Canada: National Security and Civil Liberties

Tzu Kung asked: "Is there a single concept that we can take as a guide for the actions of our whole life?" Confucius said, "What about 'fairness'? What you don't like done to yourself, don't do to others." (Analects 15:23)

The age of anti-terror

Canadian citizen deported to Syria

In September 2002, Maher Arar, a telecommunications engineer with dual Syrian-Canadian citizenship, was arrested in New York on the way home from a family vacation in Tunisia. U.S. officials claimed he had links to al-Qaeda, and deported him to Syria, even though he was carrying a Canadian passport. The Canadian government protested his deportation in October 2002, and, after a public campaign by his wife, he was released by Syria in October 2003. Arar says he was mentally and physically tortured and forced to confess that he had spent time in Afghanistan. He is suing the American government while the Canadian government is conducting an inquiry to "assess the actions of Canadian officials in dealing with the deportation and detention of Maher Arar."

On March 9, 2004, the Ottawa police admitted being part of a joint operation "with other national security agencies, including the RCMP [Royal Canadian Mounted Police]," that was investigating Arar before he was deported. As reported in the Toronto Star on November 20, 2003, the Solicitor-General said: "I've always admitted that we certainly exchange information with the security and law enforcement agencies in the United States in order to protect our national security."

In an article published in the Los Angeles Times, Arar wrote: "Shuttling in shackles among immigration officials, FBI agents and police officers, I asked repeatedly for a lawyer but was told that I didn't have the right to one because I was not an American citizen. There were no phone calls home either." On October 8, 2002, the day he was deported, he was "formally notified that the U.S. government had classified information about me that it would not reveal."

"To this day," Arar wrote, "unnamed American officials continue to allege that I have ties to al-Qaeda, although I have not seen the details and I have not been charged with a crime. I hadn't been to Syria since moving to Canada with my family when I was 17. For half my life I have had no connection at all to that country. Yet I would surely be tortured, I told my New York captors, because I'm a Sunni Muslim; because my mother's cousin had been accused of being in the Muslim Brotherhood and imprisoned for nine years; because I had left the country before undertaking my military service."

Reporter runs afoul of official secrets law

In the meantime, reporter Juliet O'Neill of the Ottawa Citizen published a story about Arar on November 8, 2003, citing "a security source" and a leaked document giving details of what Arar allegedly told Syrian military intelligence officials during his incarceration. On January 21, 2004, after having her under surveillance for several weeks, RCMP officers raided her home and office and seized her computer and notes. The RCMP search warrant alleged that O'Neill had violated the Security of Information Act, an offence that carries a 14-year prison term. She has not been charged.

Refugees held without charge

Mohamed Harkat entered Canada in 1995 using a forged Saudi passport. In the late 1980s (he is now 34), he and his family in Algeria supported the Islamic Salvation Front (FIS), a popular mass movement in the country. He fled Algeria in 1992, when the government started rounding up FIS members and supporters (the CBC story has conflicting dates on when Harkat left Algeria}. He was in Saudi Arabia, Pakistan and then Malaysia, working or in contact with Muslim organizations. He was granted refugee status in Canada in 1997. On December 10, 2002, Harkat was arrested on a security certificate, and held without charge or bail.

Peter Cheney reported in the Globe and Mail that "intelligence sources say.... that the name of Mr. Harkat, who worked as a gas-station attendant and pizza-delivery driver in Ottawa, came up during an interrogation by the U.S. Federal Bureau of Investigation of Abu Zubaydah, a key member of Mr. bin Laden's inner circle. Mr. Zubaydah's information... was passed on to the Canadian Security Intelligence Service [CSIS]." Furthermore, "CSIS investigators believe Mr. Harkat is a member of an al-Qaeda sleeper cell and has spent the past several years preparing for an unspecified terrorist mission in North America. Although few details about his activities have been released, intelligence sources have confirmed that Mr. Harkat worked at a Petro-Canada gas bar directly across the street from a CSIS office. CSIS spokesman Phil Gibson refused to comment on whether Mr. Harkat may have used this vantage point to learn the identities of CSIS operatives. But an intelligence-community source said Mr. Harkat is suspected of carrying out surveillance operations at a number of locations, including Parliament Hill, where he was reportedly spotted taking pictures from a vehicle." CSIS also claimed that Harkat lied under questioning.

