Thursday, February 26, 2015
By Matthew Behrens
The long-running extradition saga of Ottawa sociology professor Dr. Hassan Diab – sought by French authorities for a 1980 crime he did not commit – took a dramatic turn when the Supreme Court of Canada refused to hear his final appeal to stay in Canada last November. Although Canada had 45 days to forcibly remove him to France, Dr. Diab was hustled out of the Ottawa-Carleton Detention Centre and whisked away less than 48 hours later, denied a previously scheduled opportunity to bid goodbye to his pregnant wife, Rania, and baby daughter, Jena.
Diab’s lawyer, Donald Bayne, a 43-year veteran of Canadian courts, appeared stunned at a Parliament Hill press conference the day of the Court decision, concluding: “We now have in my view a classic recipe for the wrongful conviction of a Canadian.”
Originally arrested in 2008, Diab had spent the following six years under house arrest, forced to pay $2,000 a month for the electronic monitoring device strapped to his leg, denied an opportunity to teach, and frustrated by an endless round of extradition hearings where, despite the very low judicial standards, the severe weakness of the alleged case against him was nonetheless clearly exposed. During that time, it was revealed that the physical description, palm and thumb prints, and handwriting of the 1980 rue Copernic bombing suspect did not match Dr. Diab’s.
Despite having the cards stacked against him, Diab had appeared hopeful that his case would be heard and justice served at the nation’s highest court.
“It is beyond devastating that the Supreme Court of Canada would allow my extradition for a crime that I did not commit and based on a handwriting analysis report that was shown by world-renowned handwriting experts to be wholly unreliable, totally erroneous, and biased,” Diab said in a statement released shortly thereafter. “I have been living a Kafkaesque nightmare for over six years, fighting false allegations against me, enduring detention, strict bail conditions, the loss of my employment, and enormous stress on my family.”
Diab found it “shocking that this would happen in Canada, despite the numerous commissions on wrongful convictions based on faulty forensic evidence and the Court’s vow to never let this happen again.”
Rania Tfaily was equally amazed that the Supreme Court refused to hear a case that addressed the unbalanced interpretation of extradition law in different provinces. “If Hassan’s case were heard in British Columbia, he would not have been torn away from his home and family and shipped to a jail in a foreign country, as the British Columbia Court of Appeal has recognized the utter unfairness of extraditing people based on unreliable evidence,” she said.
No doubt aware of the controversy surrounding the surrender of Diab to the French, Canadian officials wasted no time in disappearing him from Ottawa. “The next day, once he got a chance to use the phone at the jail, he called me, and I had to tell him the devastating news,” Tfaily recalled. But their scheduled visit, arranged with the approval of the detention centre’s superintendent, was not to be.
“In the evening, a guard came and took photos of him,” Tfaily said. “He was not told the reason at the time, but it turned out that this was to issue a temporary passport for him, and in less than a day, he was issued this passport. In the very early morning, he was taken away from the Ottawa-Carleton Detention Centre and driven to Montreal, where he was kept in a jail cell. An RCMP officer confiscated his eyeglasses, his jacket – even though it was extremely cold – and his French lawyer’s phone number. Hassan protested this cruel treatment. Shortly before the departure of a commercial airplane to Paris, he was escorted to board the plane. French police accompanied him on the trip.”
Upon his arrival in Paris, he was taken to a judge, who informed him he was “under investigation,” and promptly detained. Under French law, an individual can be held without charge up to 2 years (under a process known as mis en examen) before deciding if they'll even hold a trial. Other jurisdictions do not permit such lengthy delays, which effectively constitute indefinite detention.
Diab now sits in a cell in the largest prison in Europe for 20 hours a day. This is directly due to the fact that in 2011, Ontario Court judge Robert Maranger upheld the extradition order, despite his conclusion that the case against Diab was “weak,” “suspect,” and “confusing,” concluding “the case presented by the Republic of France against Mr. Diab is a weak case; the prospects of conviction in the context of a fair trial, seem unlikely.”
His supporters fear that he will not receive a fair trial in France’s much-criticized anti-terrorism courts. Indeed, Human Rights Watch noted that French “decisions to arrest suspects and place them under formal investigation are based on a low standard of proof,” and lawyers complain “that the way in which judicial investigations in terrorism cases are conducted seriously undermines the right of each defendant to an effective defense.” The organization’s critique of French anti-terror laws, Preempting Justice, also notes that “the prominent use of intelligence material in judicial investigations, in the context of the close links between judges and the intelligence services, raises concerns about procedural fairness and reliance on evidence obtained from third countries where torture and ill-treatment are routine.”
