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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:
By Communications on December 7, 2011
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FOR IMMEDIATE RELEASE
Media contact:
Penelope Chester
416.363.0321 ext. 225
647.822.8764
media@ccla.org
www.ccla.org
CCLA Reacts To Canada-U.S. Border Deal Statement; Concerned About Implications For Privacy Rights
Toronto December 7, 2011 – In light of the new details revealed today with regards to the border security deal between Canada and the United States, CCLA urges Prime Minister Harper and President Obama to refrain from any implementation of the Action Plan before the Adoption and Release of the Announced Privacy Principles.
The Action Plan released today will have major implications for Canadians, for immigrants to Canada and travelers to other parts of the world. The proposed Action plan suggests broad measures for information sharing, biographical and biometric data, and aims to remove all impediments to information sharing between law enforcement agencies. Profiling of travelers on all international flights to Canada will be done to assess their “risk” profile and immigration status.
The Action Plan suggests that a Statement of Privacy Principle that will address key issues of safekeeping, oversight, will only be released in May 2012. The privacy implications for all the action items are immense and well documented. It is inappropriate to proceed with the plan without ensuring that there is agreement on privacy protection and that oversight mechanisms are in place.
CCLA has urged since last spring that any integrated threat assessment must comply with the legal safeguards in the Canadian Charter of Rights and Freedoms, and the findings of the three Canadian Federal Commissions of Inquiry regarding information sharing and threat assessment. In particular, CCLA has called for compliance with Canadian and international legal standards of due process, privacy, and fundamental freedoms including mobility rights, to benefit individuals on both sides of the border. CCLA has also called for oversight and review of information exchange agreements by an independent body such as the Canadian Federal Privacy Commissioner, and for due process mechanisms that will allow individuals to challenge being labeled as a “threat” for enhanced screening or ‘no-boarding’.
CCLA also has called for any cross-border policing including the Shiprider Agreement to be limited, to be the exception and not the norm, and that US law enforcement operating in Canadian jurisdictions must comply with Canadian laws and Charter protections. Finally, CCLA has insisted that any information sharing among intelligence agencies be subject to written caveats and agreements with respect to use, accessibility limits by third agencies and third countries, and with clear processes for rectification by individuals.
CCLA is very concerned that the Action Plan speaks to greater information sharing and cooperation among intelligence agencies, removing barriers to information sharing, formalizing and expanding the Shiprider Agreement, and cybersecurity without any mention of the need for due process of individuals, oversight and review. CCLA believes these legal protections are not only the law, but are crucial to protecting individuals and their rights and freedoms.
>> Click here for 12 CORE LEGAL PRINCIPLES CCLA, ACLU and Privacy International (UK) believe must be included in this plan.
>> Click here for STATEMENT OF PRINCIPLES from Canadian watchdog and advocacy groups
>> Click here for more information regarding CCLA’s position and analysis of the Security Perimeter and the “Beyond the Border” Action Plan
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About CCLA
The Canadian Civil Liberties Association (CCLA) is a national organization dedicated to promoting respect for and observance of fundamental human rights and civil liberties. Its work, which includes research, public education and advocacy, aims to defend and ensure the protection and full exercise of those rights and liberties.
Please direct all media-related inquiries to:
Penelope Chester – CCLA – pchester@ccla.org | 416 363 0321 ext 225 | 647 822 8764
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By Communications on December 6, 2011
The Canadian Civil Liberties Association is monitoring the case of Mohamed Zeki Mahjoub, currently being argued in Federal Court. Lawyers for Mr. Mahjoub – who is subject to extremely strict release conditions pursuant to a Security Certificate – are asking the Court to lift these conditions.To read more about Security Certificates and how the process works, click here.
The Security Certificates issued against Mr. Mahjoub
Mr. Mahjoub was granted refugee status in Canada in 1996.
Despite facing no charges, Mr. Mahjoub was arrested and detained in 2000 on a Security Certificate alleging he was a threat to national security. Mr. Mahjoub faces deportation to his country of origin – Egypt – and argues he will be tortured if he returns there.
In 2008, following the Supreme Court of Canada’s finding the previous year that the Security Certificate scheme under the Immigration and Refugee Protection Act was unconstitutional, a new certificate was issued against Mr. Mahjoub under a re-crafted regime.
Some of the evidence on which both certificates were issued remains secret and, as discussed below, was found in 2010 by a Federal Court judge to reasonably include information derived from torture.
Mr. Mahjoub’s Detentions and Releases
In 2007, on Mr. Mahjoub’s third application for release from detention, a judge found that he would not pose a threat to national security if released under the strict terms set out in the order.
Mr. Mahjoub was held in detention from 2000-2008. In March 2009, Mr. Mahjoub chose to return to the detention facility as his family was having trouble living under the strict conditions of his release, including, for example, the family home being subject to intense surveillance. In late 2009, he was released from the facility once again on stringent terms. He argues that conditions of his release, such as wearing a permanent tracking device, remain invasive.
Mr. Mahjoub’s lawyers reportedly will argue this week that the basis for CSIS’s assessment that Mr. Mahjoub may be a threat to national security, is not sufficient to justify the strict conditions of his house arrest, which have resulted in irreparable psychological harm to him. While Mr. Mahjoub’s broader challenge to the reasonableness of the Security Certificate remains to be heard, his lawyers will challenge CSIS’s assessment of the threat Mr. Mahjoub poses as too vague and lacking reasonable grounds to justify the strict conditions and monitoring he faces.
