Read before crossing

If you’re like us at the BCCLA National Security Blog, you store a lot of personal and private information on your laptops, smart phones, and other portable electronic devices. Today, we published a handbook (and a pocket guide!) to help you keep your information private when crossing the border into Canada. Why a handbook about border searches? Because the threshold for constitutionally-permissible search and seizure is lowered at the border, and because electronic devices — which can contain vast amounts of sensitive and personal information — are increasingly becoming the target of border searches.

So check out our handbook (which will get updated as the law and technology changes, in this rapidly evolving area), and our pocket guide (available for you to download and print out and fold into something wallet-sized). (And because we can’t help but brag a little: we made it onto Boingboing!)

Anti-smuggling, or anti-Charter?

The Canadian Association of Refugee Lawyers (CARL) may be only a little over a month old, but they’ve already published a terrific paper on the unconstitutionality of Bill C-4, the so-called “anti-smuggling” bill.

Readers of these pages will know that C-4 (and its predecessor C-49) has been of significant concern to the BCCLA, and the subject of criticism from many quarters. CARL’s paper lays out in detail the various ways the proposed legislation in Bill C-4 is unconstitutional. It’s worth reading in its entirety, but here’s a teaser:

In presenting Bill C-4 to Parliament, the Government of Canada has expressed its confidence that the bill is Charter-compliant and constitutional. The Government has chosen not to articulate any basis for its confidence. Since recent judicial pronouncements from the Supreme Court of Canada directly contradict the Government’s position, it is our opinion that this confidence is misplaced. The drafters of the bill have paid insufficient attention to the carefully worded doctrines that the Supreme Court of Canada has developed to express the basic principles of our Constitution. The government has haphazardly cast an unconstitutionally harsh, wide and arbitrary net in order to deter and punish human smuggling. The consequences inflicted on these individuals will be dramatic, painful and undeserved. It is our hope that the unconstitutionality of the Bill will be recognized before it is enacted as law. If this hope is dashed, it is our hope that it will be recognized by judicial authorities. However, it is our worry that, should we need to rely on the Courts to provide the needed remedy, much hardship will be endured in the interim.

Download the paper here.

Whispers and innuendo

Today, the BCCLA wrote to the Minister of Justice and the Minister of Public Safety about a recent government leak of purported intelligence information implicating two Canadians in a terrorist plot. The contents of the leak, the timing of it, and the government’s public statements in response to the whole affair all raise serious concerns, including whether the Canadian public can truly be informed via selective leaking of cherry-picked information.

In August, La Presse, a Montreal newspaper, published an article describing an alleged conspiracy between Adil Charkaoui and Abousfian Abdelrazik to place an explosive device on an aircraft. The alleged conspiracy was outlined in a document leaked to La Presse, which purported to be a 2004 report from CSIS summarizing conversation reportedly intercepted in 2000.

Messrs Charkaoui and Abdelrazik should be familiar to readers of these pages. Mr. Charkaoui spent six years living under a security certificate, during which time he was subjected to detention, house arrest, and constant surveillance. The security certificate against him eventually collapsed because the government refused to provide either him or the court with sufficient evidence to justify the certificate. Mr. Abdelrazik is a Canadian citizen who was arrested in Sudan at the request of the Canadian government, and whose efforts at returning home to Canada were repeatedly stymied by the government until a Federal Court declared that Canada was violating Mr. Abdelrazik’s constitutional rights. Neither man has ever been charged with any terrorism-related offences.

The allegations in the La Presse article were quickly seized upon and reported by the national media. And in response to these reports, Immigration Minister Jason Kenney stated:

I read the protected confidential dossiers on such individuals, and I can tell you that, without commenting on any one individual, some of this intelligence makes the hair stand up on the back of your neck. I just think people should be patient and thoughtful and give the government and its agencies the benefit of the doubt.

Thus, having failed (for years) to make out a case against either Mr. Charkaoui or Mr. Abdelrazik in the courts, government is now seizing on the selective leaking of decade-old intelligence information to make its case against these men in the media.

Our letter goes into considerable detail about our various and serious concerns, which we won’t repeat here, but we do make one point that bears re-emphasizing: Leaks of this sort — decontextualized and selective — do little by way of providing a complete and truthful account of events. Instead, selective disclosure only leads to concerns that the story is actually being manipulated.

Read the entirety of our letter here. We also commend you to some very thoughtful commentary on this leak. Professor Reg Whitaker provides an informative account of previous similar leaks in his analysis. Professor Craig Forcese thinks that this leak raises some interesting questions that the government should be asking.

A lifetime of suspicion

Yet another story has emerged in the wake of the recent WikiLeaks disclosures illustrating how Canada shares intelligence on Canadian citizens and residents with the United States. In today’s Globe and Mail, Colin Freeze reports on the story of one man who, by mere association with a terrorism suspect, was reported as a potential terrorist to American authorities, and found himself on foreign watch lists.

According to the G&M, “Ali” was designated as an associate of the “number one” terrorism suspect in Canada based on nothing more than friendship. It does not appear that there was any evidence that Ali himself was engaged in any criminal conduct, or even suspected of planning to engage in criminal conduct. Ali claims that he had no knowledge of his friend’s links to terror. If that is true, then Canada’s only justification for informing the Americans that Ali was a terrorist threat is that he happened to be friends with an individual he didn’t even know was involved in terrorist activities.

Indeed, as the G&M reports:

In recent months, [Ali] and his wife have arranged repeated meetings with CSIS and RCMP officials in hopes of clearing his name. The counterterrorism agents, they say, admit they broadcast suspicions based on association, and even expressed regret they wasted valuable “legwork” on Ali. Still, they insist they had valid reasons for investigating at the time and that there’s not much they can do to clear his name abroad.

