By Monia Mazigh – In January 2015, the Canadian government introduced the controversial anti-terrorism legislation, Bill C-51. At that time, the Conservative government underestimated the strong opposition of the Canadian population to Bill C-51.

The government thought that both the Parliament Hill and the Saint-Jean-sur-Richelieu attacks created a climate of fear that would convince the population to staunchly support the national security policies at any price. Indeed, the support for stiffer anti-terrorism legislation in November 2014 was at 70%, and in February 2015, the support for Bill C-51 reached a peak of 80%. But after a public education campaign, the support rapidly started to drop and among citizens who heard of Bill C-51, only 38% approved it. Even with impressive public opposition and outcry, the Parliament adopted the bill in June 2015.

The Liberals supported the bill but promised that if elected they will amend the controversial parts. The NDP opposed the bill and promised to repeal it if elected. Today, we have a Liberal government and we still don’t know exactly what they will do with C-51. However, we know from some media reports that the Canadian Security Intelligence Service (CSIS) is not very eager to see these changes or amendments happening, especially since C-51 grants them huge disruption powers. And despite what the director of CSIS recently disclosed about these powers, the public knows little about them and how they are used.

In its submission about C-51, and referring to the disruption powers, the International Civil Liberties Monitoring Group wrote “that these extraordinary powers are unprecedented, dangerous, and have no place in a free and democratic society.” That doesn’t seem to be the opinion of Michel Coulombe, director of CSIS, who while testifying in front of the Senate Standing Committee on National Security and Defence mentioned that the disruption powers embedded in Bill C-51 were used nearly 24 times since last fall . As expected and feared by civil rights groups, CSIS didn’t ask for judicial approval before conducting these disruptive actions. They decided on their own that they aren’t violating any provisions of the Charter of Rights and Freedoms. CSIS hasn’t explain any of these actions.

How can we trust them? CSIS has a history of misleading its review mechanism, the Security Intelligence Review Committee (SIRC), and the courts. Here are a few examples:

• In the 2015 SIRC annual report, we learned that CSIS, on several occasions, obtained tax information from the Canada Revenue Agency on Canadian citizens without a warrant. SIRC discovered it and recommended to CSIS to correct the situation and follow the proper procedure. Nevertheless, nothing has been done, at least to our knowledge, to correct the situation.
• In the 2014 annual report, SIRC found that it had been “seriously misled” by CSIS and that CSIS agents had violated their duty of candour during ex parte proceedings.
• And if this is not enough to convince the sceptics, let’s also remember that, in 2013, Justice Mosley had found CSIS to be in breach of its duty of candour to the Court by not disclosing information that was relevant to obtaining a warrant for its spying activities.

But even if CSIS got approval from the courts to spy on people and “disrupt” their activities, it doesn’t make the disruption powers legitimate. The law says CSIS intelligence officers cannot harm, kill or sexually assault anyone, but use of the power is otherwise open-ended. A 2004 Globe and Mail article, reported that between 1993 and 2003, CSIS has succeeded in having its warrant applications approved 99.3 per cent of the time. If that was the case before Bill C-51, why should we expect things to be any different today?

Meanwhile, we are still in the dark regarding the government’s plan. It did not make any announcements relative to C-51 and the public consultations. We know that Minister Goodale listened to the demands of Mr. Coulombe and that the latter told him that CSIS “operates on tight strictures, not arbitrary whims”. But, as we have seen, they have extraordinary leeway in their actions, and have a history of abusing their powers and not listening to the authorities who are in place to ensure our rights are respected. Will Minister Goodale now listen to the Canadians about their concerns on C-51?

Sources

http://poll.forumresearch.com/post/243/one-half-of-those-aware-of-it-disapprove-of-bill-c51

http://www.vancouverobserver.com/news/new-poll-results-show-support-dropping-bill-c-51

http://www.thestar.com/news/canada/2016/03/07/csis-used-bill-c-51-powers-several-times-to-disrupt-suspected-terrorists-senate-hears.html

http://www.theglobeandmail.com/news/national/csis-not-being-forthcoming-with-court-federal-judge-says/article15599674/

http://rabble.ca/columnists/2016/02/god-fails-c-51-review-committees-and-dangers-window-dressing

http://www.peoplescommission.org/files/csis/EasyWarrants.pdf

http://www.theglobeandmail.com/news/national/documents-reveal-csis-wary-of-bill-c-51-reforms/article29023837/

By Monia Mazigh – In January 2016, the International Civil Liberties Monitoring Group (ICLMG) with the great help of Ken Rubin, Canada’s long-time access to information warrior, filed an access to information application about the No-fly list.