CSIS and Evidence Derived from Torture
In a 2010 hearing on the admissibility of information relied on by Ministers in their case against Mr. Mahjoub, Justice Blanchard of the Federal Court found that there were reasonable grounds to believe that some of the secret evidence constituting the basis for the Security Certificate, had been procured through torture. In his ruling, the judge held that the Security Intelligence Report about Mr. Mahjoub be reviewed to exclude information obtained through torture, which is inadmissible in Canadian law. Justice Blanchard wrote that, in his view, CSIS policies and practices “do not provide for an effective mechanism to ensure that such information is actually excluded from the evidence relied on by the Ministers.” Click here to read the decision.
This past weekend, the Montreal Gazette reported that it had obtained a January 2008 letter written by the former director of CSIS, Jim Judd, arguing against a legislative amendment that would have legally banned information procured from torture, in the Security Certificate process. Mr. Judd expressed concern that a derivative information ban would hinder the CSIS’s information-gathering and analysis function, and could make Security Certificate proceedings at the time unsustainable. The amendment, which eventually was adopted, made any information obtained from torture, or “derivative information”—information that was derived from information initially obtained through torture– inadmissible.
CCLA is concerned that the comments in Mr. Judd’s letter speak to the extent to which CSIS may have continued to rely on evidence taken from torture in its information gathering and reporting, despite assertions to the contrary.
We will continue to keep you posted on Mr. Mahjoub’s case.
By Sukanya Pillay on December 6, 2011
The Montreal Gazette reported on Saturday December 3 that it had obtained a memo written in 2008 by former CSIS director, Jim Judd. The memo argues in favour of CSIS relying upon information procured through torture — or “torture leads” that are subsequently corroborated — in the Security Certificate process. The CCLA is very concerned to read that CSIS favoured relying upon the “fruits of torture” even in 2008, and and may have been forwarding such information as part of the underlying bases of Security Certificates, to Ministers and to the Courts.
CCLA argues that Canadian agencies must not in any way condone or rely upon information procured from torture. Torture is a violation of human dignity and human rights. Torture not only debases and dehumanizes its victims, it also debases the torturer and the society that condones torture. Worldwide international human rights activists have argued about the clear unreliability of information procured from torture – a person being tortured can confess to anything to stop their torture. Torture is such an affront to human dignity its use can never be justified.
CCLA notes that Canada is legally bound to uphold the absolute prohibition against torture — a peremptory norm of international law from which there can never be any derogation. The prohibition against torture encompasses a prohibition against relying upon information obtained from torture in any proceedings. Similarly, the UN Convention Against Torture, and the Canadian Criminal Code, both prevent Canada from relying upon such information.
Indeed, one of the recommendations directed to CSIS from the Arar Inquiry Report (2006) is that information should never be exchanged or solicited from foreign governments known to engage in torture or other serious human rights abuses. Justice O’Connor also recommended that agencies should provide trainings for staff to learn to identify and distinguish information that may be the result of serious human rights abuses. The CCLA argues that torture is illegal, immoral, and cannot be tolerated or condoned in any manner.
As such, the CCLA is very concerned to note that in 2008, Mr. Judd’s memo argued against a legislative amendment in Bill C-3 that rendered “derivative information” – that is information initially procured from torture – inadmissible in the Security Certificate process. However, Bill C-3 passed in February 2008.
Canadian courts have found that information procured from torture was included in the bases for Security Certificates in the cases of Adil Charkaoui, Hassan Almrei, and Mohammed Mahjoub. For more information on the cases of Adil Charkaoui and Hassan Almrei, please click here.
This week in Ottawa, Mr. Mahjoub’s lawyers are requesting a Federal Court judge to remove Mr. Mahjoub’s stringent release conditions, given that the very reasonableness of his Security Certificate has been called into question.
CCLA will continue to monitor this important case and keep you posted.
>> Read more about CCLA’s position on the absolute prohibition against torture
By Sukanya Pillay on December 1, 2011
CCLA welcomes the news that Abousfian Abdelrazik has been de-listed from the UN 1267 listing regime. At this stage, CCLA is very concerned that Mr. Abdelrazik remained on the list from 2006-2011 and suffered from being publicly and internationally branded as a ‘terror suspect’, on the basis of “secret evidence”, with his assets frozen, unable to receive financial assistance, and his mobility rights severely curtailed.
CCLA has spoken out repeatedly to argue against the UN 1267 listing process because of the unfairness and lack of due process inherent in the UN 1267 listing process, and the devastating consequences for wrongly listed innocent individuals, and their family members. To read an earlier CCLA opinion piece on this issue, click here http://ccla.org/2010/06/26/canada-and-un-resolution-1267/ . For further analysis, please read “The UN 1267 Sanctions Regime: No Due Process”, below.
Currently, Mr. Abdelrazik is suing the Federal Government for its alleged role in his prolonged detention in Sudan. CCLA will keep you posted on this important case.
The UN 1267 Sanctions Regime: No Due Process
(Originally Published June 2011)
To fight terrorist activities of Al Qaida and the Taliban, the UN Security Council passed Resolution 1267 (1999). Related resolutions were passed over the next ten years, creating a sanctions regime commonly referred to as UN 1267. Notably, UN 1267 creates sanctions that target individuals. The sanctions include being publicly “listed”, being subject to a global travel ban and asset freezes, and being unable to receive funds from any sources including employers and lenders. But what if a listed person is innocent of any terrorist activity and wrongly listed? What recourse does this person have?
