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 Sukanya Pillay
on August 8, 2012
There have been recent media stories about CSIS considering use of information either procured from torture, or transferring information to a country where it could be used to torture a detainee.
CCLA’s position is clear: Canada cannot be complicit in torture. Torture is illegal in Canadian law and in international law:
1) This means that no evidence procured through torture can ever be used as evidence in a Canadian courtroom, or to deprive a person of his or her liberty.
2) Canada cannot pass on information to a foreign country, knowing that it may result in the torture of a detainee. Four Canadian-Arab men – Maher Arar, Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nurredin – were detained and tortured abroad due to direct or indirect faulty sharing of information by Canadian officials with foreign agencies. Two Federal Commissions of Inquiry have made detailed and specific recommendations (O’Connor Commission) and specific comments (Iacobucci Commission): CCLA believes the information-sharing recommendations and comments of the O’Connor and Iacobucci Commissions must be followed to ensure that Canada is not complicit in the torture of detainees held abroad.
3) Finally, the Minister of Public Safety has repeated that Canada will not ‘dither’, and that information procured from torture may be relied upon to “prevent a mass terror event”. CCLA believes that Canada must not encourage foreign countries to torture. Canadian police always act upon tips of mass threat – for example an anonymous phone call of a bomb threat will result in police first evacuating the public space, searching for a bomb, and — if a bomb exists – deactivating and disposing of the bomb in a safe manner. CCLA believes that the comments of the Minister of Public Safety – which conflate the need to act to prevent a mass terror attack, with a supposed need for torture information — is a harmful syllogism that undermines respect for the law and undermines respect for human life and human dignity – which respect is at the heart of the absolute legal prohibition against torture.
on July 27, 2012
The 2012 Summer Series is a collection of essays, articles and op-eds published by the Canadian Civil Liberties Association. The Summer Series explores some key questions about rights and responsibilities in democracy and examines topical issues through a civil liberties lens.
To view all articles of the Summer Series, click here.
Every year, thousands of Canadians are arrested around the world. Some are guilty, others are not. Some are treated fairly, but many are not, for various reasons. Whether it is because there is prejudice against foreigners, a weak justice system, corruption, a mistaken application of the law, or a failure to apply international standards, some people are abused, wrongfully accused, subject to torture or imprisoned in abusive conditions. Subsequently, these Canadians will be judged more or less impartially or plead guilty in more or less coercive circumstance. Later, their country of imprisonment may decide to accept that they be transferred to a Canadian prison to complete their sentence. At that point, they become completely at the mercy of the Minister of Public Security. All Canadians can apply to complete their sentence in a Canadian prison and, if the country where they are detained agrees, they may request the transfer. Most countries engage in transfer of prisoners because this enables the country of citizenship to support the rehabilitation of its nationals in a context where they will return to their country of citizenship at the end of their sentence anyway. In Canada, the Harper government has expanded the discretion of the Minister to deny such transfers. This increased the politicization of such transfer decisions.
This is certainly the case in the context of Omar Khadr. The guilty plea entered by Khadr before a military court and after already eight years in Guantanamo prison provided for an additional year in prison in Guantanamo and that the remainder 7 years could be in a Canadian prison. Omar Khadr who was 15 at the time of his participation in combat in Afghanistan has been imprisoned at Guantanamo since 2002, the only citizen of a Western country to still be there. The Canadian courts who have had to review his case concluded that the Canadian intelligence services violated his rights during interrogations, and he was not treated in accordance with international conventions, including the Convention on the rights of the Child. The Americans agreed to the transfer of Mr. Khadr to a Canadian jail nine months ago. Minister Toews still refuses to accept the transfer request and weighs the political costs of such a decision. The National Post invites people to vote on the question: who wants the return of Omar Khadr? People express themselves: they do not like the Khadr family, are afraid of terrorists, want murderers punished more severely. A decision that should be taken on the basis of legislative criteria is converted into a popular plebiscite.
