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Privacy and National Security
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.
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By Sukanya Pillay on February 22, 2012
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
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 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 February 10, 2011
In a judgment released today, the Supreme Court of Canada upheld the constitutionality of s.38 of the Canada Evidence Act. The s. 38 scheme allows Federal Court judges to determine whether or not evidence the Crown claims should be kept secret for national security reasons, should be kept secret. The issue was whether depriving an accused from having the (lower court) Trial Judge decide these issues denied the accused the right to a fair trial. The Supreme Court held that the Federal Court can rule on disclosure, and that the Trial Judge can stay the proceedings if he or she believes that non-disclosure will result in an unfair trial. The CCLA intervened in this case and thanks Anil Kapoor and Lindsay Daviau of Kappor Barristers for their excellent representation.
We argued that bifurcating the trial and preventing the trial judge from ruling on disclosure questions could result in n unfair trial and infringe the Charter. We reasoned that an accused would be prevented from knowing the case against him/her, and making a proper defence. The Supreme Court ruled that while it upholds the s.38 scheme enabling a Federal Court to rule on disclosure issues, the Trial Judge has the right to stay proceedings if he or she believes that otherwise, an unfair trial would result. In other words, the Supreme Court of Canada is saying there may be instances where it is in the public interest to stay proceedings and avoid the risk of an unfair trial, rahter than disclose evidence that could compromise national security. The power of the Trial Judge to stay proceedings ensures that an accused’s right to a fair trial is not violated. The Court noted that the State has two duties; (i) to protect society from national security threats created by disclosing sensitive information, and (ii) to prosecute an individual accused of a crime — where these two duties conflict, ”an unfair trial cannot be tolerated”, and therefore the remedy is to stay proceedings. To read the judgment click here http://scc.lexum.umontreal.ca/en/2011/2011scc6/2011scc6.html
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