Comments on Bill C-36, Anti-Terrorism Act

 

COMMENTS OF THE CANADIAN COUNCIL FOR REFUGEES ON BILL C-36, ANTI-TERRORISM ACT 5 November 2001

 


Introduction
The Canadian Council for Refugees is an umbrella organization with some 170 members from across Canada. The members are a diverse group of organizations, including ethnospecific organizations, agencies serving immigrants and refugees, refugee sponsorship groups, local and provincial umbrella associations, lawyers' groups and many other organizations concerned for refugee protection and newcomer settlement. The CCR brings an international human rights perspective to issues and has presented this specific expertise in a number of interventions before the Supreme Court of Canada.

Bill C-36 raises concerns for the CCR in relation to its potential impact of C-36 on refugees and immigrants. The CCR draws its comments from years of experience with the application of provisions relating to "terrorism" in the Immigration Act. Earlier this year, the CCR published a paper, Refugees and Security (March 2001), addressing this issue and illustrating the impact on refugees of the Immigration Act's security provisions, and in particular the references to "terrorism. Based on its experience, the CCR has concluded that reference to "terrorism" in the law necessarily introduces vagueness, confusion and politicization and leads to arbitrary, inconsistent and discriminatory decisions. The CCR therefore recommended that reference to "terrorism" be deleted from C-11, the Immigration and Refugee Protection Act.

Summary of recommendations
The Canadian Council for Refugees recommends that:

  • The definition of "terrorist activity" be limited to offences referred to in the international instruments.

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  • The definition of "terrorist group" be limited to entities whose single purpose is facilitating or carrying out "terrorist" activity.

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  • The use of summaries of evidence in criminal proceedings be excluded.

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  • Part 6: Registration of Charities - Security Information be deleted.

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Definition of terrorist offences
Neither the current Immigration Act nor Bill C-11 define "terrorism" or "terrorist". Canadian courts have likewise declined to offer a definition. This state of affairs reflects the difficulty, felt at the international level, in defining a term that is highly politicized.

The use of the term "terrorism", undefined, in the Immigration Act has had very serious negative consequences for refugees and others who are innocent of any violent action. In a context where the Federal Court has stated that "terrorism" is largely in the eye of the beholder, it is not surprising to find that the application of the provisions is inconsistent and discriminatory. The imprecise nature of the "terrorist" label makes it almost impossible for individuals to defend themselves against charges. The CCR has noted that some groups seem to be particularly targetted (including Kurds, Sri Lankan Tamils, Sikhs, Algerians and Palestinians) while other groups that are in many respects similarly placed seemed to be relatively untouched by the security net. The inconsistency of application is also illustrated by the treatment of two applicants for landing, Suleyman Goven and Sami Durgun. Both saw their applications delayed for years because of security concerns and eventually both complained to the Security Intelligence Review Committee about CSIS's handling of their cases. SIRC made identical recommendations in both cases, finding that there was no evidence that either were a security risk and calling for them to be granted permanent residence. However, while Sami Durgun has just recently been granted permanent residence, Suleyman Goven's application has been denied.(1)

Reference to "terrorism" is also problematic because it is used in a highly politicized way. Many refugees have painful personal experience of this, having being labelled as "terrorists" by a persecutory state intent on criminalizing its opponents. In classifying acts as terrorist, there tends to be a bias in favour of labelling actions of non-state agents as terrorist, but not similar acts when carried out by a state (at least not when carried out by a state viewed as "civilized"). This can translate into a bias against the refugee and in favour of the persecutory state.

Bill C-36 does not offer a definition of "terrorism" but does define "terrorist activity" and "terrorist group." Public discussion on the bill's attempted definition has illustrated very clearly how difficult it is to distinguish between what one might agree to be "terrorist" and what should be considered merely "criminal" or "illegal."

