Monia Mazigh and Maher Arar.

By Alex Neve

Without transparency and accountability, human rights violations are virtually inevitable. And without meaningful review and oversight, transparency and accountability remain elusive. Nowhere is this more acutely so than in the realm of national security, where secrecy pervades.

That is why it was so crucial that, as part of the mandate of the Commission of Inquiry in the Actions of Canadian Officials in Relation to Maher Arar, established in 2004, Justice Dennis
O’Connor was tasked with making recommendations for an independent, arm’s length review mechanism for the RCMP’s national security activities. In his report, issued in December
2006, he succinctly described why that was so important:

In the national security context, in which much police activity must remain secret for legitimate reasons, the issue of public confidence and trust is especially important. In a free and democratic society, even legitimate claims of secrecy can raise understandable concerns and suspicions. In the national security environment, the public must have confidence that independent and respected people will see what the public cannot see and ask the difficult and informed questions the public cannot ask.¹Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review Mechanism for the RCMP’s National Security Activities, December 2006, pg. 487.

The issue of national security review had arisen early in the campaigning effort to free Maher Arar from unlawful detention in Syria and, after his release, to address the growing concerns about the role played by Canadian police and national security agencies in the human rights violations he had suffered at the hands of US, Jordanian and Syrian officials.

It became abundantly clear that there was nowhere Mr. Arar’s family could turn to make a complaint and have it effectively and independently addressed while he was still imprisoned and in need of relief. It was equally clear that there was no body that could investigate after the fact, provide reliable answers in satisfaction of Mr. Arar’s right to know, and build public confidence that a similar injustice would not occur again.

As such, the ICLMG and a number of other human rights organizations and advocates found themselves delving into an area they had rarely considered. What national security re- view or oversight bodies or processes were there in Canada? How effective were they? What were the gaps? And most crucially, what could be done to strengthen national security review and oversight in the country.

Certain themes quickly became clear. First, the mandate and powers of the existing review bodies varied considerably and were deficient in many respects. That was certainly so with what was known at the time as the Commission for Public Complaints against the RCMP (CPC), which had very little power to compel the RCMP to cooperate and comply. Second, there were important gaps, most notably the absence of an independent body reviewing the activities
of the Canada Border Services Agency (CBSA), which plays a significant role in national security operations. And third, there was the status quo of agency-specific review bodies – the CPC reviewing the RCMP,²The CPC was replaced by the Civilian Review and Complaints Commission in November 2014. the Security Intelligence Review Committee reviewing the Canadian Security Intelligence Service (CSIS), and the Communications Security Establishment Commissioner reviewing the CSE. This resulted in disconnected siloes of review at a time when the agencies themselves were increasingly operating in a coordinated and even integrated manner.

Justice O’Connor recommended a comprehensive overhaul of national security review in the country, including enhanced powers for review bodies, extension of independent review
to all agencies involved in national security operations, and establishment of an integrated committee to bring all review bodies together.

The ICLMG made important contributions to the Arar Inquiry, notably in the examination of options for review of the RCMP’s national security activities. ICLMG made thoughtful submissions and played a lead role in mobilizing the participation of other human rights organizations. Without a doubt, that involvement had an impact on Justice O’Connor’s recommendations.

But the advocacy work was far from over, something that the ICLMG has experienced frequently over these past twenty years. The struggles to uphold human rights in the world of national security are long battles.

Justice O’Connor’s report was issued in December 2006, but it was eleven years before the National Security and Intelligence Committee of Parliamentarians (NSICOP) was instituted in 2017, and thirteen years before legislation to establish the National Security and Intelligence Review Agency (NSIRA) was passed in 2019.

Importantly, ICLMG did not relent over those years, and played a central role in keeping the issue of reforming national security review processes on the public, media and political agenda.

One unfinished piece of business has remained, however, as there is still no independent review body to oversee the CBSA. It is a glaring gap when it comes to independent review of law enforcement and national security operations in Canada. On this, also, ICLMG has continued to maintain pressure. Bill C-20³Minister of Public Safety, Bill C-20: An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments, Parliament of Canada: https://www.parl.ca/legisinfo/en/bill/44-1/c-20. Since the publication of this text, Bill C-20 has been adopted. However, we are still awaiting the creation of the Commission. is currently before the House of Commons. If passed, it will replace the current Civilian Review and Complaints Commission for the RCMP with a new body, the Public Complaints and Review Commission, that will have a mandate to review both the RCMP and CBSA.