Matthew Behrens of the nonviolent direct action group, Homes not Bombs, reported on Harkat's hearing in July 2003, at which Harkat's wife (married January 2001) testified that her husband "doesn't remember names or dates, that it took him six months to remember her sister's name, and that he simply calls [her] mother 'Mom' because he could never get her name right."

Harkat's lawyer, who only has a "public summary" of a secret security intelligence report of the allegations against his client, noted that the CSIS counsel had threatened "to criminally prosecute any potential witness and Mr. Harkat's counsel" under the Security of Information Act if certain questions were asked.

Another Muslim man, Hassan Almrei, was accepted into Canada as a refugee in 1999. It was later determined that he had a false United Arab Emirates passport and Canadian visitor's visa. After the September 11, 2001, terrorist attacks, RCMP officials searched his Toronto-area home. He was arrested in October and detained under a security certificate: CSIS documents claimed he was a member of "an international network of extremist groups and individuals who follow and support the Islamic extremist ideals espoused by Osama bin Laden."

Almrei remained in jail until November 2003, when the government moved to deport him to Syria. However, Judge Edmond Blanchard granted a stay of his immediate deportation, saying he would "suffer irreparable harm" in Syria. Almrei's hearing is reported at Homes not Bombs.

Terror laws used against aboriginal groups

On September 21, 2002, the residence of Nitanis Desjarlais and John Rampanen in Port Alberni, British Columbia, was raided by members of an Integrated National Security Enforcement Team (INSET) with the assistance of an RCMP Emergency Response Team and local RCMP. The search was conducted using a warrant based on anonymous allegations that Rampanen was stockpiling firearms. No firearms were found.

Rampanen is a "commanding officer" of the Westcoast Warriors, young Aboriginals from the Native Youth Movement who are often shown masked and dressed in military fatigues. He has been involved with the Cheam First Nation reserve in their fight for fishing rights. Rampanen said: "I would agree that we have been very open and we have never hidden the fact that we support self-defence of Aboriginal Rights. We have assisted in many actions that have been considered direct action." He also noted that "throughout all of the actions that we have been involved in, on not one occasion have we ever carried or brandished firearms. The instigating force has always been law enforcement agencies who are fully armed and equipped."

The raid and questioning of other members of the Westcoast Warrior Society by the RCMP suggest that one of the intents was intimidation. Union of BC Indian Chiefs President, Chief Stewart Phillip, wrote in an open letter to Rampanen and Desjarlais, "Your case confirms our worst fears concerning the high potential for such highly questionable gestapo-style enforcement techniques demonstrated by the RCMP INSET."

Sovereign nation or client state?

Statements by the Ministers for International Trade and Citizenship and Immigration on the anti-terrorist campaign include the objective to "prevent the Canada US border from being held hostage by terrorists and impacting on the Canadian economy."

Gurmant Grewal, Alliance (now Conservative) MP, said during the debate in Parliament on Bill S-23 (amending the Customs Act): "Ambassador Cellucci of the United States has said that Canada and the U.S. need to harmonize their immigration policies. Legislation coming out of the House needs to reflect that intent. The U.S., in answer to our reluctance to deal with the security issue, may apply the dreaded section 110 of its immigration laws, resulting in long lineups at the border and further problems for Canadians, low risk or otherwise, trying to enter the U.S. Section 110 would create chaos at the border if implemented. The security issue will be dealt with, if not on our terms then on American terms. Either we deal with it here or the U.S. congress will do it for us, and we should not blame it for that." (Emphasis added.)

Grewal noted that "over 85% of our GDP comes from exports to the U.S. and our bilateral trade is over one and a quarter billion dollars per day."

These events raise questions about the measures taken by Canada since 9-11 purportedly designed to curb terrorist activity, questions about human rights, civil liberties, abuse of power, legitimate dissent, privacy of personal data, and our sovereignty as a nation in the shadow of the United States.

Detention without charge, secret evidence, torture by proxy, police intimidation: we have adopted the methods of those we most abhor. It is clear that our current mode of thinking has led to a world that is increasingly dangerous and less free. It is time to seriously consider the root causes of terrorism, and to genuinely address the injustices that lead people to extreme forms of protest.


