By Monia Mazigh – On February 19, 2015, four former Canadian Prime Ministers wrote an op-ed in the Globe and Mail entitled “A Close Eye on Security Makes Canadians Safer”. They were urging Canada to implement an accountability regime that would deal with the government national security activities. This is an excerpt of what they said:

“A strong and robust accountability regime mitigates the risk of abuse, stops abuse when it is detected and provides a mechanism for remedying abuses that have taken place.”

Of course, at the time, the call from the four Prime Ministers was ignored. Last week, almost a year later, we were happily surprised to hear through media reports that Public Safety Minister Ralph Goodale has already started working on implementing the first all-party parliamentary national security committee. We also learned that David McGuinty, a long-time MP for Ottawa South, will be taking a leadership role in this committee.

When it comes to national security agencies and their activities, Canada lacks a robust and integrated oversight and review mechanism.

In everyday vocabulary, there is no distinction between “oversight” and “review” mechanism. In reality, there is a clear distinction between the two and we would like to see both implemented in Canada.

Justice Dennis O’Connor stated in his recommendations reports the following:

“To summarize, a review body assesses the activities of an organization against standards such as lawfulness and propriety, and delivers reports, which often contain recommendations to those in government who are politically responsible for the organization. In contrast, an oversight body performs the same functions but plays a more direct role in the management of the organization.”

Justice O’Connor believes that the review mechanism will have greater independence from the activities being reviewed and thus will have a better and greater impact on accountability. He doesn’t believe that oversight can keep the same distance with the examined organizations and thus it is a potential weakness.

Canada is the only country amongst the Five Eyes without any sort of oversight process regarding its national security agencies. However, Canada has two external review bodies:

• The Security Intelligence review Committee (SIRC) established in 1984 to review CSIS activities;
• The Communication Security Establishment (CSE) Commissioner established in 1996 to review CSE activities.

Even though these two review bodies accomplish important work, their respective duties remain conducted in silo, with little resources and huge challenges to address. In a world where the national security operations are more and more integrated, international and complex, the review mechanism landscape remains weak, scattered and ill-adapted to this new reality.

Today, there are 17 Canadian agencies involved in national security information sharing, and only three have some sort of a review mechanism: CSIS, the CSE and somewhat the RCMP. What about departments and agencies such as Public Safety, Canada Border Services Agency (CBSA), Financial Transactions and Reports Analysis Centre (FINTRAC), Foreign Affairs, etc? They have none.

In his recommendations from the Arar Inquiry, Justice Dennis O’Connor established a list of recommendations for the creation of an integrated accountability regime. He favoured the review mechanism with a “super SIRC” model that would examine all the activities of all the agencies involved in national security. Unfortunately, those recommendations were never implemented.

In the last decade, four main legislative attempts tried to establish an oversight committee in the Canadian parliament but they all failed.

In 2005, Bill C-81 was introduced by the Liberal government as an Act to establish a National Security Committee of Parliamentarians. It is the first attempt after the “Maher Arar case” to create an oversight body. This legislation died when the Parliament was dissolved on October 29, 2005 and general elections were called.

In 2013, private member’s bill C-551 was introduced by Liberal MP Wayne Easter. The proposed legislation was to establish a parliamentary committee to oversee all national security activities. The bill stopped at the first reading in the House. Private member bills rarely become laws especially under majority governments, which was the case at the time.

In 2014, private member’s bill C-622 was introduced by Liberal MP Joyce Murray with the intent to impose greater judicial and parliamentary scrutiny on the CSE as well as creating a Parliamentary Committee on intelligence and security matters. The bill was voted down at the second reading.

And finally, in 2014 again, Bill S-220 was introduced by the Conservative Senator Hugh Segal and supported by his liberal colleagues Roméo Dallaire and Grant Mitchell. The intent of the bill was to create an all-party committee of parliamentarians on national security and intelligence oversight. The bill stopped at the second reading in the Senate.

The recent news that Canada is considering to implement an oversight parliamentary committee based on the UK model is promising but it is not enough.

Accountability is crucial for many reasons. It prevents abuses from occurring, it allows the agencies to learn from their past errors, it makes the agencies more efficient and transparent but, most of all, it gives assurances to the public about its institutions. So let’s not forget the importance and the relevancy of the review mechanisms as recommended by Justice O’Connor.

By Monia Mazigh – So it seems like the case of Syed Adam Ahmed, the six-year old boy from Toronto who was delayed from boarding the plane to attend a hockey game in the United States, allegedly because he is on a “no-fly list” or on a “Deemed High Profile” list, has opened a can of worms for the Liberal government.

Other Canadian parents are coming forward with other incredible stories about their toddlers or very young children who were delayed from boarding planes as well. I suspect that these stories have been going on for many years but people were perhaps afraid to speak out under the Harper government or maybe they knew that no matter what they would say, their situation would remain unchanged. And the proof: things are still the same.

Since 2007, when the Passenger Protection Program (PPP) was implemented in Canada – copied on the one in the United States – the International Civil Liberties Monitoring Group (ICLMG) and other organizations have been denouncing the arbitrariness of the program and its unconstitutional nature. In December 2008, the Privacy Commissioner of Canada, Jennifer Stoddart, reported to Parliament that Transport Canada had provided “no evidence demonstrating the effectiveness of no-fly lists.”