UN 1267 has been criticized internationally for its failure to provide basic due process rights. People are given no notice before they are listed by the UN 1267 Committee. Criminal charges or convictions are not a prerequisite to listing. Individuals do not always know which State listed them, or why.
Without knowing sufficient reasons, how can an individual make an effective defence? And to whom? One Canadian judge (Justice Zinn of the Federal Court), and many international writers, have condemned the UN 1267 regime as being untenable under international law, because of the “denial of legal remedies” and failures of due process, natural justice, and fairness. In Europe, courts have struck down domestic legislation implementing UN 1267, because of the lack of due process. By Resolution 1904 (2009) the UN 1267 Committee created an Office of the Ombudsperson, occupied since June 2010 by Canadian Kimberly Prost. Now, individuals, organizations or groups can submit delisting requests directly to the Ombudsperson. The Ombudsperson will then investigate by contacting relevant States and other parties, and then issue her recommendations in a report to the UN 1267 Committee. While creation of the Ombudsperson’s office is welcome, it does not go far enough in addressing the inherent flaws of the UN 1267 listing regime. There is no guarantee the Ombudsperson will receive complete or accurate information from States who support an individual’s listing. The UN 1267 Committee is not obliged to accept the Ombudsperson’s recommendations. And refusals of the UN 1267 Committee are not subject to any judicial review process. In other words, a listed individual can still be denied due process and an effective remedy.
Currently one Canadian is on the UN 1267 list, Abousfian Abdelrazik. Listed in 2006 despite any criminal charge or conviction against him, he has tried for years to be delisted. A 2007 delisting request submitted by Canada on Mr. Abdelrazik’s behalf, was refused by the UN 1267 Committee without reasons. Though there is speculation, it is uncertain which State requested that Mr. Abdelrazik be listed. The reasons for his listing are unknown, though he has argued that his listing is based on faulty information procured from torture, contrary to Canadian and international law. Mr. Abdelrazik has filed a delisting application with the Ombudsperson, currently being investigated. Whatever the recommendations of the Ombudsperson, there is no guarantee the UN 1267 Committee will follow them.
The CCLA is opposed to the current UN 1267 listing process, and any listing process devoid of due process and procedural fairness. If the UN 1267 regime continues, the CCLA believes there must be key changes. At a minimum, States who list individuals or seek their continued listing, must provide sufficient reasons, so an individual can provide a proper challenge. Individuals must have effective recourse to remedies, redress, appeal and/or judicial review. Listing itself must be periodically reviewed so that new exculpatory information or errors in the original listing process can be revealed,.The CCLA agrees with international recommendations that any listing be “preventative and temporary”, and as such agrees with the proposed 36-month sunset clause: i.e. listing would expire in 36 months unless, after an effective review, the UN 1267 Committee decides to continue listing and provides sufficient reasons for this decision, with opportunity for review or appeal. Finally, individuals should be able to request the Ombudsperson to recommend humanitarian exemptions of the UN 1267 Committee. The CCLA notes that without these amendments, the UN 1267 sanctions regime remains at odds with the foundational principles of the UN Charter –commitment to human rights including fairness and due process.
By Sukanya Pillay on October 12, 2011
The United Nations has just released a report documenting serious evidence of the torture of detainees in Afghanistan. The UN Assistance Mission in Afghanistan, interviewed over 379 detainees from 2010 to 2011, who gave first-hand accounts of their experiences of torture and other serious human rights violations, committed by the Afghan National Directorate of Security (NDS) and the Afghan National Police. The report entitled “Treatment of Conflict-Related Detainees in Afghan Custody” is released by the offices of the UNAMA and the UN High Commissioner for Human Rights, and can be accessed here
The Canadian Civil Liberties Association has repeatedly called for a public inquiry into the transfer of Afghan detainees, by Canadian forces in Afghanistan, to the NDS. Our position has always been that Canada is legally obligated in international law and under the specific rules applicable to the International Security Assistance Force (of which Canada is part), to ensure that detainees are not transferred to the risk of torture. To do so is to violate the legal principle of non-refoulement found in international humanitarian law. The very risk of torture places strict legal obligations upon Canada prior to, and following any transfer; whereas the past allegations, and now further compelling reports, that torture has indeed taken place, impose a legal responsibility to investigate Canada’s role in complicity in torture.
Any specific and systemic failures by Canada, at every stage, must be identified, rectified and redressed. These failures can most effectively come to light and be addressed through a public inquiry. By not taking these steps, Canada compounds our legal and moral errors in contributing — however unintentionally – to torture and other serious human rights violations suffered by detainees we have transferred.
>> To read some of CCLA’s previous statements on this issue click here, here, and here.
By Sukanya Pillay on September 9, 2011
This op-ed was originally published on September 6, 2011 on Canada.com
Canadians have an opportunity to reflect on how the 9/11 terrorist attacks ten years ago, changed our country.
Prior to the attacks, we demonstrated a high level of commitment to certain core values — rule of law, due process, equality, habeas corpus, presumption of innocence, and the absolute prohibition against torture. These values lay at the heart of our Constitutional and international law obligations.
We knew, from contemporary history, that the absence of such legal protections resulted in societies where exceptional measures became the norm. Such societies could devolve into accepting presumptions of guilt, secret trials, secret evidence, extrajudicial execution, arbitrary detention, torture, even ethnic cleansing and massacres. To prevent such devolution, Canadians knew that any incursion into civil liberties must be legally and demonstrably justified in a free and democratic society; unjustifiable incursions must be remedied.
