The Law, Repression, and Activism

Amina Sherazee is an immigration, employment and human rights lawyer, based in Toronto. She is also a member of Lawyers Against the War and the Muslim Canadian Congress. She was interviewed on recent changes to laws that affect immigrants, refugees, and activism, as well as the relationship between law and activism generally.

Do you think that the success activism has had in mobilizing and organizing in recent years has not been reflected in legislation? As a lawyer and an activist, what do you think about the relationship between activism and the law?

There’s no doubt that activism, and in particular organized labour, has postively influenced government policy. The trouble is that the passage and repeal of legislation is so fleeting. So, here in Ontario, for example, the New Democratic Party government from 1991-1995 was a social democratic government that passed progressive labour and employment legislation, but it was all repealed in 1995 when the conservatives under Mike Harris came to power.

As lawyers we work in the judicial system which is supposed to be independent of the political process. It isn’t completely independent, especially given the judicial appointment system, but it is relatively impartial and independent, which gives us some room to challenge laws.

Do you think there has been an increase in repressive legislation since 9/11?

There has always been a degree of overzealous policing, surveillance, and intolerance by the state and in the legal system of political agitators. Even before 9/11, there was an escalation against activists in general, against anti-globalization and environmental activists. The most militant and direct-action oriented movements, like the anti-poverty movement, have always faced more repression. The intention of the state is to create a chill effect, to create an internal backlash even within movements.

So, even before 9/11, here in Canada you had the repression against activists around the APEC summit in Vancouver in 1999, with ‘pre-emptive’ arrests, something that WE hadn’t been seen since decades before that. Quebec City in 2001 was practically the raising of an army against the civilian population. For that kind of militaristic mobilization by the government against its own citizens there ought to have been an act of parliament in order to summon the armed forces. The perimeter fence that was built to fence ofF a whole section of the city to prevent activists from reaching the conference, the use of massive quantities of gas, the mass arrests, were all quite severe, the actions of a police state.

Even before that, indigenous activists at Gustafson Lake, Oka, at Burnt Church, contended with this.

That this repression didn’t bring any challenge from within Parliament meant that the parameters for the government to act illegally against its own population were widened. So when the government shut down a whole area in order to have the G8 meetings at Kananaskis, no one even batted an eye. By then, people were desensitized, and it was ‘natural’ to have that kind of militarization of security around a summit.

Did legal challenges against these developments have any success?

They didn’t get far. The Canadian Committee for the Defence of Civil Liberties in Vancouver, Connie Fogal’s group, tried to get an injunction to prevent the fence from going up. Marc Tremblay worked with the Committee to challenge it. The Judge’s position was that the fence could well have been a breach of the Constitution, but that it was justified nonetheless. That left the case open, but when the Committee tried to take it to the Supreme Court, the Supreme Court denied them leave. It refused to hear the case even though it had constitutional implications.

How should people respond?

It’s important for people to keep asserting their constitutional rights. There seems to be a lack of understanding about what rights are. Rights exist regardless of the government in power. They exist regardless of what law enforcement does. I don’t like the separation between human rights, civil rights, and civil liberties. I think these are all human rights, and we need to see them that way. They are interdependent– if you remove one you deny the rest. Freedom of expression, association, and assembly-these are fundamental, unencumbered, non-extinguishable human rights that don’t come from Parliament. They can’t simply be taken away in times of crisis.

Right now, we have an interesting situation in that in both Toronto and in Montreal, there are high-profile cases in which prominent radical organizers are on trial for charges like ‘participating in a riot’ or ‘counselling to participate in a riot’. There are three people on trial in each city, with John Clarke, Gaetan Heroux, and Stefan Philippa of the Ontario Coalition Against Poverty (OCAP) on trial in Toronto, Jonathan Aspireault-Masse, Jaggi Singh, and Christina Xydous in Montreal. These are ‘criminal’ trials. Do you think there is a political aspect to them?