In 2010, in collaboration with the British Columbia Civil Liberties Association (BCCLA), the ICLMG released a comprehensive report about the PPP. We documented cases of Canadians who were stopped at the borders, checked extensively, humiliated, turned down or finally let go after many hours of interrogations. Since then, not much has improved. On the contrary, with the new Anti-terrorism Act of 2015 (also known as Bill C-51), the No-Fly list has been perpetuated and expanded, despite the fact that the government has failed to present any evidence to show that such a program is effective or makes Canadians safer.

But, how does this program work?

First of all, we should remember that it is a highly secretive program so there might be things that we have no knowledge of.

It starts with an advisory group made up of high-level bureaucrats from the RCMP, CSIS, CBSA, Transport Canada and the Department of Justice. This group has the power to place people on the ‘Specified Persons List”. Anyone who ends up on this list will be prevented from boarding a plane.

Obviously, one can see that there are already problems with this listing process. What is even more worrisome is that, with C-51, the listing process becomes even more arbitrary as the Minister of Transport may delegate the listing process to any single officer in his or her department. The cases in the media showed us how arbitrary and ridiculous those listings can become.

Furthermore, individuals are denied access to the secret evidence behind such a listing. In the cases that were presented in the media, the children do not seem to be denied boarding but they can’t check online, the air travel agent can’t check them either, they have to go through extensive security checks and a phone call, to Air Canada officials per example, is always necessary to allow them to board. If an airline agent had not told Adam’s parents that the boy was on a list, the parents would still have no idea what was going on. And the government won’t even confirm or deny such information. For years, the little boy and his parents have been going through this frustrating process every time he wanted to take a plane. Adam’s parents are rightly worried as this could become worse as he grows older.

Prior to the adoption of C-51, individuals denied boarding could complain to the Office of Reconsideration, provided by the PPP, but the powers of this office were very weak (as demonstrated by the high profile case of Hani Al Telbani) and the Minister of Public Safety would always have the final word.

Under the new Anti-terrorism Act (C-51), a new appeal process now bypasses the former Office of Reconsideration and goes directly to the Minister of Public Safety, Ralph Goodale. The bill says the Minister “must afford the applicant a reasonable opportunity to make representations,” and if refused, the ruling can be challenged in Federal Court but such a process doesn’t even include a special advocate or other means to test the Minister’s evidence.

So will we ever know why Adam and the other kids were put on this list? Is Air Canada still using the U.S. No-Fly list, as they always have in the past? Mr Ralph Goodale, we are looking forward to knowing the result of your investigation! We have waited long enough.

Sources:

http://iclmg.ca/wp-content/uploads/sites/37/2014/03/R-Clearinghouse-border-controls.pdf

http://iclmg.ca/wp-content/uploads/sites/37/2015/03/ICLMG-BRIEF-TO-THE-STANDING-COMMITTEE-C-51.pdf

http://www.macleans.ca/news/canada/the-evolution-of-canadas-no-fly-list-and-why-it-was-inevitable/

 

To the Human Rights Program, Department of Canadian Heritage:

Following the sixth review of Canada’s performance in respect of its obligations under Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) the Committee against Torture (CAT), in Concluding Observations published on 25 June 2012,[2] identified 18 specific subjects of concern and recommendations for remedial action needed to bring Canada into compliance with UNCAT. […]

In July 2012 CAT recommended, inter alia, that Canada “ensure that [Omar Khadr] receives appropriate redress for human rights violations that the Canadian Supreme Court has ruled he experienced” (para. 16(b)). In the List of Issues Prior to Reporting (LOIPR), at para. 28(b), CAT poses the question, “Has [Omar Khadr] received appropriate redress for the human rights violations that he suffered, as ruled by the Canadian Supreme Court?”

LRWC and ICLMG request that, in responding to the LOIPR and reporting to CAT, the Government of Canada (GOC) treat the term “redress” as encompassing the full range of Article 14 duties identified by General Comment No. 3,[5] including duties to fully investigate the torture and ill-treatment to which Omar Khadr was subjected during his imprisonment, to punish those responsible, and to adopt measures to prevent further occurrences, in accordance with the provisions of UNCAT.

CAT, in General Comment No. 3 (para. 2), has determined that the term “redress” in UNCAT Article 14 is a comprehensive reparative concept that “entails restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition and refers to the full scope of measure required to redress violations under the Convention.” […]

LRWC and ICLMG remain concerned that the continuing failure to prevent, investigate and punish torture and ill-treatment in the Omar Khadr case not only constitutes a continuing violation of the rights of Omar Khadr, but also encourages and enhances the danger of torture by state and non-state actors alike. We note that CAT in General Comment No. 3, para. 42 expresses concern that impunity “bars victims from seeking full redress as it allows the violators to go unpunished and denies victims the full insurance of their rights under article 14.” […]

Canada has contravened every aspect of its UNCAT duties in the Omar Khadr case. To remedy these sweeping contraventions, Canada must enact legislation to create a process by which complaints can be made, and to ensure the investigation or complaints and the determination and implementation of redress prosecution of suspected perpetrators and full redress for the victims. Canada will also have to develop a programme for delivery and assessment of education and training about UNCAT duties to all public servants, including judges, charged with responsibility for detained people. Canada should develop this legislation and these programmes and policies in consultation with civil society organizations with expertise.

READ THE FULL REPORT HERE

[2] Consideration of reports submitted by States parties under article 19 of the Convention – Concluding Observations of the Committee against Torture – Canada, CAT/C/CAN/CO/6, 25 June 2012.

[5] UN Committee Against Torture (CAT), General comment no. 3, 2012: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: implementation of article 14 by States parties, 13 December 2012, online: http://www.refworld.org/docid/5437cc274.html [accessed 16 December 2015]