Irwin Cotler

[Terrorism, December 4th, 2001]

Mr. Speaker, the Prime Minister correctly characterized the terrorist assaults on Israel this past weekend as a “monstrous taking of innocent life”.

Indeed, they are a clear violation of United Nations international law principles that terrorism, from whatever quarter, for whatever purpose, is unacceptable and that it is prohibited to facilitate, support or perpetrate acts of terrorism. On the contrary, it is the responsibility of governments to bring terrorists to justice.

Accordingly, whether Arafat is a partner for peace or a participant in terror will be determined by his own response to the following verification measures for counterterrorism.

Will Arafat and the Palestinian Authority: first, cease and desist from government sanctioned incitement to terror and violence against civilians?; second, disarm and dismantle the terrorist infrastructure that enjoys base and sanctuary within the jurisdiction of the Palestinian Authority itself?; third, cease and desist from aiding and abetting acts of terror?; fourth, declare Hamas, Islamic Jihad and the Popular Front for the Liberation of Palestine, organizations that publicly seek Israel's destruction and commit terrorist acts to that end, to be terrorist organizations?; and finally, will Arafat and the Palestinian Authority bring to justice--

[Anti-terrorism Act, November 27th, 2001]

Mr. Speaker, on October 16, one day after the introduction of Bill C-36, I rose in the House to identify nine areas of civil libertarian concern. These concerns and related references subsequently found expression in witness testimony before the House of Commons justice and human rights committee, in parliamentary debate and within my own remarks inside and outside the House. Accordingly, I am pleased that six core concerns whose importance may not have been fully appreciated, particularly those that relate to matters of secrecy and disclosure, have found expression in amendments to the original bill which I would like to summarize as follows.

First, and as a matter of particular concern, the definition of a terrorist activity has been circumscribed to ensure that the focus is on the intended terrorist evil rather than the lawfulness or unlawfulness of the act which underpins it. Accordingly, the amendment seeks to ensure that any advocacy protest, dissent or work stoppage activity, even if unlawful, even if attended by violence, even if it causes disruption to an essential service, would not be considered a terrorist activity unless it is undertaken for a political, religious or ideological purpose and it is intended to cause death, serious bodily harm, endangerment of life or serious risk to health or safety and it intends to intimidate the public, or segment thereof, or coerce the government, et cetera to do or refrain from doing something. In a word, unless the violent criminal act committed includes these three requirements of intentionality and motivation, it could not be characterized as a terrorist activity.

Second, mens rea or guilty intention is a requirement for criminal responsibility for a terrorist offence, including the notion of facilitating a terrorist activity.

Third, the power of the attorney general to issue a certificate prohibiting disclosure of sensitive security related information was, prior to an amendment, an unfettered, unreviewable power. Now, after amendment, the certificate cannot be issued at any time but only after an order for disclosure in a legal process. The issuance of the certificate would not remain secret but would be published in the Canada Gazette . The certificate would not be unreviewable but subject to judicial review by a Federal Court of Appeal judge. The access to information and privacy acts would not be excluded but would still apply, as would the oversight by the privacy and information commissioners. The existing provisions for the collection, use and protection of information would be preserved.

Fourth, a non-discrimination provision has been included to ensure that political, religious, or ideological expression could not be converted into any form of terrorist activity so that visible minorities could not be singled out for differential and discriminatory treatment.

Fifth, there would be sunset provisions for two novel investigative and procedural mechanisms, the preventive arrest and judicial investigative hearings. Nor are these provisions themselves without internal safeguards. For example, in the matter of preventive arrests, this power can only be invoked if, and the following considerations have not always been appreciated, there are reasonable grounds to believe that a terrorist activity will be carried out and that imposing conditions or arrest is necessary to prevent the carrying out of the terrorist activity. The terrorist threat must be specific and involve a specific individual. The attorney general must consent to the arrest in all cases.

The detention after arrest must be subject to judicial review within 24 hours. In addition, the consent of the attorney general is required before a judge can be asked to impose supervisory conditions, or the release of a person, or detention for a longer period up to 72 hours.

Sixth would be the sunset clauses. I appreciate what has been mentioned in the House, particularly by members of the opposition, that they fall short of a full demise prior to subsequent parliamentary resolution. But they are only one prong, one aspect of a range of oversight mechanisms which include: the Canadian Charter of Rights and Freedoms; international human rights norms, including in particular principles respecting the right to a fair trial; the annual report to parliament of the Minister of Justice and the Solicitor General of Canada and provincial ministers of police; an annual parliamentary oversight by Commons and Senate committees for purposes of public accountability; oversight by information and privacy commissioners; requisite authorization or consent by the Minister of Justice and an enhanced judicial capacity in relation to offences and investigatory mechanisms under the act; mandatory three year parliamentary review of the legislation; and sunset clauses whose demise or continuation will be assessed on the basis of the justice audit of this whole range of oversight mechanisms.