We upheld the absolute nature of the prohibitions against torture and arbitrary detention, even in times of national security emergency. Domestically and internationally, Canadians took the position that vigilant adherence to universal human rights guaranteed by law was the best protection against an erosion of civil liberties that could unrecognizably alter democratic states.
Can we make the same claim today? Our national security actions since 9/11 require our attention:
- Canada may have transferred Afghan detainees to torture. We may be compounding our legal and moral error by failing to properly investigate, identify and redress the wrongs. Furthermore, disregard for the international laws of war may jeopardize our soldiers should they fall into enemy hands.
- Canada has passed on corrupted or faulty information to foreign governments, with the result that Canadians have been transferred, detained, and/or tortured abroad. Maher Arar, Ahmad El Maati, Abdullah Almalki, and Muayyed Nureddin are known, innocent Canadians who were transferred to torture with varying roles played by Canadian officials. We have failed to implement fully the lessons outlined by the federal inquiries into these cases, and more recently from the 2010 Air India Inquiry report.
- Canada seeks to re-introduce post 9/11 amendments to our Criminal Code that will enable interrogation and preventive detention without criminal charge. Civil liberties concerns include the undermining of due process, fair trial, and lower evidentiary thresholds to trigger proceedings.
- Canada is increasingly using immigration and administrative processes in counter-terror initiatives. These processes have lesser due process protections than criminal proceedings, but nevertheless result in serious sanctions to individuals. The problematic results include removals of individuals to the risk of torture; using Security Certificates to detain non-Canadians pending deportation even though the use of Special Advocates does not cure concerns that the detainee has no right to know or challenge the secret evidence upon which the Security Certificate is based; a harmful conflation of terrorism and immigration in the minds of the public; emergence of second-tier of justice for non-Canadians or permanent residents; a dilution of our humanitarian and legal commitments to refugees; and finally, the danger that deportation in lieu of prosecution or extradition may actually result in “freeing” a potential terrorist to resume their illegal activities abroad.
- Canada continues to participate in information exchange with improper safeguards, exposing Canadians to profiling and listing on ‘terrorist watch lists’ abroad, including the U.S. no-fly list and the UN no-fly list. Mistakenly listed Canadians have no effective method of proving innocence or getting de-listed, and the impact upon their lives can be ruinous, as claimed by Canadian Abousfian Abdelrazik, whose name is still on the UN list. Canada’s own no-fly list (Passenger Protect Program) was heavily criticized by an internal review that found administrative and procedural errors and failures regarding the listing of a Montreal student.
Despite these many concerns, there is some comfort that Canada has not taken the extreme legislative or administrative measures seen in other countries, including the United States, following 9/11. Before the UN General Assembly, Canada continues to cite its respect for the rule of law and its international law obligations. Domestically, our three branches of government have each demonstrated efforts to protect national security and human rights.
But we have not always got it right. And when we fail to take timely action to provide accountability, transparency, and redress, we risk morphing from a state anchored on the rule of law and democratic guarantees, to a state that condones illegal actions and disregards human dignity.
Terrorists have little regard for human dignity, human life, human rights, or the rule of law. We cannot effectively fight terrorism and protect our national security if we operate from a paradigm that also disregards these objectives. If, as Canadians, we no longer shrink from the injustices of wrongful conviction; torture, cruel, inhuman and degrading treatment; racial profiling; arbitrary detention; impunity; then what exactly are we protecting?
Our only choice on this anniversary of 9/11 is to renew our commitment to our Constitutional and international legal obligations, to right our past wrongs, and to ensure all future national security initiatives contain our cherished due process and legal safeguards.
Sukanya Pillay is the Director of the National Security Program at CCLA. Learn more: http://ccla.org/our-work/national-security/
By Communications on September 8, 2011
 The intense media and popular chatter around the ten-year anniversary of 9/11 shows how much this seminal event has affected lives and society at large. For organizations like CCLA, that are concerned with the rule of law, civil liberties and the protection of fundamental democratic principles, the political and legal changes engendered by 9/11 have been nothing short of transformative. During a panel discussion hosted by the Canadian Civil Liberties Association at Toronto’s historic Campbell House on September 7th, leading experts discussed these changes, and the implications for Canada.
Attorney Paul Champ, CCLA general counsel Nathalie Des Rosiers, ACLU deputy legal director Jameel Jaffer and Osgoode Hall Dean Lorne Sossin debated questions such as whether there is an opposition between national security and civil liberties, how significant are pieces of legislation such as Canada’s Anti-Terrorism Act and the U.S. Patriot Act, and whether the “old rules” of war, of due process were becoming moot in the age of “the war on terror.”
One of the strongest messages from the evening was that we should not consider important issues of national security to be antithetical to civil liberties. Dean Sossin, whose broad legal, political and academic experience helped shed light on some of the broader issues at play.
Nathalie Des Rosiers said she thought the biggest legacy of 9/11 is that our “traditional” system – habeas corpus, presumption of innocence, due process, fairness – is made to be considered “insufficient” to fight terrorist threats, and law enforcement authorities view rules – such as obtaining warrants – as impediments. Dean Sossin reinforced this notion, stating “I’m still unconvinced that the existing system would not have been sufficient, in retrospect, to the work that the national security apparatus needs to do.”
