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.
By CCLA Events
on April 20, 2015
CCLA Executive Director and General Counsel, Sukanya Pillay, appeared April 20, 2015 on CCLA’s behalf before the Senate Standing Committee on National Security and Defence. Her oral and written submissions address the recent amendments to Bill C-51 which, in the view of CCLA, do not cure the fundamental flaws with the Bill.
Read our written submission here.
By Cara Zwibel
on March 31, 2015
This past week, the Liberal Party released their proposed amendments to Bill-C51, the government’s new anti-terrorism legislation. The CCLA is a non-partisan national non-profit organization which for fifty years has fought to protect civil liberties and fundamental human rights. It is our view that the Opposition’s proposed amendments do not go far enough in curing the fundamental defects of Bill C-51. It is the CCLA’s position that Bill C-51 cannot pass.
We expect the Conservative Party to release their amendments to Bill C-51 in the near future. The New Democratic Party has also introduced amendments to the Standing Committee considering Bill C-51 and has publicly released the broad contours of its Bill C-51 amendment strategy. We will respond to both sets of amendments shortly after their public release.
Our overview and assessment of the Opposition’s proposed amendments are below:
- Parliamentary Oversight and Review
While welcome in principle, the proposed structure of parliamentary oversight and overview does not go far enough to address the major accountability gaps in Canada’s national security landscape. Nor does the proposed Parliamentary Committee keep pace with the accountability powers of analogous structures in other western democracies.
The Oppositions’ most substantial amendment would create the National Security Committee of Parliamentarians. This Committee, drawn from members of the House of Commons and the Senate, and bound by statutory rules of secrecy, would oversee Canada’s legislative, regulatory, policy and administrative framework for national security, as well as the national security activities of federal departments and agencies. The Committee could summon witnesses and access information, including certain privileged information, under the control of federal departments. It would also produce annual reports with disclosure of information being subject to the discretion of the Prime Minister.
The proposed National Security Committee of Parliamentarians would create a long overdue parliamentary oversight committee. Yet, a parliamentary oversight committee must be a part of a larger review and oversight regime. Because of the increasingly integrated operations of national security agencies, integration that is dramatically furthered by Bill C-51, any meaningful system of review and oversight requires an integrated review process capable of investigating and reporting on complaints and generating self-initiated reviews. Without additional review and oversight mechanisms, which were some of the key recommendations forwarded by Justice O’Connor’s Arar Commission – including integrated review and the creation of statutory gateways to facilitate such review – the Opposition’s proposed National Security Committee of Parliamentarians will fail to accomplish meaningful national security oversight reform.
- Removal of Judicial Warrants Authorizing CSIS to Breach the Charter
The Opposition’s amendments would remove a provision in Bill C-51 that appears to allow CSIS to obtain a judicial warrant to violate the Charter of Rights and Freedoms when CSIS is taking measures to reduce threats to the security of Canada. The amendments would also require CSIS to obtain a warrant if its measures to reduce threats to the security of Canada might be contrary to Canadian law, a stricter standard than the current standard in Bill C-51 (which requires a warrant when the measures will be contrary to Canadian law). Finally, the Opposition amendments would increase CSIS’ review and reporting requirements, including a mandatory annual review and report of the new provisions authorizing CSIS to take measures to reduce threats to the security of Canada.
CCLA agrees with these amendments. The removal of the extraordinary power of authorizing Charter violations is a particularly necessary amendment. However, these amendments fail to address several other problematic CSIS amendments contained in Bill C-51. Bill C-51 would still expand CSIS beyond a recipient and analyst of human intelligence, into an agency with powers to act in Canada and abroad, without regard to international law or foreign domestic law. CSIS’s new “kinetic” powers would also allow it to take measures to reduce threats to the security of Canada when the measures are not contrary to the Charter and when the measures do not cause death or bodily harm, obstruct justice, or violate the sexual integrity of an individual. Although the Opposition’s proposed review and report mechanisms will facilitate oversight of CSIS, they are not a commensurate increase in accountability measures when compared to the dramatic increase in CSIS’ powers.
- Information Sharing on Protests
The Oppositions’ amendments also attempt to remedy the overbreadth of Bill C-51’s new information sharing provisions. At present, Bill C-51 allows for the sharing of information among federal departments and agencies in relation to “activities that undermine the security of Canada”, but creates an exemption for “lawful advocacy, protest, dissent and artistic expression”. A Liberals’ amendment would remove the “lawful” requirement for “activities that undermine the security of Canada”, and would specify that “advocacy, protest, dissent and artistic expression” are only “activities that undermine the security of Canada” when they meet the defined “threats to the security of Canada” under the Canadian Security Intelligence Act.
