Fair Trial and Due Process

CCLA seeks to ensure that every person is afforded the protections of the rule of law, including their fair trial and due process rights. We connected with counsel in the cases of Abousfian Abdelrazik, Benamar Benatta, Mohamed Harkat and Hassan Diab, and will consider future opportunities to intervene in these cases as they progress.

CCLA is also concerned about distinctions between “evidence” and “intelligence”, and argues that no evidence procured by torture can be used to try an individual. In addition to not forming the basis for criminal charges, CCLA believes that any evidence procured by torture should not be the basis upon which an individual’s rights are affected, such as (but not limited to) interrogation, surveillance, or compelled testimony. Individuals should also have access to the information forming the ‘case against them’ in order to exercise their constitutional right to make full answer and defence, and to properly challenge the provenance and substance of any ‘evidence’ used against them.

Recent work:

CASE FOR EXCEPTIONAL TERRORISM PROVISIONS REMAINS UNCONVINCING

By on April 23, 2013

Yesterday the Government resumed debate about  reinstating two sunsetted provisions relating to preventive arrest and investigative hearings — which are included in Bill S7 (Combatting Terrorism Act).

CCLA is supportive of the Government’s legal duty to take every lawful measure to protect Canadians from the threat of terrorism — but we are not supportive of Bill S7.  In fact, CCLA and other Canadian civil liberties groups have pointed out that the Criminal Code is an effective counter-terrorism tool that already allows police to properly pursue, investigate, disrupt, and successfully prosecute terrorism-related crimes.

The Bill does not add any value to law enforcement or security.  To the contrary, it may actually tip-off potential perpetrators that they are under surveillance.  Further, the Bill seeks to normalize exceptional powers, inconsistent with established democratic principles, and which threaten hard-won civil liberties.

To read the position of CCLA and other Canadian groups on Bill S7 click here: http://ccla.org/wordpress/wp-content/uploads/2012/11/20121128-Statement-on-Reintroduction-of-Anti-Terrorism-Provisions.pdf

For more background on our opposition to the provisions of this Bill, click here:  http://ccla.org/2011/04/04/op-ed-anti-terror-laws-must-uphold-canadian-values/

Press Release: UN Special Rapporteur Says it’s Time for Accountability and Truth on Extraordinary Renditions & Torture

By on March 6, 2013

Media contact:
Sukanya Pillay
647.831.5188
pillay@ccla.org
www.ccla.org

  

UN Special Rapporteur Says it’s Time for Accountability and Truth on Extraordinary Renditions & Torture

MARCH 6, 2013 – Yesterday before the UN Human Rights Council in Geneva, Mr. Ben Emmerson, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, presented his report setting out framework principles to hold public officials accountable for gross or systemic human rights violations committed in the context of state counter-terrorism initiatives.   

CCLA commends the Special Rapporteur for calling for accountability for those who may have committed international crimes in the name of counter-terrorism, and for calling for the declassification of information that will reveal the truth behind the alleged rendition and torture of individuals and those responsible. Only through observance of international legal standards, including lawful detention, lawful surveillance, and lawful interrogation can terrorist threats be averted, and those guilty of terrorist acts be prosecuted and punished.

“Where laws are broken, and international crimes committed, where process is abused, and where individuals are tortured, we must seek accountability” said Nathalie Des Rosiers, General Counsel for CCLA. “To do nothing contaminates our legal system and our society — and contributes to cultures of illegalities.”

“International crimes committed in the name of counter-terrorism do not keep us safe,” she continued, “impunity actually threatens peace and security.”

>> Read CCLA’s submissions to the UN Committee Against Torture
>> Read more about the Special Rapporteur’s report before the UN Human Rights Council

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Sukanya Pillay – Director of National Security Program – CCLA - cell. 647-831-5188 – pillay@ccla.org

UN Special Rapporteur Calls for Accountability of Public Officials for Gross Human Rights Violations Committed in Counter-Terror Initiatives

By on March 5, 2013

Geneva, March 5, 2013 – Today before the UN Human Rights Council in Geneva, Mr. Ben Emmerson, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, presented his report setting out framework principles to hold public officials accountable for gross or systemic human rights violations committed in the context of state counter-terrorism initiatives.  Further,  the Special Rapporteur seeks proper investigations into, and accountability for,  alleged secret renditions, detentions, interrogation and torture of terrorist suspects by the United States and by the United Kingdom.  The Report also refers to the Special Rapporteur’s participation in a 2012 fall conference of the Canadian Civil Liberties Association, and points to Canada’s Arar Inquiry as a model for accountability inquiries into the actions of government officials in counter-terror initiatives.