In terms of implications for Canada, panelists expressed concern that extraordinary measures – such as the ones contained in the provisions of the Anti-Terrorism Act – are becoming the norm. Nathalie Des Rosiers explained that the government hurried to pass legislation that is constitutionally unsound, expecting the courts to deal with the constitutionality of new laws and regulations. However, upholding constitutional principles is not just the job of the courts and judges – it’s also the job of the government. Furthermore, both Des Rosiers and Paul Champ noted that it was particularly difficult to challenge these laws in the courts.
Champ explained how lawyers have been wrestling with cases dealing with brand new issues, and that there has been a learning curve. Ten years after 9/11, there has been a lot of litigation around these questions, but we’re still struggling to find appropriate remedies. Moving forward, a key legal challenge will be to find appropriate remedies when courts recognize that people’s rights were violated in the context of national security. The Kadhr case provides an interesting example. Canadian courts declared Kadhr’s imprisonment to be unconstitutional on two occasions, yet a remedy has not yet been found. Des Rosiers reflected on the ease with which the Canadian government evaded its obligations under the Convention on the Rights of the Child in this context.
Jameel Jaffer drew parallels with what is happening south of the border. He spoke of the “safe secrets doctrine”, whereby the U.S. government refuses to respond to allegations having to do with torture, renditions or other actions linked to the war on terror on the basis that even responding to the allegations would jeopardize important state secrets. The fact that this holds up in court is concerning, because we need more accountability – not less – when the government engages in enhanced surveillance, monitoring and extra-judicial activities. All the panelists agreed that in an age of increased government powers, we need equally strengthened accountability mechanisms.
Throughout the discussion, panelists did not question the need for better and more security to protect populations from terrorist threats. The question is how do we balance this need for security with the need to protect and uphold civil liberties? Dean Sossin put it eloquently “There is an ongoing challenge to our rights-oriented, inclusive society and preserving the idea of open communities.” Ultimately, the question is what kind of society do we want to be, and how do we reconcile national security imperatives with our aspirations as a democratic society. Dean Sossin reflected on the apparent lack of political leadership on these very important questions.
On the topic of eroding equality rights, Paul Champ spoke about how Muslim Canadians were disproportionately affected by anti-terrorism activities, though he did warn that if the provisions of the Anti-Terrorism Act and tools such as “No-Fly Lists” became the norm, we would soon see other types of communities, such as environmentalists and trade unionists, targeted by increased surveillance, monitoring and invasive law enforcement methods.
In terms of long term implications, Jameel Jaffer said he believed that the “surveillance society” created by 9/11 was here to stay. For example, the fact that the Obama administration has “entrenched” the practices started under the Bush administration shows how that these changes are not just about one administration, but societal shifts that people will need to contend with moving forward. For Jaffer, one of the big questions is how to reconcile the fact that governments are becoming increasingly secretive but that through increased surveillance, they are able to find out more and more on individuals.
Nathalie Des Rosiers reminded the audience that eternal vigilance is key in a democracy, and that people need to speak out when they see injustice. We need to educate people about their rights, about the Charter, so that each individual can be an effective advocate and stand up in the face of injustice. Jaffer and Champ both agreed that it is not just up to lawyers to fight against unfair measures, that everyone – experts, non-experts, people from all fields and backgrounds – have a role to play in challenging the erosion of democratic rights. Champ said that while “lawyers can help channel issues through the courts, it’s a collective duty to ask for accountability.”
The implications of 9/11 for Canada concern huge paradigm shifts regarding the rule of law and respect for fundamental rights. Throughout the discussion, the panelists noted that it might be too early to say what the true legacy of 9/11 will be. While it may be so, the discussion highlighted many key issues that people – as citizens, as voters, as democrats – need to contend with.
>> A transcript of the discussion is available here (replay of the live blog)
>> The full 90 minute discussion will be broadcast on CPAC on Saturday, September 10th, at 9:30 a.m. EST, and will be available through CPAC’s video-on-demand archive shortly.
By Sukanya Pillay on April 4, 2011
This article was originally published on Canada.com as part of their Real Agenda series
Canada’s anti-terrorism legislation is not a partisan issue. Laws were first introduced by the Liberals in 2001, and after they expired in 2007, the Conservatives in 2010 introduced a bill seeking to renew them.
Although that bill died when the election was called, the issue remains. Canadians must ask themselves: are these provisions necessary for Canada to effectively fight terrorism? Or do they create exceptional powers that seem “tough on terror” — but in practice, actually impede prosecution and conviction? And what about the potential harm to our constitutionally guaranteed civil liberties?
There is no argument that Canadian leaders must keep our country safe, and must proactively fight the terrorist threat. One clear, effective way to do this would be to rely on the existing criminal law process, which enables lawful evidence-gathering, prosecution, conviction and punishment — and simultaneously upholds our Charter rights of presumption of innocence, due process, and fair trial.
The anti-terrorism provisions, brought in ten years ago, were not consistent with these rights and don’t seem very effective in fighting terrorist activity. Renewing them — even if they’re again made subject to a sunset clause — threatens to normalize exceptional powers that run contrary to traditional democratic principles.
Following the 9/11 terrorist attacks, Canada passed anti-terrorism legislation with provisions for:
Investigative Hearings — hearings that compel an individual to answer questions from the attorney general, in front of a judge. The Supreme Court has ruled that derivative evidence — testimony from these hearings — cannot be used against the individual, except in perjury proceedings. The individual can be detained if there is a danger he or she will abscond;
Preventive Detention, under which a terror suspect may be detained up to three days;
Recognizance with Conditions, which means a terror suspect can be placed under conditions a judge deems necessary. Similar to bail conditions, these may include house arrest, or preventing the suspect from using the Internet or cellphones. The individual can be detained for one year if there is a danger he or she will abscond.
