Coalition Calls On Federal Leaders to Commit to Defending Civil Liberties in 2019 Federal Election
OTTAWA (Sept. 25, 2019) – Federal leaders and their parties must do more to show their commitment to defending civil liberties in Canada, particularly from the impact of national security and anti-terrorism laws, says a national coalition of 46 organizations.
“Despite pressing concerns, we have heard very little from Canada’s political leaders about what they will do to address issues like mass surveillance, political and religious profiling, Canada’s complicity in torture, or secret watch lists – all implemented in the name of ‘national security’,” said Tim McSorley, national coordinator of the International Civil Liberties Monitoring Group. The ICLMG was founded shortly after the adoption of Canada’s first Anti-Terrorism Act in 2001 to serve as a watchdog on the effects anti-terrorism laws and the “War on Terror” have on civil liberties in Canada.
Since then, the coalition has observed a troubling trend of “national security creep”: ever expanding powers for Canada’s secretive national security agencies, with a clear impact on the civil liberties of people in Canada, as well as internationally.
To combat this trend, the ICLMG has written to party leaders, laying out ten commitments they could make today in order to ensure civil liberties in Canada are strengthened and promoted heading into the next parliament. These asks are:
Stop and effectively outlaw all mass surveillance.
Stop the surveillance, profiling and harassment of Indigenous people, Muslim communities and environmental defenders.
End all deportations to torture, including Mohamed Harkat’s, and abolish security certificates.
Launch an independent and public inquiry into the case of Hassan Diab and the Extradition Act.
Fix the many problems created by the National Security Act, 2017 (Bill C-59), and address the ongoing issues it perpetuated.
Abolish the No-Fly List and the Terrorist Entities List.
Ensure justice and full redress for victims of torture.
Bring home Canadian citizens being detained in Syria.
Suspend the Safe Third Country Agreement with the United States.
Address Islamophobia, xenophobia, hate, racism, gendered and domestic violence, unemployment, poverty and more to create a better society for all.
A more detailed list, with explanations of each ask along with sources, is available at iclmg.ca/election-2019.
The coalition is also asking the public to weigh in by writing to the candidates in their riding, using an online emailing tool on the ICLMG’s website at iclmg.ca/act-election-2019.
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Contact:
Tim McSorley, National Coordinator, ICLMG
(613) 241-5298
The 2019 federal election is here. We need candidates and their parties to commit to defending civil liberties. So we’ve created a list and easy-to-use tool to ask candidates in your riding to protect the national security and human rights related issues that matter to you!
1. Stop and effectively outlaw all mass surveillance
Canadian national security agencies have been caught conducting mass surveillance on multiple occasions, sometimes breaking the rules and other times authorized by the law. In some instances, after security agencies were found to be breaking the law, the government simply passed new legislation to legalize those activities. This is the case with various aspects of the new National Security Act, 2017.
Canada’s electronic spy agency, the Communications Security Establishment (CSE):
allowed the US National Security Agency (NSA) to create a “back door” in an encryption key used worldwide,
spied on Canadians using public WiFi networks, has captured millions of downloads daily,
engaged in mass Internet surveillance of file-sharing sites, developed cyber warfare tools to hack into computers and phones all over the world, and
shared information on Canadians with its foreign partners without proper measures to protect privacy. Data was later erased from the agency’s system making it difficult to find out the number of people impacted by the privacy breach.
The new National Security Act, which received royal assent in June 2019, grants sweeping new surveillance powers to both the CSE and CSIS, including the collection of metadata, vaguely defined “publicly available information,” and the incredibly broad category of “unselected information” (which essentially means any information).
The Five Eyes countries (Canada, Australia, New Zealand, the US and the UK) have been collaborating to undermine encryption and its importance worldwide. Following the group’s meeting in July 2019, Canada endorsed a statement calling for “backdoors” to be added to encryption tools, allowing access to private messages.
Starting in summer 2019, Canada is now collecting the exit information of all people leaving Canada, and retaining the information for up to 15 years. This broad capture of travellers’ information raises serious privacy concerns and should be stopped.
The use of facial recognition for security purposes has been growing across Canada. This technology is invasive, biased and unreliable. A nation-wide moratorium on the technology should be put in place immediately.
2. Stop the surveillance, profiling and harassment of Indigenous people, Muslim communities and environmental defenders
Over the last decade, the Canadian government has profiled and spied on groups that challenge the country’s economic and natural resource priorities. Muslim communities, including student groups, are routinely targeted for questioning and surveillance. This must end.
Over the last decade, the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP) security reports, along with government policy documents — notably on anti-terrorism strategies — have equated economic interests with Canada’s “national interests,” allowing them to designate groups that challenge the government on these issues as threats to Canada’s national security.