A central issue to the Report is accountability for the internationally wrongful acts of Bush Administration officials post 9-11, including  alleged secret detentions, renditions, and torture of terrorist suspects.   The complicity of officials of  third States which operated “black sites”, to which individuals were ‘transferred’, detained, and interrogated or  tortured, is also raised.

Mr. Emmerson in his report notes that although there has been public acknowledgement of CIA involvement in secret detention programs abroad, and the use of “waterboarding” on “high value detainees”, no US officials have been held accountable for these actions.  The report notes that President Obama  upon taking office unequivocally confirmed the view of the international community that “waterboarding” amounts to torture.  The decision by US Attorney General Eric Holder not to prosecute any official who had acted in good faith in pursuance with the advice provided to the Bush Administration by the Office of Legal Counsel, in the view of the Special Rapporteur “comes close to an assertion of the “superior orders” defence, despite its prohibition under customary law and relevant international treaties.”

In order to uphold the right to the truth that is integral to accountability proceedings in international human rights law, the Special Rapporteur calls for the release of vital information – “subject only to such redactions as strictly  necessary to safeguard legitimate national security interests” or the safety of particular individuals.  Mr. Emmerson has called for the release of a report of a comprehensive investigation into the CIA’s secret detention and interrogation program, that took place in 2009 by the US Senate Select Committee on Intelligence, and was chaired by Senator Dianne Feinstein.   The Special Rapporteur has also called for the release of a United Kingdom interim report of the Gibson Inquiry; wherein Privy Council members investigated whether and to what extent the UK government and its security and intelligence agencies knew or were involved in improper treatment or rendition of detainees held by other countries in counter-terrorism operations outside the United Kingdom.  Finally the Special Rapporteur calls upon the Governments of Lithuania, Morocco, Poland, Romania and Thailand to urgently open or re-open effective independent judicial or quasi-judicial inquiries into whether secret CIA “black sites” were established on their territories, to identify the involvement of any public officials, to publish the findings, and to hold any public officials accountable.

The Special Rapporteur holds up as an accountability model, Canada’s Arar Inquiry, presided over by Justice Dennis O’Connor, into the actions of Canadian public officials regarding the rendition and torture of Maher Arar.  He notes at paragraph 43 of his report: “…Justice O’Connor made a series of important recommendations about the need for an integrated intelligence oversight and accoutnaiblity mechanism in Canada.  He also concluded that the success of the inquiry in getting at the facts was a direct consequence of his powers to compel production of evidence and the attendance of witnesses, and to assess the competing interests of national security and public accountability for himself.”

In May 2012, CCLA highlighted the importance of the Arar Inquiry and the findings and recommendations of Justice O’Connor regarding integrated oversight mechanisms of national security agencies, in our report to the UN Committee Against Torture in its review of Canada’s State Report, which you can read here.

Supreme Court Renders Decision in Three Terrorism Cases

By on December 15, 2012

On Friday December 14, the Supreme Court of Canada released decisions ruling on the anti-terrorism legislation definition of “terrorist activities”, and the application of section 6 of the Charter in cases where all material elements of an alleged crime took place in Canada but a foreign State seeks extradition.

In Khawaja, CCLA had intervened to argue that the motive clauses in the definition of “terrorist activity” were overbroad and could penalize political expression and other activity protected by the Canadian Charter of Rights and Freedoms. In the case of Khawaja, the Supreme Court upheld the definition finding it was not overbroad and would not punish non-terrorist acts  such as political expression, and the  Court agreed that a narrow interpretation is necessary. Nevertheless it suggested that the Act could be interpreted in a way that would not overly target innocents. There remain some concerns about the breadth of the provisions, in the context of the malleability of the definition of terrorism.  For example, support for the Syrian opposition could be interpreted as support for terrorist activities and people genuinely eager to help and express their support for their family and friends in Syria could find themselves within the purview of the provisions. To read the judgment in Khawaja, click here.

In two other cases of Sriskandarajah and Nadarajah, heard at the same time, CCLA had intervened to argue that when all material elements of an alleged crime occurred in Canada, section 6 of the Charter should operate to allow an individual to remain in Canada and face trial here, rather than be extradited to a foreign State.  The court rejected this view and deferred to the Minister.   CCLA is disappointed in this decision because  it  permits individuals to be subject to extradition even though their alleged actions and crimes bear the closest ties to Canada.

>> To read the Supreme Court judgment in Sriskandarajah and Nadarajah, click here.

>> To read CCLA’s factum in Khawaja, click here.

>> To read CCLA’s factum in Sriskandarajah and Nadarajah, click here.