All of this very much remains a work in progress. NSICOP and NSIRA are still relatively new. Bill C-20 is not yet law. But the ICLMG has undeniably played a key role in strengthening national security review in the country.

Meanwhile, individuals and families who have been wronged in the course of Canadian national security operations are still compelled to turn to the courts and to public advocacy campaigns in order to obtain the answers, accountability and redress to which they are entitled. That is currently the case, for example, with respect to Hassan Diab, Abousfian Abdelarazik and more than 40 Canadians abandoned in detention camps in NE Syria.⁴Since this text was written, approximately 20 Canadian women and children have been repatriated. Approximately 20 Canadian men, children and non-Canadian mothers have been left behind by Canada in life-threatening conditions. ICLMG’s role in supporting these individuals and their families, and serving as a point of coordination for campaigning by other human rights groups and advocates, has been and continues to be crucial.

Over these past twenty years, there have been notable, albeit far from complete, advances in reinforcing the fundamental principle that human rights should not be sacrificed to national security. Strong, effective and independent review of national security agencies is key to further progress in upholding human rights. The ICLMG has been at the forefront of the gains obtained, and will undoubtedly play an essential role in meeting the many challenges that remain.

Alex Neve is a Senior Fellow at the University of Ottawa’s Graduate School of Public and International Affairs and an adjunct professor of international human rights with the faculties of law at Dalhousie University and the University of Ottawa. He was the Secretary General of Amnesty International Canada between 2000 – 2020.

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Footnotes

• 1
  Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review Mechanism for the RCMP’s National Security Activities, December 2006, pg. 487.
• 2
  The CPC was replaced by the Civilian Review and Complaints Commission in November 2014.
• 3
  Minister of Public Safety, Bill C-20: An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments, Parliament of Canada: https://www.parl.ca/legisinfo/en/bill/44-1/c-20. Since the publication of this text, Bill C-20 has been adopted. However, we are still awaiting the creation of the Commission.
• 4
  Since this text was written, approximately 20 Canadian women and children have been repatriated. Approximately 20 Canadian men, children and non-Canadian mothers have been left behind by Canada in life-threatening conditions.

Members of the No-Fly List Kids campaign gather in Ottawa to press members of parliament for a solution. Credit: Karen Ahmed.

By Khadija Cajee

No-Fly List Kids (NFLK) is a group of Canadians with children or grandchildren whose names were erroneously flagged by Canada’s ‘No-Fly List’ or Passenger Protect Program (PPP) under Canada’s Secure Air Travel Act (SATA). NFLK’s sole interest was to ensure that the Charter rights of all Canadians, including those wrongly affected by the PPP, were protected.

In 2016, we discovered that our six-year-old son was considered a high profile passenger under SATA. We tweeted about this, and that tweet thrust us into the national spotlight. Within days, other families started to come forward with stories of their own, some having kids younger than a year old who were impacted by the same situation. Having a common goal of drawing attention and finding a solution to this problem, our group was formed!

We soon discovered that the No-Fly List had been around for about 10 years, was haphazardly put together and relied on airlines, rather than the government, to screen passengers. The momentum necessary to get the government to change the system required the help of many human rights organizations, lawyers and others who had been advocating tirelessly on this issue for almost a decade with little success. One of these organizations was the International Civil Liberties Monitoring Group (ICLMG).

At the time, airline personnel could not tell passengers that they were on a list. They had to make a phone call to Public Safety Canada to clear the identified passengers, including infants, before they could board the flight. Sometimes, as the kids got older, they were subjected to invasive security checks, passport confiscations and immigration interrogations which were intimidating and very scary. This issue did not only impact kids. While the government refused to say how many people were on the list, research pointed to thousands of innocent people being affected, including veterans, cabinet ministers, Senators, seniors, students, airline pilots and, mostly, just regular people trying to go about their lives.