Although the Oppositions’ amendment is a step in the right direction with respect to ‘protests, dissent and artistic expression’, it does not cure the overbreadth of the information sharing provisions that would be enacted by Bill C-51. For instance, Bill C-51 authorizes broad sharing of information among government institutions on the basis of “interference with critical infrastructure” or “interference with the capability of the Government of Canada in relation to intelligence,…public safety, the administration of justice,…or the economic or financial stability of Canada”. Such broadly worded provisions, which are liable to expansive readings by federal departments and agencies, will authorize practically unfettered information sharing among affected institutions.
Under Bill C-51, if the Minister of Public Safety does not make a decision regarding an applicant’s request to be removed from the no-fly list under the Secure Air Travel Act, the Minister is deemed to have decided to retain the listing. The Opposition’s amendments would amend the provision to reverse the presumption, meaning that a failure to decide on an application would remove individuals from the list. Although we support this amendment, the Secure Air Travel Act still does not contain adequate substantive or procedural protections for listed individuals, does not provide sufficient transparency or accountability mechanisms, and places Canadians at continued risk of prejudice.
- Other Shortfalls of the Amendments
The Oppositions’ amendments also fail to address several of Bill C-51’s most significant constitutional transgressions. For instance, Bill C-51 places new restrictions on Special Advocates, thereby removing procedural protections that were enacted to remedy the constitutional defects of the previous Security Certificate regime. Among other changes, Bill C-51 would shield some information from Special Advocates, even when the information is relevant to the case against named individuals. By infringing on the section 7 rights of named persons to know and challenge the case against them, Bill C-51 would undo Parliament’s previous attempts to comply with the Supreme Court’s ruling in Charkaoui v. Canada (Minister of Citizenship and Immigration). Moreover, the Opposition’s amendments would also leave intact the special terrorism provisions for preventive arrest, peace bonds, recognizances and detention, including Bill C-51’s lowered evidentiary thresholds for these extraordinary provisions. It also leaves intact Bill C-51’s new peace bond provision in the Code allowing a person who “fears on reasonable grounds that another person may commit a terrorism offence” to lay an information with the Attorney General’s consent.
In sum, the Opposition’s proposed amendments would make useful but relatively slight changes to Bill C-51’s omnibus legislation. These minor improvements threaten to obfuscate the far-reaching changes that would be enacted by the passage of even an amended Bill C-51. As detailed in our written and oral submissions to the Standing Committee considering Bill C-51, Bill C-51’s drastic overhaul of Canadian national security law imperils liberal democratic principles of transparency and accountability, undermines our fundamental rights and freedoms, and creates several criminal offences that threaten to criminalize legitimate behavior. While we appreciate the Opposition’s attempt to claw back some of Bill C-51’s most significant excesses, Bill C-51’s constitutional overreaches cannot be remedied through piecemeal amendment.
Read the CCLA’s Submissions to the Committee Considering Bill C-51, Anti-Terrorism Act, 2015, here.
Read Sukanya Pillay’s (CCLA Executive Director and General Counsel) speaking notes before the Committee here.
When official government proposed amendments are released, we will assess these proposed amendments and report here.
By Cara Zwibel
on March 30, 2015
March 30, 2015 – Today, as the House of Commons’ Standing Committee on Public Safety and National Security commences its clause-by-clause review of Bill C-51, the Anti-Terrorism Act, 2015, seven of Canada’s leading human rights organizations reiterate their call for the Bill to be withdrawn.
Since the Committee began its hearings on March 9, 2015, it has heard concerns raised by expert witnesses representing a variety of perspectives. As Canadians learn more about Bill C-51, public concern and opposition to the Bill continues to grow, as reflected in the rapidly growing numbers of Canadians who have taken part in demonstrations and who have signed petitions and letters. Meanwhile, editorial boards from across the political spectrum continue to critique the Bill and the manner in which it is being deliberated in Parliament.
Amnesty International, the British Columbia Civil Liberties Association, the Canadian Civil Liberties Association, the Canadian Muslim Lawyers Association, the International Civil Liberties Monitoring Group, La Ligue des Droits et Libertés and the National Council of Canadian Muslims have, from the outset, stated that the human rights shortcomings in Bill C-51 are so numerous and inseparably interrelated, that the Bill should be pulled back. The organizations have said that any national security law reform should instead, first, be convincingly demonstrated to be necessary and should then proceed only in a manner that is wholly consistent with the Canadian Charter of Rights and Freedoms and the country’s international human rights obligations.