I think the intent is to set an example and to marginalize effective mobilization. The people on trial are some of the most effective activists, people who have made politics relevant, who have brought issues normally relegated to the periphery-immigration, refugee rights, poverty-to the centre. Their success in organizing challenges the distribution of wealth and power and is seen as a threat to the state and the status quo. So the state tries to marginalize them by criminalizing them. They are designated as ‘threats’ by police and security agencies. In fact, Canadian Security and Intelligence Services (CSIS) apparently considers the anti-globalization movement one of the biggest threats to national security! In fact, I think you’ll agree, these activists are the best hope for the security of Canadians.

Do you think CSIS really believes what it is saying? Does it really, misguidedly, see these folks as ‘threats’ in some criminal sense, or is it straight, conscious, political persecution?

I think it is political, in that they see activists as a threat to the whole ‘Law and Order’ agenda. The policies are informed by what is happening in the United States. The recent ‘Border Security Summit’ was a good example of that-here in Toronto, a few weeks ago, Canadian and US business, politicians, and law enforcement met to discuss the harmonization of Customs, Immigration, Border, and Security policies. An interesting aspect of this is that the summit was hosted by the provincial government-when Customs, Immigration, Border and Security issues are all within federal jurisdiction. At the summit, everything was subordinated to the corporate agenda. So activists who make the links between that agenda and what is happening with poverty, immigrant rights, human rights, are a ‘threat’ to corporate Canada and corporate America. We think of OCAP as a community-based, locally focused group, but the questions they raise have much wider relevance.

What about repression against immigrants? Are there cases of that?

People with strong religious convictions, often people who challenged their own governments overseas or are trying to create a community here, have been especially targeted for surveillance, policing, and incarceration.

Mr. Jaballah, an Egyptian refugee, sought asylum here after being tortured and illegally detained in Egypt. In Canada, while he was filing his refugee claim, he started to get involved in the Arab community here. CSIS picked him up on a ‘security certificate’, and put him straight into maximum security prison, separated from his wife and children. His lawyer went to federal court and showed that CSIS perjured themselves, so he was released.

But in 2001, CSIS picked him up again. The allegations were remarkably similar to the first time. He was alleged to be associated with someone who is alleged to be a member of Al-Jihad. Al-Jihad is a religious group that opposes the Mubarak dictatorship in Egypt. He was never a member, nor has he done anything-he is just alleged to be associated with someone alleged to be in the group! For that, he’s been imprisoned, in solitary confinement-which means a 4 x 3 foot cell with no windows, toilet, blankets, ONE hour a day outside, and no halal meals-for 2 years.

There are other cases, a Mr. Harkat in Ottawa, Mr. Majoub, in Toronto. These people and their families are stigmatized, and so are those who try to help them, even though what they are going through amounts to religious persecution.

If you could strike any five laws from the books, what would they be?

I work with the immigrant law a lot, and I would strike that. It is classist, racist, and sexist. It grants the power to discriminate. So, if you are poor, you are classified as an economic immigrant and not allowed refuge. If you are wealthy, you can be an economic immigrant as well. The difference is that you can enter. The criteria is simple-you have to have $400,000. Canadian residency is for sale.

The immigrant law used to require a $975 head tax prior to being granted landing. So even a refugee, seeking asylum, was required to pay this amount in order to be landed. That’s extortion. When this was exposed, the government withdrew this requirement for refugees. Non-refugee immigrants, however, are still required to pay the head tax, regardless of their impecuniosity. When you add the head tax and the filing fees for a family of four, it amounts to thousands of dollars. Most immigrants coming from poor countries just don’t have this kind of money. As a result, they are restricted from immigrating to Canada.

It is both racist and sexist. Take the Live-In-Caregiver (LCP) program. Through the LCP Canada imports Third World women (eighty percent of whom are from the Philippines) to do live-in domestic work and 24-hour home support work. The women, qualified and educated as nurses, are essentially forced to live-in their employers’ homes as temporary workers, and are vulnerable to all forms of abuse, violence and exploitation – even rape. Because there is no accreditation system to value their credentials, they come here wanting to work in their fields, they are accepted on that basis, and then they are forced to work in an exploitive, live-in situation as a nanny.

It is contradictory. It is supposed to be a humanitarian, compassionate law, but it excludes the disabled and the poor. If you have diabetes, for example, you’re ‘inadmissible’.