There are other oversight mechanisms which may not be in the bill but are part of the democratic framework of public accountability. I am referring to civilian complaint mechanisms and civilian oversight of police conduct and the sunshine focus of the media. There is also the role of parliamentarians inside and outside the parliamentary process; the role of human rights and non-governmental organizations; the role and representation of the professional bar and legal academe; and the role of visible minorities. There is also the institutionalized consultation, though not mentioned in the bill, between the Department of Justice and representatives of visible minorities to ensure their ongoing involvement and feedback regarding the enforcement and application of the act.

We have been focusing or concentrating on the sunset clauses, which standing alone are admittedly limited in their oversight. But we are losing sight of the whole range of oversight mechanisms, parliamentary and extraparliamentary, that together constitute a far more important sunshine process of democratic accountability.

We should not only be thinking in terms of sunset clauses, but more important, in terms of a sunshine process.

[Violence, November 26th, 2001]

Mr. Speaker, the United Nations general assembly declared yesterday, November 25, as the International Day for the Elimination of Violence Against Women, marking the beginning of a 16 day period of activism against gender violence. In the words of the general assembly resolution, “violence against women is an obstacle to the achievement of equality, development and peace”.

Yet women around the world continue to be victimized by gender violence. A quarter of the world's women have been raped during their lifetime. In Canada 50% of women by age 16 have been the victims of at least one incident of physical or sexual violence while gender violence remains among the most unseen and unpunished of all violations of universal human rights.

The International Day for the Elimination of Violence Against Women should strengthen our call to eradicate gender violence and protect its victims, to reaffirm our commitment to the empowerment of women throughout the world and to invite us to re-examine the power of gender relations in our own communities so that we may eliminate all forms of gender subordination and discrimination.

[Nelson Mandela, November 19th, 2001]

Mr. Speaker, on behalf of my rainbow riding of Mount Royal and of all Canadians, and also as someone who took part in the anti-apartheid movement for 20 years, I would like to wish a warm welcome to Nelson Mandela, a great citizen of the world, who became an honorary Canadian citizen during a historic ceremony this morning.

This honorary citizenship will have a historic and inspiring resonance for Canadians, for good relations between Canada and Africa, and for the reaffirmation of our common humanity.

Nelson Mandela is a metaphor and message of the long march toward freedom, of the struggle against racism and hate, and of the struggle for human rights, human dignity, democracy and peace.

Above all, as a person who endured 27 years in a South African prison and emerged to become president of South Africa and to preside over the dismantling of apartheid, he is a metaphor of hope for citizens everywhere, particularly the young people of our time.

[International Criminal Court, November 8th, 2001]

Mr. Speaker, the 20th century may well be regarded as the age of atrocity, as we witness some of the worst atrocities in the history of mankind. It might also be regarded as the age of impunity since most of the perpetrators were never brought to justice.

The treaty for an International Criminal Court represents a revolution in the struggle against impunity in the protection of human security. Canada has played a lead role both in the establishment of the International Criminal Court and in securing the necessary ratifications to bring this treaty into effect.

I am pleased to inform the House that Canada co-sponsored a symposium on “The International Criminal Court, A Challenge to Impunity”, this past weekend in Damascus, Syria, which brought legal experts together with the Syrian government on the occasion of the visit of the Minister of Foreign Affairs.

The symposium will facilitate Syria's ratification and implementation of the international treaty and will hopefully encourage ratification and implementation by other countries in the region, all in the pursuit of international peace and justice.

[Terrorism, October 22nd, 2001]

Mr. Speaker, Parliamentarians for Global Action, of which I am chair of the Canadian chapter, is an international network of parliamentarians from over 100 countries with a mandate to promote a broad human security agenda.

Parliamentarians for Global Action adopted a resolution on the terrorist attacks of September 11 pledging the support of its members for the international effort to combat terrorism including, first, calling on all governments to join the United States in identifying and bringing to justice the perpetrators of this crime against humanity; second, developing a co-ordinated strategy to halt international terrorism, including targeted sanctions, the freezing of financial and other assets and the selective and legal use of force; and, third, urging all people to refrain from attributing guilt by association and retaliating against any ethnic, national or religious groups and their communities and to maintain their commitment to dialogue, understanding and the preservation of an open and tolerant society.

