News from ICLMG

Open letter to Prime Minister Trudeau: We need a public, independent inquiry into the case of Dr. Hassan Diab

The International Civil Liberties Monitoring Group has joined the call for a public, independent inquiry into the case of Dr. Hassan Diab. Below is an open letter sent on May 7, 2018, to Prime Minister Justin Trudeau. (View PDF)

To add your support, visit Justice for Hassan Diab.

May 7, 2018

The Right Honourable Justin Trudeau
Prime Minister
House of Commons
Ottawa, ON    K1A 0G2

Dear Prime Minister Trudeau,

We are writing this open letter to you today on behalf of the International Civil Liberties Monitoring Group, a coalition of 45 civil society organizations across Canada, to urge your government to instate a full, independent and public inquiry into the case of Dr. Hassan Diab.

We are greatly disturbed by the recent revelations that an official in the Justice Department may have not only assisted the French government in making its case for extradition, even as the existing case against Dr. Diab was being discredited, but is also alleged to have misled the court regarding communication with the French government and the reasons for lengthy adjournments. This is in addition to government officials apparently withholding important, exculpatory fingerprint evidence from the court and Dr. Diab’s defense lawyers.

These serious allegations only add to the gravely concerning circumstances of Dr. Diab’s extradition to France. Even before these latest allegations, there were grounds to request a public investigation into Dr. Diab’s case, as we have signalled to members of your government in previous letters. This includes the fact that the case against Dr. Diab included secret, unsourced intelligence from a third country, the reliability and provenance of which was completely unknown. This continues to raise concerns that the intelligence was derived under torture, and questions as to whether such information should be allowed in extradition cases in the first place.

Members of the government have stated their concern about these recent revelations, as well as their support for an internal investigation at the Justice Department. While we appreciate the seriousness expressed in these statements, we cannot support an internal investigation conducted by the same department whose officials are alleged to have carried out the actions in question.

For that reason, we are asking that you establish an independent, public inquiry into Dr. Diab’s case. We would echo the letter already shared with Minister Wilson-Raybould by Amnesty International and the BCCLA and call for an inquiry to examine:

  • Canadian government lawyers’ actions during the extradition process, including the appropriateness of the assistance provided to the French government, the truthfulness of statements made in court and the reasons for decisions not to share exculpatory evidence with Dr. Diab’s legal team.
  • The actions of government officials during Dr. Diab’s three-year imprisonment without charge in France
  • Reforms to the Extradition Act to address weaknesses that allowed this extradition, even as the presiding judge described the case against Dr. Diab as highly problematic.
  • Appropriate redress to Dr. Diab and his family, including an official apology and appropriate compensation, for actions or inaction of Canadian officials that may have contributed to the human rights violations and miscarriage of justice he experienced.

Dr. Diab spent more than three years in near-solitary confinement in France, after years of surveillance, electronic monitoring and imprisonment in Canada – despite no charge having been laid in France. Canada’s extradition system failed Dr. Diab, and it is incumbent on you as Prime Minister and the Canadian government to act to ensure that Dr. Diab, his family and the Canadian public receive answers as to how this came about, and to safeguard against others from suffering a similar fate.

We urge your Government to set up the public inquiry without delay.

Sincerely,

Tim McSorley
National Coordinator
International Civil Liberties Monitoring Group

Kevin Malseed
Co-chair
International Civil Liberties Monitoring Group

Dominique Peschard
Co-chair
International Civil Liberties Monitoring Groupo

Cc: The Honourable Chrystia Freeland, Minister of Foreign Affairs Canada
The Honourable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada

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… we have a small favour to ask. Here at ICLMG, we are working very hard to protect and promote human rights and civil liberties in the context of the so-called “war on terror” in Canada. We do not receive any financial support from any federal, provincial or municipal governments or political parties.

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What Happened to Bill C-59 at Committee?

The House Committee on Public Safety and National Security (SECU) recently held its clause-by-clause meetings in its study of Bill C-59, the National Security Act of 2017. Those meetings basically entail committee members going through a bill, clause by clause, and voting on motions of proposed amendments. The adopted motions are put into a report which is then tabled in Parliament.

Our National Coordinator, Tim McSorley, live-tweeted all five meetings and this below is a summary of the motions presented, passed or defeated. The report of the SECU committee was tabled in Parliament on May 3rd, and the amended text of the bill is now published online.

