Grace Pastine is the Litigation Director for the BC Civil Liberties Association
Q. There seems to be populist drumbeating on the part of the federal government related to everything from Tamil refugees to security threats. What do you make of the inflated national security rhetoric being used by governments?
The BCCLA advocates for national security policies that are consistent with the Charter of Rights and Freedoms, the rule of law, and fundamental human rights. There is an unquestionable need to prevent criminal acts of violence -- but it is equally clear that the protection of civil liberties is essential to the well being of a free and democratic society. Particularly when there's a climate of fear, it's important to remind people that safety and freedom are essential to democratic society -- what defines Canada as a nation is having both.
At the federal level, numerous policies enacted since 9/11 have fundamentally changed the relationship between citizens and their governments. Unfortunately, most of these policies have done little to make us safer. Instead, these policies have undercut freedom and transcended the bounds of the law for the semblance of national security.
Q. What are the most egregious policies that have been put in place since September 11th, 2001?
We have seen a profound erosion of fundamental rights under the so-called "war on terror." Today governments keep more of us under surveillance, track more of us, and extract more personal information about us from more sources than ever before. We have seen a systematic undermining of hard-fought for human rights protections including freedom from discrimination, torture and arbitrary detention. Governments have enacted laws and policies that systematically shield their own activities, undercutting transparency and accountability. The rollback of civil liberties has had particularly devastating effects on immigrants, refugees and religious and racial minorities targeted by racial profiling.
Q. Recently, the Conservative government has begun using the term 'homegrown terrorism' which has been incessantly parroted by the mainstream Canadian media. What are the major concerns of the BC Civil Liberties Association related to domestic policies that are put in place to protect against 'terrorism' in Canada?
Our concern is with making sure that government efforts to identify so-called "homegrown terrorists" or to target groups believed to be elevated security risks do not rely on racial, religious or political profiling. The threat of terrorism from foreign extremists, as well as the threat of terrorist radicalization at home, is real. But targeting communities based on religious or political beliefs, whether through surveillance, screening, or pretext arrests is unacceptable and unproductive, and runs counter to our deeply held Canadian values.
There is no easy way to identify those who become involved in terrorism. In fact, virtually all empirical studies of terrorists find no detectable pattern. For example, Britain's security service "MI-5" concluded in a recent internal research document that it was not possible to develop a profile of a typical "British terrorist" because most are "demographically unremarkable" and do not fit a discernable profile.
Alienating racial and religious communities or targeting political groups will do nothing to make Canada safer. To ensure the safety and well-being of Canadians, we cannot rely on simplistic formulas -- governments must do the hard work of developing approaches that actually work.
Q. Data collection and data mining by security agencies and sharing of information with foreign entities raises a lot of serious questions. The issue of Maher Arar of course is an obvious example. What are concerns you have around this?
There have been numerous recent national security scandals involving the sharing of questionable intelligence with foreign governments. The most of disturbing of these cases involve the torture of Canadians who were held abroad. Maher Arar's situation is perhaps the most well known, but there have also been other deeply troubling instances where Canada has been complicit in human rights violations in the name of the war on terrorism. Ahmad El Maati, Abdullah Almalki and Muayyed Nureddin were Canadian men who were detained and tortured overseas in Syria and Egypt after learning they were of interest to Canadian investigators. The Iacobucci inquiry determined that Canadian officials shared information with the foreign governments that indirectly contributed to the men's mistreatment and torture.
In the case of Omar Khadr, Canada sent agents to the U.S. Navy base in Guantanamo Bay to assist in the interrogation of Mr. Khadr, who was 16 years old at the time, after he had been subjected to a regime of systematic sleep deprivation known as the "frequent flier program," which is designed to break down resistance to interrogation. This interrogation tactic has been found by international courts to violate the Convention Against Torture. The Supreme Court of Canada held that Canada unjustifiably violated Mr. Khadr's rights to liberty and security of the person.
Abfousian Abdelrazik is yet another Canadian who was detained and tortured overseas. A federal court found that Mr. Abdelrazik was detained in Sudan at the request of the Canadian Security Intelligence Service. Benamar Benatta is another chilling example. Mr. Benatta came to the Canadian border seeking asylum on September 5, 2001 - a week later the government delivered him to American officials without the benefit of a hearing of his refugee claim. Mr. Benatta alleges that Canadian officials provided to U.S. authorities misleading and erroneous information linking him to terrorist activities. According to Mr. Benatta, as a result of this misinformation, the U.S. authorities detained him for nearly five years and subjected him to treatment which could be defined as torture.
In all of these cases, there remain disturbing unanswered questions about illegal, improper or deficient conduct by Canadian law enforcement, security or diplomatic officials. Human rights must be upheld without exception - the systematic undermining of hard-fought for human rights protections are never justified in the name of national security.
Q. What are other safeguards that should be put in to place to protect civil liberties in Canada?
There is a pressing need to reform Canada's complex and ineffectual review mechanisms for government agencies and departments involved in national security activities. Ongoing accountability mechanisms are vital for investigating potential government misconduct and holding government actors accountable. In addition, robust oversight processes will allow Canadians to evaluate whether security is being adequately protected and if the agencies charged with these responsibilities are doing an effective job.
It has been almost four years since Justice Dennis O'Connor released the second report from the Arar inquiry. It is troubling that many of the key recommendations of the report have still not been implemented. Justice O'Connor laid out a set of thirteen recommendations for a new approach to reviewing the national security activities of the RCMP and five other federal departments and agencies. He recognized that in the age of global security intelligence, it is necessary to have integrated review mechanisms. The BC Civil Liberties Association was an intervener in that inquiry and participated in the consultations with Justice O'Connor leading up to the preparation of the report. We welcomed and endorsed his comprehensive blueprint for reform. His recommendations should be implemented without delay -- human rights protection, accountability and the rule of law are at stake.
Q. Has the privacy commissioner been effective in her role in protecting citizens?
The Privacy Commissioner of Canada, Jennifer Stoddart, had made impressive and important contributions to protecting the privacy rights of Canadians. However, the Privacy Commissioner of Canada is an ombudsman not a regulator. This means that she has no power to make orders against organizations or require organizations to do anything. Instead, the Privacy Commissioner will attempt to resolve disputes through negotiation, mediation and conciliation. Unlike the federal Commissioner, the Information and Privacy Commissioner of BC does have order-making powers. He has all the same powers as the federal Commissioner to investigate and mediate a complaint and to initiate his own complaints and audit, plus the power to hold an inquiry and order an organization to do anything necessary to comply with provincial privacy legislation. We have long argued that in order to effectively protect citizens, the Privacy Commissioner of Canada must have the same order-making powers.
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