Groups opposing government policy, particularly surrounding the energy and extractive sectors, have been infiltrated and subject to surveillance by both CSIS and the RCMP. The Anti-Terrorism Act of 2015 (formerly Bill C-51) as well as the new National Security Act (formerly Bill C-59) granted Canadian intelligence agencies enhanced powers to share information on and disrupt the non-violent activities of Indigenous groups and other organizations contesting the government’s extractivist agenda.
Muslim and Arab communities have continued to speak out about the targeting and surveillance of their communities. In 2018, the Public Terrorism Threat Report listed “Shia” and “Sunni” (and “Sikh”) inspired terrorism, tarnishing whole communities. The report was changed after outcry. And Muslim students have continued to voice concern about visits from CSIS to their campuses and their homes, causing fear and intimidation.
3. End all deportations to torture, including Mohamed Harkat’s, and abolish security certificates
Mohamed Harkat, a refugee who has lived in Canada for more than 25 years, continues to face deportation to imprisonment and torture in Algeria under the secretive and due process-violating security certificate regime. This is despite his having never being charged with, let alone convicted of, a crime. The security certificate regime is a system that allows non-citizens to be arrested and deported. Security certificate laws deny the person accused access to the evidence being used against them, making it impossible to mount a full defence.
The security certificate system must be abolished. Deportations to torture must never occur. Mohamed Harkat must be allowed to remain in Canada.
Mohamed Harkat, a United Nations Convention refugee, faces deportation to torture in Algeria under the highly problematic regime of security certificates
In 2002, Mr. Harkat was imprisoned in maximum security for 43 months. He spent years under house arrest, and was placed under some of the most severe bail conditions in Canadian history. All of this without ever having been charged with a crime. The original “evidence” against Mr. Harkat was destroyed by CSIS, and the allegations against him are based on the testimony of an informant who failed a lie detector test and was never cross-examined in court. Security certificate hearings take place in secret, which means neither he nor his lawyers have ever been allowed to confront and cross-examine his accusers. The Harkats have also described how the conditions imposed on them and the harassment they have faced from Canada Border Services Agency agents amounts to “psychological torture.”
If Mr. Harkat is sent back to Algeria, he faces high risks of detention, disappearance and torture, according to the latest report by Amnesty International Algeria. Mr. Harkat, his family and his community have been living in constant fear since deportation proceedings began four years ago. Enough is enough.
The UN Convention Against Torture outlaws deportation to torture under any circumstances, without exception. In both the UK and Ireland, recent cases of deportations to Algeria have been stopped because of the risk of torture. There is no reason why Canada should not follow suit. Canada must stop being complicit in torture, and must allow Mr. Harkat to stay in Canada.
Canada should pursue a strategy of criminal prosecutions, rather than using immigration procedures such as security certificates, which:
do not guarantee those affected the same procedural protections as the criminal justice system;
are discriminatory because they can only be used against non-citizens;
can lead to long-term indefinite detention and to removal to torture;
have resulted in protracted legal challenges;
have proven extremely costly, both to the public and the accused.
Canada should also reject the use of secret evidence:
The use of secret evidence denies individuals the right to know and meet the case against them.
The use of secret evidence undermines public confidence in the justice system.
Special advocates who can take part in secret proceedings, but are not actual defence counsel for the accused, do not make the hearing fair, only slightly less unfair.
Evidence needs to be rigorously tested, especially in security cases, where information is often based on vague assessments, and potentially unreliable informers, foreign intelligence sources or obtained through torture.
Given widespread prejudices and misinformation about Arabs and Muslims, there must be open and transparent testing of the evidence to avoid the danger of racial and religious stereotyping, as well as the perception that this is occurring.
4. Launch an independent and public inquiry into the case of Hassan Diab and the Extradition Act
Hassan Diab, a Canadian citizen, was extradited to France on terrorism allegations based on evidence that even the Canadian extradition judge found to be “very confusing, with conclusions that are suspect.” Dr. Diab spent more than three years in prison without charges, awaiting trial. While he is now back in Canada, he deserves justice and answers. And changes must be made to Canada’s extradition law to ensure this never happens again. The government must launch a full, independent, public inquiry.
Hassan Diab, a Canadian citizen, was arrested in Ottawa in 2008 under a request for extradition from France, which suspected him of bombing a Paris synagogue in 1980. For six years, Dr. Diab challenged the extradition request.
Even though central evidence in his case was found to be “convoluted, very confusing, with conclusions that are suspect,” and would not be admissible in a Canadian trial, and the chance of conviction in France was “weak,” the standard for extradition is so low that the judge felt compelled to order Dr. Diab’s extradition.
