April 10, 2001
Charitable misgivings Could you be accused of a crime in Canada, tried in secret and
denied access to evidence? That's what anti-terrorism legislation proposes for charities.
Arthur Drache
Financial Post
Paul Lachine
An illustration of a man, and a hand reaching in, putting a dollar bill in front of the
man's mouth.
Suppose a couple of Cabinet ministers, say the Solicitor General and the Minister of
National Revenue, could get together and decide that you have been breaking the law. They
decide this on the basis of information they have received from either the police, the
Canadian intelligence authorities or a foreign government. They then decide to punish you.
You are allowed to go to the Federal Court to appeal that punishment. But you find that
the trial will be behind closed doors. You also find that you and your lawyer may not
examine witnesses. Indeed, you and your lawyer won't even have access to the evidence, but
will only get a summary of it. You also find that the normal rules for presenting evidence
have been suspended so that hearsay and other, perhaps doubtful, statements are presented
as fact. If you are found to be guilty, you have no right to appeal that decision and you
are deprived of your rights.
Not in Canada, you say. But, in fact, the process as set out above is essentially the
process which will be used against registered charities in Canada under proposals in Bill
C-16, the government's anti-terrorism legislation which received first reading in the
Commons on March 15.
Well, who can be against legislation designed to fight terrorism? Of course, one
crucial point is that the proposed legislation doesn't tell us what terrorism is. Unlike
the recently enacted anti-terrorist law in Great Britain, which has an extensive
definition of the term, it seems that in Canada "terrorism" is whatever the
government and the bureaucrats say it is.
You might ask yourself a few more questions about this proposal. It is aimed only at
registered Canadian charities. But it does not apply to the scores of thousands of
organizations which operate in Canada and are not registered. Is the government interested
in fighting the funding of abhorrent activity, or is it just interested in making certain
that a tax receipt for such funding is not issued? If the latter, why are the current
procedures available under the laws that govern charities not sufficient?
And are the provisions of the Criminal Code ineffective? If the legislation were enacted
as part of the Criminal Code, the courts
might want to have something like a definition of proscribed activity as part of it. And
the courts might also require that the accused get normal legal safeguards.
It is easy for Canadians to say that the legislation is aimed at only a handful of ethnic
charities. But once government has a precedent like this, it may well look around for
other groups (or even individuals) to whom similar rules might apply. (After all, why
should tax evaders have the benefit of the rule of law? )
To accept the fair operation of this legislation, one must assume that the politicians,
bureaucrats and law enforcement authorities are above reproach in all matters, bending
over backwards to be scrupulously fair to the organization which they have targeted. Even
recent history make us skeptical about the saintliness of these groups.
Right now, it is the ethnic charities in Canada which are most concerned -- Irish, Jewish,
Arab and Sikh organizations among them. But all Canadians should be concerned about the
proposed abrogation of the normal rules of law. Once you take rights from one group, all
groups are under threat. Twentieth century history tells us this story over and over
again. But then, who learns from history? Certainly not our political masters.
Arthur Drache is a lawyer and a Financial Post columnist.
http://www.nationalpost.com