All the Liberal motions were adopted, virtually all Opposition motions were defeated, very little of substance was changed to the bill, and virtually no human rights protections were added.

Write your MP to ask them to #FixC59 at 2nd reading

We will follow-up with additional actions.


Summary of Bill C-59 clause by clause meetings

APRIL 17, 2018

In the two hour meeting, the committee was able to get through only part of the National Security and Intelligence Review Agency or NSIRA Act (part 1 of 9 of Bill C-59).

There was a clear pattern of every opposition-moved motion being voted down. All Liberal-moved amendments were adopted, some unanimously.

Here’s a run-down of the decisions, as far as I could follow them (it’s hard without the amendments and the related clauses in front of you).

The amendment motions voted down:

  • A motion to increase the number of NSIRA members from 6 to 8 (this was actually ruled out of order because it would incur additional costs) (NDP)
  • A motion to appoint NSIRA members via vote of parliament (NDP)
  • Motions to make the chair full-time, to make the vice-chair a standing position (and not optional), and changing the time period for acting chairs. These were all in line with the idea that there needs to be more stability in the chairperson-ship of the NSIRA. (CPC)
  • A motion to allow for the investigation of complaints against Global Affairs Canada (GAC) and the Canadian Border Service Agency (CBSA). (NDP) Conservatives were interested, but wanted to hear more from GAC and CBSA. Liberals argued it was unnecessary, and a Public Safety representative said that CBSA review & complaints is coming along a separate track.
  • A motion for clearer guidelines around interaction of NSIRA and the committee of parliamentarians, to avoid duplication (CPC)
  • A motion to allow the NSIRA to issue binding orders (NDP)
  • A motion explicitly allowing NSIRA to receive reports from foreign intelligence review agencies. Liberals argued it is redundant/unnecessary. (NDP)

The amendment motions that were passed:

  • Liberal motion to address “ambiguity of language regarding NSIRA’s mandate and whether it is overly broad” and that would grant NSIRA “full authority to decide its own procedures and removes any ambiguity about the scope of authority of the NSIRA to avoid possible dispute with other departments.” I don’t have the wording of the amendment, but according to the mover, it is based on the concerns raised by the CBA that the lack of clear definition of “national security” and “intelligence” causes confusion, both making it overly broad but also potentially missing things (ie, Secure Air Travel Act (SATA) does not mention intelligence nor national security, although it is of course a national security law).
  • Liberal motion mandating NSIRA to review and report on all new ministerial directions (ie, on torture), as well as on their implementation.
  • Liberal motion on access to information, clarifying that the agency will have access to all documents – excluding cabinet confidences – including those covered by solicitor-client privilege.
  • The liberals moved an amendment adding language to allow for cooperation between the NSIRA and the Office of the Privacy Commissioner, while at the same time avoiding duplication of work.

They ended with a liberal motion under consideration, but which will be voted on next time. It has to do with adding language that the NSIRA would need to suspend a complaints investigation if it would “compromise or seriously hinder” an ongoing criminal investigation. The language comes from the RCMP review commission. It will undoubtedly pass next meeting.

Source + Watch the proceedings or read the transcript 

APRIL 19, 2018

They got through the NSIRA (part 1 of C-59), and started on the Intelligence Commissioner (part 2 of 9 of C-59).

The trend continued today of all opposition motions being voted down, and all Liberal motions being adopted.

Regarding the Intelligence Commissioner (IC), the short version is that all the motions to increase independence of the IC were voted down. Specifically:

  • An NDP motion to have the IC appointed by parliament was voted down, on the basis that it would politicize the process (NDP argued that PM-appointment process also gets political, pointing to controversies with Language Commissioner and Auditor General, to no avail).
  • The NDP brought a motion to make the position full-time, which was ruled inadmissible because, like with the NSIRA, it would incur further expenses, and such a motion could only be brought by a Minister since this is considered “crown prerogative.” Same for a Green Party motion that would have given the option of it being a full-time position.
  • An NDP motion that would have limited the appointment to one, 5 year term was also voted down.
  • Similarly, a motion to allow the IC to be chosen from currently sitting judges (and not just retired judges) was also voted down. The argument was that the IC will be considered an “executive advisor”, raising questions about IC’s independence. Liberals also argued that having a sitting member of the judiciary serving in the executive branch would be a conflict, further undermining the “quasi-judicial” nature of the IC. It was also made clear that it couldn’t be a supernumerary judge, even though current CSE commissioner can be a supernumerary judge.