When these provisions were passed in 2001, they were considered so controversial they were subject to a sunset clause, and expired in 2007.
Historically, it has been fundamental to our Canadian understanding of democracy that:
We do not compel testimony or self-incrimination;
We do not detain people without providing habeas corpus;
We believe in and provide due process and fair trials.
These include the right of an individual to know and challenge any evidence being used against her. These anti-terror provisions do not conform to these legal traditions or safeguards. Our society could become one where, in the absence of any criminal charges being laid, an individual could be forced to testify in a court of law, arrested, detained or made subject to bail conditions. An individual has no opportunity to challenge the basis on which she is being forced into an investigative hearing or detention or conditions.
Furthermore, under the provisions, the individual has no right to know or challenge the evidence against her. It is very concerning that they strip an individual of the basic rights of an accused in criminal law proceedings, but then subjects that individual to the threat of criminal punishment.
Without the ability to challenge evidence used against you, there is no guarantee that the evidence is accurate, or was not obtained from a third country or source that elicits condones torture as a method to elicit information.
Unfortunately, since 9/11 in Canada, we have had several instances of innocent people being wrongfully implicated in terrorist activities, and these people have suffered serious injustices because of faulty intelligence or improper procedures.
A very low threshold is required to subject people to this, and there is no clear disclosure or appeal process. If a person has no way to learn why she is being targeted, how can she adequately demonstrate her innocence? Innocent persons, or their family members, can be subject to stigmatization in Canada, or abroad.
Further, even if compelled testimony cannot be used as derivative evidence against an individual in Canada, there is nothing to prevent a third country from relying on that testimony and laying charges against that individual, or family members, abroad.
Strong anti-terror laws must enable lawful surveillance, evidence-gathering, prosecution, conviction and punishment. These anti-terror provisions may actually do the opposite.
Investigative hearings can tip off actual perpetrators that they are being investigated. Second, detaining an individual, placing him under house arrest, or barring him from using the Internet or cellphone, all impede surveillance and evidence-gathering. In anti-terror investigations, electronic surveillance is an important evidence-gathering tool, as stated by the Air India Inquiry Report released in 2010.
And forcing testimony is not a guarantee that you will get the truth. What if the person is lying, or refuses to speak for any number of reasons?
These very points have been raised by lawyers and advocates in other jurisdictions, like the UK, where there is a strong movement against similar measures because they are undemocratic and actually may impede effective counter-terror efforts.
People (regardless of political affiliation) who support these anti-terror tools argue that these provisions have never been used, and therefore are not a threat to us. I disagree.
Renewing these provisions threatens to normalize anti-democratic procedures.
Second, the provisions aren’t necessary — the Criminal Code already contains adequate provisions and legal safeguards to arrest and detain suspects.
Third, these provisions may impede evidence-gathering and, ultimately, prosecution and conviction.
In this election, Canadians have the opportunity to ask the candidates where they stand on these important issues. Our country can take a leadership role on the international stage by keeping Canadians safe through effective counter-terror measures that uphold our Constitution, and work effectively to prosecute, convict, and punish terrorists. Renewing these controversial parts of our anti-terrorism legislation falls short of all of these objectives.
By Sukanya Pillay on February 15, 2011
The CCLA has just been informed that a UK national, seeking to fly direct from Toronto to the UK ,was prevented from doing so by two Canadian airlines because he is on the US No Fly List. Neither flight was landing in the US — both flights were directly headed from Toronto to the UK — but apparently the airlines were concerned their planes could fly over US airspace or be required to make an emergency landing in the US.
Although we are still looking into the facts — it’s unclear by which process today the airlines would know a passenger on a potential US overflight is on the US No Fly List – we have some immediate concerns.
First, Bill C42 hasn’t yet passed, but if aircraft carriers are providing passenger information to US Secure Flight for overflights, then it would seem the aircraft carriers may be acting as if Bill C42 is already law. Prior to the phasing in of the US Transportation Security Administration’s (TSA) Secure Flight Program, airlines (including Canadian airlines) would administer the US No Fly List. However that process changed in the US with the phasing in of the US Secure Flight Program. As of November 1, 2010 within the US, the Secure Flight Program administers the US No Fly List, and requires airlines to collect and send passenger information directly to Secure Flight. Secure Flight then conducts a screening process of that passenger information with US watch lists, and next reverts with instructions to the airlines about whether or not to issue boarding passes or conduct enhanced screening of certain passengers. Since the phasing in of the US Secure Flight program, it is uncertain what process non-American airlines are following for US overflights, but it seems the intention is that international airlines will also provide passenger information directly to Secure Flight for screening against the US No Fly List.
Bill C42 is proposed legislation in Canada, which contemplates Canada’s compliance with the US SEcure Flight Program. It does this by exempting Canadian airlines from Canada’s privacy law (i.e. PIPEDA – the Personal Information Protection and Electronic Documents Act). The PIPEDA exemption means Canadian airlines would be legally allowed to give the US government passenger information on US overflights (i.e. flights that enter US airspace, but do not land in the US). However, until Bill C42 passes, PIPEDA still applies to Canadian airlines, and prevents them from supplying passenger information on US overflights to the US or any other foreign government.