Casual observers may wonder how Diab’s life in Canada, where he has been a citizen since 1993, could be so violently uprooted: under Canada’s extradition law, the rights of Canadian citizens, permanent residents, and refugees are trumped by foreign policy considerations.
As in France, the standards in Canadian extradition law are low. In a scene that might be taken from a Pink Panther movie featuring the bumbling Inspector Clouseau, the French handwriting case against Dr. Diab was based on five words written in block letters from a Paris hotel register. France initially offered two supposed handwriting “experts” who compared these five printed words with the cursive writing from Diab’s PhD admissions documents at Syracuse University. The French concluded that the writer of the 1980 block letters was the same man whose writings they discovered at Syracuse, even though most credible handwriting experts conclude block printing cannot be compared with cursive writing. Another problem, though, was that the Syracuse writings were not Diab’s: they belonged to his then-wife, Nawal. Embarrassed French officials were allowed to withdraw their “expert” report and replace it with another. Experts hired by Diab found the new findings were fatally flawed and wholly unreliable because they failed to use standard, accepted methodology. Once that report was withdrawn, the French took another kick at the can with a third “expert” report that was finally accepted, even though Judge Maranger found it “susceptible to a great deal of criticism and attack,” also calling it “illogical… convoluted, very confusing, with conclusions that are suspect.”
When his case went to the Ontario Court of Appeal, Diab’s factum reflected the Alice-in-Wonderland quality of the case, noting the allegations are “based largely on intelligence reports from unnamed foreign entities, who in turn obtained information from unknown sources in unknown circumstances.” Given the impossibility of verifying the reliability of such information, it was difficult to determine how any court could proceed.
The Appeal judges, in a similarly weak decision, upheld the extradition, even though it was by then a matter of record that Diab could become the first person ever extradited to another country without being charged with a crime. They also dismissed concerns that tortured-gleaned “intelligence” would be used against Diab even though, as his legal team pointed out, “France had a special intelligence sharing relationship with Syria [which was] shown to have regularly kidnapped Lebanese individuals and tortured them to extract information on national security and terrorism matters” and that there exists “no genuine ability to challenge intelligence in French terror trials.” If a trial does go ahead, the secret intelligence, which was excluded even from the extradition hearing in Canada because it would have violated the Charter of Rights and Freedoms, will be part of the case.
Throughout this ordeal, Diab has denied the allegations, condemned the 1980 bombing, offered to be questioned by the French in Ottawa, and even accepted an offer from the RCMP (later withdrawn) to take a polygraph test.
It is unlikely that the library at the prison where Diab is held has an extensive reading list, but it would be interesting to discover whether there are any books on another wrongful conviction case, one that shook the French Republic to its core more than a century ago. The case of Alfred Dreyfus was similarly based on fundamentally flawed and faulty handwriting analysis. In that case, the first expert consulted concluded that the suspect handwriting did not belong to Dreyfus; needless to say, that expert was dismissed and slandered, and the prosecutor shopped around until he could find a more “accommodating” expert, which led to a wrongful conviction driven by virulent French anti-Semitism.
Writing with the passion and honesty that belongs to the wrongfully defamed and detained, on December 5, 1894, Dreyfus wrote from prison: “The truth will out in the end. My conscience is calm and tranquil, and does not reproach me for anything. I have always done my duty and have never bowed my head. I have been overwhelmed, crushed in my dark prison, along with my mind; I have had moments of wild madness; I raved and rambled, but my conscience remained alert. It said to me: ‘Keep your head up and look the world in the face. Strong in the knowledge that your conscience is clear, walk straight and get up again. It is an appalling ordeal, but it must be endured.’”
Over a century later, Diab faces the same outmoded judicial system that condemned Dreyfus – an inquisitorial, Napoleonic-era creation that even former French President Sarkozy has said should be abolished given that it eliminates the presumption of innocence.
“I, my family, friends, and supporters, will continue to fight the false allegations that have been imposed on me, a Canadian citizen who is law-abiding, peaceful, compassionate, and who abhors violence,” Diab writes. “I am grateful and heartened by the outpouring of support from thousands of individuals and organizations that recognize the injustice that I have experienced and the unfairness of Canada’s extradition law. I vow to never give up, and I will always remain hopeful that I will eventually return to my home in Canada and be reunited with my wife and children.”
