on the spot, issue orders on the spot. 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 in the hands of four cabinet ministers who can delegate right down to the ground. That's what's happening. And there's no argument against this if you look at the legislation. It is so offensive!

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 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.

In addition to the problems of protest, there is something even more insidious than this. Another part of Bill C36 is that they've re-defined the Official Secrets Act and renamed it the State Security Act. Under both acts, 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 things 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"; and

(c) (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 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 acts of terrorism. No protesting any stock market, financial market or ethical or environmental laws.

That's how broad this bill is. That's how broadly the net has been cast.

Answers to Questions:

1. 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. 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 '80s.

3. Can these bills be overruled? Once you get handcuffed you get a lawyer and you spend so much time in pre-hearing custody in the Metro West Detention Centre where they put you in a hole for 18 out of 24 hours -- you get five 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 a 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 reviews 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. I was an ex-Crown Attorney. I read this bill as if I were prosecuting.

5. A C42 is even worse than C36.

6. What motivated our government to put in these bills? 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. I know from friends of friends from the Justice Department in Ottawa that they were 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. That's what motivated the government.

CAP President Connie Fogal says:
There's only one way to get rid of these laws: Replace all those who voted for them!