Recent Library of Parliament Legislative Summaries

The Library of Parliament in Ottawa has recently published a number of legislative summaries of important federal bills.

Among them are:

• Legislative Summary of Bill C-42: An Act to amend the Canada Business Corporations Act: "The bill strengthens the government’s commitment to the implementation of a publicly accessible beneficial ownership registry of corporations governed under the Canada Business Corporations Act (CBCA)2 in furtherance of its efforts to bolster Canada’s anti–money laundering and anti–terrorist financing regime (...)"
• Legislative Summary of Bill S-13: An Act to amend the Interpretation Act: "The bill amends the federal Interpretation Act 2 to include a non-derogation clause on upholding Aboriginal and treaty  rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982. A non-derogation clause is a statement in a law that indicates the law should be interpreted to uphold, and not diminish, other pre-existing rights. Bill S-13 aims to ensure that all federal legislation is interpreted to uphold constitutionally protected Aboriginal and treaty rights."
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New and Updated Globalex Research Guides on Foreign and International Law Topics

GlobaLex, a very good electronic collection created by the Hauser Global Law School Program at the New York University School of Law, has published and updated a number of research guides recently:

• Artificial Intelligence and Human Rights: Four Realms of Discussion, Research, and Annotated Bibliography
• UPDATE: A Review of the Progressive Development of International Human Rights Framework on Capital Punishment
• UPDATE: Religious Legal Systems in Comparative Law – A Guide to Introductory Research
• UPDATE: A Research Guide to Cases and Materials on Terrorism

More Resources on Last Week's Extreme Rightwing Assault on the US Capitol

This is a follow-up to the Library Boy post of January 11, 2021 post on US Glossary on Treason, Sedition, Insurrection.

Here are more resources to help understand the legal dimensions of last week's rightwing mob assault on the US Capitol in Washington, D.C.

• The Capitol Riot: Documents You Should Read (National Security Archive, January 13, 2021): "The Pentagon’s timeline of its response to the January 6, 2021 mob attack on the U.S. Capitol features multiple discrepancies with the public record, while the first federal indictment of mob participants details the specific legal charges that likely will be brought against others, according to the documents in the National Security Archive’s first 'January 6 Sourcebook' posted today." [The Archive based at George Washington University combines the roles of investigative journalism centre, research institute on international affairs, and library and archive of declassified U.S. documents]
• Questions to Guide an Investigation of the Capitol Attack (Just Security, New York University School of Law, January 11, 2021): "The invasion of the United States Capitol was an entirely predictable event, which makes the wholesale security collapse all the more unconscionable. Threats on social media grew more frequent and specific after President Donald Trump called on his supporters to gather in Washington, D.C., and push Congress to overturn the election results. Somehow though, several security leaders said they could not have imagined the violence that happened on January 6. Congress should establish a commission to investigate the failure and make recommendations to prevent it from happening again, including by taking on its underlying causes. These are the questions that should guide the effort."
• Could Trump face charges for speech before Capitol riot? Experts differ on Brandenburg impact (ABA Journal, January 14, 2021): "Could a 1969 case involving a Ku Klux Klan leader protect President Donald Trump from incitement charges in connection with the Jan. 6 riot on the U.S. Capitol? Constitutional law experts offer differing opinions on the impact of the case, Brandenburg v. Ohio. The decision held that advocating the use of force is protected under the First Amendment unless it is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' The defendant in the case was Klan leader Clarence Brandenburg, who was charged under an Ohio law for advocating violence during a rally."
• Federal Criminal Law: January 6, 2021, Unrest at the Capitol (Congressional Research Service Legal Sidebar, January 12, 2021): "This Sidebar focuses ... on three specific categories of federal criminal statutes that may have been violated by some of the participants in the unrest at the Capitol: (1) crimes involving federal property; (2) crimes against persons; and (3) crimes against government authority. (Additionally, though not discussed further in this Sidebar, inchoate crimes like attempt or conspiracy to commit the substantive crimes described below or other crimes, as well as accomplice liability, may be relevant)."
• Domestic Terrorism and the Attack on the U.S. Capitol (Congressional Research Service Insight, January 13, 2021): "In light of this incident and the violent threat to the operation of the U.S. Congress, policymakers may be interested in whether this incident may be treated as domestic terrorism and if the participants are domestic terrorists, among other issues. This Insight discusses whether or not participants and their actions may be categorized as domestic terrorists and domestic terrorism, respectively, and issues around designating domestic fringe groups, such as the Boogaloo Bois and Proud Boys who were allegedly involved in the attack, as terrorist organizations. It concludes with possible next steps for Congress."
• Siege at the Capital – The National Security Law Perspective (American Bar Association podcast, January 12, 2021): panelists are Professor William Banks, Chair of the ABA Standing Committee on Law and National Security Advisory Committee; Professor Mary DeRosa, Georgetown University Law School; Professor Harvey Rishikof, Temple University

