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Letter to Ministers Wilson-Raybould and Goodale on the Review of Canada’s National Security Framework

The Honourable Jody Wilson-Raybould
Minister of Justice and Attorney General 
284 Wellington Street
Ottawa, Ontario

The Honourable Ralph Goodale
Minister of Public Safety and Emergency Preparedness
269 Laurier Avenue West
Ottawa, Ontario

 

December 15, 2016

Re:  National Security Framework Consultation

Dear Ministers Wilson-Raybould and Goodale,

Human Rights Watch (HRW) welcomes the Government of Canada’s decision to engage in open discussions and debates on the country’s national security framework and appreciates the opportunity to take part in this national consultation process as Canadian staff members of the organization.

In June 2015, HRW raised a series of concerns about the proposed Anti-Terrorism Act (ATA) in a detailed letter sent to the Senate where we urged this body to vote “No” to the bill. In our assessment, the dangerously vague and broad provisions of the proposed legislation and the sweeping powers provided to the Canadian Security Intelligence Service (CSIS) would undermine fundamental human rights, have long-lasting negative consequences for Canadians, and cause immeasurable damage to Canada’s international standing as a rights-respecting country.  

Our position was informed by our researchers’ in-depth examination of counterterrorism laws globally and our assessment of whether the provisions of this legislation are consistent with international human rights standards. In particular, our researchers have analyzed whether counterterrorism laws around the world empower the police and other security forces at the expense of human rights protections; hinder or prevent the judiciary from safeguarding the rights of detainees; facilitate the use of torture or other ill-treatment; deny basic trial rights; expand reliance on detention without charge; and/or violate rights to basic liberties, such as freedom of expression. In 2012, Human Rights Watch published a detailed report on our findings based on a comprehensive review of 130 counterterrorism laws revised or enacted globally post-September 11. 

It is with this understanding that we urge the Government of Canada through this consultative process to introduce necessary amendments to the Anti-Terrorism Act to ensure that all provisions meet the requirements of legal precision under international human rights law and are consistent with both Canada’s Charter of Rights and Freedoms and international law. We also encourage the government to consult and utilize the best practices developed by the United Nations Special Rapporteur on human rights and counterterrorism in addition to the United Nations Human Rights Committee’s most recent concluding observations to Canada as a blueprint for ensuring that all amendments to the Anti-terrorism act bring this legislation into full compliance with human rights standards.

In this letter, Human Rights Watch will briefly comment on six sections of the national security consultation relating to: i) general feedback; ii) threat reduction; iii) domestic national security information sharing; iv) the passenger protect program; v) investigative capabilities in a digital world; and vi) intelligence and evidence.

i. General Feedback

Canada’s duty to protect its population from acts of terrorism exists alongside obligations under international human rights law to ensure that measures taken to counter terrorism are compatible with human rights protections, including the rights of individuals deemed to pose a threat. As repeatedly affirmed by the United Nations General Assembly, “effective counter-terrorism measures and the protection of human rights are not conflicting goals, but complementary and mutually reinforcing.” Moreover, the lack of rule of law and violations of human rights are often drivers of terrorism.

Accordingly, the Government of Canada should revise the Anti-Terrorism Act to:

  • define terrorism, terrorist acts, and terrorist propaganda in a clear, precise and narrow manner, covering only conduct that is “genuinely of a terrorist nature” as set out by the UN special rapporteur on human rights and counterterrorism;
  • mandate periodic parliamentary reviews and an annual review of the legislation by an independent reviewer to determine whether the application of the law has been compatible with international human rights and refugee law as well as provisions of international humanitarian law where applicable;
  • ensure that counterterrorism activities are led by civilian authorities as part of the exercise of their ordinary crime prevention powers in accordance with the guidance of the UN special rapporteur on human rights and counterterrorism; and
  • establish a sunset clause to ensure that any special powers granted to government agencies relating to the countering of terrorism do not become normalized and de facto permanent.

ii. Threat Reduction

The Anti-Terrorism Act in its current form empowers CSIS to engage in activities that could violate rights protected under domestic and international law with virtually no effective oversight. Amendments made to the Canadian Security Intelligence Service Act through the passage of this legislation essentially transform CSIS from an exclusively intelligence-gathering agency to a hybrid service capable of taking “measures”—a term the law never defines— both at home and abroad to disrupt perceived threats to national security. For example, under the Act, CSIS could in the name of national security disrupt advocacy, protest, or dissent that it deems unlawful; detain and interrogate individuals, provided no bodily harm is intended and no criminal investigation is involved; damage or destroy property without compensation; and contravene fundamental rights guaranteed by the Charter.