Anti-Terrorist Measures

Index

Bill S-23, An Act to amend the Customs Act

Bill C-36 The Anti-terrorism Act

Security of Information Act (official secrets)

Freedom of information

Bill C-44 An Act to Amend the Aeronautics Act

Bill C-7 (formerly C-17) Public Safety Act

Security certificates (deportation orders)

Bill C-18 The Citizenship of Canada Act

Smart Border Action Plan

National identity card

Integrated Border Enforcement Teams (IBETs)

Integrated National Security Enforcement Teams (INSETs)

Bill C-24, amending the Criminal Code

Lawful Access

Bill C-35 An Act to amend the Foreign Missions and International Organizations Act

JTF 2 (Special Forces)

Bill S-23, An Act to amend the Customs Act and to make related amendments to other Acts

Bill S-23 was proposed before September 11, 2001. As a consequence of the terrorist attack, it was delayed for modification and received Royal Assent on October 25, 2001. This Bill (see Passenger information, Clause 107.1) authorized the collection of information on travellers in a database called the Advance Passenger Information/Passenger Name Record (API/PNR).

According to a Canada Border Services Agency (CBSA) Fact Sheet,

API is basic data that identifies a traveller and is collected at the time of check-in. This information is used to identify persons who pose a known risk, prior to their arrival in Canada. The CBSA began collecting API data in October 2002.

PNR data relates to the traveller's reservation and travel itinerary contained in a carrier's reservation system. This information is used to identify passengers for further examination on arrival, and to conduct ongoing analysis of data for identification of potential future threats relating to the customs mandate. The CBSA began collecting PNR data in July 2003.

The Fact Sheet notes the following:

The main safeguards for the API/PNR data are as follows:

While the API/PNR program will ultimately be implemented for all modes of transportation, it currently focuses only on air travel.

The API/PNR is the initiative number 8 of the Canada-U.S. Smart Border Action Plan [see Index].

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Bill C-36, The Anti-terrorism Act

An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism.

Bill C-36 (overview) is one of three Acts of Parliament written specifically in response to the events of September 11, 2001, along with Bills C-44 and C-17 (now C-7). Bill C-36 amends sixteen Acts of Parliament. It received Royal Assent on December 18, 2001.

Concerning Bill C-36, the Canadian Association of University Teachers (CAUT) noted that:

The Department of Justice reviewed Bill C-36 on May 1, 2003. In response, the International Civil Liberties Monitoring Group (ICLMG) stated that Bill C-36 "grants police expanded investigative and surveillance powers, allows for preventative detention, undermines the principle of due process by guarding certain information of 'national interest' from disclosure during courtroom or other judicial proceedings and calls for the de-registration of charities accused of links with terrorist organizations. All of these changes occur on the basis of a vague, imprecise and overly expansive definition of terrorist activity." ICLMG called for "independent monitoring" and noted that the "overall anti-terrorism agenda" must be examined in view of the "significant shift in the relationship between citizens and the state in Canada."

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Security of Information Act

As part of Bill C-36, the Security of Information Act replaces the Official Secrets Act first passed in 1890 and amended in 1939, "to protect the nation from the stealing and communication of information vital to national security and interest." The new Act includes protection against "threats of espionage by foreign powers and terrorist groups, and the intimidation or coercion of Canadian ethnocultural communities."

The Act protects the following types of information:

The Act creates several classes of offences. Some of these offences include:

The RCMP warrant that authorized the raid on journalist Juliet O'Neill's home and office alleged violation of Section 4 of the Act, concerning "leakage." On January 28, 2004, O'Neill and her employer, CanWest Global Communications Corp., launched a court challenge to the "constitutional validity of Section 4, which jeopardizes and interferes with journalists' ability to receive information from confidential sources on matters of grave public concern and importance. The government announced on Wednesday that it will review Section 4 to determine the appropriateness of the 65-year-old legislation.

"The court application also challenges the validity of the search warrants because they were issued and executed contrary to freedom of the press constitutionally guaranteed to Ms. O'Neill and CanWest by Section 2(b) of the Canadian Charter of Rights and Freedoms. The court application claims that the Justice of the Peace who issued the warrants failed to consider the balance that must be struck between freedom of the press and law-enforcement, and failed to include any safeguards to protect freedom of the press. Further, the application argues, the warrants are an abuse of process and were executed for ulterior motives, including the intimidation of Ms. O'Neill and all journalists who receive information from confidential sources." [Back to O'Neill story]