Regarding the Ministerial Direction on Avoiding Complicity in Mistreatment by Foreign Entities, more commonly known as the ministerial directives on torture, the Liberals (Michel Picard) brought a motion to introduce a whole new act, the Avoiding Complicity in Mistreatment by Foreign Entities Act.

The new Act does not actually lay out the rules for how various agencies are to deal with information tied to mistreatment, but rather lays out requirements for such directions to be public. In short it says that: The Governor in council may issue directions to any deputy head on these issues and must issue such directives to a list of deputy heads: the Chief of Defense Staff, the Deputy Minister of Foreign Affairs and the heads of CSIS, RCMP, CSE, and CBSA.

It also mandates that these directions are public, must be shared with the National Security and Intelligence Committee of Parliamentarians (NSICOP) and mandates the heads of these departments to submit annual reports on the implementation of the directions to Ministers and review bodies, and that a version must be made public.

The motion was adopted between discussion on NSIRA and IC.

It’s positive in terms of disclosure. It doesn’t enshrine the actual directions into law so it will not take a legislative process to bring new regulations, which is not bad because the current directions do not actually outright ban the use of information linked to torture: there is an exception for exigent circumstances that would allow for the use of such information. But it could also mean that the directions can be weakened by a future government. In short, it doesn’t ensure that Canada will not be complicit in torture, simply that if the regulations are loosened, we will know about it.

Run down on the other motions:

  • The NDP’s initial attempts to get rid of SCISA — the Security of Canada Information Sharing Act brought in with Bill C-51 — by removing reference to it in the NSIRA Act, were voted down. This was a little confusing, as it wouldn’t affect SCISA itself, but had to be dealt with here since it’s clause by clause.
  • The Conservatives brought a motion to have the Minister of Public Safety review the work of new review agencies after one year to determine whether work was redundant and to consider further delineating their mandates, or possibly eliminating one or the other. It was defeated.
  • Also defeated were some NDP motions to tighten language about the interaction between the NSIRA and the CRCC (RCMP’s watchdog), over concern that there may be a gap in communication, esp. if the NSIRA declines to hear a complaint.
  • The Liberals amended a section of the NSIRA to ensure employees are under the Public Service Act. This was described as a mistake they were fixing.
  • The Liberals passed a motion mandating the CRCC to share any complaints with the RCMP before sending it to the NSIRA, to keep them in the loop (my understanding it that it wouldn’t have an impact on what the CRCC sends to the NSIRA).

Source + Watch the proceedings or read the transcript

APRIL 23 & 24, 2018 

Some of the larger changes include:

  • A change to the CSE definition of “publicly available information” which excludes “information in respect to which a Canadian or a person in Canada has a reasonable expectation of privacy.” The CSIS definition of “publicly available information” remains the same however which is worrying since CSIS’s mandate is to target Canadians or people in Canada whereas the CSE is not supposed to do that. A CSIS official said that by carving out information that has a reasonable expectation of privacy from publicly available information, the agency would not be able to collect any publicly available information.
  • An amendment that CSE activities must not infringe the Canadian Charter of Rights and Freedoms (similar to what is found in the CSIS Act).
  • Amendment regarding adding “reasonable expectation of privacy” to CSE authorizations of collecting information.
  • Addition of clarity to the CSIS threat reduction power of “limiting movement” to specify that it does not include detention.

Other motions on April 23:

  • Liberal motion passed: include additional information/statistics in the IC annual report (not specified what kind of information).
  • Conservative motions on intelligence to evidence in criminal court cases both defeated.

