News from ICLMG

Advocates welcome long overdue review body for CBSA and RCMP, but warn gaps will undermine accountability

Long overdue review and complaints body for Canadian Border Services and Mounties welcomed by rights advocates, but warn that gaps in legislation will undermine accountability

Nov. 12, 2024, OTTAWA – Civil society groups are welcoming the adoption of Bill C-20 and the long-overdue establishment of an independent review body for the Canada Border Services Agency (CBSA).

“For more than two decades, the CBSA has evaded independent review and been allowed to self-police all complaints. The new Public Complaints and Review Commission created by Bill C-20 is an important step toward greater transparency and accountability at one of Canada’s largest law enforcement agencies,” said Tim McSorley, National Coordinator of the International Civil Liberties Monitoring Group, one of nine organizations that have worked collectively to bring improvements to the bill during its progress through parliament.

The newly created PCRC will investigate complaints and carry out reviews regarding both the RCMP and the CBSA, and will bring some long-needed changes to how complaints regarding the RCMP are handled as well. This includes allowing for third-party complaints, the explicit ability for the Commission to carry out specified activity reviews, and ensuring the Commission reflects the diversity of Canadian society.

However, significant outstanding problems with the legislation that the government failed to rectify during the Parliamentary study of the bill will need to be addressed as the new Commission is put in place. This includes ensuring that much-needed third-party complaints are not excluded on baseless grounds, that complaints regarding patterns of abuse are investigated, and that, as much as possible, the Commission itself investigates complaints, rather than the RCMP or CBSA themselves.

The new law unfortunately also leaves significant gaps in the complaint and review process. In particular, it fails to provide for the possibility for a stay of removal or other redress in the course of or following a complaint, and it denies the ability for a party to seek judicial review of the Commission’s decisions.

“While it is positive to finally see legislation in place, it is unfortunate that, after years of advocacy, the government failed to include key elements to ensure that when RCMP or CBSA officers violate the rights of people in Canada, they have clear and strong avenues to seek recourse,” said Pantea Jafari, of the Canadian Immigration Lawyers’ Association.

“Although we are relieved that the CBSA will finally have an independent civilian body to review its handling of complaints, we know from our work in police accountability that a stronger model than that provided by Bill C-20 is needed; we are disappointed that Parliament did not seize the opportunity to bring these powerful federal law enforcement agencies – the CBSA and the RCMP – under robust and effective oversight systems,” said Meghan McDermott of the BC Civil Liberties Association.

Since the tabling of Bill C-20, a network of nine civil society organizations has worked to raise concerns with the government, MPs and Senators. Most recently, they presented a series of joint recommendations to the Senate committee studying the bill.

The groups include:

  • Amnesty International Canada (English Section)
  • BC Civil Liberties Association
  • Canadian Association of Refugee Lawyers
  • Canadian Civil Liberties Association
  • Canadian Council for Refugees
  • Canadian Immigration Lawyers Association
  • Canadian Muslim Lawyers Association
  • Canadian Muslim Public Affairs Council
  • International Civil Liberties Monitoring Group

These advocacy efforts resulted in significant improvements to the legislation, including allowing third parties, including civil liberty, human rights, refugee and migrant rights, and other civil society organizations, to both file complaints with the new Commission and request that the Commission undertake reviews; extending the deadline for submitting complaints to two years; and removing unnecessary barriers around which complaints the Commission may pursue. This advocacy also helped inspire important observations included by the Standing Senate Committee on National Security, Defence and Veterans Affairs in their report on the bill, underscoring the importance of a non-restrictive approach to third party complaints and of ensuring diversity in the make-up of the PCRC staffing.

As the government moves to establish the PCRC and set out regulations for how it will operate, civil society groups plan to continue to advocate for ways to strengthen the review process.

“Passing this legislation is a welcome and critical first step. We plan to remain vigilant on the development of regulations, and how the Commission will operate, to ensure the review and complaints processes are effective channels and taken seriously by the CBSA and RCMP,” said Gauri Sreenivasan, Co-Executive Director of the Canadian Council for Refugees.