The pain of separation for Diab and his young family – which grew with the birth of a second child in January – is beyond words. An extensive network of Canadian supporters is now working on building French support. Meanwhile, a series of activities is planned, from writing letters of support to fundraising to help defray significant costs of everything from new lawyers to long-distance calls from the overseas jail. For details on the Bring Hassan Home campaign, see http://www.justiceforhassandiab.org/
Tuesday, February 17, 2015
By Matthew Behrens
When the RCMP announced an Ottawa anti-terrorism arrest last week, the timing could not have been better for a federal government that appears to thrive on national security hysteria. After all, Prime Minister Harper, positioning himself as a wartime leader protecting Canadians from terrorists, had just introduced legislation (C-51) that would vastly increase the powers of Canada’s state security agencies, a bill that’s met with equal alarm from civil rights groups and the Globe and Mail’s editorial board.
Facebook feeds were immediately full of Conservative-sponsored “Protecting Canadians From Terrorist Threats” clickbait, leading to a personal message from Public Safety Minister Steven Blaney proclaiming, “Jihadists have declared war on us all.”
There’s a critical question about the political timing of last week’s arrest and the issuance of arrest warrants for two overseas Canadian fighters. Why was it so important, in the midst of a debate over controversial new policing powers, to now detain 25-year-old Awso Peshdary – who appears to have been under surveillance for a good five years – for the alleged crimes of raising money to send two Canadians to fight in Syria in 2012 and 2014? There was no imminent threat, beyond the apparently existential concern that Peshdary was corrupting young minds. In addition, why were the Mounties suddenly issuing warrants (one for a man reportedly killed last December) that named individuals whose activities have long been public knowledge?
The federal government’s apparent ability to create a mirage of cascading terror threats was no doubt further enhanced by introducing C-51 the Friday before two long-scheduled terrorism proceedings were set to begin. Those trials – the Toronto Via Rail plot and the B.C. Canada Day pressure cooker plan – began with suspiciously timed arrests as well.
Indeed, during the spring of 2013, the Harper government had been experiencing troubles reviving recently lapsed anti-terror legislation originally passed in 2001. Then, an opportunity arose following the Boston bombings. The Harper government suddenly cleared the Parliamentary schedule for a two-day discussion and vote on Bill S-7 (The Combating Terrorism Act), which revived preventative detention and investigative hearings.
On the first of those days, April 22, the RCMP’s actions once again coloured a Parliamentary debate, this time with the arrest of two individuals who had allegedly been talking about derailing a train. “While the RCMP believed that these individuals had the capacity and intent to carry out these criminal acts, there was no imminent threat to the general public, rail employees, train passengers or infrastructure,” they reassured the public at an afternoon press conference.
Across town the next day, defence lawyer John Norris told media crowded on the Old City Hall courthouse steps that “the timing of the arrest is a bit of a mystery… The [RCMP have] been very clear there was no risk to public safety, and it’s surprising to say the least, that this arrest would be made now close on the heels of the events in Boston and timed perfectly with what was happening in the House of Commons yesterday.”
In Ottawa, NDP public safety critic Randall Garrison shared with House colleagues his fear that the Tories were using Boston and the VIA arrests “to create a climate that will cause people to not ask the questions they need to ask about this legislation.” The bill passed on April 24 and received Royal Assent the following day in the Senate.
Just two months later, mere weeks before The Combating Terrorism Act came into full force, the RCMP again took to the airwaves in a patriotic flourish to announce they had foiled a Canada Day plot to set off a pressure cooker bomb at the BC legislature.
Questions immediately arose after RCMP Assistant Commissioner Wayne Rideout told reporters, "We employed a variety of complex investigative and covert techniques to control any opportunity the suspects had to commit harm. These devices were completely under our control, they were inert, and at no time represented a threat to public safety." As the Vancouver Province noted in an editorial, "On April 2, police had enough evidence leading to charges of facilitating a terrorist activity and conspiracy to commit an indictable offence, but the couple was not arrested. On June 25, there was enough evidence for [one of the arrestees] to be charged with making or possessing an explosive substance, but again there were no arrests." Did the RCMP stage-manage things so that the connection to Canada Day would provide them with a blast of feel-good coverage, especially following a month in which Edward Snowden’s startling revelations about global surveillance had sullied the reputation of state security agencies?
Canada’s national police force has never been above playing politics. Indeed, the RCMP Complaints Commission released a 2008 report finding that an unprecedented decision to announce a politically sensitive investigation of then Liberal finance minister Ralph Goodale – in the middle of the 2006 election campaign – likely influenced the outcome that brought law-and-order Stephen Harper to power.
Subsequently, in the June, 2006 case of the Toronto 18 – an informant-driven and -controlled plot – arrests occurred ten days before the Supreme Court was set to hear two days of historic argument on secret hearing security certificates. Needless to say, questions from the bench were clearly influenced by the recent headlines.