“Any legislation that takes as its starting point the premise that it is appropriate and acceptable to explicitly give legislated power to CSIS to violate the Charter of Rights when reducing threats to Canada’s security, and tries to offer that a sheen of legitimacy by giving judges the power to authorize those Charter breaches, irredeemably gets off to entirely the wrong start,” said Alex Neve, Secretary General, Amnesty International Canada’s English branch. “We do not uphold national security by inviting judges to become complicit in Charter violations. Bill C-51 does not understand the central importance of human rights in upholding national security. The Bill has to go.”
“Bill C-51 deserves real, substantive and serious debate. Critics of the bill, however, have been repeatedly subject to rhetorical attacks on their commitment in keeping Canada safe from terrorism. This appears to be a troubling tendency to ignore substantive critique of the Bill in favour of going after the credibility of the critic,” said Carmen Cheung, Senior Counsel, British Columbia Civil Liberties Association. “Freedom and security undoubtedly go hand-in-hand, but Bill C-51’s effectiveness in keeping Canadians safe remains an open question. Given the serious problems it poses for civil liberties and human rights, the Bill has to go.”
“The Committee hearings have been on the whole inadequate to allow Canadians – and members of the Committee – to properly understand the unprecedented powers proposed by Bill C-51 and the radical shift to our national security landscape” said Sukanya Pillay, General Counsel and Executive Director, Canadian Civil Liberties Association. “Canadians are being told to trust that the excessive powers and scope of the bill will not affect ordinary law abiding Canadians, even though its provisions are broad enough to do exactly that. The Bill doesn’t include fundamental legal protections. It is up to our Members of Parliament to draft laws that are clear and precise, with proper accountability mechanisms in place, particularly when security and liberty are at stake. The Bill has to go.”
“We have highlighted that Bill C-51 is replete with provisions that violate the Charter of Rights and other provisions in Canadian law. That has been repeated consistently by legal academics, former parliamentarians and numerous other expert witnesses who have appeared before the Committee. The government has refused to disclose the advice it has received from its own lawyers about the Bill’s compliance with the Charter,” noted Ziyaad Mia, Canadian Muslim Lawyers Association. “Why is the government determined to press on with legislation that will become snarled up in time-consuming litigation that will almost certainly overturn many of the provisions? Canadians deserve and expect better. The Bill has to go.”
“Canadians initially expressed wide support for Bill C-51, legislation that was broadly described as equipping Canadian law enforcement and security agencies with the powers needed to prevent terrorism,” said Roch Tassé, National Coordinator, International Civil Liberties Monitoring Group. “That has shifted rapidly and dramatically as women, men and young people across the country have gained a fuller understanding of the Bill itself. And that has happened even though the government has sought to fast-track the Bill and significantly restrict the time and opportunities for Canadian to fully appreciate what is at stake. Support for these unprecedented draconian measures continues to drop. The Bill has to go.”
“Among the many serious problems highlighted during hearings was the concern shared by Indigenous peoples, environmental groups, the labour movement, human rights organizations and others that Bill C-51 imperils protest rights in Canada, by providing explicit protection only to those demonstrations considered to be ‘lawful’,” said Dominique Peschard, President, La Ligue des Droits et Libertés. “Anyone who raised that concern in front of the Committee was told by the government that they were misinformed and that the new powers would not be used in that way. These promises ring hollow given the government’s lack of willingness to implement a robust oversight and review mechanism to meaningfully assess the efficacy and legality of Canada’s national security activities. The Bill has to go.”
“Given the disproportionate impact that previous security measures and legislation have had on Canadian Muslims, it is not unreasonable that that they fear becoming collateral victims in this web of unchecked power and unbridled information sharing, if not the direct targets of unfair scrutiny,” said Ihsaan Gardee, Executive Director, National Council of Canadian Muslims. “Instead of allaying these legitimate concerns, we have seen the marginalization and mischaracterization of Canadian Muslims and their institutions. In Committee hearings, in Parliament, in the media and in public events, elected officials and pundits have negatively tarred Canadian Muslims and their representative organizations. We have heard inflammatory, discriminatory, and false comments about who Canadian Muslims are, what they believe and support, and seen repeated attempts to conflate Islam and Muslims with terrorism. Their actions cynically exploit negative social forces for political gain by attempting to create fear and distrust among fellow Canadians. The Bill will only provide a false sense of security rather than actually provide a framework to engage with the very communities that are already working to help Canada remain strong and safe. The Bill has to go.”