Second, we have some serious concerns about the lack of legal safeguards in Bill C42. We presented our concerns to a Parliamentary Committee in November 2010, urging the Canadian government to seek written legal safeguards regarding the use, retention, dissemination and destruction of any passenger information provided for overflights.
Third, we are concerned about fairness and the listing process in general — if a person believes they were wrongfully placed on the US No Fly List, it is apparently very difficult to find out why they were placed on the list, and difficult to get their name off of the list.
Here on our website, we recently posted our continued concerns on the amended version of Bill C42 that was introduced in the 2nd reading.
BIll C42 is currently in its 3rd reading and it appears likely to pass. If Bill C42 does pass, then PIPEDA will cease to apply and Canadian airlines will be able to provide passenger information to US officials for US overflights, as required by US laws.
Earlier this month when Bill C42 was still in its 2nd reading, we wrote an article setting out our concerns. We now provide this article for you below.
Bill C42: Canada Needs to Negotiate Protections for Canadians
Apparently the Canadian government believes it no longer needs to protect the personal information of individuals on Canadian airlines.
As long as the Canadian air passenger is traveling through US airspace, the Canadian government is ready to hand over identifying information like names, gender, and possibly travel habits such as how you pay, whether you fly last minute, and if you book a single or double room.
Canada also seems ready to trust the US –(and possibly Mexico, the Dominican Republic, Panama, Chile, Argentina and Brazil) – to decide whether a Canadian should be permitted to board a flight to South America or Europe, or even back to Canada, if that flight passes through US airspace. Canada is evidently not too concerned that the US No Fly List may determine who boards an aircraft in Canada, that is not even destined to the US. Nor is Canada displaying enough concern about what recipient Governments will do with the personal information collected from Canadian airlines, or whether these Governments will share this information with third countries or non-State actors. In fact, Canada is effectively shrugging its shoulders as if to say, “we don’t have a choice”, and agreeing that the US approach to aviation security will predominate in Canada.
Sound concerning? We think so. And it is a likely outcome if Bill C-42, currently being debated in Parliament, passes into law.
Before going further we must stress that we support legal measures which lawfully, and effectively, protect against the real threat of terrorist attacks, and which strengthen aviation security. Indeed, counter-terror laws are necessary. But to be effective, such laws must actually strengthen security, protect individuals, and uphold the Canadian Charter of Rights and Freedoms and international law. By contrast, Bill C-42 only pays lip-service to any real ‘security’ – as the security measures are left to “foreign states” — and simultaneously opens up a Pandora’s box of threats to the rights and liberties of Canadians. Let us explain.
1. What does Bill C-42 do?
As written, Bill C-42 will allow Canadian airlines to provide passenger information to any foreign government, if the aircraft is flying over the United States, and if such information is required by the laws of that foreign government. The only caveat is that the foreign government must be named, by the Minister, in the regulations — right now the regulations only name the United States. There is no description in Bill C-42 of any required safeguards to deal with information sharing, surveillance, listing, or due process protections including redress. We do not believe that relying upon diplomatic assurances regarding use, storage, and destruction is enough – at a minimum Canadian laws should prescribe some process for the necessary safeguards regarding Canadian aircraft passenger information. We are also concerned that the wording of Bill C42 does not prescribe Parliamentary oversight with respect to which “foreign countries” the Minister may earmark as entitled to receive passenger information from Canadian airlines.
2. What passenger information will be provided to the US?
The US Secure Flight Program, administered by the US Transportation Security Administration (US TSA), requires the name, gender, and Redress number (if applicable) of passengers. Redress numbers are provided if an individual has been “misidentified” on a Watch List and has filed a claim with the TSA. The purpose of providing the above information to the TSA is to allow TSA to match this information with the names on the TSA’s “Selectee List” and “No Fly List”, both of which are components of the FBI’s Consolidated Terrorist Watch List. Other passenger information may be requested, and this would likely mean Passenger Name Records (PNRs) [described in (4) below].
3. Why care if a Canadian’s name is compared to a US Watch List or No Fly List?
The American listing process has been criticized within the US, and internationally, because of the alleged high number of errors or “false positives”, and because of the allegedly unlawful ways in which names end up on the list – these unlawful ways are said to include racial profiling as well as the use of “corrupted” information, that is, information that may be procured by torture conducted elsewhere in the world. If your name is on one of these Lists, it is apparently extremely difficult to get it removed. The US FBI Terrorist Watch List has several hundreds of thousands of names on it, and is used to compile the US No Fly List and Selectee List. If your name gets on the US No Fly List, you can be barred from flying into the US or into a third country if your Canadian aircraft passes over the US. There is no way to know if you are on the list until you are prevented from flying, or subjected to ‘enhanced screening’. The American Civil Liberties Union has brought a lawsuit currently challenging the US No Fly List as being “unconstitutional” and “un-American” because of its lack of due process, the hardships imposed on listed people including the stigmatization of being a ‘terrorist suspect’, and its Kafkaesque applications.
4. Why care if PNRs are passed on to the US or Foreign Governments?
PNRs contain not only identification information, but also contain information that constitutes a sort of behavioural profile. For example, religious preferences, dietary preferences, aisle or window seat preference, type of credit card or cash payments, checked baggage or carry-on, last minute travel plans etc., may be contained in a PNR, and such information may be used to see if a person fits a profile that can be deemed a security threat. In other words, if you’re a last-minute flyer or like to travel only with carry-on baggage, you may fit a profile and end up on a No-Fly List and find yourself barred from international travel, or worse, stranded in a foreign country unable to “fly” back to Canada. False positives, and names mistakenly placed on lists, are problematic because they cause hardship for the misidentified individual, and they can detract the State’s attention from persons who may pose real threats.