The distinction is of enormous importance to people affected by the Immigration Act. It can make the difference between whether or not one has the right to have one's refugee claim heard. Under Bill C-11, a person who there is reasonable grounds to believe has engaged in terrorism (S. 34(1)(c)) is ineligible to make a refugee claim (S. 101(1)(f)). If, on the other hand, the person is believed to have committed a crime that is not considered "terrrorist", the person is only ineligible if there has been a conviction for an offense punishable in Canada by a maximum of at least ten years and the Minister has found the person to represent a danger to the public in Canada (S. 101(2)(a)).

It is not at this stage clear how the definitions in C-36 will affect the interpretation of "terrorism" in the immigration legislation. It would seem likely that there will be an impact. We must therefore be concerned about the very wide net thrown by the definitions. Scenarios such as striking nurses, aboriginal blockades or anti-globalization demonstrations need to be considered from the refugee perspective. Dissidents who have engaged in similar forms of protest in their home countries and who come to Canada seeking protection from persecution can be denied the right even to make their claim if those protests are characterized as "terrorist." While some might think it unlikely that the anti-terrorism provisions would be used against people such as striking Canadian nurses, we believe, based on our experience, that there is regrettably a far greater risk that the broad interpretation would be applied to refugee claimants. The context of the claimants' actions in the home country is often little known and easily misunderstood in Canada, they are more likely to be the victims of discrimination and a decision taken against them by Canadian authorities is unlikely to attract much public scrutiny.

For the reasons outlined above, the Canadian Council for Refugees considers the concept of "terrorism" inherently problematic. The violent actions that we all abhor, such as murder, hijacking and assault, are already crimes under the Criminal Code. The Canadian government should not try to go beyond what has been agreed to at an international level, that is the terrorist activities referred to in the Conventions listed.

Recommendation: Amend the definition of "terrorist activity" to limit it to the offences referred to in the international instruments, that is, delete (b).

Definition of terrorist group
Principles of justice espoused by Canadians reject the notion of guilt by association. In other words, we believe that a person can only be guilty of something for which he or she was personally responsible.

In immigration legislation
This principle is not respected in the immigration legislation (both the current act and C-11) which make a person inadmissible simply on the basis of membership in an organization that engages or has engaged in terrorism. This is the ground related to terrorism that affects the greatest number of refugees and immigrants. It is above all in this ground that the distinction between a crime and a "terrorist" crime is felt. Individuals who have committed a serious crime such as murder are inadmissible whether the crime is characterized as terrorist or not. But if the murder is characterized as terrorist, the person's associates also risk being inadmissible to Canada, even though they may have had nothing to do with the murder and may in fact even be ignorant of the murder.

Ironically, under the refugee definition, persecution on the basis of one's association with others can lead to refugee status. A person might be persecuted because of associations with individuals or groups labelled "terrorist" and on that basis qualify as a refugee. But on arriving in Canada to claim refugee protection, however, the person may be denied access to the refugee determination because of those same associations.

In C-36
Under C-36 there is an effort to ensure that offences are defined in such a way as to require that the perpetrator has the purpose of facilitating or carrying out a terrorist activity. However, the notion of "facilitation" is potentially so broad that it opens the door to the effective criminalization of membership. Under S. 83.03, for example, a person can be charged with collecting or providing property or services for the purpose of benefitting any person who is facilitating a terrorist activity. This would seem to criminalize support for a political cause where that support is viewed as having gone to a "terrorist group" even though the person giving the support may not have intended the support to be used for violent actions.

Furthermore, the concept of a "terrorist group" works against the requirement of intent or personal responsibility. That certainly is the case with the provisions in the Immigration Act. The provisions relating to the Registration of charities - Security of Information are also extremely problematic (see below).

Multi-faceted nature of groups
The problem arises because groups that commit acts that may be characterized as "terrorist" are often multi-faceted, and not necessarily limited to a single, violent purpose. People may be members of or associated with a group without being involved in or supporting "terrorist" actions and perhaps even without knowing that they are being committed.