Other agents of government supposedly above partisanship are not immune from suspect activity either. The Ottawa Citizen recently reported that as shocked Canadians watched the parliamentary shooting saga last October, Canadian Lieutenant-General John Vance wrote an email that very afternoon about the need for the military to appear at an RCMP press conference to capitalize on the day’s events. Viewing the tragedy as further rationale for the controversial decision to dispatch CF-18s to bomb Iraq, Vance noted that Canada’s Chief of Defence Staff, General Tom Lawson, had “indicated we should seek a strategic opportunity [to promote the mission] and this may be it.”
The Iraq bombing campaign and national security will no doubt be hot-button issues as a tight national election race heats up. What remains to be seen is how many more well-timed strategic announcements and arrests will pop up to reinforce Harper’s fearful wartime narrative.
Wednesday, February 11, 2015
Troubled Times Ahead with New Anti-Terror Legislation
By Matthew Behrens
Just in time for an election campaign in which Stephen Harper is positioning himself as a wartime Prime Minister, Bill C-51 (Anti-Terrorism Act 2015) was recently introduced to play a dual role: granting extraordinary new powers to already hyperactive and unaccountable state security agencies, and baiting as “soft on terror” anyone who questions the bill’s necessity and the human rights violations it will further legitimize.Harper started off 2015 by claiming “jihadists” had “declared war” on Canada, later addinga line from the George W. Bush playbook: “They want to harm us because they hate our society and the values it represents.” (One thing Harper and others have yet to address is why so-called “jihadists” have not declared war on democracies like Brazil, Argentina, or Costa Rica, which have similar “values,” not to mention vibrant celebrations of hedonistic sexuality that might make ISIS cringe.)
SETTING THE STAGE
Introducing C-51, Harper declared “violent jihadism…is not a human right. It is an act of war, and our government's new legislation fully understands that difference.” Even though one of the RCMP’s own internal documents advises against using terms like “jihadism” and “Islamic terrorism” – based on the understanding that “distorted and inflammatory linkages between Islam and terrorism” succeed only in “conflating terrorism with mainstream Islam, thereby casting all Muslims as terrorists or potential terrorists” – Harper refuses to respect those cautions, going so far as to slanderously suggest that mosques are terrorism incubators.
The bill’s introduction on a Friday afternoon was stage managed to take advantage of a series of planned events: the start of two terror-related trials the following Monday (the “BC pressure cooker” and the “Toronto Via Rail” plots) and the subsequent arrest of 25-year-old Awso Peshdary for allegedly helping young men travel overseas to fight in Syria. The Mounties held a press conference to report the arrest of Peshdary, who has been under surveillance for five years and posed no imminent threat, and also to suddenly announce two warrants for overseas fighters who have long been in the news. Taken together, things were perfectly timed to produce a cascading mirage that Canada was, as Harper said, under attack.
Following the Mounties’ press conference, Public Safety Minister Steven Blaney commended the men and women in uniform and added his own lines to this well-scripted melodrama: “Our Government is confronting the terrorist threat at home and has introduced the Anti-Terrorism Act, 2015 to give our law enforcement and national security agencies the tools they need to protect Canadians against these ever-evolving threats.”
Against this backdrop, the Liberals cowardly caved and announced they would support the bill even before it was studied in the House of Commons. A wary NDP expressed tepid opposition, with only Elizabeth May calling it what it is: “The Act to Create a New Secret Police.”
In reality, Bill C-51 does not create a secret police so much as it further entrenches what has been Standard Operating Procedure for Canada’s secret security agencies for years. That secretive netherworld of deliberate deception, complicity in torture, refusal to respect court orders, surveillance, harassment, racial and religious profiling, and a complete lack of accountability will, with C-51, benefit from a massive bulking up of very dangerous powers. It will also invite the Canadian courts to approve dirty tricks and illegal acts, and provide immunity to those whose “good faith” actions break the law and abuse human rights in acts that may constitute torture.
The sheer size of the 63-page bill prevents as detailed an analysis as one might like in this space, so what follows is a broad overview of some key provisions and concerns.
WHO WILL BE TARGETED?