All Canadians should be concerned about the way this case has been handled. The Khadr case dramatically exposes the inconsistencies of our politics: we sign international agreements such as the Convention against Torture or the Convention on the Rights of the Child and ignore their application in concrete cases. We claim to want impartial justice, free from politics, but when the courts rule in the Khadr case, the Minister refuses to comply or to acknowledge the implications of the judicial pronouncements. Detention conditions at Guantanamo violate international conventions of human rights, and Canada still does not care.
The rights of all Canadians are weakened by indifference and intransigence of the Minister in the Khadr case. The Minister is dragging his feet and refuses to promptly approve a transfer in the case of a prisoner in a context of multiple violations of human rights recognized by Canadian courts. When there are rights violations or abusive conditions of detention, the Minister should act promptly. Approving a transfer is not a “favour” to Mr. Khadr, it is the application of the same law for all Canadians. The process is designed to ensure that the Canadian correctional service is involved in the rehabilitation of persons who, in any case, will be returning to Canada when they finish their sentences. Public safety is best served by this involvement of the correctional service. The obstinacy of the Minister does not help anyone here: Canadians are not better protected by Khadr’s detention in Guantanamo instead of in Canada, the Americans who may want to do other plea bargains with other prisoners do want Canada to honour the deal. What the obstinacy of the Minister is doing is weakening the rule of law and every Canadian’s right to believe that he or she will be treated according to law at all times.
Nathalie Des Rosiers
By Sukanya Pillay
on June 21, 2012
CCLA recognizes the legal duty of the Government to protect aviation security, and we believe compliance with the Charter is a prerequisite to effective national security.
As such, CCLA is concerned by reports the Federal Government installed equipment in airports that will enable CBSA to audio-tape private passenger conversations– reportedly without explaining whether this plan was subjected to rigorous scrutiny for compliance with the Canadian Charter of Rights and Freedoms, and without conducting a privacy impact assessment study. The taping of individual conversations is an intrusion into constitutionally protected privacy rights, and therefore must be shown to be necessary, proportional, and of minimal impairment.
This week Public Safety Minister Vic Toews announced a privacy impact assessment study will be done, and no audio recordings will take place pending completion of the study – CCLA welcomes this decision. CCLA believes that a democratic society demands transparency — in this case, a privacy impact study is required and to be effective must clearly weigh any potential security gains against the risks to Charter rights including privacy.
CCLA further argues that any new airport audio-recording plans must observe clear legal safeguards, including safeguards surrounding the use, storage, dissemination and destruction of such audio-recordings; safeguards regarding secondary uses and sharing with domestic and foreign intelligence agencies; and safeguards against arbitrary profiling of individuals. Additionally, the clear possibility for passenger comments to be misconstrued requires clear guidelines and procedures that will enable any passenger sanctioned on the basis of his or her audio-recorded comments to have an opportunity to verify, clarify, address and/or explain any recorded comments of concern.
CCLA has previously noted that the Supreme Court of Canada states that “privacy is at the heart of liberty in a modern [democratic] state”.In Canada, the right to information privacy is ‘the right of the individual to determine for himself or herself when, how, and to what extent he or she will release personal information about himself or herself’.
Although there is no enumerated right to privacy in the Charter, it is a component of other fundamental rights and freedoms enumerated in the Charter. For example, Justice L’Heureux Dube in R. v. Lavigne (a pre-PIPEDA case) stated,
“The importance of privacy as a fundamental value in our society is underscored by the protection afforded to everyone under section 8 of the Charter “to be secure against unreasonable search or seizure”. This value finds expression in such legislation as the Privacy Act, which restricts the purposes for which information may be used to those for which it was received.”
The Supreme Court of Canada has held that the purpose of section 8 is to “protect against intrusion of the State on an individual’s privacy”, and included in this protected zone of privacy is personal information “which tends to reveal intimate details of lifestyle and personal choices of individuals.”