Updated Research Guides From GlobaLex

GlobaLex, the electronic collection created by the Hauser Global Law School Program at the New York University School of Law, recently updated some of its research guides:

• A Research Guide to Cases and Materials on Terrorism: "A bibliographic survey of the law relating to terrorism - even one that tries to avoid advocacy and argument, and perhaps even more so on account of that - exposes its author to criticism more than anything over definition and criteria for inclusion. Terrorism itself is a moving target: laws addressing it written by a fearful Establishment, its history written by the victors. Terrorist acts can be undertaken for all sorts of reasons or, conceptually at least, for none at all other than to promote anarchy or to express hatred. A purely criminal undertaking (as in extortion) is the least likely to threaten the wider public (such crime tends to be local or limited to particular ethnic groups) and it is also the easiest to deal with. Terrorist acts commonly arise out of grievance and frustration, real or imagined: religious, political, economic, personal. Terrorism, or the threat of terrorism, can involve weapons of mass destruction, or it can consist of measures of murder and mayhem, repression and intimidation directed at individuals, at a group or class, or at all the inhabitants of a region or state. While a dozen or more sectors of the law are pertinent to terrorism - some as cause, some as effect, some as impediment and some as punishment - historically, no law has been more successful than the mere passage of time in bringing it to an end. Terrorism and its companion, civil unrest, either bring revolutionary change and are then sanctified in a new national myth, or they fail and grievances either continue to fester or are overtaken by events (...) The point of this survey is not so much to list sources - many of these could be found with a search engine and legal database; others by using some of the better bibliographic sites listed here. It is rather to provide some assistance in planning research and in formulating issues to address - to examine the range of issues and provide links, first to sources that are considered reliable and unbiased, then to specimen law cases and scholarly articles and, finally, to opinions and arguments not otherwise adumbrated which, even if they are in support of a particular agenda are coherent, plausible and forthright in their advocacy or apologia. Collected here are many of the major court cases involving terrorism and terrorists of the modern era, as well as a sampling of issues related to terrorism. "
• The Amparo Context in Latin American Jurisdiction: An Approach to an Empowering Action: " Since 1948 and after the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights, the necessity of a judicial mechanism of human rights protection became a global concern. Under the influence of Mexican amparo, the right to everyone 'to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties' was included in the American Convention on Human Rights (article 25.1) in 1969. With this 'inter-American purpose', the writ of amparo was conceived (also called Acción de Tutela, Recurso de Amparo and Juicio de Amparo, among others), inspired in the Mexican amparo which was created with the deep conviction of the need for a procedural instrument to protect the fundamental rights of the governed against the public power, including challenging the constitutionality of laws. Today is clear that one fundamental aspect in the modernization of the justice system in Latin American countries has been the quantitative and qualitative improvement of the instruments and the constitutional possibilities for the citizen to access the justice. This is particularly relevant taking into account the lack of access and the corruption in some governments and justice systems in the region. "

Bibliography on Lone Wolf Terrorism

Greta E. Marlatt from the Naval Postgraduate School Center for Homeland Defence and Security (Monterey, California) has created a Lone Wolf Terrorism – A Brief Bibliography(updated to May 2016).

It is divided into sections for articles, books, reports, hearings (US Congress) and theses.

Material is international in scope and covers individuals motivated by radical right ideology, extreme religious fundamentalism as well as other violent ideas.

Canadian Terrorism Database Shows Weak Link Between Violent Extremism and Religion

The Canadian newsweekly Embassy published an article in its most recent edition about the Canadian Incident Database.

The Database is an open source database describing terrorism and violent extremism since 1960 with a Canadian connection, including incidents occurring overseas involving Canadian perpetrators, targets, and victims.     