In the initial flurry of C-51 coverage, much focus has been devoted to the potential restraints on speech, advocacy, and the media. The bill’s overly broad, vague terminology – the term “terrorist offences in general” could capture just about any activity – could, for example, be used against a journalist interviewing a Taliban commander or a columnist who urges anti-Russian forces in Ukraine to blow up oil refineries. Frightening as the chilling effect of these provisions will be, it is perhaps helpful to remind ourselves that like its antecedent, the Anti-Terrorism Act of 2001, this bill will be used to continue targeting, disrupting, and roughing up very specific and often marginalized communities. Among those are indigenous rights activists, Arab Muslims and those perceived as such, refugees and immigrants, and those who quite rightly have concluded that the only way to initiate meaningful social change in this country is to operate outside the boundaries of “acceptable” legal definitions of protest and resistance.
Even though the government must know that sections of its legislation may eventually fall victim to a Charter of Rights and Freedoms court challenge, Bill C-51 will nonetheless be a hugely effective tool of repression and control. The mere possibility of charges being laid will have a major chilling effect on whole communities and, especially, community media outlets that might report on home country conflicts in a manner that might conflict with Canada’s foreign policy objectives. There is certainly precedent for this concern. As the International Civil Liberties Monitoring Group reported in a 2003 report, In the Shadow of the Law, there had been “hundreds” of instances where people in Canada “are being visited for interviews by security forces without warrants, and taken away for interrogation. Although the full extent of Bill C-36 [so-called "anti-terror" legislation hurriedly passed by Parliament in 2001] was not implemented in these cases, it has been used as a threat to ‘encourage’ voluntary interviews by citing the risk of preventative detention allowed under the Act. Victims of such police conduct have been afraid to come forward publicly for fear of further retaliation.”
In activist circles, Bill C-51 may spur self-censorship even when it comes to theoretical discussions of railroad blockades, sabotage of pipelines, life-affirming property destruction (such as the dismantling of a CF-18 bomber on display at a war show), and actions designed to disrupt business as usual in the Canadian economy.
The communication section of C-51 is so alarming that even a state security academic who supports preventive detention, Craig Forcese, has coauthored with his colleague Kent Roach a 10,000-word critique that outlines the serious issues raised by this section. The law professors explore a wide variety of scenarios under which individuals may be charged, the lack of statutory defences allowed, and the lower threshold in language that has evolved from “will” engage in nefarious activities (which implies a probability) to “may” (a mere possibility). They also note that unlike hate speech provisions, Bill C-51 appears to apply not just to public speech, but also to private communications that are recorded by security agencies. Ironically, this section may also hinder police investigation of potential threats, given that it could lead to the shutdown of online chat rooms where those likely to engage in violence are sometimes first spotted by investigators.
Those who attend and film demonstrations may also be at risk given the section that defines terrorist propaganda as “any writing, sign, visible representation or audio recording that advocates or promotes the commission of terrorism offences in general…or counsels the commission of a terrorism offence.” Given that some Palestinians are represented by a government considered terrorist by Canada (Hamas), will signs declaring “I support Hamas” make one culpable, along with the video images of them? Will the provision of information in Canada about contributing material aid to Gaza medical clinics or schools be viewed as such propaganda?
Bill C-51 also authorizes seizure of “terrorist propaganda,” a wide-open concept likely to be enforced against a broad range of political materials with the same zeal that lesbian and gay magazines and books were regularly held up at the US border under obscenity laws. Notably, the Anarchist Cookbook, freely available at amazon.com, was nonetheless used in a recent Toronto “terror” prosecution as a damning piece of evidence when it was found on a suspect’s flash drive.
Communications restrictions appear to be based on the theory that exposure to certain images and ideas on the internet leads to violence, but the Canadian government has yet to show any substantive, causal link. As University of Chicago researcher David Benson argued last year in Security Studies, “Although access to the Internet has increased across the globe, there has been no corresponding increase in completed transnational terrorist attacks…the Internet is not a force multiplier for transnational terrorist organizations.”
“UNDERMINING THE SECURITY OF CANADA”
This might be called the Gandhi clause, since it speaks to any “interference” related to government operations including “intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada.” Under this absurdly broad definition, those facing possible charges could include organizers of a national day of action that involves economic targets, nonviolent railway blockages, freeway occupations, or sit-ins that stop business as usual in government offices. It could include a blockade of the U.S. embassy to protest continued operation of the torture camp in Guantanamo Bay, encouraging people across the country to refuse to speak with CSIS agents, or urging Muslim groups to end the odious practice of hosting the Mounties at Ramadan celebrations.
Indeed, this section of C-51 could also capture any form of civil disobedience with the perceived aim of “changing or unduly influencing a government in Canada by force or unlawful means.” This is also a Gandhi clause inasmuch as his concept of satyagraha, or soul-force, did exactly that, through mass acts of nonviolent direct action that challenged the British salt monopoly and overall colonial control of India. Also targetted are hackers, those who would interfere with “the global information infrastructure.” It is ironic that Anonymous, likely one of the targets of this bill, did in one afternoon last week what governments have never been able (or wanted) to do: shut down ISIS twitter and facebook feeds.