More specifically, we asked for the number per year of written notifications sent to individuals to inform them they cannot fly. Also, given the media reports about the numerous cases of Canadian kids who were double-screened, checked and always delayed before boarding a plane at Canadian airports, we wanted to inquire about who is included on the no-fly list, especially minors. And finally, we asked about the appeal or redress process.

Last week, we received 88 pages of documents. Only 8 pages were unredacted. The rest was a succession of white pages where the information has been withheld from us because of, according to the governement, privacy issues, national security, crime investigations, enforcing the law, and other matters.

The documents, mainly memos, rated “Top secret” or sometimes “Secret”, were written by John Davies, the Director General of the National Security Policy Directorate, from the Department of Public Safety and Emergency Preparedness. These memos were addressed to the attention of the Senior Assistant Deputy Minister. They are about Specified Person Advisory Group recommendations. At the end of 88 pages, the memos are signed by another senior bureaucrat, Ratu Banerjee, apparently the acting Director General.

The mandate of the Specified Persons Advisory Group (SPAG) is to identify individuals who should be considered for specification and to provide advice to the Minister of Public Safety on which individuals should be specified, i.e. put on the Specified Persons List or the actual “no-fly list”.

The chair of the SPAG is the Director General of the National Security Policy Directorate. Other voting members include senior officials from CSIS, CBSA, RCMP and Transport Canada. A senior counsel from the Department of Justice and the Chief of Operations for the Passenger Protect Program from Transport Canada participate in meetings but only in an advisory capacity. What is interesting to know is that one senior official from CSEC may be invited, for an advisory role, when the individuals considered for specification are based wholly or in large measure on signals intelligence information.

The SPAG will meet every 30 days or less and it is the Transport Canada who is in charge of transmitting the names of specified individuals to air carriers.

In the Aeronautics Act that was relied upon by the Canadian government in 2007 to introduce the Passenger Protect Program, there are no explicit criteria for specification. However, it is unclear to us how the Act has been interpreted to use “reasonable grounds to suspect” as the criteria for the Minister of Public Safety to add names to the list. The memos explain further that “reasonable suspicion must be supported by factual elements that be adduced in evidence” but they do not elaborate on that aspect or at least we didn’t see anything in the documents on that issue.

The SPAG suggests a set of measures to be applied to listed persons:

– The denial of transportation;

– The requirement for additional screening;

– The permission to travel only if an in-flight officer is on board.

So basically, even if we are allowed to board on the plane, it doesn’t mean that our name is not on a list. It can mean that we are permitted to travel because there is an air marshal on board of the plane controlling our mouvements and supposedly assuring the security of the airplane.

The documents superficially address the question of de-specification in the following terms: “To ensure that the information about specified individuals remains accurate and up-to-date, and consequently that the grounds for specifying them remain current, at every monthly meeting the Chair of the Advisory Group will ask Members whether they have new information on specified individuals”.

However, we don’t know if there were cases of Canadians who were delisted.  We also learned that “the department or agency that originally nominated a person for specification will inform the Advisory Group when it no longer has reasonable grounds to suspect that he or she poses a threat to aviation security.”

Reading from these pages is a sort of a guessing game. A charade with skewed distribution of information, where the government is preventing us from seeing the full picture.

Inferring from these pages, we understand that some of the content released to us predated Bill C-51, whereas other pages inform us about the situation of the Passenger Protection Program after the introduction of Bill C-51. The hint resides in the threshold for specification of individuals. With Bill C-51, that threshold was lowered to include those who travel by air for the purpose of committing terrorist acts or joining terrorist groups.

Unfortunately, these documents didn’t answer our initial questions: how many Canadians are on the no-fly list? Why kids, like Adam Ahmed, the Hockey fan from Toronto, are still on the list with no possibility so far to remove them?

The whole question of redress and appeal remains a total mystery.