In a word, PGA regards the raison d'être of anti-terrorism law and policy as protective of human security, including both national security and civil liberties, and as involving a multilayered and multilateral diplomatic, legal, political and economic effort to underpin it.

[Israel Sirota, October 18th, 2001]

Mr. Speaker, in recognition of his outstanding contribution in assisting new residents from Russia to integrate into Canadian society, Rabbi Israel Sirota, a resident of my constituency of Mount Royal, has been awarded a 2001 citation for citizenship.

He is one of only twelve individuals across Canada and one of only two Quebecers who has received this prestigious award which will be presented at a ceremony in my riding this evening.

Shortly after his immigration to Canada, Rabbi Sirota, originally from Tashkent, Uzbekistan in the former U.S.S.R., founded the Jewish Russian Community Centre based in my riding. Its objective was to facilitate the integration of Russian Jews into Quebec and Canadian society by providing a range of spiritual, material, educational, professional and cultural services.

Rabbi Sirota's home is home to all Russian immigrants. In his garage he stores donated furniture. His fridge serves as a food bank from which volunteers personally deliver food to the needy. At his home new immigrants learn, experience and grow to love their heritage, and assemble to listen to political and community leaders on topics ranging from immigration to elections.

Rabbi Sirota is a role model for multicultural citizenship. His leadership by example has inspired Russian immigrants to give back to the community which nurtured them and to develop a heightened sense of the importance of participating in the building of Quebec and Canada. He has shown how one person can make a difference.

[Terrorism, October 17th, 2001]

Mr. Speaker, the government's anti-terrorism law is not only intended to mobilize the domestic legal arsenal against international terrorism but to help build and strengthen the international mechanisms to confront the new supernational terrorism.

Accordingly the Canadian government is hosting this week an international conference on money laundering involving participants from 43 countries to address and redress an evil that threatens the security and lives of people.

In particular, terrorists and transnational criminal syndicates have enormous resources at their disposal with the capacity to infiltrate, undermine and circumvent legitimate socioeconomic infrastructures and transactions.

By targeting money laundering, the soft underbelly of terrorist and criminal organizations, the conference aims to stem the illicit flow of funds that sustain these organizations, which exemplifies our international leadership role in protecting human security in mobilizing the legal arsenal to put people, their safety and their lives first.

[Anti-Terrorism Act, October 16th, 2001]

Madam Speaker, the introduction of this legislation has generated a configurative response which tends to characterize if not stereotype the discussion as one of national security versus civil liberties. Accordingly, I would like to identify if not briefly comment upon a cluster of areas that have been configured as national security versus civil liberties concerns.

I would like to suggest that the appropriate optic should be that of human security, that the appreciation of this legislation should be approached from the perspective of the promotion and protection of human security and which sees the anti-terrorism law and policy as a priority on the human rights agenda and not simply on a national security agenda, and which jettisons the moral and legal shibboleth that one person's terrorist is another person's freedom fighter, which has blunted and blurred the moral and juridical divides and pre-empted and precluded effective anti-terrorism law and policy.

First, it has been said that the legislation is not unlike the War Measures Act, that it is violative of our guaranteed fundamental freedoms under the charter of rights and freedoms and that it will not pass constitutional muster.

It is important to recall that there was no charter of rights at the time of the War Measures Act, that the provisions authorizing preventive detention and the like under the War Measures Act have no parallel under the present legislation; that the rights and freedoms under the charter are not absolute but are subject to reasonable limitations prescribed by law, as can be demonstrably justified in a free and democratic society; and that the supreme court has developed a number of interpretative principles, such as the contextual principle, the internationalist principle and the comparativist principle, to determine whether any limitations are in fact demonstrably justified.

For example, under the contextual principle, the issue would not be examined under the abstractions of national security versus civil liberties, but under the concrete case and context of terrorist assaults on human security.

Under the internationalist principle, the court would look to see whether the legislation is in pursuit of our international treaty undertakings and the like.

Under the comparativist principle, the court would look to see what other free and democratic societies like the United States and the United Kingdom have done. Under the margin of deference principle the court might well defer to a parliamentary judgment respecting the overall promotion and protection of human security in the face of this international terrorist assault.