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Freedom of information

According to the human rights group, Privacy International, "[t]he Federal Access to Information Act provides individuals with a right of access to information held by the federal public sector. The Act gives Canadians and other individuals and corporations present in Canada the right to apply for and obtain copies of federal government records.... The public's access to information has been restricted by the Anti-Terrorism Act [Bill C-36], which gives the Minister of Justice the authority to issue a secrecy certificate concealing information related to terrorism, and terminating any ongoing investigations by the Information Commissioner related to such information. No secrecy certificates were issued under the terrorism legislation in 2002. The Ministry of Citizenship and Immigration has asked Cabinet to give it the power to restrict access to information from its intelligence and enforcement branch as an 'investigative body' under the Access to Information Act. This is the first time a new application for investigative body status has been made in 20 years."

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Bill C-44, An Act to Amend the Aeronautics Act

This is a single section Act that permits Canadian airlines to forward passenger manifests to foreign states. In response to pressure from the United States for immediate access to passenger information, Bill C-44 was sectioned off from Bill C-42 and received Royal Assent on December 18, 2001. Bill C-42 was later reintroduced to Parliament as Bill C-17 (now C-7).

The human rights group, Privacy International, has noted that personal information is protected by the Privacy Act of 1982, which "regulates the collection, use and disclosure of personal information held by federal public agencies and provides individuals a right of access to personal information held by those agencies," and by the Personal Information and Electronic Documents Act (PIPEDA), which "establishes the parameters for the collection, use, disclosure, retention, and disposal of personal information." The PIPEDA "sets out ten privacy principles as standards that organizations must comply with when dealing with personal information including: accountability, purpose, openness, consent, limiting use and collection, disclosure, retention, individual access, safeguards, accuracy, and challenging compliance."

The PIPEDA was approved by Parliament in April 2000, "with a tiered implementation schedule. In January 2001, it went into effect for personal information, excluding health information, held by federally regulated private sector entities, such as telecommunications and broadcasting businesses, banks and airlines, or businesses and organizations that disclose personal information across provincial or national borders. Health information was excluded for one year as a last minute concession to a powerful health sector lobby. As of January 1, 2002, personal health information processed by the organizations outlined above is covered by the Act. In January 2004, the Act will finally extend to every organization that collects, uses, or discloses personal information in the course of a commercial activity, whether or not the organization is federally regulated."

Bill C-44 made an exception from the PIPEDA: "an operator of an aircraft departing from Canada or of a Canadian aircraft departing from any place outside Canada may, in accordance with the regulations, provide to a competent authority in a foreign state any information that is in its control relating to persons on board or expected to be on board the aircraft and that is required by the laws of the foreign state."

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Bill C-7 (formerly Bill C-17), Public Safety Act

On January 30, 2004, Beth Gorham of the Canadian Press reported on remarks by Deputy Prime Minister and SolicitorGeneral Anne McLellan after her meeting with U.S. Homeland Security Secretary Tom Ridge:

Canada will be able to collect information about airline passengers on domestic and outgoing flights to identify security risks after the Public Security Act is passed, Deputy Prime Minister Anne McLellan said Friday. Right now, officials only screen arriving air travellers.

"It's very important for us to get C-17 [now Bill C-7], which provides us with the legal authority to go further," McLellan said in an interview following meetings with U.S. officials.

"We're going to look at the whole area of aviation security. . .and the kinds of information we think can be usefully collected."

Bill C-17 was previously introduced by the government in November 2001 as Bill C-42, and again in Spring 2002 as Bill C-55. On February 10, 2004, Bill C-17 was reintroduced for the third session of Parliament as Bill C-7. It amends 23 existing Acts, and enacts a new statute to implement the Biological and Toxin Weapons Convention of March 1975. Bill C-7 received second reading in the Senate on March 11, 2004.

This Bill will extend the scope of Bills S-23 and C-44 for the gathering and sharing of information. "Section 4.81, a new provision not contained in the current [Aeronautics] Act, empowers the Minister or authorized departmental officers to require certain passenger information from air carriers and operators of aviation reservation systems. The information required to be provided, set out in the proposed schedule to the Act, must be for the purposes of transportation security and may pertain to the persons on board or expected to be on board a specific flight in respect of which there is an immediate threat, or to any particular person specified by the Minister. 'Transportation security' is broadly defined."

