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- What steps should the Government take to strengthen the accountability of Canada’s national security institutions?
What is needed is a new, integrated and single body with the mandate, resources and expertise to conduct detailed reviews and to investigate complaints over all law enforcement bodies, intelligence agencies and government departments involved in national security. Granting the independent review body jurisdiction to examine all national security matters within the federal government would empower it to follow the trail of intelligence, information-sharing, and other national security activities throughout government. There would be no need for complicated choreography between existing bodies, for the creation of new bodies for each and every implicated agency (unless necessary, like for CBSA) or for the discretionary appointment of public inquiries like the Arar, Iacobucci and Air India inquiries which had a whole-of-government mandate. Legislative reform would be required to create this entity.
This body with whole-of-government review powers must meet a number of democratic values in order to achieve legitimacy in the public’s eye:
- It must be clearly independent of government and the national security agencies over which it has authority.
- It must be an expert body that deals with national security issues on a daily basis. As well, the new body must be adequately resourced and staffed in order for it to meet the challenge of effectively reviewing our national security agencies.
- It must be accountable to the public through annual public reports assessing whether and how our agencies have lawfully responded to threats to the security of Canada.
- The new review body should compliment the new committee of parliamentarians by making recommendations to the committee with respect to policy changes that would make our national security agencies operate more effectively and our review system more robust in protecting national security and the civil liberties of all people in Canada.
The kind of “on the ground” experience gained by this review body will greatly assist the committee of parliamentarians in confronting the systemic issues it will face in fulfilling its important mandate.
A third component of a robust accountability model would include the important and complementary addition of an Independent National Security Legislation Monitor capable of supporting the work of the Parliament, the National Security and Intelligence Committee of Parliamentarians and the expert review body. Both the United Kingdom and Australia have bolstered national security accountability by appointing such independent monitors of national security law.
- Preventing radicalization to violence helps keep our communities safe. Are there particular prevention efforts that the Government should pursue?
As was said above, the focus should be on preventing violence in general, not on radicalization. A national plan against all forms of violence – from domestic to racist to police violence – is necessary.
- In an era in which the terrorist threat is evolving, does the Government have what it needs to protect Canadians’ safety while safeguarding rights and freedoms?
The Government already had all the necessary powers to face criminal threats of a terrorist nature in the Criminal Code before the adoption of the ATA, 2001. New “anti-terrorism” laws adopted since that time have been shown to violate human rights and civil liberties in one way or another. They have not proven to be either necessary or effective.
- Do you have additional ideas or comments on the topics raised in this Green Paper and in the background document?
The Green Paper, both in tone and content, appears biased in favour of the challenges faced by law enforcement and national security agencies, rather than reflecting a profound concern for democratic rights and freedoms. The document can be read as justifying existing measures in the Anti-Terrorism Act, 2015; this includes defending those items the government dubbed the “most problematic elements” and has promised to repeal. The Green Paper also makes several claims that the current tools at the disposal of law enforcement to access subscribers’ information are “inconsistent and slow,” where, in fact, such claims have been repeatedly discredited in the past.
Furthermore, there are several elements that shine by their absence: There is no mention in the Green Paper of CSEC and/or mass surveillance operations carried out with its Five Eyes partners, and this in spite of the Snowden revelations. There is also no indication that the government intends to implement the O’Connor Inquiry recommendation to create a robust and independent “review and complaint” mechanism for national security operations (as opposed to a Parliamentary oversight body). If it was needed 10 years ago, it is even more urgently needed today.
The Government should:
- Repeal the Anti-Terrorism Act of 2015 (previously Bill C-51)
- Make major amendments to Bill C-22 to empower a future committee of parliamentarians to carry out its oversight functions without ministerial veto and make it democratically accountable to Parliament
- Repeal the no-fly list
- Re-instate the principles of fundamental justice and due process in criminal trials and administrative tribunals
- Settle the lawsuit launched by torture survivors Almalki, El-Maati and Nureddin
- Implement an appropriate redress system for future victims of human right violations
- Repair the access to information system and be more transparent
- Put a stop to the creation and use of secret, internal interpretation of laws that regulate the activities of its national security agencies
- Create a Commission of Inquiry into Canada’s policies and practices relating to the transfer of detainees to Afghan authorities
- Ensure that entrapment is not used by our law enforcement agencies
- Rescind the ministerial directives on torture.
Issues of privacy are also essential to this consultation. The Government should therefore also:
- Act on the concerns raised by the Office of the Privacy Commissioner of Canada with regards to potential new legislation that would facilitate surveillance in the digital world.
- Increase privacy protections so the government cannot simply pass laws each time it wants to retroactively legalize actions that have been found to violate privacy obligations (such as the recent revelation of CSIS bulk data collection).
- Stop using the right to privacy as an excuse to withhold information into the cases of Canadians detained abroad.
- Ensure better privacy protections for online communications between Canadians that have to pass through the United States of America because of the digital infrastructure.
We welcome the Government conducting consultations, and we hope that the results will truly inform future policies. However, we must express our concern that such consultations must be conducted in an efficient, timely manner. There is always the risk that consultations become drawn out and, by the time they are completed, the issues they were meant to be addressed become seen as entrenched and beyond the reach of repeal or even change. Furthermore, the consultations – including online discussions, MP town halls and audiences by the SECU Committee – are somewhat inaccessible, due to their length, language, lack of publicity, and the incredibly last minute announcements of their dates and locations. This should be remedied.
Finally, the Government should be transparent when it comes to the analysis of the data collected through this public consultation on national security by releasing all submissions and transcripts for public consultation and evaluation.