It is unjust on criminal issues. If you are a permanent resident and you are convicted of an offence for which a sentence of more than two years is imposed, you serve your sentence and then you’re deported without any right to appeal. There was a lot of attention to these draconian measures after the ‘Just Desserts’ shooting in 1995. Three men were charged with murder in the shooting. They were permanent residents, who came here when they were children, and even though Canada was the only home they knew, they were ordered deported. Post-Imprisonment deportation amounts to an extra punishment, in which non-citizens serve two sentences. This clearly offends the Canadian Bill of Rights and the Charter.

There are also secret trial provisions, in which if the Minister of Immigration and the Solicitor-General sign a piece of paper, a ‘security certificate’, saying you’re a ‘security risk’-without showing you any of the evidence, without telling you what the details of the charge are, and if a judge of the federal court signs it as well you can be detained in maximum security prison indefinitely. You can challenge the certificate, but the rules of procedure for such trials are different from any other trial. You don’t have the same rights to see all of the evidence evidence or to cross-examination. The trial takes place in secret, and there’s no appeal. And the stakes are so high, because if you lose, you’re deported.

I would also strike C-36, Canada’s ‘anti-terrorism’ legislation. This was an omnibus bill that changed the Criminal Code, the Evidence Act and several other laws by introducing ‘terrorist-related’ offences. What is troubling about these new laws is that anything you could do as a ‘terrorist’ was already illegal. Using planes as a weapon is illegal already. Using biological weapons, or shooting people-all that is already illegal. The legislation changes the whole criminal justice system.

A criminal offense requires an act and an intent to commit the act. If it’s just an act without an intention-if I hit you by accident-that’s not assault, it could be negligence, but it’s not a criminal offense. If it’s just an intention but no act-I just want to hit you but I don’t-that’s not a crime either. But ‘anti-terrorism’ legislation doesn’t just limit the elements of an offence to the act and the accompanying intention. It broadens the elements so that it is about who you are, who you associate with and what you believe in. So if I’m an anarchist and I hit you, or a Muslim and I hit you then it becomes a terrorist act, when in fact it is no different from an assault by a monarchist or a conservative. An assault is assault and it shouldn’t matter what you beleive you should be treated the same. So ‘terrorist’ offences are a recipe for prejudice and racial profiling because it invites law enforcement agents to take who the person is and what they believe into account in laying a charge.

The definition of terrorism is far too broad, and at the same time it exempts the state. It actually contemplates it, and specifically exempts the state. So the aggressions by police and the military against the indigenous, for example, aren’t acts of terrorism.

I would strike the ‘workfare’, ‘work-for-welfare’ legislation, the whole ‘Ontario Works’ program. That program means you have to try to survive on $520 a month, you’re forced to ‘volunteer’ your labour and it’s basically a corporate subsidy, a kind of indentured servitiude.

I would strike the ‘Safe Streets’ act. If there was ever a purely political piece of legislation, that would be it. It’s like the ‘anti-terrorism’ legislation in that anything that you could do on the streets that makes them unsafe is already illegal. But ‘Safe Streets’ means the penalties are tougher if you are homeless. The idea is to remove ‘unwanted’ people from the street-’unwanted’ as defined by the Ontario Government. The idea is to criminalize poverty and poor people.

I would also strike the changes to labour laws that make it difficult to organize, I’d change the disability and pension laws.

What law would you add?

I would add a real ‘Tenant Protection Act’ (we have a ‘Tenant Protection Act’ (TPA) that makes it easier for landlords to evict tenants). That act would protect tenants from enforcement of leases. Right now, a tribunal enforces the TPA, and if cases fall outside the tribunal’s mandate, the landlord goes to small claims court.

What happens in this city is that new immigrants, desperate for housing, rent the first place they find. It’s usually unaffordable, so they live in it while they look for a cheaper place. But, often without realizing it, without their landlord explaining it properly, they’ve signed a 1-year lease. They will have moved to the new place when the landlord comes after them. The tribunal says-sorry, you’re not a tenant there any more. And they end up paying 2 rents! The TPA makes it easy for landlords to exploit this situation.

There are others, and often it isn’t just the legislation itself but the way it is implemented.

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