Although the law stipulates that Canadians are only to be extradited to face trial, Dr. Diab spent three years in prison, in isolation, without charge, while the French judges investigated his case. The judge verified that he was not in France at the time of the bombing, and he was finally released and able to return to Canada in January 2018.
CBC recently revealed that a Canadian government lawyer asked France to send fingerprints of the bombing suspect for comparison with Dr. Diab’s prints, hoping they would match and provide strong evidence to support his extradition. The fingerprints were found not to match, but this was never disclosed to the court.
In Fall 2018, Justice Minister Jody Wilson-Raybould called for an internal review of Dr. Diab’s case. However, this was cancelled after it was decried as a conflict of interest, since the Justice Department would be investigating itself. The Minister then called for an external review, which was conducted by former Ontario Deputy Attorney General, Murray Segal. The report was submitted to the new Justice Minister, David Lametti, in May 2019, but was only released publicly in July after many calls by Dr. Diab and his supporters.
Astonishingly, the review found that Department of Justice lawyers and Canadian officials broke no rules. The process did nothing to bring justice to the grave human rights abuses suffered by Dr. Diab, or to ensure that no other person suffers similar injustices due to Canada’s flawed extradition law.
The review did not cover France’s actions in the lead up to Dr. Diab’s committal for extradition, and did not include an examination of the issues in Canada’s Extradition Act. The reviewer’s access to documents and evidence in Canada’s possession was subject to undue limitations, including constraints related to vague “international relations obligations.” The review process also lacked the ability to cross-examine witnesses under oath.
This is why Dr. Diab and his supporters, including ICLMG, have been calling for a full, public and independent inquiry into his case and Canada’s extradition law.
5. Fix the many problems created by the National Security Act, 2017 (Bill C-59) and address the ongoing issues it perpetuated
The federal government touted Bill C-59 as addressing the problems with the Anti-Terrorism Act, 2015 (Bill C-51) and bringing in new rules to keep Canada safe and protect our rights. In the end, the bill failed to undo the damage of C-51, and brought in troubling new powers that place our rights at risk.
The National Security Act, 2017, (formerly Bill C-59) received royal assent in late June 2019. The Liberal government has touted it as being a “fix” for the previous government’s controversial Bill C-51 (the Anti-terrorism Act, 2015). But while it brings some improvements, Bill C-59:
Continues to allow CSIS to engage in secret and dangerous threat disruption powers;
Maintains the secretive No Fly List, which violates due process and has never been proven to be effective;
Preserves overly-broad information sharing rules that infringe on privacy, free expression and the right to dissent;
Improves on review of national security activities by creating the overarching National Security and Intelligence Review Agency, but falls far short by allowing the weakest aspects of current national security review bodies to persist in the new agency;
Grants sweeping new surveillance powers to both the CSE and CSIS, including the collection of metadata, vaguely defined “publicly available information,” and the incredibly broad category of “unselected information” (which essentially means any information);
Introduces new powers to give CSIS agents or designated individuals immunity for committing crimes in the line of their work;
Fails to prohibit the use and sharing, in all circumstances, of information linked to mistreatment and torture;
Allows the CSE to engage in broad and powerful new “active cyber operations” with little oversight, creating the risk of retaliation as well as attacks from leaked new cyber-weapons.
6. Abolish the No-Fly List and the Terrorist Entities List
Both the No Fly List and the Terrorist Entities List rely on administrative tools that lack transparency and fairness, and undermine the rights of those placed on either list. In both cases, criminal code provisions that set a clear threshold for evidence and ensure the accused are able to mount a full defence would be better suited to address threats to airlines, individuals traveling overseas to commit crimes, or entities that have committed terrorism infractions. Furthermore, the US No Fly List should not be used by airline companies for flights that leave or land in Canada without passing through or “too close to” US airspace. This is a violation of Canada’s sovereignty.
It creates undue hardships for those who are flagged as false positives;
It undermines the right to due process for individuals on the list through a lack of transparency and access to information;
It lacks a fair appeal process;
It allows secret information-sharing with foreign entities which can lead to human rights abuses;
It is an instrument of racial and religious profiling that disproportionately targets Muslim and Arab people;
The names and number of people on the list are kept secret, leading to concerns about the arbitrariness of who does or doesn’t get added to the list.
Its efficiency and necessity have never been demonstrated. If a person is a threat to the safety of others, the government should act using existing criminal code procedures that follow due process.