This reality is recognized by the UN High Commissioner for Refugees, whose guidelines on the application of exclusion clauses in the refugee context state:

The fact of membership does not, in and of itself, amount to participation or complicity… [M]embership per se of an organization which advocates or practices violence is not necessarily decisive or sufficient to exclude a person from refugee status. The decision maker will need to consider whether the applicant had close or direct responsibility for, or was actively associated with, the commission of any crime specified under Article 1F… Moreover, regard must also be had to the fragmentation of certain terrorist groups. In some cases, the group in question is unable to control acts of violence committed by militant wings. 'Unauthorized acts' may also be carried out in the name of the group…
UNHCR, Exclusion Clauses: Guidelines on Their Application (December 1996), at paras. 40, 45, 47, 48.

The example of the African National Congress is useful to illustrate the problem. During the apartheid regime in South Africa, actions taken by the armed wing of the ANC can be viewed as meeting the definition of "terrorist activity." The ANC in turn would have met the definition of "terrorist group" in C-36, even though most members of the ANC were opposing apartheid in non-violent ways. Because in the Immigration Act inadmissibility covers organizations that committed terrorist acts in the past, members of the ANC continue today to be inadmissible to Canada on security grounds. This is a striking example of the point made above that the "terrorist" label favours the state against the non-state parties: Canada's laws make those who supported the struggle against apartheid inadmissible to our country, but those who supported apartheid face no such barrier, unless they personally committed a crime. The irony is underlined by the recent decision by Parliament to make Nelson Mandela an honorary citizen.

Many refugees are of persecuted ethnic populations. Organizations formed to defend the interests of the group may choose violent means to advance their cause, but at the same time the organization may be serving a key role in the community: offering essential services, representing the group's political aspirations and providing a focus for cultural events. Membership may be very broad-based and bring together large numbers of people who may share little other than an ethnicity and an experience of persecution.

The definition of terrorist group in C-36 is very broad. It includes groups that have purposes other than "facilitating or carrying out" terrorist activities. It thus embraces wings of organizations that have been in no way involved in violent action. The definition does not require that "terrorist activity" be a stated purpose of the group, leaving the door open to the characterization of groups as "terrorist" because a sub-section committed certain acts, even though this was without the approval or even knowledge of other sections of the group. The provisions relating to the establishment of a list include entities that are "acting on behalf of, at the direction of or in association with" a group that commits "terrorist" actions. Thus bill C-36 specifically provides for listing organizations that do not themselves commit "terrorist" actions and that do not necessarily support any such actions. A political organization that has relations with an armed movement may be caught, even if the organization's purpose is to bring the armed conflict to an end. It may be said that this is not the intention of the provision, but if this is not the intention, why is the bill framed in such a way that it remains a possibility?

With respect to the implications of C-36 for the immigration legislation, it is again not clear how the definition of "terrorist group" will affect the interpretation of the inadmissibility provisions on the basis of membership in an organization that engages in terrorism. However, at a minimum it would seem almost inevitable that if an organization is listed as terrorist pursuant to C-36, members of that group would be inadmissible. A very grave concern therefore is with respect to the extremely broad definition of terrorist group that includes organizations many of whose members have no involvement in or responsibility for "terrorist activity."

Recommendation: Limit the definition of "terrorist group" to entities whose single purpose is facilitating or carrying out "terrorist" activity.

Non-disclosure of security information
Bill C-36 contains amendments to the Canada Evidence Act that introduce a version of the certificate process already found in the Immigration Act (S. 40.1) that permits a court to consider evidence that will not be disclosed to the accused or person concerned. A similar process is provided for in Part 6 of C-36, Registration of Charities - Security Information. Experience with this process in the immigration field has revealed the problems that it causes for persons trying to defend themselves against charges when they cannot know the exact nature of the charges or the source of the information on which the charges are based. The CCR therefore endorses the comments and recommendation of the Canadian Bar Association on these provisions.