Although individuals may have diminished expectations of privacy in some settings, like airports, this “does not vitiate the constitutional recognition of some expectation of privacy.”
The right to privacy is also protected in the right to life liberty and security of the person in section 7 of the Charter.
CCLA has consistently argued that aviation security measures must comply with the Canadian Charter of Rights and Freedoms. CCLA has also previously referred to the 2009 findings of Martin Scheinen, former UN Special Rapporteur on Counter-Terrorism, that mass surveillance and data collection, can “blur the lines between permissible targeted surveillance and problematic mass surveillance which can result in arbitrary or unlawful interference with privacy”. This is because information is collected on large groups of people; without judicial oversight or transparency or opportunities for redress; put to secondary uses; shared with third parties or states; used to create profiles on individuals that may violate their equality and privacy rights and result in other injustices.
We will continue to keep you posted on audio-recordings and other aviation security measures in Canada.
 R. v. Dyment,  2 SCR 417 para 28.
 Lavigne v. Canada (Office of the Commissioner of Official Languages),  2 S.C.R. 773, at paras. 24-26, as cited in the CCLA Factum, R. v. Chehil.
 See CCLA Factum, R. v. Chehil, (2009), available at www.ccla.org, at para. 34, citing the Supreme Court’s judgment in R. v. Plant  3 S.C.R. 281, at para. 27.
 Ibid, at para. 32, citing R. v. A.M.,  1 S.C.R. 569, at para. 65.
 Special Rapportuer February 2009 report, supra note 13, at paragraph 32.
By Sukanya Pillay
on June 1, 2012
Today, the UN Committee Against Torture (“Committee”) released its Concluding Observations about Canada’s compliance with the UN Convention Against Torture (“UNCAT”). Because Canada has ratified the UNCAT, it has specific legal obligations it must implement.
As you know, CCLA has been concerned that Canada was falling short on its commitments. In earlier posts, we referred you to CCLA’s written submissions and a summary, and provided you with a description of our oral presentation to the UN Committee in Geneva on May 18th, 2012. After being briefed by the CCLA and two other Canadian NGOs, the UN Committee met with the Canadian Delegation on May 20th and 21st, 2012 in Geneva, to engage in a “constructive dialogue” about Canada’s implementation of UNCAT.
Well, we are happy to tell you that the UN Committee seems to have picked up on CCLA’s key concerns and incorporated our suggestions into their Concluding Observations. Some of the issues CCLA highlighted, which appear in the Committee’s Concluding Observations include (but are not limited to) the following:
- the use of information tainted by torture in the Hassan Almrei Security Certificate and potentially in other Security Certificates;
- the limitations of Special Advocates in the Security Certificate process and recommendations to ensure fundamental justice is upheld;
- risks to Canadians detained abroad;
- the need to recognize that non-State or private actors may commit torture — for example through domestic violence — and this triggers legal obligations for Canada as a State Party — namely to investigate and to provide a remedy, or to risk acquiescing in torture;
- the legal argument to interpret Canada’s State Immunity Act to allow torture victims to have access to civil recourse and remedies against foreign State torturers;
- Canada’s use of deportation, rather than prosecution, of individuals over whom Canada would have universal jurisdiction for serious crimes such as war crimes or crimes against humanity — and potential impunity of such ‘deported’ individuals;
- Bill C31 – excessive Ministerial Discretion to deem groups as “irregular arrivals”, mandatory detentions, and the lack of appeals on the merits for all;
- the complicity of Canadian officials in the human rights violations of Omar Khadr at Guantanamo Bay and our call for Mr. Khadr’s immediate repatriation to serve the remainder of his sentence in Canada, and that he receive appropriate redress;
- the principle of non-refoulement inadequately upheld in Canadian legislation and practice;
- Canadian security agencies uses of information tainted by torture;
- our repeated call for an integrated oversight mechanism of security agencies be implemented, as recommended by Justice O’Connor in the Arar Commission Report;
- CCLA’s concerns over the detention conditions and segregation of mentally ill individuals;
- CCLA’s concerns over the disproportionately high rates of violence and incarceration found with respect to Aboriginal women;
- CCLA’s concerns over the use of tasers;
- and CCLA’s concerns about policing demonstrations including the G8, the G20, and Montreal student protests.