The listing of terrorist entities has been a major public concern for governments since the enactment of the Anti-terrorism Act of 2001. First established with seven entities in July 2002, the list now encompasses 60 entities.
The Minister of Public Safety adds entities to the Terrorist Listing through an administrative process, based on “credible and compelling information.” This is a lower standard than both criminal and civil proceedings, and raises concerns about what kind of information can be used to justify listing.
The listing process is open to arbitrary and partisan decision making, since the minister decides which entities are or are not added to the list. The vast majority of groups listed continue to be Muslim or Arab organizations. The process has also been criticized for being influenced by lobbying campaigns.
As soon as a group is listed, its assets are completely frozen. Among other things, this prevents it from being able to hire a lawyer.
Furthermore, it becomes illegal for anyone to offer the group financial or pro bono support, even if that is the only way that the group would be able to fund their defence or secure legal counsel.
If an entity does challenge its listing, it is only allowed access to a summary of the information on which their listing is based, again limiting their ability to mount a full defence.
The listing process also raises concerns for international humanitarian operations. For example, the listing of Hamas has raised real concerns that humanitarian groups working in Gaza could be accused of supporting a listed terrorist entity because of the prevalence of the organization in maintaining institutions such as hospitals, schools, and other social services.
Criminal code provisions outlawing terrorist activities, or new provisions that would ground the listing process in the criminal code, would both be better suited in penalizing organizations that commit or support acts of terrorism.
7. Ensure justice and full redress for victims of torture
Despite Canada’s legal obligations under customary international law, international human rights treaties, international humanitarian law and Canada’s own Criminal Code, the government has failed in its obligations to provide justice and redress for victims of torture. This ranges from delaying court proceedings, to denying victims full redress, and to outright refusing to fully investigate claims of torture.
Canada should launch a commission of inquiry into Canada’s transfer of hundreds of Afghan detainees to torture, and provide full redress to Canadian survivors of torture, including Omar Khadr and Abousfian Abdelrazik.
a) Canada should launch a commission of inquiry into Canada’s transfer of hundreds of Afghan detainees to torture
There is overwhelming evidence that, during Canada’s military mission in Afghanistan, many of the detainees transferred – notwithstanding very clear and credible risks of torture – were indeed tortured. Canadian diplomats documented incidents where detainees were beaten with electric cables, rubber hoses or sticks; given electric shocks; forced to stand for long periods of time with their hands raised above their heads; punched or slapped; and threatened with execution or sexual assault. No one knows exactly how many detainees who were in Canadian custody were tortured, disappeared or died under Afghan custody – partly due to the lack of a rigorous monitoring regime for the conditions of detainees, and partly due to the cloud of secrecy the previous government relentlessly maintained over this matter.
By exposing hundreds of Afghans to such high risks of torture, Canada failed utterly to prevent the torture of many of them, thus flouting one of the most basic legal and moral obligations: the prohibition of torture, enshrined in customary international law, international human rights treaties, international humanitarian law and Canada’s own Criminal Code.
While in opposition, the Liberals demanded a public inquiry into the Afghan detainee issue. But once in power, the Liberal government rejected such an investigation. It is highly concerning that the current Defence minister Harjit Sajjan made the decision against the inquiry, since he was part of the Afghanistan mission and it’s unclear how much he was involved in the transfer and torture of the detainees.
b) Canada should provide full redress to five Canadian survivors of torture
The UN Committee Against Torture found in December 2018 that Canada has continued to fail to provide full redress for five Canadians who were tortured abroad, with Canada’s complicity. They are:
Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin, who were all subjects of the Iacobucci Inquiry, which found that Canadian security agents were complicit in their torture abroad;
Omar Khadr, who was illegally imprisoned, and tortured in the Guantanamo prison;
Abousfian Abdelrazik, who was arbitrarily imprisoned, and tortured in Sudan, while the Canadian government blocked his attempts to return home.
Canadian officials have been found or are alleged to have been complicit in torture in each of these cases. For the first four men, Canada has provided cursory apologies and financial compensation. Regarding Abousfian Abdelrazik, the government has been criticized for refusing to negotiate a settlement or proceed to trial, and instead taking action that will draw the case out — possibly for years.
The Committee reported that Canada has failed to meet some of the most important requirements of redress under the Convention Against Torture, namely:
Investigation into those complicit in torture and mistreatment, and criminal prosecution where warranted;
Verification of the facts, and full and public disclosure of the truth, ideally through a public inquiry; and
Official declaration or judicial decision restoring the dignity, the reputation and the rights of the victims. Particularly in the case of Omar Khadr, the government and political officials have continued to share misleading and prejudicial information about the violation of his rights.