By Cara Zwibel
on March 18, 2015
Since the government tabled Bill C-51, CCLA has been speaking out about our concerns about the Bill. CCLA has sent a written brief to the Standing Committee on Public Safety and National Security, summarizing some of our primary concerns about the Bill. Read those submissions here.
We were also fortunate to have the opportunity to appear before the Committee on March 23, 2015. CCLA Executive Director and General Counsel, Sukanya Pillay, appeared on CCLA’s behalf. You can read her speaking notes here. The webcast of the Committee hearing can be viewed here.
By Cara Zwibel
on March 6, 2015
This morning the Commissioner of the RCMP, Bob Paulson, appeared before the House of Commons Committee on Public Safety and National Security to talk about the ongoing investigation into the actions of Michael Zehaf-Bibeau in Ottawa on October 22, 2014. He also showed the Committee part of a video that Zehaf-Bibeau made just prior to shooting Cpl. Cirillo at the National War Monument. The Commissioner explained that a total of eighteen seconds had been edited out of the beginning and end of the video, due to concerns about impact on the ongoing investigation.
Next week the Committee will begin hearings on Bill C-51, the government’s sweeping proposed anti-terror legislation. Commissioner Paulson was clear that the release of the video was in response to the Committee’s request and that it is not intended to influence the Committee’s consideration of the Bill.
The Commissioner’s testimony did not suggest that our current laws are inadequate to the task of fighting terror. To the contrary, the Commissioner stated that there was no legal impediment to the investigation or gathering of evidence in relation to Zehaf-Bibeau. Had he survived his attack on Parliament Hill, Zehaf-Bibeau would have been charged with existing terrorism offences under the Criminal Code.
In terms of the necessity and the potential impact of Bill C-51, a few important points come out of the Commissioner’s appearance:
- Zehaf-Bibeau had applied for a Canadian passport but was told his application was being reviewed. The Commissioner noted that there is a Task Force involving a number of agencies (including CSIS, CBSA, CIC, etc) to share this kind of information. This directly contradicts one of the proposed rationales for the new law. The government’s backgrounder on the Security of Canada Information Sharing Act (part of C-51) states that there are barriers to information sharing and provides as an example that “Citizenship and Immigration Canada is limited in its proactive sharing of passport and immigration and related information with national security agencies.”
- Bill C-51 creates a new offence of advocating or promoting terrorism offences in general and allows for seizure and deletion of “terrorist propaganda”, including materials that advocate or promote terrorism. If the Bill is passed, would Canadians (including Parliamentary Committees) be denied the opportunity to see this video? Could a Court order that it be deleted from Canadian internet sites? The new law would have a significant impact on freedom of expression and freedom of the press. Is this appropriate?
- Commissioner Paulson stated that Zehaf-Bibeau did speak to friends and family about his views and that there were missed opportunities (by some of these individuals), to recognize concerning behavior and report it. The Commissioner also stated that people are sometimes concerned that going to the authorities will result in jail or punishment for the individual they are concerned about. These concerns will only be heightened by Bill C-51’s new offence of advocating and promoting terrorism – which applies to both public statements and private conversations.
- Commissioner Paulson did express some concerns about the process for obtaining a peace bond, pointing to the recent Montreal case as an example. In that case, the Crown sought a terrorism-linked peace bond against a young man, with the consent of the Attorney General. The hearing for the peace bond has been put off for a month. Although the Commissioner could not say exactly why this is the case, he did suggest the proposed legislation would be helpful. Bill C-51 would lower the thresholds for obtaining a terrorism-related peace bond. However, even with the changes proposed, individuals must still have an opportunity to consider the case against them, which may require a delay in a hearing. The Bill also does nothing to address the allocation of court resources.
The events that occurred in October 2014 were tragic and it is important that the public have information about what happened and what, if anything, could have been done to prevent it. The threat of terrorism needs to be addressed, but Bill C-51 is not the answer. CCLA continues to state its firm opposition to the Bill. Although we have unfortunately not been invited to appear before the Committee, we will be submitting a written brief which will be available on our website shortly.