Furthermore, "Section 4.82 is another provision not contained in the current Act. It authorizes the Commissioner of the Royal Canadian Mounted Police (RCMP), the Director of the Canadian Security Intelligence Service (CSIS), and the persons they designate, to require certain passenger information (set out in the proposed schedule to the Act) from air carriers and operators of aviation reservation systems, to be used and disclosed for transportation security purposes; national security investigations relating to terrorism; situations of immediate threat to the life or safety of a person; the enforcement of arrest warrants for offences punishable by five years or more of imprisonment and that are specified in the regulations; and arrest warrants under the Immigration and Refugee Protection Act and the Extradition Act."

In testimony before a Commons Committee, the RCMP and CSIS "stated that the intent of the provision was to enable them to receive a continuous electronic data feed from the airlines regarding all passengers for all flights where it was technologically possible to do so. Further, they stated that they interpreted the wording of the provisions to permit that and, in addition, felt that their interpretation was the only way the system could actually work and meet their needs."

Bill C-7 also amends the Personal Information Protection and Electronic Documents Act (PIPEDA) "to permit the collection and use of personal information by air carriers and other organizations subject to the PIPEDA without the knowledge or consent of the individual, for the purpose of making a disclosure for reasons of national security, the defence of Canada or the conduct of international affairs, or a disclosure required by law.

"Organizations subject to the PIPEDA are already authorized to disclose personal information without the individual’s knowledge or consent for reasons of national security, the defence of Canada, the conduct of international affairs, or where otherwise required by law (sections 7(3)(c.1)(i); 7(3)(d)(ii); and 7(3)(i) of the PIPEDA). The proposed amendment clarifies that organizations also have the authority to collect and use information about individuals without their knowledge or consent for the purpose of making such disclosures.

"The department points out that the above amendment is particularly required in order to support the data-sharing regimes under proposed sections 4.81(1)(b), 4.82(4)(b) and 4.82(5)(b) of the Aeronautics Act under which Transport Canada officers, RCMP or CSIS designated persons, respectively, may require an air carrier or operator of a reservation system to provide them with passenger information under the air carrier’s or operator’s control, or that comes into their control within 30 days, for specified persons. It is important that the carrier or operator not have to advise or seek the consent of the concerned individual."

In a submission to the Commons Committee on January 30, 2003, the British Columbia Civil Liberties Association noted that:

The Canadian Council for Refugees on February 11, 2003, expressed concern regarding the protection of information disclosed to Citizenship and Immigration Canada:

"The amendment to the Department of Citizenship and Immigration Act specifies that agreements with foreign governments may be for the purpose of 'the collection, use and disclosure of information.' Under the Privacy Act, the government has the power to make such agreements, but only 'for the purpose of administering or enforcing any law or carrying out a lawful investigation.' Under Bill C-17, agreements can be 'for the purpose of facilitating the formulation, coordination and implementation - including the collection, use and disclosure of information - of policies and programs for which the Minister is responsible.' This is a much broader purpose: in fact it would seem that almost any purpose the Minister might have could be covered under this rubric. Bill C-17 also provides for a new power to make 'arrangements' to do the same things, on the authority of the Minister alone. This raises the question of whether the Minister might choose to do unilaterally by 'arrangement' what the Cabinet would not agree to do by 'agreement.'"

Furthermore: "The Canadian Council for Refugees has recently seen how this works in practice. For some time, the Immigration and Refugee Board was disclosing personal information from one claimant's file to another claimant for use in the determination of that second claim. This was challenged in the Federal Court, which ruled that the Privacy Act did not permit such a disclosure of personal information (AB v. Canada (Minister of Citizenship and Immigration) (T.D.), 2002 FCT 471, April 2002). A few months later, the Refugee Protection Division Rules came into force, containing the following:

"S. 17(1) Subject to subsection 4, the Division may disclose to a claimant personal and other information that it wants to use from any other claim if the claims involve similar questions of fact or if the information is otherwise relevant to the determination of the claimant's claim.

"What was illegal because contrary to the Privacy Act became legal because there was now a rule adopted by Cabinet saying that a claimant's personal information can be disclosed to another claimant.

"Of particular concern is 150.1 (1)(b) permitting 'the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs, including the implementation of an agreement or arrangement entered into under section 5 of the Department of Citizenship and Immigration Act.' The section offers nothing to protect the interests of refugees and immigrants whose personal information may be disclosed. For refugees in particular, the prospect of personal information being traded away is particularly alarming. What guarantee is there that Cabinet might not at some future date decide that the 'conduct of international affairs' included the necessity of sharing personal details about refugees in Canada with foreign governments?"

