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November 27, 2001

Hon. Anne McLellan, P.C. M.P.
Minister of Justice
Department of Justice
East Memorial Building
284 Wellington Street
Ottawa ON K1A 0A6

Dear Minister,

Re: Bill C-36, Anti-Terrorism Act Government Amendments
The Canadian Bar Association is concerned about your government's decision to limit debate on Bill C-36. In our view, the limitation of debate underscores the need for a true sunset clause, applicable to more than just two of the many extraordinary provisions in the Bill. Limitation of the debate could also occur under the three-year review in clause 145. We are pleased that you have put forward some of our constructive suggestions to the House of Commons Justice Committee. However, in our view, many parts of the Bill would still benefit from amendment.

We believe the sunset clause ought to apply to more than just the preventive arrest and investigative hearing provisions.

Your amendments take appropriate steps to ensure that the definition of terrorist activity will not encompass any strikes, protests or demonstrations. The amendments also deal with our concern that mens rea clearly be a required element of the offence of facilitation. They properly ensure that those who act reasonably in freezing alleged terrorist property are not subject to civil proceedings. However, the definition of terrorist activities needs further improvement as explained below.

The amendments circumscribe the power to prohibit disclosure under access to information and privacy legislation, subject that power to judicial oversight and limit the effective life of Minister's certificates prohibiting disclosure. We congratulate you for these amendments, but feel that a 15-year life-span for these certificates is simply too long. We are also concerned that judicial oversight now foreseen is limited merely to determining whether a certificate "relates to" confidential information from or about a foreign entity, national defence or security. We also believe that this power ought to sunset away unless Parliament makes a conscious and debated decision to prolong it.

In short, the amendments you have recently proposed have been an important step in the right direction. However, in our view, a number of critical areas still need to be changed. These include the following.

1. The breadth of the sunset clause should include other provisions of the Bill. As we have previously stated, the necessary accompaniment to the extensive restraints on fundamental rights and freedoms proposed by the Bill is an encompassing sunset clause.
   
   The extraordinary powers in the Bill are not limited to the investigative hearing and preventive arrests. Although those provisions have received the most publicity, the other significant powers to which the sunset clause should apply include:
   
   
   • the provisions which allow for the creation of lists of entities and persons who would ipso facto have all their property frozen and subject to forfeiture, and who would be shunned by all commercial partners;
   • the provisions which allow for Ministerial, and not judicial, authorization to wiretap;
   • the additional Ministerial power to block the operation of the Access to Information Act and the Privacy Act; and
   • any provisions which allow people's rights and liberty and acceptability as commercial partners to be determined on evidence which they are not permitted to see.
   
   We continue to believe that the appropriate sunset period would be three years and not five but attach greater importance to the sunset applying as indicated above.



2. The Bill still affects clients' rights to legal representation and to confidentiality in the solicitor-client relationship. We are convinced that there is no good reason for this.
   
   
   1. When lawyers represent people in proceedings under the legislation, they should be explicitly immune from criminal liability under the participation and facilitation offences in section 83.18. The current drafting of this section dissuades lawyers from agreeing to represent accused persons or entities. This is a straightforward question of fairness, entitlement to counsel and access to justice.
   2. Section 83.1 should explicitly exempt the disclosure of solicitor-client confidential information. As confirmed just this past week by the British Columbia Supreme Court in Law Society of British Columbia v. Canada, the solicitor-client relationship gives rise not only to privilege but to a legitimate and socially valuable expectation of confidentiality generally. The violation of solicitor-client confidentiality raises serious questions of a constitutional nature.
   3. Similarly, under section 83.28(8), solicitor-client confidential information should be specifically exempted from disclosure in an investigative hearing.
   4. Section 83.08(1)(a) should explicitly exclude from its ambit professional fees, expenses, disbursements and bail. A similar exemption is contained in the Proceeds of Crime (Money Laundering) Suspicious Transaction Reporting Regulations. We can see no reason why they should not be exempted here. Again, this is a question of fairness, entitlement to counsel and access to justice.
   5. Under proposed section 273.65 of the National Defence Act, the person authorizing the interception of communications must be satisfied that it does not involve solicitor-client confidences.

3. The scope of the various new terrorist offences should be more narrowly delineated and must always require proof of criminal intent.
4. The interception of foreign communications under proposed section 273.65 of the National Defence Act should be authorized by a judge, not the Minister of National Defence. The Minister is not only a member of the Executive Branch of government but, after all, an interested party.
5. The requirement that "terrorist activity" be motivated by ideology, politics or religion should be removed from the definition. This requirement makes the prosecution's task more difficult, as a terrorist offence should be seen in its nature and result rather than in the motivation that went behind it. It also pushes enforcement authorities to conduct unseemly investigations into accused's associations and religious beliefs. Furthermore, that investigation and the eventual proof of the religious or ideological motivation could encourage certain members of the public to see religious or national affiliation as justifying prejudices we have long sought to erase.
6. Procedural protections should be enhanced for those who are identified on the "List of Entities". Although the Governor in Council must have reasonable grounds to believe an entity "knowingly" engaged in terrorist activity, the serious consequences of being placed on the list require that a fair process be available for organizations that dispute the designation. Procedural protections have arguably been diminished because judges may now consider otherwise inadmissible evidence (see new section 83.05(6.1)). The Solicitor General's preparation and periodic review of the list must at a minimum be based on appropriate findings of fact and law.
7. The requirement for cumulative sentencing in section 83.26 should be deleted. It needlessly interferes with a determination which should be judicial and which should be based on all the different circumstances in each case.
8. Preventive arrest should only be possible where a police officer believes that the terrorist activity will be carried out imminently. We should not countenance detention without warrant on mere suspicion that an offence will at some future time be carried out. This is a change which ought to be made even if there is a sunset clause applicable to the Bill's preventive arrest.
9. Summaries of evidence should not be used in criminal proceedings, under the Bill's proposed amendments to the Canada Evidence Act. They are an affront to the principle of a right to a full and fair defence, which necessarily entails the right to know the case to be met.
10. The interests of journalists, and all of our interest in preserving a lively and free press, should be protected under the provisions concerning publication bans (proposed section 486(4.1) and interception of foreign communications (proposed section 273.65 of the National Defence Act).
11. Charities should be provided more procedural protections in deregistration proceedings. They should be entitled to a defence that they exercised due diligence to avoid making resources available to terrorists. They should not be exposed to the risk of loss of their charitable status if they have had appropriate mechanisms of compliance in place.

We thank you for the opportunity to make these further comments. We believe our proposals would improve the balance which must be made between public security and individual liberties. We welcome the chance to assist and we assure you of our commitment to contribute to the common quest for an appropriate balance in this far-reaching Bill.

Yours truly,

Eric Rice, Q.C.

c.c.

Rt. Hon. Jean Chrétien, P.C., M.P. Hon. John Manley, P.C., M.P. Hon. Lawrence MacAulay, P.C., M.P. Hon. David Collenette, P.C., M.P. Hon. Art Eggleton, P.C., M.P. Hon. Martin Cauchon, P.C., M.P. Hon. Elinor Caplan, P.C., M.P. Hon. Paul Martin, P.C., M.P. Hon. Stéphane Dion, P.C., M.P. Hon. Herb Gray, P.C., M.P. Gilles Duceppe, deputé Michel Bellehumeur, deputé Hon. Stockwell Day, M.P. Vic Toews, M.P. Alexa McDonough, M.P. Bill Blaikie, M.P. Rt. Hon. Joe Clark, P.C., M.P. Peter McKay, M.P.