Seven Civil Liberties Priorities for the Next Parliament

By Tim McSorley, ICLMG National Coordinator

In the last, short session of Parliament that ended with the call of the federal election, the primary focus – for good reason – was managing the impacts of the COVID-19 pandemic. At the same time, there were major developments in regards to the impact of federal law enforcement, border control, intelligence and surveillance on the civil liberties and fundamental freedoms of people living in Canada. Unfortunately, they were often easy to miss and fell to the wayside.

While there were important discussions of Islamophobia and systemic racism, little was done to address it in Canada’s national security agencies or to recognize long-term harm. We are deeply concerned that the government is now looking to repurpose rights-violating laws that have been used in discriminatory ways in order to fight hate and racism.

In the coming weeks, the new session of Parliament will begin. While the Liberal Party remains in government, and the make up of the House of Commons remains largely the same, there are still opportunities to push for action on these issues. A minority government offers up the opportunity of improving the governing party’s legislation and policies since it cannot simply rely on a majority to prioritize its own agenda.

There’s no lack of issues that need to be addressed to protect human rights, fight racism and discrimination, and support fundamental freedoms overall, but we’ve identified seven key areas that the government must address when it comes to national security and anti-terrorism.

The Canada Revenue Agency’s targeting of Muslim charities

In early June, the ICLMG published our report into how the CRA’s auditing practices, particularly through its secretive Review and Analysis Division, was targeting Muslim charities with prejudiced audits under the guise of fighting “terrorist financing.” We found that government policies establishing “terrorist financing risks” in Canada unduly identified Canadian Muslim as a whole for surveillance and investigation, leading to more audits and hard penalties, including the revocation of the status of several leading Muslim charities. While the allegations always began with “terrorist financing,” not a single one of these charities, nor individuals associated with them, have been charged with terrorist financing. Our report came on the heels of a similar report and findings from the National Council of Canadian Muslims and the Institute of Islamic Studies at the University of Toronto. While we have called for an immediate halt to these audits, they continued with another major Muslim charity seeing its status suspended for a year. Under intense pressure, the government announced a review by the Office of the Taxpayers’ Ombudsperson. While we don’t doubt the OTO will carry out a thorough review, we are concerned that it won’t dig into the underlying issues with Canada’s national security and anti-terrorism apparatus and address the systemic Islamophobia at the heart of the issue.

The government should begin by making this issue a part of the mandate letters for the Ministers of Revenue, Finance and Public Safety, enact an immediate suspension of RAD and related audits, and refer the issue to the National Security and Intelligence Review Agency for immediate study.

Dr. Hassan Diab & Canada’s extradition laws

For 14 years, Canadian Hassan Diab has been caught in a kafkaesque web of accusations and extradition. France alleges that Dr. Diab was the perpetrator of a 1980 terrorist bombing outside a synagogue in France in 1980. No suspect had been charged, until France sought Hassan Diab’s extradition from Canada in 2007. Dr. Diab was eventually extradited in 2014, despite the judge on the case finding France’s evidence deeply flawed and presenting little likelihood of conviction. Hassan Diab proceeded to spend three long years in prison, most often in solitary confinement, while French judges investigated him. He was never charged, never went to trial and eventually he was released when the judges found that not only was there no evidence that would merit a trial, but that there was strong exonerating evidence that showed he was in Lebanon sitting for exams at the time of the attack.

While Dr. Diab was able to return to Canada and his family, France pushed forward and appealed the decision. The court sided with the government, despite the lack of evidence, and have ordered Dr. Diab to trial. What comes next in France is unclear. But what the Canadian government can do to end this travesty of justice is very clear: demand an end to this witch hunt, state clearly that any future extradition request will be denied, move to suspend Canada’s extradition treaty with France and begin an immediate process to reform Canada’s extradition laws.

These should be included in the mandate letters for the next Minister of Justice and Minister of Foreign Affairs and be a priority not just for them, but for the Prime Minister as well.

Strengthening privacy rights, reining in surveillance

January 2020 started with the stunning revelation that a US company, Clearview AI, was working with hundreds of police forces to provide its controversial facial recognition software services, boasting 3 billion facial images scraped from social media and other sites without consent from any of the individuals affected. Eventually, the RCMP was forced to admit to using Clearview AI’s technology – and that it had been using facial recognition technology in one way or another for 18 years – despite originally denying it. The fallout led to demands across the country for police forces to come clean about their use of facial recognition technology and reinforced calls for greater privacy protections against facial recognition and other forms of intrusive surveillance. In two major decisions, the Privacy Commissioner of Canada found that Clearview AI broke Canadian privacy laws, and that the RCMP acted unlawfully in using Clearview’s illegal technology.

The federal government has been slow to act, though, ignoring calls for both a moratorium and an outright ban on the use of facial recognition surveillance by federal law enforcement and intelligence agencies, including the RCMP, CBSA and CSIS.

While the government introduced a bill to reform private sector privacy laws – which could impact future Clearview AI’s, and would have given the Privacy Commissioner much needed enforcement powers – it never made it through parliament. And a consultation on public sector privacy laws has yet to lead to a bill.

Strengthening Canada’s privacy laws with a view to reining in surveillance, particularly law enforcement and intelligence agencies’ use of facial recognition and other biometric surveillance, should be a priority for both the Minister of Justice and the Public Safety Minister, who should enact an immediate ban, and call for public consultations on how to move forward.