According to the article in Embassy:

"Though recent discourse from Canadian politicians has focused on religious motivations for terrorism, and ISIS in particular, events that occurred in Canada have tended not to be religiously motivated. Of the 1,405 incidents, 255, or about 18 per cent, were religiously motivated, according to the database, and only two per cent of attacks labelled as violent extremism were perpetrated by religious groups."

5 university partners – University of British Columbia, Simon Fraser University, Carleton University, University of Waterloo, and Université de Montréal - have compiled the information in the database. Funding comes from Public Safety Canada and Defence Research and Development Canada.

New Zealand Law Commission Issues Paper on National Security Information in Proceedings

The Law Commission of New Zealand has published an Issues Paper that discusses how national security information should be used and protected in criminal, civil and administrative proceedings.

It focuses on instances where national security information is relevant to a decision that affects a person's rights or interests, but its disclosure might prejudice national security. The Law Commission’s objective is to establish whether the current law effectively protects such information while upholding fair trial rights and the principles of natural justice, or whether there is scope for reform:

"This issues paper deals with issues of considerable public importance such as when the Crown should have the ability to refuse to disclose information in court proceedings, which strikes at the very heart of the open justice principle. We invite submissions as to what amounts to legitimate national security concerns (for example, protecting intelligence-gathering partnerships and methodology) and what responses can help mitigate the impact that non-disclosure of national security information might have on what are fundamental principles of our rule of law system. Our aim is to ensure the procedure is clear and effective when legitimate national security concerns necessitate that the Crown’s disclosure obligations be altered." (...)

"This review looks at the protection, disclosure, exclusion and use of relevant classified and sensitive national security information in such proceedings. As part of the review the Law Commission is considering whether legislation is needed to provide a process by which national security information may be disclosed and used in court (including criminal trials) and in tribunal proceedings and administrative decisions (and appeals against decisions) in a way that protects the information while maintaining principles of natural justice."

Library of Parliament Analysis of Mandatory Minimum Sentences and on Anti–Money Laundering Rules

The Library of Parliament this week published two (2) posts on its HillNotes blog that refer to recent Supreme Court of Canada cases:

• Mandatory Minimum Sentences and Section 12 of the Canadian Charter of Rights and Freedoms: "On 14 April 2015, the Supreme Court of Canada released its decision in R. v. Nur, a case that challenged the constitutionality of mandatory minimum sentences for the possession of a prohibited or restricted firearm with ammunition. In a split 6–3 decision, the Court found that the required sentences of imprisonment for three years for a first offence and five years for a second or subsequent offence violated section 12 of the Canadian Charter of Rights and Freedoms, the protection against cruel and unusual punishment. This case offers an important perspective on how the Supreme Court will consider future cases regarding the mandatory minimum sentences adopted by Parliament."
• Canada’s Anti–Money Laundering and Anti–Terrorist Financing Regime: The Legal Profession’s Obligations: "On 13 February 2015, the Supreme Court of Canada ruled that certain provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act that impose obligations on lawyers violate the Canadian Charter of Rights and Freedoms. The decision, in Canada (Attorney General) v. Federation of Law Societies of Canada, confirmed that legislation cannot enforce obligations on lawyers that would undermine solicitor–client privilege. In exempting lawyers from the Act, Canada – like the United States and Australia – is among the few Financial Action Task Force members that do not impose obligations on lawyers as part of their anti–money laundering and anti–terrorist financing regime. According to the Task Force, criminals may use lawyers to facilitate illegal financial transactions, particularly when they are acting as financial intermediaries."

Canadian Library Association Statement on Bill C-51, the Anti-terrorism Act, 2015

The Canadian Library Association yesterday released a statement on Bill C-51, the Canadian government's proposed new anti-terrorism bill:

"We are especially concerned that this bill is proceeding through the parliamentary process much too quickly for it to be fully analyzed and debated in terms of its implications for these important Canadian values."

"The CLA therefore urges the government, with respect to Bill C-51, to:

• Incorporate considerably greater restrictions and independent oversight into the Security of Canada Information Sharing Act provisions.
• Limit and clarify the kinds of expression that would be criminalized or restricted as 'terrorist propaganda.'
• Allow Parliament to fully examine and properly debate the bill’s provisions, giving as much time as needed for all appropriate consultation." (...)