There is also a concern about how such information is used within other countries. Since September 11, 2001, many countries have blurred the distinctions between their law enforcement agencies, and their national security agencies. The BC Privacy Commissioner observed in 2004 that the blurring of these distinctions risks descent into a police state. It is considered a hallmark of democracy that these distinctions remain to ensure that the rule of law is upheld, and to avoid arbitrary decision-making.
5. Could providing this information to the US or foreign governments protect aviation security?
Providing passenger lists may certainly be useful, but there has to be checks and balances. Specifically, there should be safeguards on how PNRs are used, how long they are kept, when they are destroyed, and how and whether they are disseminated domestically or internationally. Right now none of those safeguards are required of foreign governments by Canadian law, and the Canadian government is basically handing over Canadian PNRs and saying to foreign governments “do as you please”, or “we’ll take your word for it” regarding use.
6. Is there a better solution?
Yes there is. The European Union has previously used rigorous and flexible data protection laws that can be useful to Canada and the United States. The EU laws are not perfect but they seem headed in the right direction — typically there is a requirement for legal safeguards regarding use, length of retention, storage, dissemination and destruction to be in place. We should at least look to the successes the EU has had among its member states in protecting information, and see if there are practical protections we can import into any agreement we have with the US. (We understand that the executive arm of the EU has entered into negotiations with the US on a data exchange agreement which does not provide the same level of protections which exist among Member States of the EU — we are looking into this further, along with our EU counterparts who are advocating that privacy protections extend to any agreement of passenger information exchange with the US).
7. What about arguments that harmonization with the US is necessary?
Harmonization with a model law, or with commonly agreed ideals as has been done in the European Union, may be helpful. But Bill C42 may not be “harmonization” so much as it is walking into an agreement that will result in an ‘acceptance’ of a US model of aviation security. Canadians must assess any model of aviation security to be sure that it complies with our Charter, and with our values. Canadians must ensure that they are well informed of both the risks and benefits of Bill C42. Canadians must consider the likely scenario that — if Bill C42 passes — Canadian airlines will interpret the US No Fly List as having final say on who boards a Canadian aircraft for US overflights, regardless of whether a person’s name is not on the Canadian No Fly List, and regardless of whether the flight is landing in the US.
8. What about arguments that we need to comply with the US to have access to their airspace, or that US has the sovereign right to demand this information?
The US does have the right to demand any information it chooses, but Canada also has the right and the duty to insist upon legal safeguards for any information it is willing to hand over. Indeed there are a number of complementary duties Canada has in this instance:
– Canada has the duty to protect Canadians;
– Canada has the duty to protect aviation security;
– Canada has the duty to cooperate with its allies (which includes the US) to protect international peace and security.
Not only must Canada fulfill all of these duties, but we believe that these duties are mutually reinforcing. It may be that Canada has to engage in more complicated negotiations with the US but that is the price — and also the guarantee — of protecting rights and security.
As for the argument of US sovereignty, it is true that the US has sovereignty over its airspace. But “sovereignty” doesn’t equate to “carte blanche”. Every sovereign nation is expected to uphold the UN Charter. The UN Charter call on all States to uphold its commitment to protecting human rights (which includes the right to privacy with justifiable limits), and that this commitment should supercede any conflicting bilateral agreement. The US has been very vocal about the need to protect the rights of Americans, and this is a point on which Canada can reciprocally engage (i.e. we similarly have the need to protect the rights of Canadians) to find a proper solution for two neighbouring countries which both seek to strengthen aviation security.
When Bill C-42 was being debated last fall, the Government claimed that if the Bill did not pass by December 31, 2010, we would be denied access to US airspace. Well, it’s February 2011, and Canada is still flying into the US every day. Interestingly, it’s said that for every 100 Canadian flights that fly over the US daily, 2000 US flights fly over Canadian airspace. Clearly Canada has some leverage in these negotiations — but in the view of the CCLA, the most compelling leverage is that privacy rights are a prerequisite to effectively strengthening aviation security. False positives and harmful profiling practices do not advance national security in any country. Upholding privacy rights, and ensuring that any limits are necessary, proportional and of minimal impairment, would contribute to more effective aviation security.
We believe Canada can take a lead in calling for global standards for PNR information, which standards conform with our Charter and international laws. We believe it’s very important that legal safeguards regarding use, storage, retention, sharing, destruction, and redress be provided for in Bill C-42 before it passes. Further, there must be an amendment that requires Parliamentary oversight for any listing of “foreign countries” that can receive overflight passenger information from Canadian airlines. In January 2010 Canada entered into an understanding not only with the US, but also with Panama, Chile, Brazil, the Dominican Republic, Argentina and Mexico, to work together on strengthening aviation security. If legal safeguards are not included in Bill C-42, it’s just a matter of time before the personal information of Canadians is in the hands of many foreign governments who can make decisions impacting the mobility, privacy and security of many Canadians.
By Sukanya Pillay on March 11, 2010
In the case of ten adults charged with terrorism-related offenses, the constitutionality of ss. 38 to 38.16 of the Canada Evidence Act, R.S.C. 1985 is in question. Under publication ban.
Tags: Ongoing Court Cases
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