The Good, the Bad and the Ugly: Human Rights and National Security Challenges for 2017

may-110885-12016 was a roller coaster year when it came to protecting our fundamental freedoms in the face of spying, surveillance and rights violations, all in the name of Canada’s national security.

While the second year of the Liberal government, and final year of the Obama administration, led some to hope for fundamental changes and greater protections from draconian security measures, little was done in the end.

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The Good

We saw some important developments in 2016: families of children whose names are on no fly lists secured a promise for a Canadian redress system (albeit in 2018). For the first time ever, the federal government introduced legislation to create a national security oversight committee. Several Canadians detained under dubious accusations in foreign jails were released and returned home, including university professor Homa Hoodfar and father of five Salim Alaradi.

The Bad

What could have been a major sign of change, though, was anything but. In September 2016, the Liberal government launched its country-wide consultation on national security. Many hoped the exercise would help to re-focus the debate on how to protect rights in the face of national security laws that have continuously expanded since 2001, culminating in the reckless, unprecedented powers laid out in Bill C-51, adopted in 2015. The Liberals voted unanimously for the bill while in opposition, but with the caveat that they would repeal the worst of the law.

In the end, consultation documents contained leading questions and hypothetical scenarios that pointed towards granting police and national security agencies even greater powers than they currently have, such as bringing back proposed “lawful access” legislation that would allow police access to your personal information online without need for a warrant. The push for new powers ignores the fact that in the wake of Bill C-51’s passage in June 2015, we have already seen abuses of power. These have ranged from information sharing with foreign agencies without basis to CSIS unlawfully collecting data on millions of Canadians without cause.

These powers aren’t just reserved for what may be seen as “foreign” attacks on Canada, either. Wording brought in under Bill C-51 opens the door for anti-terror laws to be used against opponents of government policy at home. While Bill C-51 introduced caveats to exclude acts of dissent and protest, there remains a lot of room for the government to define what is legitimate protest and what they see as “terrorism.” In fact, the legislation defines an incredibly broad range of activities as “terrorism,” including activities that “interfere with the economic or financial stability of Canada”. Tough talk from the government on possible demonstrations against the Kinder Morgan oil pipeline raises questions about the use of anti-terror legislation against protestors.

The ICLMG will be keeping a close eye on the release of the consultation’s data, and the policies that will be informed by its results.

The Ugly

That’s just in Canada. Since 2001, Canada has alternately followed and been pulled in the direction of US border security and anti-terror policies. President-elect Donald Trump and members of his soon-to-be instated cabinet have made disturbing comments on re-instating interrogation under torture, allowing warrantless spying and ramping up border security and surveillance. Pressure on Canada to follow suit – or bear the brunt of these US laws – will likely come swiftly after January 20th.

The challenges ahead in 2017

All of this adds up to very important challenges to civil liberties and human rights in the coming year. What will the ICLMG be keeping its eyes on?

Torture: While Canada has long ago agreed to ban torture in interrogations, a ministerial directive from the Department of Public Safety still allows Canadian security agencies to use foreign intelligence gained under torture. With Trump flip-flopping on whether he would allow torture techniques to return, and his Attorney General appointee clearly stating that he believes US agents should be allowed to use such techniques, the temptation to accept questionably-obtained intelligence from our neighbour will be high. Although published under the Harper government, the Liberal government has yet to remove the ministerial directive, even if it vigorously decried the order while in Opposition.

Also very concerning is that the Canadian government refuses to commit to no longer deport individuals to torture: Mohamed Harkat, who has never been charged with a crime, has been held under a security certificate for 14 years, and faces deportation to Algeria, where he will likely face imprisonment and torture all due to unproven allegations.

Information sharing between countries: Last January, the Communications Security Establishment of Canada (CSEC) stopped sharing certain types of metadata with foreign allies after it was revealed that identifying details were not properly erased, potentially sharing Canadians’ private information with foreign spy agencies. Despite this new limit on the sharing of metadata, major concerns persist around what kind of information is shared with other countries, and how it is being used. We know that questionable and outright false information sharing is what has led to Canadians such as Maher Arar, Ahmad El Maati, Abdullah Almalki and Muayyed Nureddin being arrested and tortured abroad. We will be pushing the government for more clarity and transparency around information sharing with other countries.

Surveillance and privacy breaches: The bombshell revelation of CSIS’ unlawful collection of Canadians’ personal information raised red flags on how security agencies are collecting, sharing and using our private details. Major questions still persist over how the new Security of Canada Information Sharing Act, introduced under C-51, is being implemented (it is currently undergoing parliamentary committee hearings). There are also growing concerns around the unresolved question of government agencies spying on journalists to uncover their sources, and the unregulated use of “stingray” and other new technologies that suck up our private details, like cell phone data, indiscriminately.

Security agencies like the RCMP and CSIS are pushing for new surveillance powers, questions remain around CSEC illegal spying on Canadians, and the US is preparing to ramp up border surveillance and information gathering. We need to ensure that the powers are limited and are governed by adequate judicial review.

Accountability, oversight and review: With all these new powers, there’s much more room for abuse. While the ICLMG has welcomed the government’s decision to create a Committee of Parliamentarians to oversee national security activities (with many important caveats), it simply does not go far enough. Members of Parliament do not have the specific expertise or the time on top of their other duties to ensure accountability for the nearly 20 agencies and departments – from border services to the RCMP to Global Affairs to National Defense – that are involved in national security. We have called on the government to create an independent, expert review body that would review all of Canada’s national security activities, including receiving and investigating complaints from the public.

Islamophobia and marginalization of racialized communities: It’s questionable as to whether anti-terror laws like C-51 make us safer, but it’s certain that they help to raise fears of our neighbours. As part of their fight against terrorism, the federal government has said that it wants to address “radicalization towards violence” in order to reduce violence in our society. While this may seem commendable, there is a strong potential for a slippery slope. Often is it only certain communities, especially Muslim and Arab communities, that are targeted by these programs, leading to more suspicion and marginalization. This only adds to the increase of white-supremacist actions we have seen in Canada since the election of Trump. We must remain vigilant to ensure that programs presented as reducing violence and fear do not simply fuel it.

Anti-terrorism Act of 2015 (C-51): The ultimate goal, of course, remains the complete repeal of Bill C-51. Not once since the Conservatives introduced C-51 in 2014 have we been provided with evidence that this bill and the police powers it provided are needed to make the residents of Canada safer. Instead, we have seen an increase in the violation of our fundamental freedoms and civil liberties, from free expression and association to privacy rights. C-51 cannot be amended into an acceptable form – rather it must be repealed, Canada’s existing national security laws should be reviewed for compliance with the Charter of Rights and Freedoms, and if the government believes it still needs new powers, they must make the case, publicly and with hard evidence.

A key part of this will be addressing the report and proposed actions that come out of the government’s consultation on national security. We have already secured one victory with our allies: the government has committed to releasing all responses to the consultation online for independent review. We will continue to speak with the government and work with our allies to ensure that our call for protecting civil liberties and human rights is heard.

The challenges we will face in 2017 are monumental, and we will need to be vigilant and organized. We know we can tackle them with the support of our members and the public.

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Thank you!

Tim McSorley
National Coordinator