See the documents obtained through the Access to Information Act

By Monia Mazigh – In June 2015, John Nuttall and Amanda Korody, two Canadian Muslims, were found guilty of terrorism charges. They were arrested because the RCMP alleged that the pair wanted to blow up the B.C. legislature. Since 2001, several Canadian Muslims have been arrested and convicted of terrorism. One of the most known terrorist cases is the Toronto 18. In that particular case, some defence lawyers tried to argue that their clients had been entrapped by informants who inflamed them and facilitated their plotting. At that time, these arguments were rejected by the judge and several of the accused were convicted of terrorism charges.

What is unusual in the case of Nuttall and Korody is that during their trial, the judge became concerned about the possibility of entrapment of the couple. Indeed, an RCMP undercover officer posing as a rich Arab businessman befriended them and helped them with their plot. During the trial, the head of an RCMP team tasked with investigating possible terror suspects testified at the B.C. Supreme Court “that he had concerns about entrapment and abuse of process near the start of a police sting.”

The couple’s defence lawyer argued that Nuttall and Korody were manipulated by RCMP informants to detonate pressure cooker bombs in the Victoria legislature on Canada Day in 2013. The couple, who converted to Islam, suffers from drug addiction and lived on welfare before they were arrested. Furthermore, police notes suggest that Nuttall could have a “mental developmental delay”. These facts are important to mention because, if the judge founds that entrapment took place, they would add to the evidence that law enforcement has a pattern of targeting vulnerable individuals as potential “wannabe terrorists”.

In 2013, a US Congressional research service report mentioned that “since the September 11, 2001 (9/11) attacks, the FBI has implemented a series of reforms intended to transform itself from a largely reactive law enforcement agency focused on investigations of criminal activity into a more proactive, agile, flexible, and intelligence-driven agency that can prevent acts of terrorism.”

Indeed, one of the methods adopted by the law enforcement agency is the introduction of an informant or “agent provocateur” into the life of “vulnerable people” to talk to them and encourage them to commit a terrorist act.

In 2014, Human Rights Watch (HRW) released a report, “Illusion of Justice”, that documented 27 counterterrorism cases. The HRW report indicates that, “according to multiple studies, nearly 50 percent of the more than 500 federal counterterrorism convictions resulted from informant-based cases; almost 30 percent of those cases were sting operations in which the informant played an active role in the underlying plot”.  Moreover, the report found that in many cases where entrapment had been deployed, people with mental and intellectual disabilities had been targeted.

Back to Canada, the use of entrapment seems to be a possible reality in the case of Chiheb Esseghaier and Raed Jaser. A wealthy Arab businessman, in reality a FBI informant, posed as someone who wanted to help the suspects into conducting violent acts. The mental status of one of the suspects (Chiheb Esseghaier) and the precariousness of the financial situation of Raed Jaser and the legal status of Ahmed Abbasi(1) in Canada (who was released after spending 17 months in detention in the US), were used as vulnerable factors to draw the suspects further into the terrorist act plotting.

This, of course, doesn’t excuse the sympathetic ideas that the suspects hold regarding violent ideologies but nevertheless it is interesting to consider the question: “would they still have planned or committted any acts if the undercover agent didn’t encourage them to do so?”

In Canada, an independent investigation is needed to tell Canadians whether the RCMP has been using the same entrapment strategies as the FBI. The decision of B.C. Supreme Court Justice, Catherine Bruce, regarding the entrapment of Nuttall and Korody could be the best reason to do so. However, the trial has been suspended after CSIS refused once again to turn over documents relating to their involvement in the plot. We could be in the dark for a very long time.

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(1) According to Karen Greenberg, the director of the Centre on National Security at Fordham Law School in New York, Ahmed Abassi’s case seems to be the first and only time that the defence of entrapment was successfully used to have terrorism-related charges dropped.

Sources:

http://ici.radio-canada.ca/regions/colombie-britannique/2015/06/14/005-proces-nuttall-korody-terrorisme-inquietudes-human-rights-watch.shtml  

https://theintercept.com/2016/02/18/fbi-wont-explain-its-bizarre-new-way-of-measuring-its-success-fighting-terror/

https://www.hrw.org/report/2014/07/21/illusion-justice/human-rights-abuses-us-terrorism-prosecutions

http://news.nationalpost.com/news/canada/expelled-tunisian-student-suspected-in-via-rail-plot-says-real-instigator-is-mysterious-fbi-agent

http://www.thealfalfafield.com/2016/02/b-c-terror-trial-suspended-indefinitely-after-csis-refuses-to-discuss-their-involvement-in-plot/