– 30 –

This release is jointly issued by: Amnesty International Canada (English Section), BC Civil Liberties Association, Canadian Association of Refugee Lawyers, Canadian Civil Liberties Association, Canadian Council for Refugees, Canadian Immigration Lawyers Association, Canadian Muslim Lawyers Association, Canadian Muslim Public Affairs Council, and International Civil Liberties Monitoring Group

For more information:

Tim McSorley, ICLMG
613-241-5298
national.coordination@iclmg.ca

Pantea Jafari, CILA & CMLA
416-825-0650
jafari@jafarilaw.ca

PDF of the press release

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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. 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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Letter to Minister Joly: Urgent Call for Independent Investigation into the Death of Canadian Citizen FJ

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October 29, 2024

The Honourable Mélanie Joly
Minister of Foreign Affairs
Ottawa, Ontario
K1A 0A6

Re: Urgent Call for Independent Investigation into the Death of Canadian Citizen FJ

Minister Joly,

I am writing today on behalf of the International Civil Liberties Monitoring Group, a coalition of 44 Canadian civil society organizations dedicated to defending civil liberties in the context of anti-terrorism and national security measures.

Our coalition is gravely concerned by the news of the death of Canadian citizen FJ while being held in a deportation centre in Turkey on the night of October 16 to 17, 2024, leaving her six children in Canada without a mother and leaving a multitude of questions surrounding her death unanswered.

We have read the news coverage and the detailed letter shared with you on Oct. 24, 2024, by members of the civil society delegation to northeast Syria, and fully support their call for you to take immediate steps to initiate an independent and impartial investigation into the death of FJ.

As you are aware, our coalition has written to you on several occasions, including Dec. 7, 2022, Jan. 26, 2023, and March 31, 2023, expressing our concern with the Canadian government’s lack of action in repatriating Canadians detained in life-threatening, indefinite detention in northeastern Syria. We have yet to receive a reply.

In our communications with you, we expressed our worry that your government’s inaction on this ongoing violation of the rights of Canadians could lead to the death of a citizen abroad; it is to our great dismay that these concerns have come to fruition.

It has been reported that your government had previously placed an ultimatum before FJ: her six children being held in Al-Roj detention camp could be repatriated to Canada without her, or they could remain in the detention camp in horrendous conditions with her. Eventually, FJ’s children were brought to Canada without her, and separated among several foster families. This is despite Canada’s international obligation to uphold the best interests of children, which was clearly to avoid family separation and to allow for the repatriation of the children together with their mother to Canada.

Moreover, the rationale for denying the repatriation of FJ to Canada – that she allegedly posed an insurmountable security threat – was belied by the fact that Canada has already repatriated several Canadians who have either been placed under peace bonds or charged with criminal offenses. It also contradicts the RCMP’s own position expressed to the Minister of Public Safety in 2018 that: “The Canadian Charter of Rights and Freedoms guarantees Canadian citizens the right to return to Canada. Therefore, even if a Canadian engaged in terrorist activity abroad, the government of Canada must facilitate their return to Canada.”[1] This is compounded by the fact that the Canadian government has presented no evidence of the threat that FJ would allegedly pose.

FJ’s death in a Turkish deportation facility raises several unanswered, including:

  • What was communicated to her by Canadian officials during consular visits?
  • What did she express to those officials regarding her detention and trial?
  • Did the RCMP, as reported, visit and question FJ while in detention?
  • If so, why? And what was she told about potential charges?

These are only a few questions, which, along with the many raised in the Oct. 24 letter from the civil society delegation, require urgent investigation.

We also note with concern that FJ’s death came just after she had been acquitted of criminal charges relating to membership in an armed terrorist group by a three-judge panel in Turkey. This again raises serious concerns about the basis on which Canada refused to repatriate FJ, along with her children, months earlier, which would have avoided this appalling outcome.