Human Rights Watch is concerned that the Anti-Terrorism Act in its current form also lacks meaningful control over what measures CSIS can take outside of Canada. This omission has potentially grave implications for Canada’s respect for its international human rights legal obligations, and for protection of the rights of those outside of Canada. The legislation empowers CSIS to take these unspecified measures both “within or outside Canada” to reduce threats to national security. It requires the intelligence agency to seek a warrant—issued by a judge in a secret hearing—for acts that violate domestic law. CSIS may as a precautionary measure apply for a warrant to carry out threat-reduction acts in other countries, but the bill permits the judge to issue such warrants “without regard to any other law, including that of a foreign state.”

To address these concerns, the Government of Canada should amend the Anti-Terrorism Act and take other measures to:

  • ensure that oversight mechanisms over Canadian security and intelligence agencies are effective and adequate, and provide these mechanisms with appropriate powers as well as sufficient resources to carry out their mandate;
  • establish effective and robust safeguards around CSIS’s threat reduction powers to ensure that the agency does not use them to curtail human rights protections including the right to freedom of expression and assembly; and
  • explicitly state that all CSIS activities relating to countering terrorism must comply with the Charter of Rights and Freedoms and international human rights law.

iii. Domestic National Security Information Sharing

The Security of Canada Information Sharing Act enacted through the Anti-Terrorism Act enables near-unfettered access by 17 police and security agencies to personal information contained in any Canadian government record. The legislation further authorizes the sharing of such information among these agencies and with foreign states and private actors. While information gathering and sharing is an important threat-reduction tool, if not properly checked, these provisions invite violations of the right to privacy and increase the risk of torture and ill-treatment.

The scope of the information gathering and sharing enabled by the information sharing act encompasses far more than investigations of suspected terrorists and their activities.  The information need only be “relevant” to a security agency’s jurisdiction or responsibility to detect, identify, analyze, prevent, investigate or disrupt an “activity that undermines the security of Canada.” The legislation ties information sharing powers to a dangerously overbroad definition of an “activity that undermines the security of Canada.” For example, the definition includes interference with “diplomatic and consular relations” or “critical infrastructure.” “Terrorism,” ostensibly the legislation’s main concern, is fourth on the list of nine security threats, and is not defined. 

Human Rights Watch is concerned that the lack of essential safeguards in the Security of Canada Information Sharing Act could result in the sharing of information or misinformation, particularly with other countries, leading to torture. The UN special rapporteur on torture has called on states to refrain from information sharing if there is a genuine risk of torture or other cruel, inhuman or degrading treatment. Two special inquiries in Canada—the Arar Report of 2006 and the Iacobucci report of 2008—noted a link between inaccurate information sharing and the torture of four Canadian citizens abroad. The information sharing act in its current form does not mitigate the risk of such actions.

To address these concerns, the Government of Canada should amend the Security of Canada Information Sharing Act to:

  • establish adequate safeguards to ensure that information-sharing does not result in torture, ill-treatment or other human rights abuses; and
  • clarify in the narrowest possible terms the types of “activity that undermines the security of Canada” to prevent the misapplication and overuse of information-sharing powers by security and intelligence agencies.  

iv. The Passenger Protect Program

The Anti-Terrorism Act created a new statute, the Secure Air Travel Act, to oversee the “no-fly” list for terrorism suspects. Human Rights Watch has expressed concern about how these lists often effectively deny individuals a meaningful process of appeal, a right guaranteed under international law. Placement on a no-fly list can also have serious consequences for an individual’s rights to liberty, freedom of movement, privacy and discrimination. The legislation in its current form does not require the government to provide an individual with information about the reasons that he or she was placed on the no-fly list—a decision that could be made based on “reasonable grounds to suspect” the person would attempt or engage in an act that threatened transportation safety or was using a flight as transportation to subsequently carry out a terrorist act. It allows the named individual to appeal the ban before a federal court judge, but that judge can deny the individual access to some of the information that led to the no-fly decision, or allow the government to provide only a summary. Moreover, the Act allows only a 60-day window for appeal, without specifying how or even if the named individual is to be informed that he or she is on a no-fly list. The UN Human Rights Committee has noted that an individual has the right to ascertain what information is contained about him or her in official files and “to have his or her record rectified” if the information is erroneous. The Secure Air Travel Act fails to provide for that opportunity.

To address these concerns, the Government of Canada should revise the Secure Air Travel Act to:

  • establish a clear procedure that allows persons placed on the no-fly list to be promptly informed and able to challenge such a decision through judicial review, with the legal assistance of counsel; and
  • enhance the process related to the Passenger Protect Program to prevent false positive matches to the list of people with the same or similar names.

v. Investigative Capabilities in a Digital World

The national security consultation poses questions on whether laws should be amended to introduce new investigative capabilities in light of technological advances. Specifically, the consultation background document states that Canadian law contains “no provisions specifically designed to compel decryption” of communications, nor does the law impose mandatory data retention requirements on telecommunications providers. The consultation asks for views on whether such provisions should be introduced and, if so, what limits or safeguards should be imposed.