Mohamed Harkat, security certificates & security inadmissibility

Canada’s immigration and refugee laws continue to allow overly broad definitions of terrorism, combined with the use of secret evidence and secret trials, to be used to detain, surveil, interrogate and deport non-Canadians – including many who are fleeing unsafe, life-threatening situations. Mohamed Harkat, for example, came to Canada as a UN Convention refugee in the mid-1990s. Despite never being charged with committing a crime, he was placed under a draconian security certificate on December 10, 2002. Since then, he first spent years in prison, including the notorious Guantanamo North in Kingston, ON, followed by  release under some of the strictest conditions in Canadian history, and continues to face incredible restrictions that place himself and his wife Sophie under what they describe as psychological torture. Throughout all this, he has never been able to see, and therefore challenge, the full case against him. If the government has its way, he will be deported to Algeria where he faces likely imprisonment and torture.

While the government has slowed its use of security certificates, it has continued to use security inadmissibility provisions that allow for an individual to be barred from Canada for broad allegations of associations with terrorism. It has led to situations where individuals who have the weakest of links to opposition groups or who have participated in protest movements to remove authoritarian dictators being declared inadmissible.

Reviewing and reforming this system should be a priority for both the next Minister of Immigration, Refugees and Citizenship and Minister of Public Safety. In particular, the government should end Moe Harkat’s ordeal by lifting his certificate and allowing him to remain in Canada, as part of the process of abolishing the security certificate system in its entirety.

CBSA oversight and review

In that same vein, it is imperative that the new government prioritize a dedicated and independent review body for the Canada Border Services Agency (CBSA) that can initiate its own investigations of CBSA activities as well as receive complaints from the public. It is completely unacceptable that a law enforcement agency with thousands of employees, that interacts directly with millions of people on an annual basis, and has far reaching powers has gone for this long without independent oversight. The Civilian Complaints and Review Commission (CCRC) fills that role for the RCMP, and the National Security and Intelligence Review Agency  (NSIRA) does the same for CSIS. NSIRA is empowered to examine CBSA’s national security-related activities, but that’s a small part of what Canada’s border police do, and their focus is divided looking at national security activities across all government agencies.

In 2016, the Liberal government blocked a Senate bill to create an Inspector General of the CBSA, stating that they wanted to see the outcome of their own national security consultation. It would take three more years for the Liberals to introduce a CBSA oversight bill in 2019. It was introduced just over a month before Parliament rose for the summer and the eventual call of the fall 2019 federal election; it never stood a chance of passing. The Liberal government introduced a second bill in early 2020, but it disappeared from the parliamentary agenda when Prime Minister Justin Trudeau prorogued in August 2020. The bill was never re-introduced. Despite being a key promise in the 2015 and 2019 Liberal platforms, CBSA oversight was nowhere to be seen in the 2021 version.

This must be fixed, and should be a key part of the Minister of Public Safety’s mandate letter.

CSIS accountability

Since summer 2020, three court rulings have found that CSIS has misled the courts and withheld important information from judges when applying for warrants, including that information used in support of these warrants was obtained illegally. This is known as breaching its “duty of candour” towards the courts – meaning CSIS has a duty to tell the truth to the courts, but didn’t. This is particularly important given that CSIS and government lawyers are often the only ones presenting information to the courts during hearings that are held in private. There is no one present to oppose or question the information being provided in support of these warrants – which is problematic in and of itself.

The first of these three rulings, from Federal Court of Canada Justice Patrick Gleeson, was the most damning, with the Justice writing, “The circumstances raise fundamental questions relating to respect for the rule of law, the oversight of security intelligence activities and the actions of individual decision-makers.”

While the National Security and Intelligence Review Agency is currently investigating the issue, the number of rulings and the significance of the issues raised necessitate immediate response and accountability at Canada’s spy agency. While CSIS and the government have said that they are committed to addressing the issue, this was significantly undermined when the government appealed Justice Gleeson’s finding that the agency breached its duty of candour. That appeal has been decided, but because it was also held in secret, the result is still unknown.

Instead, the government should be clearly demonstrating how CSIS staff and lawyers who misled the courts are being held to account, and what actions they are taking to change the documented culture that sees the warrant process as “a necessary evil.”

This should be a priority for the next Minister of Public Safety.

Rethinking the government’s approach to national security & anti-terrorism

This past September marked the 20th anniversary of the horrific Sept. 11, 2001, attacks in the United States, and the start of the lethal, unending global “War on Terror.” This December will be the 20th anniversary of Canada’s adoption of the country’s first Anti-Terrorism Act. As my colleague Anne Dagenais wrote in September, the past twenty years have left a legacy of rights violating laws that have undermined fundamental freedoms and targeted Muslim, Arab and Indigenous communities, among others. Examples range from those above, to the Terrorist Entities List, the No Fly List and other provisions that rely on secret hearings and secret evidence. Intelligence agencies have also been granted growing powers of surveillance, data collection and even to break the law both in the pursuit of their regular intelligence collection activities, as well as when acting to “reduce threats” – again, all in secret.

It is beyond time to break with this terrible legacy and move beyond the idea that our collective safety comes from a growing national security apparatus. This is particularly important as we collectively struggle to address systemic racism and hate-based violence in our society. We cannot expect laws that allowed for the racial profiling of entire communities, for spy agencies to mislead the courts, or for growing tools of mass surveillance to be the answer to these threats in the longer term.

Tackling this change will take a whole of government approach, and should be front and centre in the Prime Minister’s own mandate letter.

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