It is imperative that your government take urgent and immediate action to investigate this matter, and provide answers to FJ’s children, and to all Canadians, about the circumstances leading to her death and how to avoid such a dreadful outcome in the future.

We also reiterate once again our call that you and your government take immediate action to repatriate all Canadians, and the non-Canadian mothers of Canadian children, who remain in indefinite, life-threatening detention without possibility of release or trial in camps and prisons in northeast Syria. This is the only option in compliance with Canada’s Charter and international human rights obligations. Not one person more can be allowed to have their rights violated and to face abuse, torture or death in the name of national security.

We look forward to hearing from you further on this urgent matter.

Sincerely,

Tim McSorley
National Coordinator
International Civil Liberties Monitoring Group

Cc: The Honourable Dominic Leblanc, Minister of Public Safety
Pam Damoff and Rob Oliphant, Parliamentary Secretaries to the Minister of Foreign Affairs

[1] RCMP briefing note to the Minister of Public Safety, “Canada’s Approach to Terrorism and Violent Extremism.” 2018. Online: https://www.scribd.com/document/395365824/RCMP-Returnees

Find the PDF of the letter here

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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Policy submission to the Public Inquiry into Foreign Interference

As part of the final phase of the Public Inquiry into Foreign Interference, the PIFI requested policy submissions regarding how the Canadian government should respond to foreign interference concerns. Below is the introduction to ICLMG’s submission, as well as the list of our recommendations. You can read the full brief here.

Policy Submission to the Public Inquiry into Foreign Interference

Since 2021, the Canadian government has initiated multiple reviews and independent inquiries, including the Public Inquiry on Foreign Interference, to address alleged threats of foreign interference in Canada. We recognize the importance of addressing this issue, particularly in instances where governments are threatening individuals or their close ones in order to suppress their ability to exercise their fundamental rights or to engage in democratic processes.

However, we are deeply concerned by the policy approach and legislative responses that the Canadian government has adopted to date to address this issue, and the direction that it signals the government will take in the future.

This includes a nearly exclusive focus on granting new powers to national security agencies and creating significant new offences that we fear will result in over-reach and over-securitization of responses to this issue. Our work on the impact of national security and anti-terrorism laws, which share similarities in terms of addressing covert activities tied to either domestic or international entities with malicious intent, has shown the necessity of clear definitions, evidence-based decision-making, and responses that are necessary and proportionate.

Failing to adhere to these principles can lead to the further marginalization of a variety of organizations and communities, including those from racialized, Indigenous or immigrant populations, as well as those involved in dissent, protest and challenging the status quo. This is caused by the undermining of fundamental rights and with it democratic involvement and participation, leading often to more tension and divisions. It is also important to ensure that responses beyond policing, intelligence and criminal charges are appropriately explored.

The most glaring example is the adoption, in haste, of Bill C-70 – the Countering Foreign Interference Act – in June 2024, which will have wide-ranging impacts on Canada’s national security, intelligence and criminal justice systems. As such, it will also have significant impacts on the lives and fundamental rights of people in Canada.

For example, the decision to provide CSIS with new forms of warrants, granting it extra-territorial reach for foreign intelligence activities, and allowing the service to disclose information to any person or entity, in order to build “resiliency,” will lead to increased surveillance, diminished privacy, and racial, religious and political profiling. Powerful new offences for actions undertaken in “association with” foreign entities, including foreign governments and state-affiliated agencies, punishable by up to life in prison, will infringe on freedom of expression and association, and raises questions of proportionality in sentencing. Likewise, vague and undefined terms raise similar worries about the Foreign Influence Transparency and Accountability Act (FITAA) and the foreign influence registry it will create. This is compounded by significant areas of FITAA being left to regulation as opposed to specified in the legislative text. The bill has also transformed how, in administrative proceedings, federal courts handle sensitive information that can be withheld, undermining due process in courts through the use of secret evidence.

