Insecurity and Human Rights: Canada’s proposed national security laws fall short of international human rights requirements
Sweeping changes to Canada’s national security laws, proposed to prevent and respond to terrorist threats, fail to meet a range of important international human rights obligations, says Amnesty International in Insecurity and Human Rights a detailed briefing released today highlighting concerns and recommendations with respect to Bill C-51, the Anti-terrorism Act, 2015.
In the first comprehensive reform of these laws since 2001 Canada must not slip into the pattern that Amnesty has highlighted in other countries around the world, that of leaving human rights behind in the name of protecting national security, the briefing notes. The result leads only to deeper injustice and greater insecurity.
“It is absolutely vital that terrorist threats be addressed through measures that are in keeping with international human rights obligations”, says Alex Neve, Secretary General of Amnesty International Canada. “Anti-terrorism laws cannot put human rights second to security; and absolutely must not be used to target or have disproportionate impact on individuals and groups exercising their fundamental rights to freedom of religion, expression and association.”
Bill C-51 proposes unprecedented new powers for Canadian Security Intelligence Service (CSIS) officers to take action to reduce security threats. But these powers are based on a broad definition of “threats to the security of Canada” that exceeds the current definition of terrorism in Canada criminal law. While advocacy, protest and dissent activities that are “lawful” are excluded, any such activities that while not “lawful”, are certainly not criminal, would be susceptible to interference and disruption through these new powers. Demonstrating without an official permit or protesting despite a court order, activities that are commonly carried out by Indigenous communities, environmental groups, the labour movement and many others, could be targeted by the new CSIS powers, even though they are fully protected under the Charter of Rights and international law.
These new powers to reduce security threats by CSIS agents are not defined. The only exclusions are acts that would lead to death, bodily harm, perversion of justice or violation of sexual integrity. Other internationally guaranteed human rights such as liberty, privacy and freedom of expression are not protected from these new CSIS powers.
CSIS agents can also seek authorization from Federal Court Judges for warrants to take action that violates the Canadian Charter of Rights and Freedoms and permits them to act in disregard of local law in the countries where they are operating. These new powers proposed by Bill C-51 are being given to officials without the training, command structures, accountability or public transparency that is required by other law enforcement agencies.
Bill C-51 creates a new criminal offence of advocating or promoting the commission of terrorism offences “in general”. The breadth of what is included has the potential to violate and cast a chill on freedom of expression. As the briefing notes it is not clear why a new offence is necessary when directly inciting, threatening, counselling, or conspiring to commit terrorist activities are already offences. In addition the new offence serves as the basis for what the Bill categorizes as “terrorist propaganda” and gives new power to seize publications and material stored on a computer system.
Also expanded in Bill C-51 is the power to detain without charge individuals suspected of planning to commit terrorist acts. Detention without charge under recognizance with conditions provisions is extended from the current three to seven days. The threshold of suspicion for detention has been lowered to believing that a terrorist activity may be carried out from the previous will. And taking a person into custody is no longer because it is necessary to prevent a terrorist action, but rather that it is simply likely. The UN Human Rights Committee has made it clear that such detention should be limited to where the person represents a “present, direct and imperative threat”. Amnesty International has repeatedly called for governments not to arrest and detain individuals on security grounds unless there is an intention to lay criminal charges and bring the individual to trial in a reasonable period.
Alex Neve, Secretary General of Amnesty International Canada
The CSIS powers of disruption, the breadth of potential acts of terrorism that are being monitored and the power to detain suspects without charge are key problems with the legislation. There are other serious concerns related to information gathering in a new Act that is proposed in C-51. The Security of Canada Information Information Sharing Act establishes expansive information sharing across government departments and agencies based on the furthest reaching definition of actions associated with “activity that undermines the security of Canada” in any Canadian law. “Terrorism” is only the fourth item on the list and “interference with critical infrastructure” is one of the eight included.
The new information sharing Act lacks safeguards to address the well documented examples of serious human rights violations, including torture and ill-treatment that have been caused or facilitated by Canadian law enforcement and security officials sharing unreliable, inaccurate or inflammatory information domestically and internationally.
A new Secure Air Travel Act is also proposed in Bill C-51 to establish in law a system for the administration of Canada’s so-called ‘no-fly’ list. That is a welcome step. But the appeal procedures for those who are on the list only apply a minimum standard of review of ‘reasonableness’ before a Federal Court judge and does not ensure that a listed individual has meaningful access to the full information and accusations against him or her to make it possible to mount an effective challenge to being listed.
There are grave concerns about what is in Bill C-51. There are also grave concerns about what the Bill does not contain. Very crucially, what is clearly lacking in the proposed legislation is a mechanism for robust oversight and effective review of the agencies and departments engaged in national security activities. A model of integrated, expert and independent review as proposed by Justice Denis O’Connor in the 2006 Arar Inquiry Report is what is required. All of the agencies and departments engaged in national security activities should be subject to review and oversight while the existing bodies also need the power and resources required to carry out their work. As well Canada should join its closest national security allies – the United States, the United Kingdom, Australia and New Zealand – in entrusting parliamentarians with the responsibility of expert and independent oversight review of national security.
To be truly effective and consistent with Canada’s international human rights obligations, national security legislation should be grounded in a human rights framework. Canada must in addition quickly bring itself into compliance with United Nations recommendations on not sharing information obtained through torture, returning anyone to a country where they could face torture, and bringing our security certificate process into conformity with international fair trial standards.
Finally the government must promptly redress the unresolved cases involving security-related human rights violations implicating Canadian officials. Impunity and lack of redress for past wrongs increases the risk of abuses in the future.
“Canada’s national security laws can be effective in responding to actual terrorist threats but they must be grounded in international human rights protection and be subject to robust oversight and effective review,” says Béatrice Vaugrante, Director General of Amnesty International Canada’s francophone branch. “That is the lesson from the past and must guide current law reform.”
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Briefing Insecurity and Human Rights: Concerns and Recommendations with Respect to Bill C-51, The Anti-Terrorism Act 2015