"Bill C-51 was introduced in Parliament only on January 30, 2015, and passed at Second Reading already on February 23. While terrorism is a current concern for Canadians and frequently appears in newspaper headlines, there is no clear emergency requiring such rapid passage of this legislation. Furthermore, when very strong cautions about this bill are delivered in an open letter by more than a hundred law professors from across the country, and in another by four former Prime Ministers and a range of former Supreme Court justices, cabinet ministers and officers of Parliament, and when the current federal Privacy Commissioner expresses grave concerns, Canadians rightly expect the government to allow Parliament to fully examine and properly debate this bill that has so many implications for the privacy of Canadians and their freedom of expression – whether or not it can be passed before Parliament’s summer recess."

"The CLA urges Parliament to insist on extensive consultations and hearings on Bill C-51 to ensure that all relevant knowledge, opinions, and perspectives can be heard and considered. As well, we urge the government, based on such testimony, to amend Bill C-51 if the evidence suggests that the bill in its present form is not in the best interest of both public safety and the democratic freedoms cherished by Canadians."

It is possible to follow the progress of the bill through Parliament by going to the LEGISinfo website. The page for Bill C-51 also contains links to speeches in Parliament, and material from parliamentary committee hearings. Backgrounders with the substantive reasoning explaining why the government believes the legislation is needed to protect Canadians is also available on LEGISinfo.

Canadian Library Association Statement on Terrorist Attacks Against Chalie Hebdo

The Canadian Library Association (CLA)  issued a statement yesterday regarding the terrorist atrocity committed against the French satirical magazine Charlie Hebdo:

"The CLA condemns this and all acts of violence against the freedom of expression and against those who exercise free expression, regardless of who considers it unconventional, unpopular or unacceptable anywhere in the world ."

"The CLA affirms that libraries in Canada and in every democratic country have a fundamental responsibility to collect, curate, preserve, and provide access to the widest variety of knowledge, creativity and intellectual activity that is essential to the moral health and intellectual development of our societies and that forms the bedrock of democratic culture, social and economic improvement , innovation, and civic engagement. Our work celebrates and reinforces diversity, supports lifelong learning, and contributes to the development of just and equitable communities. Our libraries and the civic interests we uphold serve as the foundation for modern democracy and human advancement."

"The CLA encourages libraries to resist all efforts to limit the exercise of free speech while recognizing the right of criticism by individuals and groups."

The library at my place of work. like all libraries I have ever visited or used, no doubt has many books that are sure to deeply offend people of all beliefs and backgrounds: pro-feminist, anti-feminist, pro-gay, anti-gay, pro-Charter, anti-Charter, pro-secularist radical, pro-religious radical, pro-federalist, pro-separatist, atheist, moderate run-of-the-mill believer in God, Marxist, conservative, socialist, liberal and the just plain confused. Thank goodness.

Q & A from Irwin Law Experts on Ottawa Shootings

This a follow-up to Thursday's Library Boy post UofT Professor on Canadian Counter-Terrorism Law.

Canadian publisher Irwin Law has published a Questions and Answers from Irwin Law’s Experts After the Ottawa Shootings:

"After the shootings in Ottawa’s downtown core, Craig Forcese, uOttawa and author of National Security Law, and Kent Roach, University of Toronto, and author of Criminal Law, responded to questions posed by Irwin Law on terrorism law issues."

UofT Professor on Canadian Counter-Terrorism Law

Well-known University of Toronto law professor Kent Roach has written a post about The Canadian Terrorist Attacks and Canadian Counter-Terrorism Law on the US-based Just Security website.

The article examines some of the existing powers in the Criminal Code that can be used against suspected terrorists, and discusses the issues surrounding proposed amendments that would expand powers of Canadian intelligence services.

Roach is the author of The 9/11 Effect: Comparative Counter Terrorism Law (Cambridge University Press, 2011) and the editor of Comparative Counter-Terrorism Law (forthcoming from Cambridge University Press).

He served as research director for the Canadian inquiry into the 1985 terrorist bombing of Air India Flight 182 flying from Canada to New Delhi that caused the largest loss of life in Canadian history from a single terrorist attack, and on the research advisory committee of the commission of inquiry into the extraordinary rendition of Maher Arar to Syria.

Just Security is based at the Center for Human Rights and Global Justice at New York University School of Law.