The Federation of Law Societies of Canada added that:

On the issue of oversight, the International Civil Liberties Monitoring Group stated that "ministerial discretion, police discretion, and official discretion are prevalent everywhere. Parliamentary oversight and the oversight of a myriad of Boards and Commissions designed to ensure appropriate performance are, at best, uncertain. For example, in an affidavit filed in the Federal Court of Canada on November 7, 2002, Shirley Heaffy, Chair of the Royal Canadian Mounted Police Public Complaints Commission, states that the RCMP is hampering the Commission's ability to probe allegations of police misconduct by refusing to hand over relevant information obtained from 'confidential informants' in a case under normal review. The Chair of the Commission states that the issue is particularly important because of the broader powers to detain and arrest suspects under the anti-terrorism legislation, and she concludes that '[i]f the commission can't fully investigate complaints, the public oversight of the police will be rendered meaningless.'"

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Immigration and citizenship

Security certificates

The Immigration and Refugee Protection Act (IRPA) became law on June 28, 2002, replacing the former Immigration Act. Under the new Act, Citizenship and Immigration Canada "collaborates with several partners, including the Canada Customs and Revenue Agency, the Royal Canadian Mounted Police, the Canadian Security and Intelligence Service, national, provincial and municipal police, and international police and law enforcement agencies, to prevent criminals, people involved in organized crime or in human or international rights abuses, and people who pose a security threat from taking advantage of Canada's immigration program." Security certificates are "one way for CIC to remove a person who poses a security threat. A certificate is only issued for removal purposes when there is information that needs to be protected for security reasons."

Furthermore, "information obtained in confidence" is heard in secret and not disclosed to the person concerned. "The individual will be provided with a summary of the information or evidence as well as the opportunity to be heard." (What is new in the proposed Immigration and Refugee Protection Act)

Critics argue that immigration law relies on less stringent proof (a decision based on "reasonableness") than criminal law: "Sharryn Aiken, a faculty member at Queen's University and a former president of the Canadian Council of Refugees, contends that it's a matter of principle that the most appropriate way to deal with criminals of any kind is through the criminal justice system - not through immigration hearings." On the other hand, the use of secret testimony, where the subject is not allowed to hear the evidence against him/her, is not inherently just. "The ability to cross-examine, albeit through an intermediary, allowed [criminal lawyer, Paul] Copeland to prove that one client, an Armenian who'd been accused of making a bomb with a product called QuickStart, purchased at Canadian Tire, had actually used it to start his car, a matter that would never have been clarified if the evidence had remained secret."

A requirement in the Immigration and Refugee Protection Act that a certificate must be signed by both the Minister of Citizenship and Immigration and the Solicitor General was changed by an Order in Council passed on December 12, 2003, transferring responsibility from the Minister of Citizenship and Immigration to the Deputy Prime Minister, who is also the Solicitor General. Rula Sharkawi of the Canadian Arab Federation argues that "reducing the requirement to only one minister increases the likelihood that mistakes will be made and innocent individuals will suffer a travesty of injustice. We need a system of checks and balances where the civil and human rights are protected. The new process for issuing security certificates does not do that." [Back to Harkat story]

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Bill C-18, The Citizenship of Canada Act

Bill C-18 received second reading in the House of Commons on November 8, 2002 and has been referred to the Standing Committee on Citizenship and Immigration.

This Bill allows for "revocation of citizenship in Federal Court if it is alleged that citizenship was obtained by false representation, by fraud or by knowingly concealing material circumstances." It also allows for revocation on "security grounds, for violating human or international rights, or for organized criminality." Moreover, "the Court is not be bound by any technical or legal rules of evidence. It is permitted to receive and base a decision on any evidence it considers credible or trustworthy."

In addition, "the bill sets out in detail the process for those accused of terrorism, war crimes or organized crime. It allows for the use of protected information in these cases when the judge determines that disclosure could be injurious to national security or to the safety of any person (clause 17(4)(b)). The person who is subject to the revocation proceeding will be given a summary of the evidence but the judge will exclude any sensitive information."

These provisions are similar to those of the Immigration and Refugee Protection Act (IRPA), and have been similarly criticized for relying on immigration law rather than criminal law, and on the use of secret testimony.

