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National Security: Curbing the excess to protect freedom and democracy

The B.C. Civil Liberties Association  welcomes the opportunity to present submissions to both the House of Commons Subcommittee on Public Safety and National Security (the “House Subcommittee”) and the Senate Special Committee on the Anti-Terrorism Act (the “Senate Special Committee”) which are reviewing the Anti Terrorism Act (ATA). The work of these committees to review the ATA represents an opportunity in less tumultuous times to revisit the all-too-brief debate preceding the passage of the ATA. This is arguably the most auspicious time to engage in full, impartial, sober, and informed review in order to contribute to striking the appropriate balance between the agencies that must be empowered to preserve our national security and democratic values that constitute Canadian culture and tradition.

At this critical juncture, Canadians should not avert their gaze from the unfortunate reality that the legislature has granted several of our national security agencies more power than they need to fulfill their mandates. Furthermore, the existing judicial, parliamentary and civilian mechanisms for democratic oversight of national security agencies are simply unable to prevent or redress the misuse of the state’s considerable authority in the realm of national security.

The remedy for these problems is not a mystery: the powers of investigative and enforcement authorities must be scaled back to justifiable levels and independent civilian oversight must be fortified where it exists and created where it does not. The ATA alone did not conjure up all of these shortcomings, but it exacerbated and codified them. The BCCLA respectfully suggests that it is necessary to look beyond the ATA to recommend comprehensive solutions to systematic failings.

The BCCLA requests that, in crafting a remedy for these failings, the House Subcommittee and Senate Special Committee give consideration to the following proposals:

1. Immediately advocate for an end to the inhumane and indefinite detention of individuals under Security Certificates. This issue is of such ethical and cultural magnitude as to demand immediate rectification. Their ongoing detention is an assault to the Canadian conscience. Given their treatment, it is not much to ask that current detainees be granted access to reasonable (even heavily supervised) bail while awaiting a hearing and while awaiting deportation.

2. Overhaul Security Certificate powers under the Immigration and Refugee Protection Act to forbid reliance of information obtained by torture, unconditionally cease the practice of deportation to torture, prevent indefinite detention, maximize public disclosure of evidence, and enhance judicial oversight of the process.

3. Amend the definition of “terrorist activity” in the ATA to include only actions that are intended to or can reasonably be foreseen to cause death or serious bodily harm to persons not actively and directly involved in a dispute with the purpose of intimidating a population or compelling a Government or an international organization to do or abstain from doing an act.5 This definition would tailor antiterrorist powers to act against only those catastrophic events such as those in New York, Bali, Madrid, Istanbul and London, the horror of which is said to justify the creation of anti-terrorist powers. This definition would in no way imperil the usual power of policing authorities from investigating criminal militancy.

4. Engage in a comprehensive review of definitions and offences relating to national security, including the definition of “threats to national security of Canada” in the Canadian Security Intelligence Service Act and the harms listed in section 3 of the Security of Information Act.

5. Enhance judicial oversight of national security activities by amending the Canada Evidence Act to streamline the categories of information over which the government has control, eliminate the use of information derived from torture, invigorate secrecy hearings through the participation of parties adverse to secrecy (including securitycleared lawyers where necessary), and either eliminate government veto of courtordered disclosure or provide for a stay of proceedings in which a such a veto is exercised.

6. Create a National Security Review Committee to oversee and review the national security and intelligence activities of all national security and intelligence agencies and institutions.

7. Create an Office of the Civil Liberties Ombudsman as a last line of defence in the review process. Such an office would enhance public confidence in the oversight architecture and provide a refuge for the aggrieved.

In submitting these proposals, the BCCLA is attempting to urge reforms that curb excesses while ensuring that Canada’s national security agencies can continue to protect the interests of Canada and prevent terrorism.