2012-2013 Annual Report of the Communications Security Establishment Commissioner

The most recent Report of the Communications Security Establishment Commissioner, the Honourable Robert Décary, Q.C., was tabled in Parliament yesterday.

The Communications Security Establishment (CSE) is Canada's national cryptologic agency working under the control of the Department of National Defence. Its code-breakers protect the Government of Canada's IT infrastructure from hostile attacks and provide foreign signals intelligence services, including the interception, decoding, and analysis of phone calls, e-mails and other electronic communications of Canada's international adversaries. It also provides technical and operational assistance to federal law enforcement and security agencies.

The Commissioner is the official watchdog over the agency's activities.

The news media concentrated on Décary's finding that the CSE may have been intercepting communications from Canadians. The CSE is legally prohibited from eavesdropping on Canadians. The Commissioner was unable to draw any definitive conclusions.

Media coverage includes:

• Watchdog says spy agency might have illegally eavesdropped on Canadians (Globe and Mail, August 22, 2013)
• Canadians may be victims of illicit spying (Ottawa Citizen / Postmedia News, August 22, 2013)
• Security watchdog says agency may be spying on Canadians (CBC / Canadian Press, August 22, 2013)
• Watchdog raises flags on Canada’s eavesdropping (Wall Street Journal, August 22, 2013)
• In wake of spying allegations, Communications Security Establishment Canada insists it didn’t break law (Canada.com, August 22, 2013)
• Espionnage de Canadiens: le NPD veut des détails (La Presse, 22 August 2013)

Library of Parliament Legislative Summary of Bill S-7, the Combating Terrorism Act

The Library of Parliament recently published its legislative summary of Bill S-7, the Combating Terrorism Act (short title):

"It is a 30-clause bill which:

• amends section 7(2) of the Criminal Code, which describes acts or omissions in relation to aircraft, airports and air navigation systems that have taken place outside Canada, and which, by operation of section 7(2) and section 83.01(1)(a) of the Code, constitute 'terrorist activity' (clause 2);
• introduce new terrorism offences to Part II.1 of the Code prohibiting individuals from leaving or attempting to leave Canada for the purpose of committing certain terrorism offences (clauses 6 to 8);
• increases existing penalties under the Code for those who knowingly harbour or conceal individuals who have committed terrorism offences, in certain circumstances (clause 9);
• reinstates provisions in the Code allowing for investigative hearings and recognizance with conditions/preventive arrest in relation to terrorist activity (clauses 10 to 13);
• amends sections 37 and 38 to 38.16 of the Canada Evidence Act (CEA) in accordance with the Federal Court of Canada’s decision in Toronto Star Newspapers Ltd. v. Canada, and in accordance with some, but not all, of the recommendations for change to the CEA made in the March 2007 report of the House of Commons Standing Committee on Public Safety and National Security’s Subcommittee on the Review of the Anti-terrorism Act (House of Commons Subcommittee) (clauses 17 to 24);
• amends the definition of 'special operational information' found in the Security of Information Act (SOIA), to ensure that the identity of confidential sources currently being used by the government is considered 'special operational information' under that Act (clause 28); and
• increases the maximum penalty for the offence of knowingly harbouring or concealing individuals who have committed an offence under the SOIA, in certain circumstances (clause 29)."

It is possible to follow the progress of the bill through Parliament on the LEGISinfo website.

Top 10 International Drug Policy Stories of 2011

The British website openDemocracy publishes a regular feature called the Drug Policy Forum that takes a critical reformist look at stories about the "war on drugs" and criminal justice issues.

The most recent issue provides a round-up of some of the top international drug-related stories of 2011:

"2011 was a watershed year in drug policy all over the globe. The American and Canadian governments seemed to embrace status quo prohibition, while the citizens of both nations showed increasing support for reform laws, particularly with medical cannabis. Some countries in Europe moved towards legalization, while the Netherlands surprised everyone by taking steps to forbid access of coffee shops to foreigners. Meanwhile, things continue to spiral out of control in Latin America, leaving no country untouched by drug violence"

Some Reflections on the 9/11 Decade

There are simply too many think pieces about the 10th anniversary of the 9/11 terrorist attacks, but I have come across a few that made me stop:

• A decade on (Canadian Lawyer Sept 2011 cover story): "Kent Roach [University of Toronto law professor and author of the newly published The 9/11 Effect: Comparative Counter-Terrorism] thinks of it as the age of innocence, those emotional early months following the Sept. 11, 2001 attacks in New York and Washington, D.C., when Canadians were vigorously debating new anti-terrorism laws. Parliament, the legal community, and other stakeholders were consumed with how to craft legislation that would properly balance national security, privacy, and human rights. That was long before most Canadians had ever heard of Maher Arar or Omar Khadr. No-fly lists, security certificates, and electronic surveillance were barely on the national radar. The federal public safety department, now one of the most high-profile federal ministries, didn’t exist. Canada had not yet deployed the 37,000 soldiers who would serve in Afghanistan over the following decade, 157 of whom lost their lives."
• 9/11, ten years on: reflections (UK website openDemocracy, September 7, 2011): "A terror-filled day of mass murder in the eastern United States imprinted itself on the world's consciousness - and became the prelude to a decade of further violence. openDemocracy writers reflect on the impact and legacy of the events of 11 September 2011.
• Canadian Reflections on A Decade of Human Rights and Counter-Terrorism (Prism Magazine article by Alex Neve, Secretary General of Amnesty International Canada’s English branch, September 8, 2011): "It has been, to say the least, a difficult decade for human rights. Human rights were put on the defensive; forced to prove their relevance in a time of insecurity. The tragic irony of course being that one of the surest guarantors of meaningful, lasting security is effective, robust human rights protection. But instead we entered a time of what seemed to have become a zero sum game when it came to human rights and security. Add on one side – more security; take away on the other side – less rights."
• The Encyclopedia of 9/11 (New York Magazine): "As this anniversary loomed, we found ourselves asking: With all we now know, how to begin to address the enormity of the event? Our solution was not to shrink from its scale but to embrace it. "
  

New Legislative Summaries from the Library of Parliament

The Library of Parliament has recently published a number of legislative summaries about bills before the House of Commons or the Senate.

Here is a sample:

• Canada–Colombia Free Trade Agreement Implementation Act: "Bill C-2 implements three agreements and their respective annexes signed by Canada and the Republic of Colombia (Colombia) on 21 November 2008. The first of these is a bilateral free trade agreement (FTA) between Canada and Colombia. The Canada–Colombia FTA (CCOFTA) provides for the liberalization of various types of economic activities: trade in goods, trade in services, foreign investments, and government procurements. The two other agreements dealt with in the bill are side agreements to the FTA: the Agreement on the Environment between Canada and the Republic of Colombia ('Environment Agreement') and the Agreement on Labour Cooperation between Canada and the Republic of Colombia ('Labour Agreement'). The Environment Agreement seeks to ensure that each party enforces its environmental laws; the Labour Agreement seeks to ensure that the domestic law of both states respects basic labour rights and is duly enforced. The latter agreement also provides for the possibility of resorting to arbitral panels to settle trade-related disputes that involve a persistent pattern of failure to comply with obligations under the Labour Agreement, an option that is not created in the Environment Agreement."
• An Act to amend the Constitution Act, 1867 (Democratic representation): "Bill C-12 is designed to address a distortion in the manner in which population growth is reflected by growth in the number of elected representatives assigned to each province. The Bill seeks to remedy this distortion by enacting a new formula for seat readjustments in the House of Commons. As with the formula presently employed to readjust the number of members seated in the House, Bill C-12 prescribes a formula that readjusts seats after each decennial census, while also apportioning any newly created seats to the province or provinces that experienced population growth from one decennial census to the next."
• Ending House Arrest for Property and Other Serious Crimes by Serious and Violent Offenders Act: "The bill amends section 742.1 of the Criminal Code, which deals with conditional sentencing, to eliminate the reference to serious personal injury offences. It also restricts the availability of conditional sentences for all offences for which the maximum term of imprisonment is 14 years or life and for specified offences, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years."
• Increasing Voter Participation Act: "The proposed legislation builds upon the increasing use of advance polling by Canadian voters. On the day Bill C-18 was introduced, its sponsor stated that 'Increasing the number of advance polling days means giving Canadians more opportunities to vote and will help to increase voter participation.' Since 1997, the percentage of voters who cast their vote in advance polls increased from 5.4% in 1997 to 6% in 2000, 9.2% in 2004, 10.5% in 2006 and 10.9% in 2008. Bill C-18 is based on the premise that additional advance polling days will increase voter turnout, which has been declining since 1988 (see Table 1). In this vein, the 58.8% voter turnout for the last general election of 14 October 2008 marks a record low."
• An Act to amend the Criminal Code (investigative hearing and recognizance with conditions): "Bill C-17 proposes amendments to the Criminal Code (the Code) that would reinstate anti-terrorism provisions that expired under a sunset clause in February 2007. It also provides for the appearance of individuals who may have information about a terrorism offence before a judge for an investigative hearing and contains provisions dealing with recognizance with conditions and preventive arrest to avert a potential terrorist attack, all of which are provisions that are substantially similar to original provisions in the Anti-terrorism Act that came into force in 2001. It also contains a five-year sunset clause and requires the Attorney General and the Minister of Public Safety and Emergency Preparedness to issue separate annual reports that include their opinions as to whether these provisions should be extended."
• Act to amend the Criminal Code and another Act (Serious Time for the Most Serious Crime Act): "The bill amends provisions in the Criminal Code regarding the right of persons convicted of murder or high treason to apply for early parole. This is done through the elimination of the so-called 'faint hope' clause by which those given a life sentence for murder or high treason could apply for parole after having served 15 years of their sentence."
• Act to deter terrorism and to amend the State Immunity Act: "The bill creates a cause of action (i.e., grounds to sue) that allows victims of terrorism to sue individuals, organizations and terrorist entities for loss or damage suffered as a result of acts or omissions that are punishable under Part II.1 of the Criminal Code (the part of the Code dealing with terrorism offences) and which have been committed by these individuals, organizations or entities. It also allows victims of terrorism to sue foreign states that have supported terrorist entities which have committed such acts, in certain circumstances. The victim's loss or damage can have occurred inside or outside Canada but must have occurred on or after 1 January 1985. If the loss or damage occurs outside Canada, there must be a 'real and substantial' connection to this country. Bill S-7 also amends the State Immunity Act to create a new exception to state immunity, the general rule that prevents states from being sued in Canada's domestic courts. However, the new exception serves to remove state immunity only when the state in question has been placed on a list established by Cabinet on the basis that there are reasonable grounds to believe that it has supported or currently supports terrorism."

New Report on Accountability of Canada's National Security Agencies

The Montreal-based think tank Institute for Research in Public Policy today published a study entitled Accountability in and for National Security.

According to the two authors, Reg Whitaker and Stuart Farson:

"In the post-9/11 environment, a familiar rhythm has returned to national security accountability: a security scandal leads to a specific inquiry, followed by a proposed reform agenda for an existing accountability regime that has been found wanting. The Maher Arar case is one recent example."

"Unfortunately, responses to scandals have resulted in an ad hoc, piecemeal and uncoordinated set of reforms. This has left a patchwork of accountability in which some agencies like CSIS work under close watch, some like the RCMP are under ineffective scrutiny, while other parts of the security and intelligence community like Foreign Affairs and Canada Border Services routinely go largely unexamined. A more integrated approach to accountability is imperative." [from the summary]

On the same topic, the most recent issue of the Weekly Checklist of Canadian government documents lists the June 2009 report of the House of Commons Standing Committee on Public Safety and National Security: Review of the Findings and Recommendations Arising From the Iacobucci and O'Connor Inquiries.

Those 2 inquiries looked into the cases of Arab Canadians who were victims of faulty intelligence sharing practices by Canadian security agencies, that led to their being deported to Syria or Egypt where they were held without trial and mistreated or tortured.

The Weekly Checklist includes a listing of book and serial titles which have been released during the previous week by the Parliament of Canada, federal departments, and Statistics Canada.

Library of Parliament Summary of Proposed Anti-Terror Provisions

On March 12 of this year, the Canadian government introduced a bill to reinstate Criminal Code anti-terrorism provisions relating to recognizance with conditions (up to and including preventive detention) and investigative hearings (compelling testimony).

Those provisions had expired in 2007 under a sunset clause in anti-terrorism legislation.

