Privacy is a fundamental right which can determine enjoyment of other rights including due process, fair trial and security of the person. Any restrictions must be prescribed by law, and necessary and proportional in a free and democratic society. CCLA is concerned that the right to privacy protected in the Charter (in sections 8 and 7), and in international human rights law, is being eroded in the name of national security.
CCLA is concerned about the creation of databases on individuals and the access to these databases by State agencies or foreign States; exchange of the personal information of individuals among State agencies and/or with foreign governments; placing of individuals on ‘watch lists’ or ‘no fly lists’ without adequate due process; accumulation of personal information on individuals relating to travel, finance and communications resulting in surveillance or accumulation of information on persons without their knowledge; failure of Canada to enforce or extend its legal privacy safeguards to information shared with foreign States or third parties.
On January 30th, Prime Minister Stephen Harper introducedBill C-51, the Anti-Terrorism Act, 2015. The Bill amends the Criminal Code, the CSIS Act, the Immigration and Refugee Protection Act, and several other pieces of legislation. Generally speaking, the Bill permits more latitude for greater information sharing between government agencies, lengthens the time for preventive detention, permits police lower thresholds for peace bonds, expands the Canadian No Fly List (i.e. Passenger Protect Program), broadens CSIS’s powers significantly, and creates new crimes that may criminalize legitimate speech.
“New laws and new powers don’t necessarily guarantee security” said Sukanya Pillay, General Counsel and Executive Director of the CCLA, “But new laws that violate constitutional rights are a prescription for mistakes, and mistakes won’t keep Canadians safer.”
Pillay questioned the necessity of the many amendments introduced by Bill C51, arguing that Canada has had strong anti-terror legislation in place, including the strong police powers under the Criminal Code. “There are still no answers as to why our existing laws and powers didn’t work – or if they didn’t work,” said Pillay, with reference to the tragic killings of two Canadian soldiers in 2014. “Canadians have a right to know precisely what failures existed in the laws that could have prevented the tragic deaths of Officer Vincent and Corporal Cirillo this past year.”
Bill C51 provides for enhanced information sharing among agencies. The CCLA has long argued that the recommendations of Justice O’Connor in the Arar Inquiry be implemented. Justice O’Connor had a series of recommendations targeting essential accountability and oversight of national security agencies, including his observation that the work of these agencies is increasingly integrated and as such, he recommended an integrated oversight process. To increase information sharing without implementing the lessons learned is folly. Broad unchecked powers without sufficient accountability and oversight will only create future problems.
The CCLA is seriously concerned that the powers of CSIS have been broadened within and outside of Canada, giving CSIS greater latitude in its operations including with respect to disruptions. CSIS, who are currently limited to investigative powers, would be given police-like powers, and be allowed to directly intervene, “disrupt” and “counter-message” communications and activities both in Canada and abroad that they believe are threats to national security. As such, it appears these powers would allow CSIS to intervene or interfere with travel plans, financial transactions, telecommunications, among other possibilities.
The CCLA is concerned that CSIS will be exercising greater powers on the basis of intelligence, which is by nature, not subject to the exacting criteria preserved for evidence collected by the RCMP or police. Of equal concern is the blurring of the line between the functions of CSIS and the RCMP, although going back to the MacDonald Commission, CSIS was created to have distinct features from the RCMP. In this regard the CCLA continues to argue for the government to heed the lessons and findings of the Air India Inquiry.
CCLA is also concerned with the lower legal thresholds for arrest, detention, and peace bonds the Bill proposes. Under the new legislation, enforcement agencies would be able to arrest someone on the basis that they think a terrorist act “may be carried out,” rather than the current legal standard of “will be carried out” contained in the Combatting Terrorism Act, legislation the government introduced less than three years ago. Furthermore, it would increase the period of preventive detention from three days to seven. Police have long held powers under the Criminal Code to arrest and detain an individual if there is a reasonable suspicion of an impending crime — and the controversial preventive detention powers introduced by the Anti-Terrorism Act 2001 and renewed last year were never used, thus raising questions of why the new broad provisions are required.
The Bill also threatens freedom of expression as it would criminalize ‘advocating’ terrorism. The CCLA finds the wording overbroad and is concerned the provision could be triggered even where the speaker has no intention of committing a terrorist act. The danger here is clearly to freedom of speech, and the criminalization of legitimate speech. The potential chilling effect on academics and journalists and bloggers is easily imagined, and the loss would be to a free exchange of ideas so necessary in the pursuit of truth and in combatting radicalization.
The CCLA is also concerned with the expansion of information sharing and lack of transparency within the proposed measures. The Bill grants government departments explicit authority to share private information with law enforcement agencies and allows for court proceedings to be sealed, despite the Federal Privacy Commissioner’s report released just 2 days ago recommending measures to increase transparency and protect individuals’ privacy.