Second, the question arises whether the definition of what constitutes terrorist activity and terrorist offences and whether these definitions are over-broad or sufficiently circumscribed to pass constitutional muster. It is clear that in respecting the delineation of terrorist offences, pursuant to the 10 issue specific international anti-terrorism treaties, these offences are properly defined and circumscribed and they incorporate by reference definitions already under the international treaties and present in the criminal code.

With respect to new definitions of terrorist activity as set forth in proposed section 83.01 of the act, they appear to be clearly defined, both with respect to the character of the terrorist acts and the mens rea, or guilty intent, required for prosecutable purposes.

Third, with respect to the issue of participation and contribution offences, the burden of proof will be on the state to establish that there was intent on the part of the accused that the activities were for the purpose of facilitating or carrying out terrorist activity.

Fourth, there is the issue respecting the process of adding a group to the list of terrorists. Admittedly, it incorporates a number of protections, including provisions for removal, judicial review and safeguards to address cases of mistaken identity. As well, the list must be reviewed every two years by the solicitor general, but this well may become a politicized provision which would prejudice the integrity of the anti-terrorism law and policy and therefore should be approached with respect to appropriate findings of fact and conclusions of law.

Fifth, there is the civil forfeiture scheme, which raises the question as to whether the procedural safeguards respecting confiscation of property are sufficient. In that context it is important to note that the safeguards include court protection of the interests of family members in the principal residence, access to the property in order to meet reasonable living and business needs and legal expenses and appeal procedures.

Sixth, there is the issue of the financing of terrorism offences. Here it is important to appreciate that this offence has been established pursuant to our prospective ratification of the international convention for the suppression of the financing of terrorism, that it requires the consent of the attorney general to prosecute, and that the state must establish a mens rea threshold that the accused knew or intended that the moneys or resources were in fact being used to plan, facilitate or carry out terrorist acts.

Seventh, in fulfilling its mandate to collect information, the Communications Security Establishment must receive authorization from the Minister of National Defence to intercept any communication to or from a foreign target located outside Canada that originates or ends in Canada. Admittedly the minister must be satisfied before issuing such an authorization that measures are in place to protect the privacy of Canadians, but should there be a requirement for a judicial authorization cabinet ministers would delegate this authority.

There are three other points in the bill which I will identify. Eighth, is there a breach of the solicitor client privilege with respect to information disclosures mandated under the act? Ninth, what about the provisions respecting preventive arrest which admittedly required judicial authorization and consent of the attorney general but which are new procedural approaches in that regard? Tenth, are there investigative hearing provisions where the judge may order the examination of a material witness?

These are 10 neuralgic points which the Standing Committee of Justice and Human Rights will address in the days and weeks ahead.

[International Actions Against Terrorism, October 15th, 2001]

Mr. Speaker, the United Nations Security Council recently adopted an unprecedented and most comprehensive anti-terrorism resolution wherein it determined that international terrorism constitutes “a threat to international peace and security”, a decision that the United Nations and its allies have construed as supporting legal authority action in Afghanistan.

While the military campaign may remind one of the aphorism that “while the guns roar, the muses, including the legal ones, are silent”, the centrepiece of the UN security council resolution effectively mandated a multi-faceted diplomatic and legal war on terrorism, one in which Canada is particularly well positioned to assume a leading international role.

The following initiatives comprise the essence of this juridical offensive, while identifying the diplomatic leadership role that Canada can play in an international counter-terrorism law and policy.

First, the security council has called on member states to sign and ratify the 12 international anti-terrorism conventions, including the two most recent conventions on the suppression of terrorism bombing and the suppression of terrorist financing. Canada has ratified 10 of these conventions and has now undertaken to ratify the last two.

Accordingly, it can take the lead in seeking to globalize this international legal arsenal, as it has done in leading the campaign for the ratification of an international criminal court. Moreover, ratification has not only juridical importance in underpinning the global counter-terrorism legal arsenal, but it sends a message that these countries have put themselves on the side of the international legal war against terrorism.

Second, the security council has called upon all member states to enact domestic legislation to implement these 12 international treaties so as to establish an international criminal justice system to combat terrorism. As Canada has now introduced such domestic anti-terrorism legislation to give effect to these treaties and is already spearheading the campaign for a global international justice system organized around the domestic implementation of the ICC treaty, it could equally spearhead an international campaign for domestic implementation of these 12 anti-terrorism conventions.

Third, the UN has called for the adoption of a comprehensive convention on international terrorism. Indeed I had occasion to recommend this initiative six years ago in my capacity then as special advisor to the then foreign affairs minister Lloyd Axworthy in the course of the Paris ministerial conference on counter-terrorism. It was felt at the time, however, that such a convention might be difficult to craft from a legal point of view and difficult to adopt from a diplomatic point of view.

