Hate Bill C-36? Wait Until You Meet its Brother

Ever since Vancouver hosted the APEC conference in 1997, Canadian politicians have faced a dilemma. How do you clamp down on messy street protests without violating fundamental laws that guarantee freedom of assembly and prohibit political interference with policing?

Post-September 11, the answer has revealed itself, as elegant as it is brutal: Ditch the laws.

For the past month, civil libertarians and politicians have been duking it out over whether Bill C-36 could be used against political protesters. Justice Minister Anne McLellan says the law is designed to “target terrorists and terrorist groups,” and insists it isn’t an attempt to crack down on “legitimate political activism and protests,” such as the demonstrations during the Summit of the Americas in Quebec City.

In the face of these assurances, as well as minor amendments to the bill, many have relaxed, convinced that the right to dissent is still protected in Canada. That’s because they haven’t looked at Canada’s other anti-terrorism law, Bill C-35.

Bill C-35 has been quietly making its way through Parliament, downplayed as a “housekeeping” measure. On the surface, all the bill does is expand the definition of an “internationally protected person,” those foreign dignitaries who are granted diplomatic immunity when they come to town.

Some opposition Members of Parliament have objected to this largesse, saying Canada should not be a safe haven for foreign criminals, even if they are politicians.

These concerns about “protected persons” only tell part of the story. The rest is revealed when C-35 is cross-referenced with several clauses in Bill C-36 that classify many actions taken against those “protected persons” as terrorist activities. As the research of Dr. Michael Clinchy at the University of Western Ontario has shown, taken on their own, both sections look benign. Together, they form a one-two punch that will knock out the right to protest outside of international meetings.

Call the legal combo the Kananaskis clause, because it is clearly designed to kick in for the next G8 summit in June, to be held in Kananaskis, Alberta.

It works like this. First, Bill C-35 sweepingly defines “internationally protected persons” as “representatives of a foreign state that is a member of or participates in an international organization.” The principle is taken from the United Nations Convention granting diplomatic immunity to politicians attending UN conferences.

But Bill C-35 expands the UN definition to include foreign state representatives attending meetings of any kind. That means delegates to a trade summit with China, an APEC summit, and yes, a G8 meeting. In a pen stroke, these events will be placed behind a shield of diplomatic immunity.

Next, C-36 steps in, defining interference with “protected persons,” including visiting dictators, as not just criminal acts but terrorist ones. Bill C-36 states that anyone who commits “a violent attack on the official premises, private accommodation or means of transport of an internationally protected person that is likely to endanger [that person’s] life or liberty” has committed a terrorist act.

In fact, anyone who “threatens” to commit any of these acts is guilty of terrorism, and will lose many of their constitutional rights, as outlined in the rest of the bill.

These vague definitions raise many questions: Is blocking a road on the way to a summit an attack on the “means of transportation” of “internationally protected persons” that restricts their “liberty?” Was pushing against the chain-link fence that surrounded so much of Quebec City during the Summit of the Americas in April “a violent attack on the official premises” of a protected conference?

If both C-35 and C-36 become law (which looks very likely) and a group puts out a flyer announcing its intention to block the road on the way into Kananaskis (a pledge some have already made), its members could be charged with committing a terrorist act — a crime punishable by up to five years in prison. Anyone who follows through on the threat and blocks the road — a common tactic during strikes, summits, and native blockades — could face up to fourteen years in prison.

To be clear, the question is not whether activists have the right to inconvenience conference delegates or push against chain-link fences. Under current laws, many protesters are already facing criminal charges for precisely these activities. The question is whether these are acts of terrorism, on a legal par with hijacking planes and planting bombs.

If Ms. McLellan is to be believed when she says that her government is not trying to use the antiterrorism campaign to outlaw political protest, she has more amendments to make. She needs to take out the Kananaskis clause.

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