CCLA Joins Civil Liberties and Human Rights Groups in Opposition to Bill S-7 (Combating Terrorism Act)

By on November 28, 2012
Representatives from civil liberties and human rights groups will testify before the Standing Committee on Public Safety and National Security on Wednesday, November 28 and Monday, December 3 to express their opposition to Bill S-7 (Combating Terrorism Act).The British Columbia Civil Liberties Association (BCCLA), the Canadian Council on American-Islamic Relations (CAIR-CAN), the Canadian Civil Liberties Association (CCLA), the International Civil Liberties Monitoring Group (ICLMG), the Canadian Association of University Teachers (CAUT) and La Ligue des droits et libertés are united in their opposition to the reintroduction of controversial security provisions into the Criminal Code of Canada.In a joint statement released today, all are in agreement that the current powers of law enforcement already allow security agencies to pursue, investigate, disrupt, and successfully prosecute terrorism-related crimes.

Click here to read the Joint Statement

  Public Safety committee hearings on Bill S-7

 

November 28

Where:  151 Sparks Street, Room 306 When:   4:30 – 5:30 p.m , Wednesday, November 28, 2012

Who:    Carmen Cheung, Senior Counsel, British Columbia Civil Liberties Association (BCCLA)

Nathalie Des Rosiers, General Counsel, Canadian Civil Liberties Association (CCLA)

December 3

 

Where:  To be determined

When:   tbd, December 3, 2012

Who:     Denis Barrette, spokesperson, International Civil Liberties Monitoring Group (ICLMG) and la Ligue des droits et libertés

UN Special Rapporteur on Counter Terrorism presents Report Critical of UN 1267 Listing Regime

By on November 2, 2012

The UN Special Rapporteur on the promotion and protection of human righst and fundamental freedoms while countering terrorism, Ben Emmerson, will today present his report on the UN 1267 Sanctions Regime to the UN General Assembly, in New York.

In his report, the Special Rapporteur has raised an alarm over the due process failures inherent to the Al Qaeda sanctions regime — such as the lack of any international domestic judicial review process for listed individuals; the failure of the UN 1267 Sanctions Committee to consider the evidence underlying proposals to list individuals, and the Security Council’s lack of due process mechanisms despite its quasi-legislative and quasi-judicial functions under the sanctions regime.

The Special Rapporteur has also called for amendments to the mandate of the UN 1267 Ombudsperson’s office, to incorporate minimal international standards of due process into her office; in particular,  Mr. Emmerson recommends that the Ombudsperson should “be empowered to receive and determine petitions from designated individuals or entities, for their removal from the list, and for the authorization of humanitarian exemptions.”  In his view, “the Ombudsperson should be renamed the Office of the Independent Designations Adjudicator (IDA)”, and Mr. Emmerson calls upon States to be obligated “to disclose information to the IDA on conditions of confidentiality”.

The Special Rapporteur has also stressed that “information plausibly believed to be obtained through torture, should be excluded”, and in his report, he expresses concern that the Ombudsperson at present does not necessarily exclude information which may have been procured through torture.

To read a copy of the Special Rapporteur’s report released today and being presented to the UN General Assembly, click here

The Canadian Civil Liberties Association agrees with the recommendations made by the Special Rapporteur.  CCLA has repeatedly expressed our concerns over the due process failures inherent in the UN 1267 Listing process.  To read CCLA’s Statement on UN 1267, click here

CCLA Holds Conference Assessing Global Counter-Terror Initiatives

By on October 23, 2012

On Friday, October 19th, 2012, nearly 100 attendees gathered at the University of Toronto Faculty of Law for a one day symposium entitled “The Social Cost of National Security: Assessing the Impact of Global Counter-Terror Initiatives on Canadian Society”.  The conference was a partnership between the Canadian Civil Liberties Association and the Canadian Arab Institute — for whom this was their inaugural event — and was hosted by the International Human Rights Program at the University of Toronto.

The keynote address was given by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Mr. Ben Emmerson, Q.C.  The Special Rapporteur emphasized the importance of observing international human rights standards in the implementation of counter-terrorism measures. Ensuring redress for victims of terrorism is important, however protecting the rights of victims does not legitimize violating the rights of others, and in fact only serves to increase the likelihood of retaliation and violence. The protection of the rule of law and human rights are crucial methods in challenging the spread of terrorism. A video of the keynote address can be found below.

