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.
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
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.
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.