It is also worth noting that the Inter-American Commission on Human Rights raised serious concerns with the security certificate process in its Report On The Situation Of Human Rights Of Asylum Seekers Within The Canadian Refugee Determination System, February 2000. It stated at paragraph 157:

The Commission observes that the provisions of section 40.1 raise certain due process concerns under, inter alia, Articles XVII and XVIII of the American Declaration. First and foremost, where information considered within the process is withheld, the person concerned cannot be fully apprised of the case he or she is to meet. The legislation provides that the information at issue must be deemed relevant by the judge; however, its terms do not require an evaluation of the credibility or veracity of the original source, and the person concerned is unable to challenge the source or to rebut the content of that information. Although the certificate review process is not criminal in nature, the non-disclosure of such information may well prejudice the rights of the person concerned, giving rise to serious consequences. Once a certificate is upheld by a judge, it constitutes conclusive evidence that the person named falls within an inadmissible class, and mandates that he or she be detained until removed from Canada. While the IACHR recognizes that the State is necessarily concerned with the need to protect its ability to collect sensitive information, it is a fundamental principal [sic] of due process that the parties engaged in the judicial determination of rights and duties must enjoy equality of arms. A person named in a certificate who is the subject of secret evidence will not enjoy a full opportunity to be heard with minimum guarantees, the essence of the right to due process. Both citizens and non-citizens must be accorded due process in the determination of basic rights, in this instance, the right to seek asylum and the right to personal liberty, in particular. [footnotes omitted]

Recommendation: Amend the bill so as to preclude the use of summaries of evidence in criminal proceedings.

Registration of charities - Security Information
The Canadian Council for Refugees testified earlier this year on C-16, a version of what is now Part 6 of Bill C-36. The concerns we had at that time are not allayed by the various changes made between C-16 and the current text we have before us.

The Canadian Bar Association in their submission on Bill C-36 identified a number of concerns in the areas of procedural fairness, definition, limited defence and public perception of charitable activities and fundraising. We share these concerns.

We would like here to highlight the fact that Bill C-36 provides for a certificate to be issued against a charity in a wide range of circumstances and without any requirement of "guilty" purpose by the charity. This is in strong distinction to the definition of offences that required that the person be acting with the purpose of faciliting terrorism. A group may have a certificate issued against them because they made available resources to an entity that is engaged in "terrorist" activity. The charity's money may have gone exclusively to humanitarian activities and the charity need not even have been aware that the organization is considered to have committed "terrorist" activities.

Recommendation: Delete Part 6: Registration of Charities - Security Information.

Impact of C-36 on the sense of security of refugees and immigrants in Canada
A significant number of refugees and immigrants settle in Canada in part because they wish to be able to act on the fundamental freedoms denied to them in their countries of origin. They see Canada as a country in which rights such as the freedom of expression and the freedom of association will be respected. We are concerned that C-36 will have a chilling effect on non-citizens' political and social activities, since refugees and immigrants may be fearful that their freedoms will not be respected. These fears are informed by the knowledge that discriminatory beliefs and practices continue to be commonplace in Canadian society. Many communities also face the problem that the complexities of events in their home countries are little understood in Canada, with the result that support for a political option might be confused with support for violent actions. Finally, the more recently arrived communities are likely to be more vulnerable than the more established communities, in that it is that much more difficult for them to make their perspective heard, including to the politicians, to whom C-36 would give considerable discretionary decision-making authority.

Canadian Council for Refugees, 6839 Drolet #302, Montréal, QC, H2S 2T1, (514) 277-7223, fax (514) 277-1447, info@ccrweb.ca, http//www.ccrweb.ca

1. In the matter of the complaint under the Canadian Security Intelligence Service Act by Suleyman Goven and Sami Durgun, SIRC File # 1500-82,83 (7 April 2000). SIRC finalized report on these two complaints in 2000: see SIRC Annual Report, 1999-2000 at 82, footnote 33.

Nov 2001