The Committee has asked Canada to implement specific recommendations regarding the above concerns, and to respond in writing to specific questions by June 1, 2013, in its Concluding Observations – You can read it here. CCLA will continue working to ensure that Canada complies with its legal obligations pursuant to UNCAT, we will monitor Canada’s responses to the UN Committee’s recommendations, and we will continue to keep you posted.
By Sukanya Pillay
on May 21, 2012
On Monday May 21, 2012 and Tuesday May 22, 2012, Canada will be appearing before the UN Committee Against Torture. Canada will engage in a constructive dialogue with Committee Members, regarding Canada’s implementation of, and compliance with, the UN Convention Against Torture.
To watch Canada’s appearance before the UN Committee Against Torture LIVE click here http://www.treatybodywebcast.org/
Canada has signed and ratified the UN Convention Against Torture, which means Canada has voluntarily assumed binding legal obligations contained in this treaty.
CCLA appeared before the UN Committee on Friday, May 18th,2012 to brief Committee members of our concerns. We hope the Committee members will use CCLA’s briefing materials to engaged in a more informed question and answer session with the Canadian delegation.
By Sukanya Pillay
on May 18, 2012
The Canadian Civil Liberties Association today made a presentation to members of the UN Committee Against Torture, at the United Nations Palais Wilson in Geneva. The Committee is comprised of ten legal experts from around the world, charged with overseeing how State Parties implement the Convention at home.
CCLA presented highlights from our report to the Committee Members, on Canada’s compliance with its legal obligations pursuant to the UN Convention Against Torture. To read our report, click here: FINAL CCLA UNCAT MAY 2012 To read a SUMMARY, click here: CCLA SUMMARY UNCAT
CCLA answered questions regarding (i) the need for Canada to provide legal redress for victims of torture and State Immunity — in particular CCLA argued that interpretation of the State Immunity Act to bar civil suits for torture is tantamount to granting impunity for a violation of jus cogens; (ii) the need for Canada to recognize that domestic violence in the case of Nathalie Morin and her three children — all Canadian citizens unable to leave Saudi Arabia — can constitute torture and requires States to investigate and intervene – particularly where both Canada and Saudi Arabia are State Parties to the Convention Against Torture; (iii) CCLA’s concerns on the lack of implementation of legal safeguards and policy recommendations coming from the two Federal Commissions of Inquiry headed by Justices O’Connor and Iacobucci; (iv) and following from the last point, our concerns that plans for “information sharing and pooling” pursuant to the proposed Canada-US Security Perimeter must comply with the Canadian Charter of Rights and Freedoms and the recommendations of the two Inquiries; (v) Bill C31 and CCLA’s ongoing concerns regarding violations of the rights of refugees; (vi) incarceration and segregation of individuals with mental health issues; (vii) extradition, the principle of non-refoulement, and CCLA’s concern that individuals should not be deported or extradited to the risk of torture, the risk of a manifestly unfair trial, or to face charges based upon corrupted information procured from torture; and (viii) CCLA’s work in seeking accountability for the failures of the G20 policing in Toronto in 2010 and CCLA’s reaction to the OIPRD report released earlier this week.
The Canadian delegation will be appearing before the UN CAT on Monday, May 21, 2012, and Tuesday, May 22, 2012. CCLA will be providing the Committee Members with a summary brief, which we hope may be useful during the Constructive Dialogue between the Committee and the Canadian Delegation. We will keep you posted on the proceedings.
on December 7, 2011
FOR IMMEDIATE RELEASE
416.363.0321 ext. 225
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
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 – firstname.lastname@example.org | 416 363 0321 ext 225 | 647 822 8764
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.