The Ukrainian Canadian Civil Liberties Association highlights the case against Wasyl Odynsky, who had been a prison guard in Nazi-occupied Ukraine, and had emigrated to Canada in 1949. In March 2001 Judge Andrew MacKay found that "there was no evidence at trial that Mr. Odynsky participated personally in any incident involving mistreatment of prisoners or of any other person during his service." But on the balance of probabilities it is "more probable than not that Mr. Odynsky did not truthfully answer questions that were put to him [in 1949] concerning his wartime experience." The Judge ruled that Mr Odynsky "obtained citizenship in Canada by false representation or by knowingly concealing material circumstances," which meant that Odynsky could be denaturalized and deported.

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Smart Border Action Plan

The 30-point joint action plan was outlined in the Smart Border Declaration signed by Canada and the United States on December 12, 2001. "The goal of the plan is to ensure the free flow of goods and services across the border while improving cross-border security. It includes issuing permanent resident cards to all new immigrants to Canada, the exchange of fingerprint and criminal records information between the countries, an agreement to jointly freeze terrorist assets and large-scale joint enforcement at the border."

According to the Canadian Association of University Teachers (CAUT), the Smart Border Action Plan was "negotiated without Parliamentary oversight. The plan envisions the deep integration of Canadian and American police and security intelligence, the merger of databases, the sharing of information and the risk assessment of individuals by data mining computer programs of the type we have seen outlined in the American Total Information Awareness and CAPPS II programs. The inventors of this technology admit it will generate a disturbing percentage of false positive assessments. The dangers of ethnic profiling it presents are obvious.

"We believe that the Smart Border Plan, like dozens of other bilateral agreements that have been negotiated by the Bush Administration since [September 11, 2001,] will feed into a larger American plan for a global surveillance system in which national governments will be powerless to protect their citizens once they have been identified by a foreign government as a security risk."

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National identity card

The Commons Standing Committee on Citizenship and Immigration has been holding hearings on the issue of a national identity card with biometric identifiers such as iris scans, facial recognition or fingerprints. Since December 31, 2003, a machine-readable Permanent Resident Card has became the required proof of status for every permanent resident returning to Canada by commercial carrier (airplane, boat, train or bus). The PR card contains basic biographical information. The Smart Border Action Plan calls for deployment of "a secure card for permanent residents which includes a biometric identifier."

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Law Enforcement

IBETs

Increased funding for the RCMP after September 11, 2001, has led to 18 more Integrated Border Enforcement Teams (IBETs) across the country with a mandate to protect the border by "identifying, investigating and interdicting persons and organizations that pose a threat to national security or engage in other organized crime activity." The teams are overseen jointly by six national partners: the RCMP, Canada Customs and Revenue Agency, U.S. Border Patrol, U.S. Customs Service, Citizenship and Immigration Canada and the U.S. Coast Guard.

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INSETs

There was also increased funding for Integrated National Security Enforcement Teams (INSETs), "part of the National Security Investigation Branch under the Criminal Intelligence Directorate. Made up of more than 200 investigative and analytical personnel, located in major cities across Canada, the INSETs focus exclusively on investigating and routing out terrorist threats.... INSETS share and receive resources and intelligence with other RCMP operations as well as international, national, provincial, regional and local agencies." [Back to Rampanen story]

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Bill C-24, amending the Criminal Code

Bill C-24, passed in December 2001, provides "immunity from criminal prosecution for law enforcement officers when they commit certain acts that would otherwise be considered illegal during the course of criminal investigations."

According to a Department of Justice Backgrounder,

The provisions:

In April 1999, the Supreme Court of Canada decision in R. v Campbell and Shirose declared that police were not immune from criminal liability for criminal activities committed in the course of an investigation. The Court also noted that it was for Parliament to determine if police should benefit from some kind of public interest immunity and, to set out laws that clearly showed the circumstances in which police would be protected from criminal liability.

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Lawful Access

Following a review that began in October 2000, the government released a consultation paper on lawful access in August 2002. While noting that its proposals are not a response to the events of September 11, 2001, the Department of Justice FAQ states that "[l]awful interception of communications is also an essential tool for the investigation of threats to national security, such as terrorism."