Other motions on April 24:

  • Liberal motion: Ministerial authorizations need to take into account “reasonable expectation of privacy.” Worth noting that NDP and Greens both brought similar, stronger amendments that were defeated.
  • Liberal amendment passes: The Minister must notify the IC of any decision to extend the period of an authorization.
  • The NDP proposed an amendment to have explicit ban on use of information tied to mistreatment/torture in the CSE Act. It was defeated, unsurprisingly. But part of the response is worth noting: CSE stated that they have had a ban on use of information tied to torture since 2011. But that means that they view the previous Ministerial Directions under the Conservative government, widely seen as insufficient, as being enough. Raises concerns that in the future, there could be support to once again weaken Ministerial Directions.
  • There was a lot of debate on an NDP motion to limit the ability of the government to change definitions in the CSE Act by regulation. NDP and Conservatives both argued changes should be made via legislation and voted in Parliament (Section 61 of the CSE Act). Motion was defeated.
  • Liberal amendment passes: to change the preamble of CSIS Act to include more language on protection of rights.
  • NDP and Greens brought multiple motions to rescind CSIS’s threat reduction powers, but all were defeated.
  • Liberal motion passes that will allow information to pass from a judicially authorized Canadian dataset to a foreign information dataset.
  • Liberal motion passes: requiring CSIS to produce an annual report to Minister, no later than three months after the end of the calendar year. Then tabled with parliament.

April 23: SourceWatch the proceedings or read the transcript 

April 24: Source + Watch the proceedings or read the transcript

APRIL 25, 2018

Voted down:

Again, the meeting was marked mostly by what was voted down rather than what was adopted: motions to try and fix some problems with the No Fly List, to undo the damage C-51 did to the special advocate system under IRPA, to bringing changes to the Terrorist Entities Listing, to doing away with the redundant s. 83.221 of the criminal code (formerly promotion, soon to be “counselling” of terrorism offences), changing disclosure thresholds in SCISA/SCIDA, were all voted down.

Two things of note were adopted:

1. Liberal amendment to SCISA that sets a threshold of “necessary” for the disclosure of personal information. The receiving organization would need to evaluate whether it meets this threshold, and if it does not they must destroy the information.

2. The Liberals brought a further change to 83.221 of the Criminal Code. The main part still reads the same, with “promotion” being changed to “counselling”, but they brought a further amendment because it would now conflict with 464 of the Criminal Code, which covers what happens to someone who counsels a crime that isn’t carried out.

Most symbolic amendment of the meeting: 

Liberal amendment that the preamble be changed to urge the “international community” to follow in Canada’s footsteps of ensuring that national security laws respect fundamental rights and freedoms — ignoring all the amendments they rejected that would have actually protected rights & freedoms.

SourceWatch the proceedings or read the transcript

Since you’re here…

… we have a small favour to ask. Here at ICLMG, we are working very hard to protect and promote human rights and civil liberties in the context of the so-called “war on terror” in Canada. We do not receive any financial support from any federal, provincial or municipal governments or political parties.

You can become our patron on Patreon and get rewards in exchange for your support. You can give as little as $1/month (that’s only $12/year!) and you can unsubscribe at any time. Any donations will go a long way to support our work.panel-54141172-image-6fa93d06d6081076-320-320You can also make a one-time donation or donate monthly via Paypal by clicking on the button below. On the fence about giving? Check out our Achievements and Gains since we were created in 2002. Thank you for your generosity!
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Civil Society Statement Regarding Bill C-59

April 5, 2018

Civil Society Statement Regarding Bill C-59, An Act Respecting National Security Matters

Bill C-59 was explicitly introduced with the claim that it fixes “the problematic aspects” of its predecessor, Bill C-51—now Canada’s Anti-terrorism Act, 2015.

We, the undersigned civil society organizations and individual experts, are concerned that C-59 does not truly fix all of the problems with our current national security law, and it has introduced some very serious new issues.

The Bill was referred to the House of Commons Standing Committee on Public Safety and National Security (SECU) after first reading, which leaves open the possibility for amendments. SECU has had the opportunity to hear from many of us, and many others, about where Bill C-59 falls short, where it oversteps, and how it can be improved to ensure that it takes a rights-centric approach to national security. The coming days and weeks are a crucial time to speak out.  As Bill C-59 moves through Parliament our government needs to hear from those who think that Canada deserves better and that this legislation can and must protect national security while firmly and unequivocally upholding human rights.

There is consensus amongst civil liberties and human rights organizations about some of the most troubling aspects of Bill C-59. Our concerns focus on: 1) the bill’s empowerment of our national security agencies to conduct mass surveillance; 2) the practical impossibility of an individual effectively challenging their inclusion on the “no-fly list”; and 3) the authorization of Canada’s signals intelligence agency, CSE, to conduct cyberattacks. While these by no means represent the only problems with Bill C-59 that require “fixes”, they are among the areas where change is both urgently required and most broadly supported.