By CCLA Events
on March 5, 2015
Sukanya Pillay, our Executive Director and General Counsel, about Bill C-51 in The Huffington Post. Visit their site, or read it here:
There is no question the government must keep Canada safe from terrorist activities and threats, but Bill C-51 is not the answer.
Bill C-51 is wide-sweeping in powers and gift-wrapped in rhetoric. But contrary to the messaging, it does not provide any necessary new tools to fight terrorists. We already have an arsenal of tools in the Criminal Code and other existing anti-terror legislation, which provides Canadian law enforcement and agencies with robust powers to fight terrorists. It was existing laws that successfully empowered Canadian police to thwart, arrest and charge suspects in the Toronto 18 and Via Rail terror plots. (The Toronto 18 were convicted and are serving sentences, the Via Rail suspected are currently being tried). Bill C-51 simply increases government power in ways that can threaten innocent Canadians and undermine democratic values. Below, I highlight five serious concerns in Bill C-51
First Bill C-51 threatens free speech and expression. In Canada, we have the Criminal Code which is triggered by willful inciting of hatred and has other provisions that can capture terrorist speech. Bill C-51 however, creates new crimes for “advocating” or “promoting” terrorism. The wording of the legislation is so broad that it threatens to criminalize legitimate speech — dissent, counter-speech, and protest are constitutionally protected and are fundamental to a vibrant democracy. Further, speech in all its legitimate forms can be extremely useful in fighting against radicalization — so why would we risk its suppression?
Another concern is that Bill C-51 expands CSIS’s powers without any commensurate increase in accountability or oversight mechanisms. Bill C-51 now enables CSIS to take “measures within or outside Canada” to reduce a threat to the “security of Canada.” This turns CSIS from the recipient collector and analyzer of information and intelligence for which it was created, into an agency with powers to act.
In addition, the bill provides that the agency could act illegally or unconstitutionally if a judge approved such actions. Coupled with Bill C-44 provisions (Oct 2014), this means that so long as CSIS refrains from “death or bodily harm”, does not “pervert justice” or “violate the sexual integrity of an individual”, it will be able to act without regard to international law or the domestic laws of other countries. This is contrary to Canada’s international legal obligations and our Charter.
CSIS was created pursuant to the MacDonald Commission’s determination, in the wake of RCMP illegal acts and wrongdoings, that law enforcement and intelligence functions should be separate. In this light, Bill C-51 seems both regressive and amnesiac.
Additionally, increasing CSIS’s powers so broadly, without any corresponding accountability mechanisms, seems a prescription for disaster. Since the 9/11 attacks in 2001, the Canadian Civil Liberties Association has been concerned that the powers of national security and intelligence agencies have grown without commensurate accountability mechanisms. The Arar Commission of Inquiry, examining the actions of CSIS and the RCMP, provided a series of targeted policy recommendations applicable to Canada’s national security agencies including CSIS, the RCMP, and the CBSA, which years later have still not been implemented. In November 2013, the Federal Court determined that CSIS had misled the court in seeking warrants, by failing to disclose CSIS would be tasking its international Five Eyes partners to spy on Canadians abroad.
In 2009, the Federal Court found that CSIS failed to disclose exculpatory evidence in the case of Hassan Almrei who was held for years under a Security Certificate. Facing criticism of Bill C-51, the Government has stated that CSIS has adequate oversight in SIRC, but this is not accurate. SIRC’s limited review powers are insufficient to secure meaningful accountability for the new powers given to CSIS. In other words, the gaping hole of accountability for national security agencies was never filled, and Bill C-51 makes that hole exponentially wider.
Third, Bill C-51 creates the Security of Canada Information Sharing Act which both relaxes the standards of information sharing among Canadian agencies, and between Canadian and foreign agencies. It also permits sharing of information on persons threatening to “undermine the security of Canada” including the “economic or financial stability of Canada.” This is very broad wording that can easily be used to apply to people who are not at all engaged in terrorist activity — for example environmental activists opposing pipelines. Worse, information about such people engaged in lawful activities may be collected and shared among domestic and foreign agencies. We recall the unfortunate and unjust story of a Canadian woman who was prevented from entering the United States, because U.S. officials had information received from Canadian databases that she had attempted suicide in Canada many years before.
