About the Issue
Historically national security threats have resulted in serious equality violations and harms to innocent persons. The internment of Japanese Canadians during WWII is one such enduring example of the perils of discriminating against innocent individuals and racial or religious profiling.
In the post 9/11 era, CCLA has fought against profiling and discrimination particularly in the context of listing. Listing can occur when governments create lists such as “watch lists”, and “No-Fly Lists”. Further the lack of legislatively prescribed procedures for placing individuals on such lists, accountability measures, and effective redress mechanisms, can result in serious failures of constitutional rights including due process, equality rights, and mobility rights.
Why This Matters
The conflation of groups of individuals with national security threats is undemocratic and results in serious harms to individuals. Discrimination, racial profiling, and mistaken listing of innocents does nothing to keep us safer, and undermines our constitution and democratic principles.
The placing of people on No-Fly Lists, Asset-Freeze lists, and ‘Watch lists’ provides a clear example. Today innocent individuals – including in some cases children – have woken up to find themselves on terrorist watch lists in a manner described by one Federal court Canadian Judge as waking up to a “Kafkaesque nightmare”, in which you don’t know the charges against you and don’t have any clear way of fighting back. CCLA has received numerous calls from individuals who were denied boarding passes on planes, on flights from Canada to Europe – because their name appears on a US No Fly List.
Opaque processes that tarnish innocent individuals and impair their constitutional rights do not create security gains. CCLA continues to fight for clear procedures with accountability safeguards and oversight (for example in operations of Canada’s Passenger Protect Program and SPLAG), and clear legal recourses for affected individuals and effective redress.
CCLA has worked tirelessly to fight for proper legal safeguards, and accountability and oversight of powers. We have particularly fought against broad, unchecked powers introduced in anti-terror legislation.
CCLA has made No Fly Lists a priority. In examining Canada’s Passenger Protect Program (Canada’s No Fly List), we have argued for legislatively prescribed processes, subject to accountability and oversight. We have argued that these measure properly employed can prevent the serious and harmful errors we have witnessed post 9/11 including the placing of innocent individuals on No-Fly Lists, and ‘guilt by association’ which mistakenly tarnishes innocent individuals who know or come into contact with people under surveillance (e.g. Maher Arar). Lawful surveillance subject to safeguards is efficient in countering terrorism – whereas due process failures, discrimination and profiling do nothing to keep us safer and result in serious harms that imperil both innocent individuals and Canadian democracy and security.
CCLA has spoken out against State listing processes which have mistakenly and harmfully put individuals on lists without any proper recourse measures since 2001. More recently, in 2010 CCLA analyzed and set out its concerns regarding the failures in the Passenger Protect Program (read it here), and the amendments to the Aeronautics Act which essentially allowed the US to impose its No Fly List on Canadian Airlines (see our oral submissions here). In 2011 CCLA held a conference on the UN No-Fly List and the UN 1267 Sanctions Regime – and invited the newly created UN 1267 Ombudsperson to attend from Geneva. At our conference we highlighted our concerns over the treatment of a Canadian placed on the UN list, who was after our conference removed from the UN List. In 2012, CCLA travelled to Geneva to set out our concerns about listing and profiling to the UN Committee Against Torture in its consideration of Canada’s state report (learn about our efforts here).
In 2015 we continue our work, analyzing the new anti-terror omnibus bill that again prescribes changes to Canada’s No Fly List, and arguing for equality. We are also holding meetings with members of the Canadian Arab and Muslim communities to enable individuals to voice concerns over experiences of being unfairly treated.
CCLA is considered a major voice in responding to concerns about anti-terror laws and practices. CCLA is frequently sought out by the media, domestic and international, to weigh in on issues regarding spy agencies, surveillance, no-fly lists, border security, profiling and police powers, and through our media engagement, we have contributed to public awareness and understanding of the issues at stake.
We have appeared before Parliamentary Committees on National Security to argue for effective accountability of the RCMP, of CSIS, and of the CBSA, and for the implementation of the O’Connor recommendations, and we have provided legal submissions in this regard. Our recommendations have been cited by stakeholders, government, and civil society actors in working to ensure effective counter-terror operations.
CCLA has held two important national security conferences in recent years. In 2012 we hosted a conference “The Social Cost of National Security” to which we invited panelists from academia, journalism, law and civil society to engage in a targetted discussion about the impact of the post 9/11 era upon their lives. Our keynote speaker was UN Special Rapporteur on Counter-Terrorism, Ben Emmerson, who counselled on the necessity of observing binding international human rights legal obligations in order to effectively fight terrorism, and to avoid contributing to conditions which may be conducive to terrorism. In 2010, we hosted a conference featuring Kimberly Prost – a Canadian judge appointed by the United Nations to serve as ombudsman overseeing the targeted anti-terrorist sanctions regime created by Security Council Resolution 1267 – and CCLA clearly set out our concerns about the due process failures in the listing process and our particular concerns about the case of Canadian Abousfian Abdelrazik, whose name has since been removed from the UN 1267 lists.. Learn what Kimberly Prost had to say about the issues here.
Recent Anti-terror legislation (Bill C51) contains provisions affecting Canada’s No Fly List – that is, the Passenger Protect Program. CCLA has spoken out about our concerns about this program in the past – namely the lack of legislative prescription, and failures of process and accountability in the listing process itself – and we will continue to monitor this program. CCLA will also continue working to assist Canadians who consider themselves wrongly placed on international lists such as the US No Fly List.
The following is a re-print of a letter sent by concerned organizations and individuals, including CCLA. Senator the Hon. George Brandis Attorney General of Australia Hon. Christopher Finlayson Attorney General of New Zealand Hon. Ralph Goodale Minister of Public Safety and Emergency Preparedness of Canada Hon. John Kelly United States Secretary of Homeland Security Rt. […]
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