BarTalk April 2002
Volume 14, Number 2

A presentation by the Equality & Diversity Committee

by Jennifer Conkie

In December 2001, the Branch’s Equality and Diversity Committee presented a roundtable discussion about some of the challenges for lawyers and lawmakers in responding to the threat of terrorism while remaining vigilant to protect individual equality and other constitutional rights.

Participants in this session were Professor Margot Young, this year’s visiting Owen Chair at the UBC Faculty of Law (on leave from UVic), and Vancouver lawyers Palbinder Shergill and Ravi Hira, QC. Jennifer Conkie moderated the group. Senator Mobina Jaffer, scheduled to participate and speak about some of the Senate’s concerns, was unable to attend at the last minute as she was in Ottawa writing the Senate subcommittee report to the House on the proposed legislation.

Professor Young spoke vigorously about her chief concern, that fringe and minority members of Canadian society might suffer further disenfranchisement, targeting and isolation as a result of the omnibus new legislation. She addressed the risk that, in moving so quickly to protect society generally, the government might enact law that would be harmful to groups and individuals already facing a struggle to gain reasonable access to justice and the equal protection of the law. She mentioned aboriginal groups and their right to protest peacefully as an example of lawful expression that could well be compromised by the new Act. She urged the audience to consider the price of responding too fast legislatively in times of panic, and commended to us the thoughtful pieces in Essays on Canada’s Anti-Terrorism Bill, published in November 2001 by the University of Toronto Press, and consisting of papers presented by a November conference sponsored by the U of T Law Faculty.

Ravi Hira, QC, discussed some of the practical issues that might arise if one were prosecuting under this legislation, and some of the potential difficulties. He went so far as to suggest the lack of need for this legislation, observing that the Criminal Code is more than sufficient to protect us from terrorist threats. He gave the audience much to think about.

Palbinder Shergill brought an interesting perspective to the discussion. She was heavily involved in the World Sikh Organization’s presentation to the Parliamentary Committee in Ottawa considering the anti-terrorism legislation at the bill stage. Her concerns included questioning why the definition of “terrorism” requires a political, religious, or ideological foundation at all. She pointed out that the domestic anthrax suspect would not be considered a terrorist if he lacked the required political, religious, or ideological bent. She spoke about the dangers of accepting evidence from other states as proof of terrorist activity, without the opportunity for adequate judicial investigation or testing. She urged caution, suggesting both that this large package of laws couldn’t possibly have been prepared as quickly as it seems, and that the government’s agenda must be scrutinized objectively by organizations such as the CBA, as a form of checking and redressing the pitfalls of such hurried work.

After some general introductory comments from the panelists, the floor was opened for questions, which proved to be quite stimulating and which led to a valuable discussion.

It is hoped that there will be further opportunities to continue the dialogue about the role of lawyers and the law itself in our post-September 11 world.

Jennifer Conkie practises commercial litigation with Conkie & Company in Yaletown and is a member of the Equality and Diversity Committee fo the CBABC Branch.

This article was published in the April 2002 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.