The Committee also noted Canada’s continuing failure to provide adequate training about Convention duties for law enforcement officials, judges, prosecutors and medical personnel. The International Civil Liberties Monitoring Group (ICLMG) and Lawyers’ Rights Watch Canada (LRWC), which raised these concerns in a joint report to the Committee, welcomed the findings and are calling for the government to take immediate action to meet its legal obligations to oppose torture and ill-treatment.
8. Bring home Canadian citizens being detained in Syria
Those who have not committed crimes deserve support to lead full lives in Canada, and those who are identified as having committed crimes should be held responsible and prosecuted.
According to reports, 32 Canadians are detained in Syria following coalition forces victories over Daesh (also known as the Islamic State or ISIS). This includes six Canadian men, accused of being members of Daesh, and held in Kurdish prisons. Another nine Canadian women and 17 Canadian children are detained in camps nearby.
As Canadian citizens, they hold rights under the Canadian Charter of Rights and Freedoms, which the Canadian government must uphold. This includes the right to return to Canada, guaranteed by s. 6 of the Charter. Canada also runs the risk of complicity in any torture or mistreatment they may face, violating s. 12 of the Charter. For those individuals facing criminal accusations, they also likely face biased and summary trials and convictions (Syria and/or Iraq), further violating their rights.
Canada should act upon its obligations to its citizens, and work to return them to Canada. Those people not suspected of criminal activity should be provided support for establishing new lives in Canada. Those who are suspected of committing crimes should be charged and brought to trial.
Repatriating these individuals will not only ensure that Canada upholds fundamental rights, but also serves to strengthen our security. Kurdish officials have stated they do not have the capacity to place those they have imprisoned on trial, and may eventually simply release them, allowing them to re-join Daesh or engage in further criminal activity. Those who are detained in camps and not suspected of criminal activity will have better options for education and gaining a livelihood in Canada than being held indefinitely in dangerous conditions.
Finally, as others have pointed out, these individuals are Canada’s responsibility, particularly those who have or intend to carry out violent crimes. Canada did not prevent them from leaving the country to commit crimes. It is both irresponsible, and dangerous, to argue that Canada has no obligations and to simply pass the problem off to another country, especially one that does not have the resources and capacity to prosecute and rehabilitate potential criminals.
9. Suspend the Safe Third Country Agreement with the United States
The Safe Third Country Agreement allows Canada to turn away refugee claimants who wish to enter the country from the United States, under the guise that the US is a safe country for refugees and that they should therefore apply for asylum in that country. This agreement has been troubling since it was first adopted, but has raised even more concerns with changes brought in by the Trump administration in the US. The agreement undermines the rights of asylum seekers, and places their safety and security in jeopardy. The agreement must be suspended.
There has been considerable debate about the increased numbers of refugee claimants who have crossed irregularly into Canada since Donald Trump assumed the presidency in the United States. The increase in fact predates the election of President Trump, and in part reflects a return to numbers more usual for Canada, after particularly low refugee claimant numbers from 2013 to 2015. However, the increase also reflects understandable fear that with a rapid deterioration in respect for the rights of refugees and migrants in the country, the United States is not a safe country in which to seek refugee protection.
Because of the Safe Third Country Agreement (STCA) between our countries, outside of a limited number of exceptions, the only way for individuals to be able to access refugee determination in Canada is to cross irregularly, instead of at an official border post. This context has provoked media coverage and political debate focusing on “illegal” border crossers, “illegal migrants”, queue jumpers, “security threats” and other pejorative, inflammatory and inaccurate terms. There have also been exaggerated suggestions that the numbers of refugee claimants crossing the border have reached crisis proportions. In order to diminish the hysteria, bigotry and errors at the heart of much of this discourse, Canada should suspend the STCA at this time, so that refugee claimants will be able to make their claims in a safe, orderly and regular fashion at border posts.
Regrettably, the Liberal government used the last Budget Implementation Act (formerly Bill C-97) to undemocratically introduce a harsh and unnecessary measure depriving certain refugee claimants of access to full and independent refugee hearings. This measure should be scaled back and the STCA should be suspended.
10. Address Islamophobia, xenophobia, hate, racism, gendered and domestic violence, unemployment, poverty and more, to create a better society for all
It is important to address these issues in order to prevent divisiveness, violence, social isolation and desperation, as well as creating a better society for all in general.
Criminal punishment is not always a deterrent to criminal activity, and prevention as designed by security agencies is often misused in racist ways and against protesters.
Improving cultural and societal conditions – through education, economic support, and clear state discourse and actions against racism, xenophobia, misogyny, homophobia and transphobia, etc. – would be much more effective in preventing violence.
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