No fewer than three recent Canadian Federal Commissions of Inquiry have detailed serious concerns surrounding information collection and dissemination, which remain unaddressed. In recent memory, flaws in information-sharing resulted in the illegal rendition and torture of Maher Arar; contributed to the torture of three Arab Canadian men abroad, (Abdoullah Almalki, Ahmed Abou-Elmaati, and Muayyed Nureddin), and contributed to the tragic bombing of Air India Flight 182 killing all 329 people aboard, most of whom were Canadian. Justices O’Connor and Iacobucci have warned against “loose and imprecise language” and the lack of “qualifications” of information, which can have serious unintended consequences when information is shared domestically or with foreign agencies. Bill C-51 shows a collective amnesia to these lessons.
Fourth, Bill C-51 lowers key thresholds that affect due process rights, another pillar of democracy. Right now, existing criminal law permits police to arrest and detain an individual or issue a peace bond, if police have a reasonable suspicion a terrorist activity “will be carried out” and such action is required. Bill C-51 lowers the thresholds in these cases to “may be carried out”, which means police can use lower standards for preventive detention. Bill C-51 also increases the length of preventive detention from 72 hours to seven days. When preventative detention provisions were introduced post 9/11 (and renewed in 2013) CCLA argued that they were exceptional provisions that were unnecessary because Canada’s Criminal Code already enables police to arrest and detain individuals to prevent a crime. The new powers in Bill C-51 threaten to normalize exceptions, and undermine fundamental democratic guarantees. We have yet to receive a response to our question of why these new powers are needed.
Fifth, Bill C-51 prescribes new legislation (Secure Air Travel Act) around Canada’s No-Fly List (Passenger Protect Program). Four years ago, CCLA pointed out the procedural problems with the program including excessive discretion and secrecy, which are exacerbated by Bill C-51. Canadians will now be subject to procedural errors with the Canadian No Fly List in addition to US No Fly List which Canadian airlines apply in Canada with limited redress options.
Bill C-51 does not increase security. What Bill C-51 does deliver is a panoply of excessive new government powers which will constrain and intrude upon the rights of law abiding, innocent Canadians who have nothing to do with terrorism. Bill C-51 is a prescription for unchecked powers — it pays no heed to learned lessons about the importance of safeguards. Without safeguards there will be mistakes and serious consequences. Bill C-51 could so radically alter the fabric of our democracy we may become unrecognizable even to ourselves.
Public Safety Minister Stephen Blaney has stated “there is no liberty without security”. In my view, there is no security without liberty. Still, there is no need to pit these objectives against each other — history has shown that civil liberties and observance of safeguards are a prerequisite for real security.
By Cara Zwibel
on February 19, 2015
|RELEASE: Rights groups welcome statement from eminent Canadians calling for review and oversight of national security activitiesFebruary 19, 2015 –
For immediate release
Today, a group of 22 eminent Canadians, comprised of former Prime Ministers, Ministers of Justice, Ministers of Public Safety, Solicitors General, Supreme Court of Canada Justices, and members of national security, law enforcement and privacy review bodies, published a statement in The Globe and Mail and La Presse
calling urgently for an enhanced approach to national security review and oversight in the country. The group includes men and women whose public service, in areas where they have been responsible for addressing wide-ranging national security challenges, stretches from 1968 to 2014.
This important statement comes at a time when Canada is considering a radical expansion of national security powers across government, but has made no equivalent proposals for strengthened review and oversight of the agencies and departments responsible for national security.
Amnesty International, the BC Civil Liberties Association, the Canadian Civil Liberties Association, the International Civil Liberties Monitoring Group, La Ligue des droits et libertés, and the National Council for Canadian Muslims strongly support this statement, which highlights the importance of robust review and oversight for the three critically important and inter-connected reasons of protecting human rights, strengthening national security, and building public trust and governmental accountability, makes clear that strong accountability mechanisms lead to better security for all Canadians: “Canada’s national security policies and practices must be effective in order to protect public safety. Independent oversight and effective review mechanisms help ensure that resources devoted to national security activities are being utilized effectively and efficiently.”
Read the full statement, including the names of the 22 endorsing individuals, here.
For our reactions to the statement, contact:
Amnesty International Canada (English Branch): John Tackaberry, 613.744.7667, extension 236
Amnistie internationale Canada francophone: Anne Sainte-Marie, 514.766.9766, extension 230
BC Civil Liberties Association: Carmen Cheung, Senior Counsel, 604.630.9758
Canadian Civil Liberties Association: Sukanya Pillay, Executive Director & General Counsel, 416.363.0321
International Civil Liberties Monitoring Group: Roch Tassé, National Coordinator, 613.241.5298
La Ligue des droits et libertés: Lysiane Roch, Responsable des communications, 514.715.7727
National Council for Canadian Muslims: Ihsaan Gardee, Executive Director, 613.254.9704
By Cara Zwibel
on February 13, 2015
The Supreme Court of Canada today struck down unconstitutional provisions in the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (“Act”), in its decision in Canada (Attorney General) v. Federation of Law Societies of Canada.