Now that the UN security council has recommended this initiative so as to underpin what secretary general Kofi Annan has called “the global legitimacy” of the war on terrorism and as the matter is now before the United Nations legal committee Canada could lend its expertise and experience to this drafting and diplomatic exercise.

Fourth, the security council decided that all states should prevent and suppress the financing of terrorism, which involves a network of initiatives, including: freezing without delay the funds and other financial assets and economic resources of those that commit or facilitate the commission of terrorist acts; criminalize the wilful provision or collection by any means of funds intended for the commission or facilitation of terrorist acts; and deregistering any charities or entities that provide support for the facilitation or commission of terrorist acts.

Again, as Canada is in the process of implementing these initiatives and as our finance minister serves as chair of the G-20, we are particularly well situated to lead and co-ordinate the international effort to prevent and suppress the financing of terrorism in all its forms.

Fifth, the security council has recommended that states adopt comprehensive legislation to ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts is brought to justice and that such terrorist acts are established as serious criminal offences in domestic laws. As Canada has adopted model war crimes and crimes against humanity legislation, underpinned by the principle of universal jurisdiction, and has now introduce comprehensive anti-terrorism domestic legislation with rights protecting checks and balances, including charter protection, legislative oversight and judicial review, Canada is once again well placed to serve as an international model for this genre of comprehensive domestic anti-terrorism legislation consistent with rights based concerns.

Sixth, the United Nations has called upon member states to ensure that asylum seekers are not terrorists in disguise and that international refugee law is not used as a cover for international terrorism. At the same time, the right to political asylum must be safeguarded as a fundamental right, one that should not be undermined or diminished, and must remain a cornerstone of our international and domestic policy.

Accordingly, Canada's experience and expertise in refugee law and policy, in both appreciating the importance of the right to asylum while ensuring that it not be abused, and our learned appreciation of the weaknesses in our law enforcement system thus far, may commend the adoption of model initiatives that will improve and refine the screening, detection and exclusion of terrorists from claiming refugee status to begin with; ensure that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts; ensure that those whose refugee claim has been denied because of their deemed affiliation to terrorism and against whom a deportation order has been issued, do not disappear into our system and in fact are brought to justice to begin with; and ensure that claims of political motivation are not recognized as grounds for refusing a request for the extradition of alleged terrorists.

Seventh, the security council has called upon all member states to afford one another the greatest measure of assistance in connection with criminal investigations and prosecutions of terrorist acts. As an exemplary member of more multilateral groupings than any other member in the international community, including NATO, the G-8, the Commonwealth, la Francophonie, APEC, the OAS, the OSCE and the like, Canada is uniquely positioned to help organize and expand the necessary international juridical initiatives.

Eighth, the UN security council has warned against the danger of terrorist use of weapons of mass destruction, with Secretary General Kofi Annan pointing out that a single attack involving a nuclear or biological weapon could kill millions of people.

Canada, as a country that has taken the lead in sponsoring and ratifying treaties to control and prohibit weapons of mass destruction, can take the lead in international efforts to implement these treaties; ensure closer co-operation among international organizations dealing with weapons of mass destruction; and work toward the enactment of tighter domestic legislation covering the export of goods and technologies used in their production.

Finally, one of the more important instruments in any counter-terrorism law and policy is the control of incitement to terrorism, the combating of the promotion of hatred and contempt against the targeted and demonized prospective victims. Indeed, it is particularly important for the international community in general, and for member states in particular, to begin to address the issue of how they will regulate incitement to terrorism, of how they will regulate the demonization of the other, which, as we saw in Rwanda, can take us down the road to genocide. In Bosnia, it took us down the road to ethnic cleansing.

As the Supreme Court of Canada put it in upholding the constitutionality of Canada's anti-hate legislation, “The Holocaust did not begin in the gas chambers--it began with words”.

Canada, with its experience and expertise in combating incitement to hatred and with its proposed legislative initiatives to also eliminate hate on the Internet against prospective victims of terrorism as well as against any identifiable groups in Canada that may be unfairly discriminated against in our counter-terrorism effort, can play an important and significant role in developing this centerpiece of a counter-terrorism law and policy.

In a word, while Canada's contribution to the military effort may be a limited and modest one, its contribution to the legal and diplomatic war on terrorism can be a distinguished and distinguishable one.