CCLA has also over the past five years raised its concerns about Canada’s Passenger Protect Program (No Fly List), the failure of a clear and comprehensive legislation framework prescribing its operations and the need for proper legal procedures to be followed, for proper legal procedures to be identified and followed, for privacy protections, and for proper administrative process in accordance with natural justice. The program has had serious errors, and we are concerned that greater elasticity in this process without indication of proper corrections being made will result in more errors – which does not keep Canadians safer.
When asked in Friday’s press conference how he could guarantee these laws won’t be in direct conflict with people’s civil liberties, Prime Minister Harper responded that the new measures have “considerable oversight” and stated, “I think Canadians understand that their freedom and their security more often than not go hand and hand. Canadians expect us to do both, we are doing both, and we do not buy the argument that every time you protect Canadians, you take away their liberties.”
The CCLA actually agrees that civil liberties and security do go “hand in hand”, and we have long argued that civil liberties are actually a prerequisite for effective security. The CCLA believes that Canadians know rhetoric is not enough from any stakeholder – rather, there must be clear civil liberties protections in compliance with constitutional safeguards and there must be clear security gains: we are still working on a detailed analysis of Bill C51, but our first read indicates that the new anti-terror legislation does create serious civil liberties concerns, and as such it is difficult to forecast concrete security gains.
The government recently introduced Bill C-44, which would amend the Canadian Security Intelligence Service Act to give CSIS greater powers to engage in intelligence-gathering activities outside of Canada. The Bill would also create a new privilege for human sources that provide information to CSIS on a promise of confidentiality. While the CCLA recognizes that intelligence work and counter-terror investigations may require activities outside of the country, we remain concerned that this Bill may authorize CSIS to violate international human rights and could have the unintended effect of making prosecutions for terrorism offences more difficult. In addition, the Bill does not address any new mechanisms for accountability and oversight of Canada’s intelligence agencies, despite the recommendations of multiple Commissions of Inquiry. This is a gap that needs to be addressed. Powers should not be expanded without creating a mechanism for integrated oversight of national security agencies.
CCLA has made written submissions to the House of Commons Standing Committee on Public Safety and National Security, which summarizes our core concerns about the Bill. Read CCLA’s submissions here.
The UN Special Rapporteur on the promotion and protection of human righst and fundamental freedoms while countering terrorism, Ben Emmerson, will today present his report on the UN 1267 Sanctions Regime to the UN General Assembly, in New York.
In his report, the Special Rapporteur has raised an alarm over the due process failures inherent to the Al Qaeda sanctions regime — such as the lack of any international domestic judicial review process for listed individuals; the failure of the UN 1267 Sanctions Committee to consider the evidence underlying proposals to list individuals, and the Security Council’s lack of due process mechanisms despite its quasi-legislative and quasi-judicial functions under the sanctions regime.
The Special Rapporteur has also called for amendments to the mandate of the UN 1267 Ombudsperson’s office, to incorporate minimal international standards of due process into her office; in particular, Mr. Emmerson recommends that the Ombudsperson should “be empowered to receive and determine petitions from designated individuals or entities, for their removal from the list, and for the authorization of humanitarian exemptions.” In his view, “the Ombudsperson should be renamed the Office of the Independent Designations Adjudicator (IDA)”, and Mr. Emmerson calls upon States to be obligated “to disclose information to the IDA on conditions of confidentiality”.
The Special Rapporteur has also stressed that “information plausibly believed to be obtained through torture, should be excluded”, and in his report, he expresses concern that the Ombudsperson at present does not necessarily exclude information which may have been procured through torture.
To read a copy of the Special Rapporteur’s report released today and being presented to the UN General Assembly, click here
The Canadian Civil Liberties Association agrees with the recommendations made by the Special Rapporteur. CCLA has repeatedly expressed our concerns over the due process failures inherent in the UN 1267 Listing process. To read CCLA’s Statement on UN 1267, click here
On Friday, October 19th, 2012, nearly 100 attendees gathered at the University of Toronto Faculty of Law for a one day symposium entitled “The Social Cost of National Security: Assessing the Impact of Global Counter-Terror Initiatives on Canadian Society”. The conference was a partnership between the Canadian Civil Liberties Association and the Canadian Arab Institute — for whom this was their inaugural event — and was hosted by the International Human Rights Program at the University of Toronto.
The keynote address was given by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Mr. Ben Emmerson, Q.C. The Special Rapporteur emphasized the importance of observing international human rights standards in the implementation of counter-terrorism measures. Ensuring redress for victims of terrorism is important, however protecting the rights of victims does not legitimize violating the rights of others, and in fact only serves to increase the likelihood of retaliation and violence. The protection of the rule of law and human rights are crucial methods in challenging the spread of terrorism. A video of the keynote address can be found below.