As recognized by the UN Human Rights Committee and the Office of the High Commissioner for Human Rights, any interference with the right to privacy in the digital age must comply with “the principles of legality, proportionality and necessity regardless of the nationality or location of individuals” whose communications are under surveillance or whose data may be collected.

On encryption specifically, as the UN Special Rapporteur on freedom of expression has confirmed, “In the contemporary technological environment, intentionally compromising encryption, even for arguably legitimate purposes, weakens everyone’s security online,” raising significant questions about the proportionality of any efforts to require companies to build “back doors” into encrypted services or devices. Digital security experts and privacy groups alike have opposed such proposals because they will actually create vulnerabilities that criminals may be able to exploit and broadly undermine cybersecurity, while failing to keep encrypted tools out of the hands of determined wrongdoers. These experts broadly view strong encryption as the cornerstone of the modern information economy’s security, as well as essential to the protection of human rights online.

On data retention, the High Commissioner found that mandatory third-party data retention requirements, where the government requires telecommunications providers to store data about all customers that the government can later access, “appear neither necessary nor proportionate” since they interfere with the privacy of all users, regardless of whether they are under suspicion of wrongdoing. As the consultation paper notes, the Court of Justice of the European Union invalidated the EU Data Retention Directive as an unjustifiably broad infringement of the right to privacy.

To address these concerns, the Government of Canada should:

  • promote and comprehensively protect strong encryption. National laws should recognize that individuals are free to protect the privacy of their digital communications by using encryption and anonymity tools;
  • avoid all measures that weaken security for individuals online, such as mandated "back doors," weak encryption standards, or key escrow arrangements. Requiring technology companies to build vulnerabilities into secured products unavoidably and disproportionately undermines the security for all users of that product; and
  • refrain from requiring Canadian service providers to generally retain telecommunications data on all users, regardless of whether they are under suspicion of wrongdoing.

vi. Intelligence and Evidence

The Anti-Terrorism Act includes new powers to detain and severely restrict the movements of individuals without any intent to charge them with an offense or bring them to trial. Such powers are inconsistent with the Charter’s protection of rights including liberty and freedom from arbitrary detention as well as international human rights law, which requires that individuals deprived of liberty be accorded due process of law. The Act allows law enforcement officials to detain an individual without charge for up to seven days if they believe that he or she “may carry out” a terrorist act, and that such detention is “likely” to prevent it. While subject to judicial review, this significantly lowers the threshold for preventive detentions and more than doubles the maximum detention period.

Human Rights Watch has also raised concerns that the bill requires provincial court judges to consider placing restrictions on a suspect whom authorities believe “may carry out” a terrorist act while setting no end date on these restrictions. These restrictions could include passport surrender, electronic monitoring, travel bans, and curfews. Judges also could order suspects to participate in an undefined “treatment program,” and to abstain from alcohol and all other “intoxicating substances,” as well as all non-prescription drugs, even if they are lawful. Rejecting or violating the restrictions would be punishable by up to one year in prison.

International human rights law permits preventive detention only under exceptional, narrowly defined circumstances. Yet the Act contains no sunset clauses or other limitations on these provisions. These types of control orders impose serious restrictions on the fundamental rights of individuals, such as freedom of movement, association and expression, and the right to privacy and family life. “Treatment programs” and prohibitions on legal activity are also sanctions normally imposed following the determination of criminal guilt.

To address these concerns, the Government of Canada should amend the Anti-Terrorism Act to:

  • limit the use of preventative detention to only exceptional, narrowly defined circumstances;
  • ensure that any measures and restrictions taken by provincial court judges with respect to suspects comply with international fair trial standards with clear limits in duration;
  • ensure that persons subject to control orders and their lawyers have access to sufficient evidence for an effective defense; and
  • establish appropriate safeguards to ensure that information obtained under torture or ill-treatment or conditions that are otherwise incompatible with international human rights standards cannot be used as evidence in criminal proceedings.

We appreciate the opportunity to submit this information to you as part of the national security consultation. We welcome the collaborative nature of this process and Prime Minister Trudeau’s efforts to bring current counterterrorism legislation into full compliance with international human rights standards.

Nadim Houry
Terrorism/Counterterrorism Director
Human Rights Watch

Farida Deif
Canada Director
Human Rights Watch                                                                                                  

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