Furthermore, human rights campaigners concerned with ending the overseas abuses of Canadian mining companies, or those sailing a ship to bring medical supplies to Gaza, may fall under the clauses that covers “an activity that takes place in Canada and undermines the security of another state.” More specifically, this clause appears directed at the Boycott, Divestment, and Sanctions movement which seeks to end the illegal Israeli occupation of Palestinian lands. Notably, just last month, Canada and Israel signed a memorandum of understanding that addressed this very issue, committing to stop any criticism of Israel’s brutal human rights abuses.
Like its predecessor in 2001, C-51 takes pains to point out that “it does not include lawful advocacy, protest, dissent and artistic expression,” but such reassurance is meaningless when state security agencies have no concept of what “lawful” means. For example, CSIS and the RCMP were recently caught out playing an active role infiltrating and monitoring anti-pipeline groups. The agencies shared their findings with the oil industry and the National Energy Board, before whom many environmentalists and First Nations were set to testify regarding their concerns over the proposed Northern Gateway pipeline.
Freeing government agencies to share even more private, personal information will only result in further abuses of power. For example, anyone who calls 911 for feeling suicidal can forget about crossing the U.S. border. All such Canadian police information goes into a shared database with U.S. officials, who have stopped Canadians suffering from depression from entering the U.S. on at least four occasions.
Furthermore, the potential for misuse or unauthorized use of information shared between government agencies is ever-present, for nothing in the bill prevents the recipient of personal information from, “in accordance with the law, using that information, or further disclosing it to any person, for any purpose.” And while such information sharing has led to the torture of Canadians (for which no government official has ever been held accountable or charged), C-51 proposes that individuals misusing or improperly passing along personal information enjoy blanket immunity, for “No civil proceedings lie against any person for their disclosure in good faith of information under this Act.”
While the principle underlying this section is that “effective and responsible information sharing protects Canada and Canadians,” that was the exact language used by retired judge Frank Iacobucci when he defended the actions of those who created and then shared inflammatory and false accusations that led to the torture of Canadians Abdullah Almalki, Ahmad El Maati, and Muayyed Nureddin. (Indeed, Iacobucci believed such government individuals tried, in good faith, to “carry out conscientiously the duties and responsibilities of the institutions of which they were a part,” even though they were sending questions to Syrian and Egyptian torturers.)
Meanwhile, the free flow of information amongst a wider circle of agencies brings the Canada Revenue Agency into the picture with changes to the Excise Tax Act and the Customs Act. Despite the bureaucratese of this section, there is clear danger: under changes to the Income Tax Act, an official may provide to another government institution “taxpayer information, if there are reasonable grounds to suspect that the information would be relevant to” a national security investigation. In a climate dominated by the politically motivated targeting of certain charities, this means that someone who received a Canada Revenue tax receipt for contributing money to the recently banned humanitarian organization IRFAN might have a CSIS agent knocking on their door to ask questions. This will seriously affect mosques and NGOs that work in troubled hot spots, and create fear among potential donors.
Part of the danger here involves the fact that the government often holds inaccurate information without an individual’s knowledge or consent. For example, FINTRAC, Canada’s “financial intelligence” unit, holds over 165 million files with Canadians’ personal information. Among its extensive holdings are the agency’s Terrorist Property Reports (TPRs), which allege certain properties in or outside Canada are owned or controlled by terrorists. Almost 50% of those reports have been filed on the basis of a “possible match” to terrorist listings.
Disturbingly, according to a 2013 report from the Privacy Commissioner of Canada, “Where identity could not be confirmed, FINTRAC did not pursue further analysis; however, the information remained in FINTRAC’s database. The practice, by default, was to retain these reports regardless of whether or not there was knowledge, belief, or suspicion of terrorist affiliation.” The Privacy Commissioner found that FINTRAC continues to collect information that goes beyond its mandate, and refuses to destroy these extraneous files, thus posing “a significant risk to privacy by making accessible information which should never have been obtained.” In other words, a Muslim cleric who runs a rural summer camp – perhaps anonymously reported but never confirmed as a terrorist property – stays in a database that is shared with CBSA, CSIS, and the RCMP, with utterly predictable consequences for that individual as well as anyone who regularly attends his mosque.