The Library of Parliament has prepared a legislative summary of the issues involved:

"Bill C-19 essentially reintroduces provisions relating to investigative hearings and recognizance with conditions that first came into force in December 2001 with Bill C-36, the Anti-terrorism Act. A sunset clause contained in that Act stated that the provisions in question would cease to apply at the end of the 15th sitting day of Parliament after 31 December 2006, unless they were extended by a resolution passed by both houses of Parliament. As of February 2007, no investigative hearings had been held and there was no reported use of the provisions on recognizance with conditions."

"Before the provisions were set to expire, they were reviewed by the Supreme Court of Canada and by Parliament. The Supreme Court reviewed the investigative hearings portion of the Anti-terrorism Act in the context of the Air India trial. The Crown had brought an ex parte application seeking an order that a Crown witness attend an investigative hearing pursuant to section 83.28 of the Code ... That order was appealed to the Supreme Court. The Court released companion decisions upholding the constitutionality of these provisions, stating that investigative hearings do not violate an individual’s section 7 Canadian Charter of Rights and Freedoms right against self-incrimination, as evidence derived from such hearings cannot be used against the person except in perjury prosecutions."

"In Parliament, two special committees were charged with review of the Anti‑terrorism Act ... The House of Commons Subcommittee on the Review of the Anti-terrorism Act heard a wide variety of testimony on the provisions and released an interim report in October 2006 dealing specifically with investigative hearings and recognizance with conditions. The Subcommittee stated that it felt these provisions were in accord with Canadian legal tradition and that sufficient safeguards were built into the process, but that there still remained some need for clarification. It suggested a number of technical amendments to the provisions, as well as some broader substantive ones."

"In the Senate, a Special Committee on the Anti-terrorism Act was convened in December 2004 to undertake a comprehensive review of the provisions and operation of the Anti-terrorism Act. Again, this Committee heard from a broad spectrum of witnesses, some of whom felt that the Anti-terrorism Act represented a substantial departure from Canadian legal traditions and feared that use of these provisions might eventually extend beyond terrorism offences to other more generic Criminal Code offences, and others who felt that these provisions were not new, did not violate rights, and allowed threats to be addressed proactively. The Committee released its final report on 22 February 2007, making two recommendations for amendment with respect to the provisions for investigative hearings and recognizance with conditions."

International Commission of Jurists Calls for Reforming Anti-Terror Laws

In a report released earlier this week, the International Commission of Jurists (ICJ) concluded that many measures introduced by governments to fight terrorism have been counter-productive and have undermined the rule of law.

The report, Assessing Damage, Urging Action, was written by the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, established by the ICJ. It looked at anti-terrorism laws and measures in 40 countries, including the UK and the United States.

The document warns of the danger that exceptional 'temporary' measures are becoming permanent features of law and practice, including in democratic societies:

"Terrorism sows terror, and many States have fallen into a trap set by the terrorists. Ignoring lessons from the past, they have allowed themselves to be rushed into hasty responses, introducing an array of measures which undermine cherished values as well as the international legal framework carefully developed since the Second World War. These measures have resulted in human rights violations, including torture, enforced disappearances, secret and arbitrary detentions, and unfair trials. There has been little accountability for these abuses or justice for their victims. "

"The Panel addresses the consequences of pursuing counter-terrorism within a war paradigm, the increasing importance of intelligence, the use of preventive mechanisms and the role of the criminal justice system in counter-terrorism. Seven years after 9/11, and sixty years after the adoption of the Universal Declaration of Human Rights, it is time for the international community to re-group, take remedial action, and reassert core values and principles of international law. Those values and principles were intended to withstand crises, and they provide a robust and effective framework from within which to tackle terrorism. It is clear that the threat from terrorism is likely to be a long-term one, and solid long-term responses are now needed."

The ICJ is based in Geneva.

More background:

• Anti-terror tactics 'weaken law' (BBC): "The panel of eminent lawyers and judges concluded that the framework of international law that existed before the 9/11 attacks on the US was robust and effective. But now, it said, it was being actively undermined by many states and liberal democracies like the US and the UK. The report remarks upon the extent to which undemocratic regimes with poor human rights records have referred to counter-terror practices of countries like the US to justify their own abusive policies."
• International Panel Says 'War on Terror' Has Diluted Principles (Washington Post): "The Geneva-based panel's conclusion, released Monday, were echoed by a former British domestic intelligence chief, who said people in Britain felt as if they were living in a 'police state' because of the government's counterterrorism actions. "