In summary, the Act and its Regulations required lawyers to record and retain records on clients for transactions above three thousand dollars ($3000) separate from bail and legal fees. These records were to be accessible to the Government (including FINTRAC) for potential use in laying charges and future prosecutions, and included wide-sweeping search and seizure powers of law offices. Lawyers who did not comply with these provisions were subject to imprisonment and penalties.
CCLA intervened in this case to argue that these provisions of the Act and Regulations were unconstitutional because they wrongly impinged upon solicitor-client privilege, and because they wrongly impinged upon a lawyer’s liberty interests.
CCLA argued that the provisions would have a chilling effect upon solicitor-client privilege, and that solicitor-client privilege is a key component of the principle of access to justice, and the principles of fundamental justice, protected in section 7 of the Canadian Charter of Rights and Freedoms (“Charter”). CCLA argued that the provisions made lawyers into unwilling agents of the State. CCLA also argued that the potential sanctions against lawyers unconstitutionally impinged upon their independence and liberty interests safeguarded by section 7 of the Charter.
The Court unanimously struck down the provisions as they applied to lawyers – while upholding the provisions for other professions such as accounting. The Court found that solicitor-client privilege must “ remain as close to absolute as possible”, and that solicitor client privilege is part of the principles of fundamental justice. Lawyers have a duty “of commitment to the cause of their clients”.
The Court further ruled that “the scheme taken as a whole limits the liberty of lawyers in a manner that is not in accordance with the principle of fundamental justice relating to the lawyer’s duty of committed representation.” A minority of the Court disagreed that solicitor-client privilege is protected by principles of fundamental justice.
The Court unanimously found the provisions of the Act which enabled wide-sweeping warrantless searches of law offices to be unjustifiable breaches of the right to be free against unreasonable search and seizure in section 8 of the Charter, striking down those provisions.
CCLA was represented by Mahmud Jamal, David Rankin, and Pierre- Alexandre Henri.
To read CCLA’s factum click here.
To read the decision of the Supreme Court of Canada click here.
General Counsel & Executive Director
By Sukanya Pillay
on February 1, 2015
On January 30th, Prime Minister Stephen Harper introducedBill C-51, the Anti-Terrorism Act, 2015. The Bill amends the Criminal Code, the CSIS Act, the Immigration and Refugee Protection Act, and several other pieces of legislation. Generally speaking, the Bill permits more latitude for greater information sharing between government agencies, lengthens the time for preventive detention, permits police lower thresholds for peace bonds, expands the Canadian No Fly List (i.e. Passenger Protect Program), broadens CSIS’s powers significantly, and creates new crimes that may criminalize legitimate speech.
“New laws and new powers don’t necessarily guarantee security” said Sukanya Pillay, General Counsel and Executive Director of the CCLA, “But new laws that violate constitutional rights are a prescription for mistakes, and mistakes won’t keep Canadians safer.”
Pillay questioned the necessity of the many amendments introduced by Bill C51, arguing that Canada has had strong anti-terror legislation in place, including the strong police powers under the Criminal Code. “There are still no answers as to why our existing laws and powers didn’t work – or if they didn’t work,” said Pillay, with reference to the tragic killings of two Canadian soldiers in 2014. “Canadians have a right to know precisely what failures existed in the laws that could have prevented the tragic deaths of Officer Vincent and Corporal Cirillo this past year.”
Bill C51 provides for enhanced information sharing among agencies. The CCLA has long argued that the recommendations of Justice O’Connor in the Arar Inquiry be implemented. Justice O’Connor had a series of recommendations targeting essential accountability and oversight of national security agencies, including his observation that the work of these agencies is increasingly integrated and as such, he recommended an integrated oversight process. To increase information sharing without implementing the lessons learned is folly. Broad unchecked powers without sufficient accountability and oversight will only create future problems.