A bill of such breadth required in-depth study. However, in the rush to address issues of foreign interference as quickly as possible, the bill passed through the entire legislative process in less than two months. This is faster than even the rushed 2001 study of the first Anti-terrorism Act, which studied for two months.

This astoundingly short study resulted in significant aspects of the legislation going unstudied and areas of concern going unaddressed: less time meant that experts and organizations with limited resources had to rush their analysis of the bill, and made submitting briefs and appropriate amendments nearly impossible, with many who would normally have intervened deciding not to do so for fault of resources. Even when members of parliament and senators recognized concerns, the refrain was that the bill’s study was either constrained by time limits imposed in the House of Commons or by the necessity to adopt new rules before an eventual election.

Moreover, the bill was introduced just days after this Inquiry published its first interim report, and before the public tabling of reviews from both the National Security and Intelligence Review Agency and the National Security and Intelligence Committee of Parliamentarians on the same topic. The tabling of significant legislation before the public has had the ability to fully consider reports on the breadth and impact of foreign interference in Canada raises significant concerns of being able to adequately assess the necessity and proportionality of government responses, let alone whether these responses will be effective in addressing foreign interference activities.

This curtailing of debate in the name of expediency on an issue as important as protecting our democratic systems remains deeply troubling. Unfortunately, it also appears indicative of a rush to make policy decisions and take action that has permeated much of the recent debate.

In the rest of our submission, we examine key areas from Bill C-70 that illustrate the concerns raised above and future policy considerations that the federal government should take into account. Read our full submission here.

Recommendations

Recommendation 1: That the government ensure that all proposed responses to foreign interference concerns are necessary and proportionate, and based on evidence.

Recommendation 2: That policy and legislation related to foreign interference be adopted in an open and transparent manner, that prioritizes consultation and promotes democratic participation.

Recommendation 3: Concerns around foreign interference cannot be used to justify the hasty adoption of unrelated, or minimally related, legislation or policies.

Recommendation 4: That the government rescind the changes made to s. 19(2)(d) to allow the Minister to authorize disclosure to any person or entity. Alternatively, any authorized disclosure should be limited to entities or persons within Canada.

Recommendation 5: That the government revisit s. 19(2.1) of the CSIS which allows for information, excluding personal information, to be disclosed by CSIS to any person or entity for the purpose of building resiliency against threats to the security of Canada.

  • Resiliency should be defined in the CSIS Act and any further legislation
  • Add transparency and accountability requirements for information sharing activities, including:
    • Public sharing of documents and information disclosed, where possible;
    • Internal documenting of what information was disclosed to whom and why;
    • Reporting all instances of information disclosure to the NSIRA, similar to the existing requirement in s. 19(3) of the CSIS Act, regarding reporting of information disclosed with Ministerial authorization.

Recommendation 6: The government should consider creating a separate office, apart from CSIS, to organize and arrange briefings with non-governmental entities to avoid a bias towards securitization and to ensure a holistic approach to protecting against interference with the exercising of fundamental rights or participating in democratic processes.

Recommendation 7: That the government, at the earliest possible moment, engage with the public, including civil society organizations, to make further amendments to the provisions of Bill C-70, including those recommended in our brief to the Senate.[1]

Recommendation 8: That all future policies on foreign interference must appropriately take into account impacts on freedom of expression, freedom of association, and the ability to engage in protest and dissent.

Recommendation 9: Remove provisions for a new Secure Administrative Review Proceeding and instead review the areas of legislation that already allow for similar regimes, in order to remove provisions for the non-disclosure of information to appellants and those seeking judicial review.

[1] ICLMG. “Brief on Bill C-70,” submitted to the Senate Standing Committee on National Security, Defence and Veterans Affairs, June 2024. Online at: https://iclmg.ca/wp-content/uploads/2024/06/C-70-BRIEF-PROPOSED-AMENDMENTS-ICLMG.pdf

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!
make-a-donation-button
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