"The worldwide adoption of new communications technology and the increasingly global nature of crime underpin the need for international cooperation in developing effective solutions. Canada has cooperated with European and other countries in the development of the Council of Europe Convention on Cyber-Crime. Canada has also been working with G8 states on issues such as cross-border communications and combating high tech crime. Canada needs to update its legislation that provides for lawful access in order to be in a position to ratify the Convention on Cyber-Crime as well as to meet our G8 and other international commitments."

One proposal is that "service providers in Canada be required to ensure their networks or infrastructures have the technical capability to enable lawful access by law enforcement and national security agencies."

"The proposed Criminal Code amendments outlined in the consultation document aim to provide law enforcement agencies with more effective tools to investigate criminal acts in the digital age. Police would use these tools to gather information about specific, identified criminal or terrorist suspects. For example, the proposed data preservation order could be used to require a service provider not to delete the data of an identified individual who is the subject of an investigation for a specific period of time. Existing information, which may be vital to an investigation, would therefore be preserved until a court orders its release.

"The proposed production order would require a third party, such as a communication service provider, to make data or information in its possession or control available to investigators within a specified time period, as set out in a court order. Under a production order, the service provider would provide the data or information to police, thereby eliminating the need for a police search. Production orders would be subject to the safeguards already in place for search warrants."

Furthermore: "While a proposal was put forward for a national database of customer information that could be accessed under lawful authority, the lawful access proposals do not call for a national database containing the Internet activities of Canadians, nor do they call for a requirement for Internet companies to store all of their customers' communications."

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Bill C-35, An Act to amend the Foreign Missions and International Organizations Act

Bill C-35, which received Royal Assent on April 30, 2002, defines those who are granted diplomatic immunity, gives the Royal Canadian Mounted Police (RCMP) the "primary responsibility to ensure the security for the proper functioning of intergovernmental conferences," and "supports security measures taken by Canadian police in fulfilling Canada's obligations to protect persons who have privileges and immunities under the Act."

The Canadian Association of University Teachers (CAUT) noted that "the definition of 'international organizations' in Bill C-35 is expanded so as to include 'an intergovernmental conference in which two or more states participate.' In this way, interference with the functioning of, for example an APEC or G-8 summit, is brought within the list of designated terrorist activities in Bill C-36, the Anti-terrorism Act."

Further: "The legislation specifically provides that for the purpose of ensuring the 'proper functioning' of international conferences, the RCMP may take 'appropriate measures, including controlling, limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstances.' Under existing law police forces have the power to provide security at international summits. The rationale for the new grant of power is therefore difficult to discern, but the most plausible explanation is that it represents a signal of legislative condonation for the total suppression of dissent at summits."

The International Civil Liberties Monitoring Group noted an article published in late 2001 in the RCMP Gazette in which groups and individuals "identified as examples of potential terrorists 'operating under ideology as opposed to affiliation'" included those involved in "genetically modified food and ongoing environmental concerns about water, forest preservations and animal rights."

Also, "in its February 24, 2003, edition, the National Post reported that a CSIS briefing report on counter-terrorism... identified violent fringes of the anti-globalization movement as an ongoing security concern for Canada."

It should be noted that Bill C-7, as cited above, authorizes the collection and use "of information about individuals without their knowledge or consent" for the purposes of "national security, the defence of Canada or the conduct of international affairs."

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Special Forces

JTF 2 was created on April 1, 1993, when the Canadian Forces accepted responsibility for federal counter-terrorism operations from the RCMP. Prior to the creation of JTF 2, the RCMP's Special Emergency Response Team (SERT) was responsible for federal counter-terrorism operations. After September 11, 2001, additional funding of $120 million over 5 years was given to the Department of National Defence to enhance the capability of JTF 2.

JTF 2 is a Special Operations Forces unit comprised of assaulters and supporting members, all of whom are Canadian Forces personnel. The Special Operations Assaulters are the fighting arm of the unit. "Modelled closely on the British Special Air Service (SAS), JTF 2 is operated under an unusual degree of secrecy for Canadian services. Its actual composition, training and its deployment have never been disclosed through official channels. Its strength is estimated at 250 to 300 troops with a lieutenant-colonel commanding; plans are in place to double its size by 2007." (NationMaster.com, Encyclopedia)

CBC, on March 2, 2004, noted briefly that "JTF 2 almost certainly was deployed to Quebec City in April 2001 as back-up during the violent protests during the hemispheric trade talks."

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Posted March 2004 by Sara Ma.

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