Authorizing Mass Surveillance

We acknowledge the increase in oversight and review that may be achieved with the creation of a National Security Intelligence Review Agency and an Intelligence Commissioner. However, Bill C-59 also expressly empowers mass surveillance through the collection of bulk data and “publicly available” data – a term that is not clearly defined in the bill in relation to datasets collected by our human intelligence agency, CSIS, and extraordinarily expansively defined for the CSE.  In both cases, “publicly available” is open to interpretations that are as sweeping as they are troubling. In particular, there is no requirement that publicly available information must have been lawfully obtained. In the absence of effective limits in the law, the bodies that have been set up to improve accountability may review or oversee mass surveillance activities, but not necessarily prevent or limit them. The bill also lowers the threshold to allow CSIS to collect information about Canadians – even data that is expressly acknowledged to not relate directly and immediately to activities threatening the security of Canada–if it is “relevant,” rather than restricting collection to information that is necessary. There has been little meaningful debate on whether this lower threshold is necessary or reasonable in light of the goals the government seeks to achieve.

Secret trials with secret evidence for individuals on the “no fly” list

The no-fly list has never been shown to increase aviation safety. Bill C-59 perpetuates a scheme that severely limits rights based on a mere suspicion of dangerousness that cannot be effectively challenged in a fair and open process. The government’s proposed redress system for those mistakenly on a list of people subject to enhanced security screening (“slow fly list”) does not assist those who are simply prohibited from flying. These individuals face a process in which they can legally be denied information relevant to their case, can be denied access to their own hearing and have no right to an independent special advocate with access to all of the evidence against them. SECU has already recommended a number of changes to the no-fly list including the use of Special Advocates. Some of us, and others,  have gone further, and argued for the repeal of the “no fly” system completely. Successive governments have allowed this system to endure for over a decade, and it is imperative that the fundamental rights issues it poses be acknowledged and addressed.

Legalizing Cyberattacks by “Canada’s NSA”, the Communications Security Establishment (CSE)

We are seeing our “intelligence” agencies transformed in dangerous directions. C-59 continues to allow CSIS active “disruption” powers and now also gives the CSE new powers to use cyber-attacks against foreign individuals, states, organizations or terrorist groups.  This would include hacking, deploying malware, and “disinformation campaigns”. There is a significant danger of normalizing state-sponsored hacking, not to mention the obvious tension when the agency mandated with protecting our cyber infrastructure is also powerfully incentivized to hide and hoard security vulnerabilities for its own attack exploits.  We need a public discussion about what threats these attack powers are meant to address and what new threats they may open us up to if a Canadian attack results in cyberwar escalation.

Canadians were told that the new law would “fix” the old law.  Instead, we got a bill that nominally addresses some concerns, but exploits the opportunity to introduce more radical new powers for national security agencies.

If the goal of Bill C-59 is truly to “fix” Canada’s national security laws, there is still much work to be done.

Signed by (alphabetical order):

Amnesty International Canada
BC Civil Liberties Association
BC Freedom of Information and Privacy Association
Canadian Association of University Teachers
Canadian Civil Liberties Association
Canadian Federation of Students
Canadian Journalists for Free Expression
Canadian Union of Postal Workers
Canadian Union of Public Employees
Independent Jewish Voices Canada
International Civil Liberties Monitoring Group
Inter Pares
Lawyers’ Rights Watch Canada
Ligue des droits et libertés
MiningWatch Canada
National Council of Canadian Muslims
National Union of Public and General Employees (NUPGE)
OpenMedia
Privacy and Access Council of Canada — Conseil du Canada de l’Accès et la vie Privée
Rideau Institute
Rocky Mountain Civil Liberties Association
Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC)

As individuals:

Elizabeth Block, Independent Jewish Voices, Canadian Friends Service Committee
James L. Turk, Director, Centre for Free Expression, Ryerson University
Sharon Polsky, MAPP, Data Protection Advocate & Privacy by Design Ambassador
Sid Shniad, Member of the national steering committee, Independent Jewish Voices Canada

 

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