The CCLA is seriously concerned that the powers of CSIS have been broadened within and outside of Canada, giving CSIS greater latitude in its operations including with respect to disruptions. CSIS, who are currently limited to investigative powers, would be given police-like powers, and be allowed to directly intervene, “disrupt” and “counter-message” communications and activities both in Canada and abroad that they believe are threats to national security. As such, it appears these powers would allow CSIS to intervene or interfere with travel plans, financial transactions, telecommunications, among other possibilities.
The CCLA is concerned that CSIS will be exercising greater powers on the basis of intelligence, which is by nature, not subject to the exacting criteria preserved for evidence collected by the RCMP or police. Of equal concern is the blurring of the line between the functions of CSIS and the RCMP, although going back to the MacDonald Commission, CSIS was created to have distinct features from the RCMP. In this regard the CCLA continues to argue for the government to heed the lessons and findings of the Air India Inquiry.
CCLA is also concerned with the lower legal thresholds for arrest, detention, and peace bonds the Bill proposes. Under the new legislation, enforcement agencies would be able to arrest someone on the basis that they think a terrorist act “may be carried out,” rather than the current legal standard of “will be carried out” contained in the Combatting Terrorism Act, legislation the government introduced less than three years ago. Furthermore, it would increase the period of preventive detention from three days to seven. Police have long held powers under the Criminal Code to arrest and detain an individual if there is a reasonable suspicion of an impending crime — and the controversial preventive detention powers introduced by the Anti-Terrorism Act 2001 and renewed last year were never used, thus raising questions of why the new broad provisions are required.
The Bill also threatens freedom of expression as it would criminalize ‘advocating’ terrorism. The CCLA finds the wording overbroad and is concerned the provision could be triggered even where the speaker has no intention of committing a terrorist act. The danger here is clearly to freedom of speech, and the criminalization of legitimate speech. The potential chilling effect on academics and journalists and bloggers is easily imagined, and the loss would be to a free exchange of ideas so necessary in the pursuit of truth and in combatting radicalization.
The CCLA is also concerned with the expansion of information sharing and lack of transparency within the proposed measures. The Bill grants government departments explicit authority to share private information with law enforcement agencies and allows for court proceedings to be sealed, despite the Federal Privacy Commissioner’s report released just 2 days ago recommending measures to increase transparency and protect individuals’ privacy.
CCLA has also over the past five years raised its concerns about Canada’s Passenger Protect Program (No Fly List), the failure of a clear and comprehensive legislation framework prescribing its operations and the need for proper legal procedures to be followed, for proper legal procedures to be identified and followed, for privacy protections, and for proper administrative process in accordance with natural justice. The program has had serious errors, and we are concerned that greater elasticity in this process without indication of proper corrections being made will result in more errors – which does not keep Canadians safer.
When asked in Friday’s press conference how he could guarantee these laws won’t be in direct conflict with people’s civil liberties, Prime Minister Harper responded that the new measures have “considerable oversight” and stated, “I think Canadians understand that their freedom and their security more often than not go hand and hand. Canadians expect us to do both, we are doing both, and we do not buy the argument that every time you protect Canadians, you take away their liberties.”
The CCLA actually agrees that civil liberties and security do go “hand in hand”, and we have long argued that civil liberties are actually a prerequisite for effective security. The CCLA believes that Canadians know rhetoric is not enough from any stakeholder – rather, there must be clear civil liberties protections in compliance with constitutional safeguards and there must be clear security gains: we are still working on a detailed analysis of Bill C51, but our first read indicates that the new anti-terror legislation does create serious civil liberties concerns, and as such it is difficult to forecast concrete security gains.
Canadian Civil Liberties Association
(416) 363-0321 ext. 230
By Cara Zwibel
on November 26, 2014
The government recently introduced Bill C-44, which would amend the Canadian Security Intelligence Service Act to give CSIS greater powers to engage in intelligence-gathering activities outside of Canada. The Bill would also create a new privilege for human sources that provide information to CSIS on a promise of confidentiality. While the CCLA recognizes that intelligence work and counter-terror investigations may require activities outside of the country, we remain concerned that this Bill may authorize CSIS to violate international human rights and could have the unintended effect of making prosecutions for terrorism offences more difficult. In addition, the Bill does not address any new mechanisms for accountability and oversight of Canada’s intelligence agencies, despite the recommendations of multiple Commissions of Inquiry. This is a gap that needs to be addressed. Powers should not be expanded without creating a mechanism for integrated oversight of national security agencies.
CCLA has made written submissions to the House of Commons Standing Committee on Public Safety and National Security, which summarizes our core concerns about the Bill. Read CCLA’s submissions here.