About the Issue
CCLA believes that due process, principles of fundamental justice and fairness must run through all counter-terror efforts. Canada’s justice system is built upon key democratic rights including the right to counsel, the right to a fair trial, the right to know the case against you and to make full answer and defence, the right to be free from arbitrary and prolonged detention, the right to habeas corpus, and the right to presumption of innocence. Many of these rights have come under threat in the post 9/11 era, as individuals suspected of being terrorists have been stripped of basic rights. Further, new laws have introduced new powers and new offences. After careful analysis, CCLA has spoken out when we found these powers to be overbroad and exceptional. CCLA has also monitored the immigration and refugee process as it has been used to fight against the terrorist threat, but in so doing has created new civil liberties violations and no clear security gains. For example, individuals named under the Security Certificate process of Canada’s immigration laws have been detained, imprisoned, or subject to stringent bail-like conditions for years at a time, initially without the ability to know or challenge the case against them. Learn more about the issues here. Anti-terror laws have also imposed responsibilities upon financial institutions/banks, accountants and lawyers to report certain activities that may be associated with terrorism (such as transfers of large sums of money).While recognizing the need for vigilance, CCLA has also argued that fundamental principles and rights including solicitor-client confidentiality, privacy, and access to justice cannot be undermined.
Why This Matters
When constitutional safeguards have not been observed, mistakes are made that both harm innocent individuals and their families, and do not keep us safer. Further if mistakes are made and innocent individuals wrongly targeted, it means those who are actually guilty remain at large and free to continue their criminal activities. CCLA has acknowledged examples of lawful policing and lauded the work of the police in engaging in lawful surveillance of suspects, collecting evidence that stood up to scrutiny in fair trials, and resulted in the convictions and sentencing of the Toronto 18 and those responsible for the Via Rail terror plots. The Charter prescribes that no one can be deprived of their rights to life, liberty and security of person except in accordance with the principles of fundamental justice. This and the due process rights listed above must be protected and upheld. CCLA continues to argue against disproportionate knee-jerk reactions to terrorist threats – such responses overlook the robust broad powers already existing in the Criminal Code and other laws in place – and argue for more and more state powers and new offences which may cast a far-too-wide and ineffective net, while simultaneously threatening to normalize exceptional powers. Such exceptional powers, if normalized, will alter the free and democratic State cherished by Canadians, without necessarily keeping us any safer.
CCLA has a strong history of research and action on national security issues. Over the past decade, our lawyers have appeared before the country’s highest courts in more than a dozen high-profile national security cases. We have participated in challenges to sections of the Anti-Terrorism Act, 2001 from 2001-2014, taking a stand against provisions that are over-broad and unnecessary to protect national security. In 2015, we began a campaign against Bill C-51, the Anti-Terrorism Act, 2015, making written and oral submissions to the Parliamentary and Senate committees and speaking widely at public events and to the media. We have argued that arbitrary and indefinite detention, whether in the context of Security Certificates or immigration detention, violates Canada’s constitutional guarantees. Our lawyers have also spoken out in cases where Canadians faced extradition to answer criminal charges in another country – pushing the Canadian government to ensure that the process is fundamentally fair and even-handed. Throughout our work, CCLA has consistently advocated for a proportionate, effective, rights-respecting approach to national security
CCLA’s recent targeted, strategic advocacy on Bill C-51 has raised public awareness of the flaws in this Bill. Over the years CCLA intervened in a number of security certificate cases before the Supreme Court of Canada, to argue against the use of secret evidence, and the inability of the Named Individual to know the case against them and make full answer and defence. CCLA recognizes the need for sensitive national security intelligence to remain secret in certain circumstances and we argued for the creation of the now present Special Advocate system – which permits security cleared lawyers to review the case against a Named Individual and communicate with that person and their counsel. CCLA also argued for greater latitude in the communications structures between Special Advocates, and Named Individuals and their counsel, in order to ensure compliance with the principles of fundamental justice and due process rights. We have convened in and participated in numerous public conferences in Canada and even abroad to identify and strategies and draw public attention to the serious civil liberties concerns inherent in certain counter-terror tactics. CCLA has also made repeated submissions to Parliament with respect to new laws.
CCLA is focusing on the new powers and crimes created by Bill C-51 with specific attention to the broad and rash information sharing pursuant to the new Security of Canada Information Sharing Act, and amendments to the CSIS Act, and Criminal Code, which all affect powers of preventive arrest, longer pre-charge detentions, lowered thresholds for peace bonds, and increased powers of CSIS. We are also concerned with amendments to the Immigration and Refugee Protection Act which permits the Minister to withhold relevant evidence from Special Advocates. We will also continue our work on monitoring and analyzing the use of immigration powers in counter-terrorism under the Immigration and Refugee Protection Act. CCLA made submissions to Parliament and the Senate on the new legislative provisions, and will continue to intervene in national security cases that have unjustifiably impaired Charter rights.