>> Click here to read the live blog from the conference

>> Click here to read more about the conference, including a list of speakers and panels

>> Click here to listen to Ben Emmerson speak on CBC’s As it Happens 

Mr. Emmerson’s keynote was a fitting start to the day’s panel discussions around the social impacts of counter-terrorism measures. Anil Kapoor, Yavar Hameed and Nathalie Des Rosiers began the first panel discussion by assessing the impacts of counter-terrorism legislation over the past ten years on security, immigration, and privacy, and the dangers surrounding complicity in torture and the use of secret evidence. Barbara Perry, Roch Tassé and Balpreet Singh examined the targeting of specific groups and individuals in the aftermath of 9/11, the role of the media and politicians in spreading Islamophobia and racialised images, and how targeting of specific groups has put a chill on freedom of expression and political dissent.

The afternoon discussions continued with an examination of key institutions and their role in national security, including Canada’s human rights commissions, national security agencies such as CSIS and the Canadian Border Services Agency, and the media. Charles Théroux, Pearl Eliadis and Sukanya Pillay examined how anti-terrorism legislation can lead to unfair discrimination and marginalization of minority communities; the potential “importing” of discriminatory practices under the umbrella of anti-terror initiatives; and the role that human rights institutions, such as the Canadian human rights commissions, could play in promoting social and systemic change.

Carmen Cheung, Reem Bahdi and Craig Forcese continued the discussion on oversight and accountability of national security agencies, looking at the how well the recommendations of the O’Connor Commission of Inquiry have been implemented, the implications of increased information sharing between Canada and the US, and the need to take a critical yet nuanced approach to government oversight mechanisms. The last panel of the day examined the role of the media in thinking about terrorism and counter-terrorism initiatives, and we were joined by Tony Burman, Rick Salutin and Naheed Mustafa. Each of these speakers has a range of experience working with national and international media, and the panel highlighted the important role that the media can play in bridging gaps between communities and bringing light to individual stories, the changing landscape of media in the face of cutbacks and new technologies, and the dangers of perpetuating stereotypes in the news.

Post-9/11 security measures have had a profound impact on individuals and society as a whole. Concerningly, these measures have at times resulted in secret evidence, the use or sharing of information procured from torture, arbitrary and indefinite detentions, racial profiling, and denial of due process and fair trial rights – measures that violate Canada’s Charter of Rights and Freedoms, and  Canada’s international legal obligations. This conference gave participants the opportunity to pause and critically reflect on what has happened, but was also a time to re-energize our efforts and keep moving forward in the fight to ensure that fundamental civil liberties and human rights are protected.

UN Special Rapporteur on Counter Terrorism Speaks out Against Torture

By on October 22, 2012

The  UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Mr. Ben Emmerson Q.C., was brought to Toronto by the Canadian Civil Liberties Association on Friday October 19th, 2012, where he gave the keynote address and attended CCLA’s  conference on the ‘social costs’ of national security.

The Special Rapporteur also gave several media interviews, including this one regarding the illegalities and dangers of any US return to the use of waterboarding.  It is the position of the Special Rapporteur that waterboarding constitutes torture, which is illegal in international law as is the use of any information procured from waterboarding.  To read the interview, click here.

Mr. Emmerson gave the Keynote Address at CCLA’s Conference “The Social Cost of National Security:  Assessing the Impact of Global Counter-Terrorism on Canadian Society”, held in partnership with the Canadian Arab Institute, and hosted by the International Human Rights Program at the University of Toronto.

>> Click here to read the live blog from the conference

>> Click here to read more about the conference, including a list of speakers and panels

>> Click here to listen to Ben Emmerson speak on CBC’s As it Happens 

LIVE BLOG: Social Cost of National Security Conference

By on October 18, 2012

Can’t make it to CCLA’s Social Cost of National Security Conference? We’ll be live blogging the event throughout the day – check it out below!

 

CCLA Concerned About Possible Use of Torture Information in the Security Certificate Process

By on September 7, 2012

Recent news stories suggest that former Public Safety Minister Stockwell Day, under cross-examination, has indicated that  information procured from torture may have been relied upon in issuing a Security Certificate against Mohamed Mahjoub.

This is extremely concerning as it contravenes Canada’s international legal commitments to uphold the absolute prohibition against torture.   In Canada, our Charter of Rights and Freedoms in section 7 protects the life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.  In another case dealing with security certificates (Charkaoui 1) , the Supreme Court of Canada stated that the national security context cannot be used to “erode the essence of the section 7 protection”, which is to provide “meaningful and substantial protection” and due process — it is the position of CCLA that depriving a person of liberty by relying upon information procured from torture — which is both illegal and immoral – cannot be reconciled with the principles of fundamental justice.

>> To read more on CCLA’s position on Security Certificates click here.

>> To read more on Security Certificates see CCLA’s summary of the case of Hassan Almrei, whose security certificate was vacated by the Federal Court of Canada  – this summary also highlights key findings of the Supreme Court of Canada with respect to security certificates as set out in the Charkaoui cases.