Illustration made for Human Rights Watch in 2021. Credit: Brian Stauffer

By Patricia Poirier

The International Civil Liberties Monitoring Group (ICLMG) launched the Clearinghouse project on June 18, 2008, which marked the first-year anniversary of the coming into effect of the Canadian no-fly list or the Passenger Protect Program. The aim of the project was to investigate the border control practices used to screen travellers at Canadian airports and Canadian-US border crossings, and their impact on the privacy, civil liberties and human rights of individuals living in Canada, whether citizens, landed immigrants or asylum- seekers.

We had been witnessing a growing number of border incidents, as well as a change in the nature of these incidents, coinciding with the implementation of the no-fly list program and the linking in real-time of Canadian and US law enforcement databases and watchlists. The well-documented racial and religious profiling and targeting of Muslims and members of Arab communities was now expanding to other groups, including academics as well as peace, labour and justice activists.

It could be said that the no-fly list program was the most visible initiative resulting directly from the growing efforts to integrate Canadian and US security systems within the framework of the 2001 Smart Border Declaration, and the subsequent 2005 Security and Prosperity Partnership. They included: the Nexus program, the National Risk Assessment Centre, the High-Risk Traveller Identification Initiative and the Integrated Border Enforcement Teams.

In December 2011, Canada and the US unveiled the Beyond the Border agreement and quietly began implementing initiatives towards establishing a North American Security Perimeter. This included expanding trusted traveller programs, as well as enhancing integrated law enforcement and information-sharing cooperation which raised many privacy concerns.

With some of our members and partners – the British Columbia Civil Liberties Association, the Canadian Association of University Teachers, the Canadian Labour Congress, the Canadian Union of Public Employees and the Ligue des droits et libertés – we wanted first-hand information that would inform our advocacy work and bring the issues of surveillance and watchlists to the attention of the public at large. The project combined research, policy analysis and first-hand accounts of travellers who were barred from flying, intercepted or detained. Over a two-year period, we filed access to information requests and met with government as well as with federal and some provincial privacy commissioners and their staff.

We found and analyzed countless reports from both sides of the border regarding the dizzying number of agreements, measures, programs or databases of the Canada Border Services Agency, the Canadian Air Transport Security Authority, the RCMP, Transport Canada and the Canadian Security Intelligence Service. To find out how these different programs and regulations were impacting travellers, we set up a website and a toll-free phone number to allow people to report their encounters with airlines, transport and border officials. The information collected was kept confidential unless participants agreed to be identified. Over 70 stories were thus collected.

We released the 55-page final report in February 2010, on the eve of the opening of the Vancouver Winter Olympics.¹ICLMG et al., Report of the Information Clearinghouse on Border Controls and Infringements to Travellers’ Rights, ICLMG, February 2010. It was particularly timely as there were several reports of visitors who were questioned and detained upon their arrival at the local airport or at the Canada-US border. Free speech activists were especially targeted, including well-known US broadcaster Amy Goodman. Our report listed the growing array of databases and watchlists used to keep tabs on North American travellers, described how information was collected, sifted, cross-referenced, stored and shared with government agencies on both sides of the border, and with other foreign governments.

Since September 11, 2001, identifying, assessing and mitigating risk were central to border management practices. The CBSA had already acknowledged that its goal was to create a “virtual border” that is closest to the possible source of risk, and away from the traditional physical border.

We found that:

• Racial and religious profiling is a fact of life at the Canada-US border
• There was a real potential for abuse and violation of travellers’ rights due to the discretionary and arbitrary powers granted to officials of the CBSA
• Most people will never know why they are targeted
• There was no credible redress mechanism for passengers who were repeatedly questioned, detained and sent to secondary screening at the airport, or for individuals “randomly” stopped or turned back at the border
• Many, especially Muslims, said they no longer travelled outside Canada for fear of being targeted and that Maher Arar’s ordeal was often on their minds
• The lack of any meaningful redress mechanism exacerbated the potential for abuse and violation of Charter rights, notably the rights to privacy, mobility and equality

The ICLMG recommended a number of actions to the government and members of Parliament, who had virtually ignored the issue of the no-fly list since its inception, including the following:

• The Government should acknowledge that racial and religious profiling is a determining factor in the way individuals are treated and caught by no-fly lists and other watchlists. It must review these unconstitutional practices that violate the Canadian Charter of Rights and Freedoms.
• The no-fly list program (which was expanded by the imposition of the US Secure Flight Program on Canadian airlines planned for December 2010), should be reviewed by Parliament in light of the Charter because of a lack of due process and judicial review.
• An independent watchdog should be set up to monitor the Canada Border Services Agency in light of its discretionary and arbitrary powers, and the lack of any accountability mechanism, as recommended by Justice O’Connor in his 2006 inquiry into the case of Maher Arar.
• Parliament should address concerns over privacy and the deployment of biometrics and other technologies targeting travellers.

Finally, our report rightly predicted that the situation would be made worse by the North American Security Perimeter Agreement (released in December 2009) which for all practical purposes established one harmonized border protection and national security regime for all of Canada and the US.

In August 2022, the Federal Court upheld the constitutionality of the no-fly list, saying it did infringe on mobility rights but that the breach was justified. It ruled: “Ensuring safety in air transportation and limiting air travel for terrorist purposes necessarily involves some infringement of mobility rights.” We disagree.

ICLMG continues to fight to abolish Canada’s no-fly list, end Canadian government compliance with the US Secure Flight program, and establish an independent complaint body for the CBSA.

Patricia Poirier is a former journalist who has been involved with human rights, justice and privacy issues as a researcher and communications consultant in Ottawa, Moscow, Jerusalem and Montreal where she volunteers.

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Footnotes

• 1
  ICLMG et al., Report of the Information Clearinghouse on Border Controls and Infringements to Travellers’ Rights, ICLMG, February 2010.

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.