We leaned on Monia and Tim and the ICLMG team for guidance, advice and support. The research and expertise they had already put into this issue was invaluable in our various engagements with government officials. From little things, like printing fact sheets for our Day on the Hill, to big things, such as accompanying us to high profile meetings with various Ministers and Senators, including the Senate Committee on Human Rights and many others, they were there with and for us in ways we could never repay.

In 2021, a new and fully functional redress system called the Canadian Travel Number was launched. This system places the no-fly screening mechanism fully into the government’s control, distinguishes multiple people with the same name from each other and, crucially, allows Public Safety to tell parents or guardians that their child’s name is not on the No-Fly List. They are, however, under no obligation to do so, and adults still cannot be informed whether or not they are on the list. A person only learns they are on the list if Public Safety gives the order to deny them boarding their flight, after which they are provided a letter acknowledging they are on the list and how to challenge their listing.

While the optimal solution is for the list to be abolished in its entirety – an opinion we share with the ICLMG – we would not have gotten the above meaningful reforms without the support of this amazing group of people.

Our engagement with the government still continues to this day albeit on a smaller scale. But the advocacy for the civil liberties of all people is still a full-time passion for the team at ICLMG, who continues this relentless pursuit. We have nothing but admiration and gratitude for their work.

Khadija Cajee is the co-founder of No-Fly List Kids and Conquer COVID-19. linkedin.com/in/kcajee

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Image from the Aid for Afghanistan campaign, which ICLMG joined alongside 17 other organizations.

By Tim McSorley & Xan Dagenais

Since the ICLMG’s creation, we have warned of the negative impact of counter-terrorism laws on the delivery of international assistance, especially to populations in regions where entities deemed by the Canadian government to be terrorist groups are active. When the Taliban regained control of Afghanistan in 2021, the Canadian government refused to give assurances that organizations providing international assistance, including humanitarian organizations, would not be prosecuted. This forced many to stop their vital work in the country. With a humanitarian crisis unfolding in Afghanistan, civil society pressured the government to amend the law to create a straightforward pathway to provide international assistance again. Unfortunately, but unsurprisingly, the government instead introduced Bill C-41 which aimed to create a complex authorization regime for organizations to provide international assistance in zones controlled by groups considered “terrorist entities” by Canada.

Thanks to concerted pressure from civil society groups, including the ICLMG, the bill was amended to create, for the first time, an exemption in Canada’s laws on countering terrorist financing for the provision of humanitarian assistance. While this was a clear win, there are lingering questions around how the government is interpreting the exemption.

At the same time, this exemption does not apply to Canadian international assistance organizations that carry out vital activities, but which are not exclusively humanitarian in nature, including in regards to provision of health services, defense of human rights, efforts towards peacebuilding and support towards earning a livelihood. These organizations are now subject to an unclear, burdensome and invasive authorization process in order to carry out their work in Afghanistan.

Among other concerns, this new regime places the onus on these groups to prove they do not violate vaguely defined security assessment rules. These rules allow the Minister of Public Safety to deny an authorization based solely on whether any individual involved in a project, including international partners, has undefined “links” to terrorism or has ever been simply investigated on terrorism grounds.

The ICLMG has documented time and again how such vague rules result in harmful impacts, including: “guilt by association” based only on unsupported allegations; political interference or ministerial discretion based on political expediency; and the promulgation of both systemic and individual bias and racism.

We also remain concerned that an exemption regime does not address the central problem: that Canada’s overly-broad counter-terrorism laws allowed for this situation to occur in the first place. While an exemption regime may provide a route forward, it avoids how counter-terrorism laws create areas and entities that are considered ‘no-go,’ and continue to primarily and unjustly impact majority-Muslim countries and regions. We renew our call for the government to fundamentally revisit its approach on counter-terrorism laws and their enforcement.

Although the bill received royal assent in June 2023, and despite assurances from the government that they would take quick action, the authorization regime has yet to be launched at the time of writing in April 2024, leaving millions of people without much needed assistance.[1]

Tim McSorley is the National Coordinator of the International Civil Liberties Monitoring Group

Xan Dagenais is the Communications and Research Coordinator of the International Civil Liberties Monitoring Group

Footnote

[1] Since the writing of this article, the government has launched the authorization regime. We will share critical analysis of it later.

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