NO FLY LIST
Canada has long had a no-fly list, the so-called Passenger Protect Program, but it did not arise out of a specific piece of legislation that was subject to Parliamentary debate. With C-51, the no-fly list officially becomes entrenched in law as The Secure Air Travel Act, with a legal infrastructure that inherits much of the same machinery that has undergirded the secret trial security certificate regime. Being included on the list is courtesy of the lowest standard of proof available (reasonable grounds to believe), and while this information will be shared with Canadian agencies, the Minister of Public Safety may also share this “with the government of a foreign state, an institution of such a government or an international organization.” This means the secret police of Egypt or Syria, for example, upon hearing “Ahmad in Canada” is now on the list, may use this national security suspicion to investigate, harass, detain, interrogate, and torture his family members in that country, perhaps as a means of punishing “Ahmad in Canada” for refusing to spy on his community for CSIS. This is in fact exactly what happened to the overseas relatives of numerous Egyptian-born security certificate detainees in Canada.
Appealing placement on the no-fly list is as futile an exercise as trying to defend oneself under security certificates. The process is largely secret and the judge may receive into evidence anything, “even if it is inadmissible in a court of law, and may base a decision on that evidence.” As with security certificate cases, someone in a no-fly case is no longer in a court of law, and a judge’s final decision may be based on anything, even if “a summary of that information or other evidence has not been provided to” the person on the no-fly list. The concerns originally submitted in 2007 by the National Council of Canadian Muslim’s predecessor organization continue to apply to the new legislation (see their report Too Guilty to Fly, Too Innocent to Charge?
In addition, while Bill C-51 empowers the government to take away passports, seize computers and documents, and prevent individuals from boarding airplanes, it also authorizes law-breaking and immunity for possibly illegal acts. Indeed, any act or omission required in enforcing the Act will not result in charges even if it “would otherwise constitute a contravention of this Act or its regulations.”
TERRORIST PEACE BONDS
These repressive measures, part of the 2001 Act, allow the government to arrest and detain someone without a warrant or charge when there are “reasonable grounds” to fear a terrorism offence “will” occur, with an option of release under conditions that may include house arrest, electronic monitoring, and more. Under C-51, the threshold for arrest has been lowered to “may”, as has the language used to describe the effect of a peace bond, which will go from “necessary” to prevent the offence to “likely” to prevent. The bond will last for up to 12 months, and any detainee who cannot or will not to enter into such an agreement, will face a similar amount of time in prison. Persons with previous terrorism convictions will face longer periods under peace bonds or in jail (up to 5 years). Similarly, such orders will continue to be made available against young people under the Youth Criminal Justice Act, imposing conditions on teenagers or jailing them for 30 days.
DISRUPTION, COURT-ORDERED TORTURE
Changes to the CSIS Act will allow the agency for the very first time to take on policing roles under which they are allowed to “take measures, within or outside Canada, to reduce the threat” of any act they have reasonable grounds to believe is a security risk. While they are allowed to do anything as long as it presumably complies with the Charter of Rights and Freedoms (a caution the agency regularly ignores to begin with), if they feel the need to rough someone up and violate their rights in the process, they can go ahead and play Jack Bauer from the U.S. torture glorification TV series, 24. Indeed, CSIS is being allowed here to undertake certain measures in a manner “contrary to other Canadian law” if they are “authorized to take them by a warrant.” In plain English, this opens the door to courts approving illegal acts.
The language of this section recalls the bone-chilling justification of torture by former White House counsel John Yoo (who advised “cruel, inhuman, or degrading” treatment is not torture, and the threshold for something to be deemed torture must be “serious physical injury, such as organ failure, impairment of bodily function, or even death”). Under C-51, CSIS is provided a lot of room for cruel, inhuman and degrading treatment when they are advised that in the process of their terror plot disruption, they cannot intentionally or through negligence cause “death or bodily harm to an individual,” a very vague statement when intentionality is factored in. (Bodily harm is defined as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature.”) CSIS cannot be held responsible, therefore, if someone in their custody “accidentally” falls out of a helicopter or 6th floor window, as often happens in police states.
In addition, CSIS agents cannot “willfully attempt in any manner to obstruct, pervert, or defeat the course of justice” (which implies they can do these acts as long as they are not willful in doing so). Nor can they “violate the sexual integrity of an individual” (even though that’s already standard practice at police stations from Northern BC to Abu Ghraib). An important question arises herein: if the Canadian government actually feels the need to spell out such a prohibition, what does it know about illicit CSIS practices behind closed doors that would lead it to include such bold wording?