>> Click here to read the live blog from the conference
>> Click here to read more about the conference, including a list of speakers and panels
>> Click here to listen to Ben Emmerson speak on CBC’s As it Happens
Mr. Emmerson’s keynote was a fitting start to the day’s panel discussions around the social impacts of counter-terrorism measures. Anil Kapoor, Yavar Hameed and Nathalie Des Rosiers began the first panel discussion by assessing the impacts of counter-terrorism legislation over the past ten years on security, immigration, and privacy, and the dangers surrounding complicity in torture and the use of secret evidence. Barbara Perry, Roch Tassé and Balpreet Singh examined the targeting of specific groups and individuals in the aftermath of 9/11, the role of the media and politicians in spreading Islamophobia and racialised images, and how targeting of specific groups has put a chill on freedom of expression and political dissent.
The afternoon discussions continued with an examination of key institutions and their role in national security, including Canada’s human rights commissions, national security agencies such as CSIS and the Canadian Border Services Agency, and the media. Charles Théroux, Pearl Eliadis and Sukanya Pillay examined how anti-terrorism legislation can lead to unfair discrimination and marginalization of minority communities; the potential “importing” of discriminatory practices under the umbrella of anti-terror initiatives; and the role that human rights institutions, such as the Canadian human rights commissions, could play in promoting social and systemic change.
Carmen Cheung, Reem Bahdi and Craig Forcese continued the discussion on oversight and accountability of national security agencies, looking at the how well the recommendations of the O’Connor Commission of Inquiry have been implemented, the implications of increased information sharing between Canada and the US, and the need to take a critical yet nuanced approach to government oversight mechanisms. The last panel of the day examined the role of the media in thinking about terrorism and counter-terrorism initiatives, and we were joined by Tony Burman, Rick Salutin and Naheed Mustafa. Each of these speakers has a range of experience working with national and international media, and the panel highlighted the important role that the media can play in bridging gaps between communities and bringing light to individual stories, the changing landscape of media in the face of cutbacks and new technologies, and the dangers of perpetuating stereotypes in the news.
Post-9/11 security measures have had a profound impact on individuals and society as a whole. Concerningly, these measures have at times resulted in secret evidence, the use or sharing of information procured from torture, arbitrary and indefinite detentions, racial profiling, and denial of due process and fair trial rights – measures that violate Canada’s Charter of Rights and Freedoms, and Canada’s international legal obligations. This conference gave participants the opportunity to pause and critically reflect on what has happened, but was also a time to re-energize our efforts and keep moving forward in the fight to ensure that fundamental civil liberties and human rights are protected.
Recent news stories suggest that former Public Safety Minister Stockwell Day, under cross-examination, has indicated that information procured from torture may have been relied upon in issuing a Security Certificate against Mohamed Mahjoub.
This is extremely concerning as it contravenes Canada’s international legal commitments to uphold the absolute prohibition against torture. In Canada, our Charter of Rights and Freedoms in section 7 protects the life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In another case dealing with security certificates (Charkaoui 1) , the Supreme Court of Canada stated that the national security context cannot be used to “erode the essence of the section 7 protection”, which is to provide “meaningful and substantial protection” and due process — it is the position of CCLA that depriving a person of liberty by relying upon information procured from torture — which is both illegal and immoral — cannot be reconciled with the principles of fundamental justice.
>> To read more on CCLA’s position on Security Certificates click here.
>> To read more on Security Certificates see CCLA’s summary of the case of Hassan Almrei, whose security certificate was vacated by the Federal Court of Canada — this summary also highlights key findings of the Supreme Court of Canada with respect to security certificates as set out in the Charkaoui cases.
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.
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.
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.
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.
CCLA Concerned About Lack of Constitutional Safeguards in Security Certificate Process
The Canadian Civil Liberties Association continues to be concerned that Canada’s Security Certificate process unjustifiably impairs key constitutional rights, including due process and compliance with the principles of fundamental justice.
We are concerned that Named Individuals continue to be unaware of the full details of the case against them, and continue to be impaired in making full defence. We argue that the introduction of Special Advocates does not cure these concerns, because the Special Advocate is also constrained in communications with the Named Individual.
We are concerned that evidence obtained from torture has been found by Canadian courts to have formed the bases of some Certificates.
We are concerned that Named Individuals face possible deportation to countries, where these Individuals fear they risk being tortured.
Finally we are concerned that by using Security Certificates against non-Canadians, we are creating a second tier of justice for non-Canadians or permanent residents.
CCLA believes that the Security Certificate process is not compliant with the Canadian Charter of Rights and Freedoms, does not demonstrably enhance national international law commitment to the absolute prohibition against torture.
*CCLA originally released this statement in press materials made available on February 15th, 2012