CSIS is also authorized to violate the national sovereignty of other nations and commit illegal acts abroad, with C-51 noting that “without regard to any other law, including that of any foreign state, a judge may, in a warrant issued [under these circumstances], authorize the measures specified in it to be taken outside Canada.” Such measures include breaking and entering, theft of documents “or any other thing,” installation, maintenance or removal “of any thing” (i.e., eavesdropping devices), and “any other thing that is reasonably necessary to take those measures.”
Those who believe the courts of Canada might be wary of approving such warrants may wish to recall that, as the Globe and Mail reported, “between 1993 and 2003, CSIS filed warrant applications at a rate of between 200 and 300 a year for a total of 2,544 applications [a less than 1% rejection rate]. Only 18 of these requests were rejected by the Federal Court.”
MORE SECRET CLOSED-DOOR HEARINGS
As if things were not difficult enough for those detained under secret hearing security certificates, even the questionable “improvement” made to what Amnesty International has called a fundamentally flawed and unfair process – the introduction of security-cleared “special advocates” who can see and argue some of the case behind closed doors – is targeted under C-51. Also further undermined is the ability of any refugee who has been declared inadmissible to Canada to properly meet the alleged case against them.
In a classic case of stacking the deck, C-51 proposes that when a security certificate is first signed, the Minister may now file with the court evidence “that is relevant to the ground of inadmissibility stated in the certificate.” Translated, this means that the whole case file will NOT be included, but only that which, in the already biased Minister’s opinion, is “relevant,” thereby excluding information which may exonerate the detainee. It is just such exonerating information that special advocates have been able to uncover in a couple of these controversial cases, and ever since, every effort has been made to further weaken the already limited powers of the advocates. An additional clause would allow the Minister to be exempted even from sharing with the special advocate the entirety of the now limited file that was provided in secret to the judge.
In addition, the government will win the right to object at any stage of the process when something that was formerly secret is considered safe enough to share with the detainee. These appeals will suspend proceedings and seriously bog down the already extensive process, lengthening the amount of time an individual must remain behind bars or under house arrest. That same right of immediate and unquestioned government appeal of disclosure decisions (without even requiring what is known as “an application for leave”) will also apply to refugees at Immigration Appeal Division hearings, detention reviews, admissibility hearings, and judicial reviews.
WHAT TO DO?
In the short term, groups are actively working to testify before Parliamentary hearings, and while this will be an important public education effort, the bill is likely to pass with Conservative and Liberal support. Hopefully, debate around C-51 will go beyond demands for state security oversight (long called for by the O’Connor Inquiry, which condemned Canadian complicity in the torture of Maher Arar) to address a much broader concern: Canada’s state security agencies already have a lengthy track record of violating the law, lying to the Courts, misleading the public and Parliament, and refusing the recommendations of the extremely limited review committees which currently investigate their “excesses.”
Short of the the abolition of CSIS and its brother agencies (a worthy goal, calls for which would possibly violate C-51), a much firmer hand needs to be applied to rein them in, throw open their “mandates” to public discussion and scrutiny, and invite a national discussion about the REAL threats to democracy and human rights posed by government and corporations.
Part of such a discussion could begin with a serious examination of our own language in discussing these issues, one that would help us better frame our relationship to the state and point to future paths of resistance. As Noam Chomsky declared in a 1971 discussion with French philosopher Michel Foucault, “We should stop allowing illegitimate powers to define what is legal.…the state has the power to enforce a certain concept of what is legal, but power doesn't imply justice or even correctness…
“For example, in the United States, the state defines it as civil disobedience to, let’s say, derail an ammunition train that’s going to Vietnam, and the state is wrong in defining that as civil disobedience, because it’s legal and proper and should be done. It’s proper to carry out actions that will prevent the criminal acts of the state, just as it is proper to violate a traffic ordinance in order to prevent a murder…. A good deal of what the state authorities define as civil disobedience is not really civil disobedience: in fact, it’s legal, obligatory behaviour in violation of the commands of the state, which may or may not be legal commands. … Just because the criminal happens to call your action illegal when you try to stop him, it doesn't mean it is illegal.”
Following 9/11/2001, activists huddled in groups and asked themselves: what’s next? The best answer I heard came from the now 95-year-old pacifist Frank Showler of Toronto, who reminded one church group that all through the Bible, there is a pretty consistent message that we can all take heart from: Be not afraid. And so perhaps a very good response to Bill C-51 is to declare that its potential passage will not deter, censor us, or make us back down: we will unashamedly continue our work for justice, our solidarity with those unjustly tageted, and our loving resistance to the criminal actions of this government and its agencies.