The consequences of this — as it turned out, faulty — designation are set out in Colin Freeze’s article, which is worth reading in its entirety. As yet, they don’t rise to the horror of what was faced by Maher Arar, but it shouldn’t come to that for Canadians to be concerned about how citizens and residents are being branded as terrorist threats. As the example of Ali shows, mere association is enough to cast a lifetime of suspicion over you and your family.

An aside. An important thing to note about the publicly-available version of these WikiLeaks cables: many of the names are redacted, and for good reason. (Only select news organizations have full, unredacted copies of the communications.) Many of the individuals on these cables have yet to be publicly charged, prosecuted, or convicted of any crime in Canada or anywhere else. It appears that the only names left unredacted in the publicly-released cables are ones already known to the public — perhaps an effort on WikiLeaks’ part to protect individuals like “Ali” from further prejudice. You can view the public version of these cables via the following links:

The potential negative consequences cannot be overstated

Last week, Jim Bronskill with the Canadian Press reported on the findings in an annual review conducted by the CSIS inspector general, which he obtained via the Access to Information Act. According to that annual review (published in November 2010), CSIS has continued to fail in ensuring the accountability standards set by the Supreme Court of Canada in 2008 in Charkaoui v. Canada (Citizenship and Immigration), (2008) 2 S.C.R (“Charkaoui II”) are met. Under the Court’s ruling in Charkaoui II, the agency is required to, inter alia, “retain all operational notes, electronic intercepts, and other investigative material”. As reported by the Canadian Press:

During her review, CSIS inspector general Eva Plunkett asked the service for original, hard-copy notes cited in agency reports.

“In a number of cases the service was unable to locate hard copies of the operational notes,” Plunkett wrote.

After further examination, CSIS determined that its own reports were wrong and that no notes had been taken to support the information in them, she found.

The spy service also had trouble figuring out the process for referring to original notes — a problem Plunkett considered “significant.”

“One must know where to look to determine whether operational notes exist and where to find them for retrieval and future reference,” says her review.

Disturbingly, Plunkett found problems relating not only to record-keeping but reporting as well, and noted that “the rate of errors continues to grow”. Again, from the Canadian Press:

Once errors — even small ones such as incorrect interview dates — are introduced, it can result in wrong information being shared or forming the basis for operational decisions, her review says.

“The potential negative consequences that errors of this type could have on service investigations, and on individuals affected by the use of service information, cannot be overstated.” 

Plunkett says accuracy is essential if CSIS is to make fair and balanced use of the information it collects.

“When errors of this nature do come to light, they have a highly detrimental effect on the service’s credibility both with Canadians, the judicial system and with other intelligence agencies.”

This report comes as troubling news to the BCCLA. As we discussed in our most recent post, mistakes made by CSIS can have devastating consequences for individual Canadians. Given the highly secretive nature of intelligence gathering and sharing, Canadians need to have confidence that CSIS is doing its job carefully, accurately, and in an accountable fashion. Accuracy in data collection and document retention is crucial in ensuring accountability, as we saw in the Almrei security certificate case. In light of the intensive intelligence-sharing between CSIS and foreign governments, it goes without saying that there is a great need for CSIS to exercise caution and care in carrying out its duties.

CSIS plays an important role in protecting our national security, but its work must be accomplished in a responsible and scrupulously careful manner. The inspector general’s review serves to remind us that concerns regarding the agency’s practices are still active and require attention.

“Once you give the name to the Americans, that’s the end of the game.”

This week, Neil Macdonald at the CBC has been reporting on WikiLeaks cables illustrating how Canada shares intelligence on Canadian citizens and residents with the United States. That CSIS routinely shares intelligence with the U.S. should come as a surprise to no one, of course. That CSIS provides details to the U.S. with names and personal details of Canadians “suspected” of what CSIS refers to as “terrorist-related activity” should perhaps also not be too surprising, either, given what we learned during the Arar Inquiry and other similar proceedings. What is surprising — and alarming — is how little evidence of wrongdoing, or even suspected wrongdoing, is required before a Canadian is named a terrorist threat. As the CBC reports:

The criteria used to turn over the names are secret, as is the process itself.

But a new cache of WikiLeaks documents pertaining to Canada lays bare the practice. It contains not only frank assessments by U.S. officials of Canadian co-operation, but the names of 27 Canadian citizens turned over by their own government as possible threats, along with 14 other names of foreign nationals living in Canada.

In at least some cases, the people in the cables appear to have been named as potential terrorists solely based on their associations with other suspects, rather than any actions or hard evidence.

Of the 41 people named, 21 do not appear to have ever been charged, and some had never come to the attention of the Americans before being named by their own government. Most of the remaining 20 names comprise the group known as the Toronto 18. Some of that group were charged and convicted; others had charges against them stayed.

The cables are a snapshot of periods in 2009 and 2010. Over the years, the number of names handed over is certainly much higher.

The experience of Maher Arar has taught us of the terrible consequences that can flow from cavalier designations of individuals as terrorist threats. Acting on faulty intelligence supplied by the RCMP, the United States arrested, interrogated, and renditioned Arar to Syria, where he was tortured. The Arar Commission ultimately found that the actions of Canadian authorities led to his mistreatment at the hands of the Americans, and recommended that strict limitations be placed on how information about Canadians is shared with foreign governments. This recommendation has yet to be implemented, and indeed, as the Council of Canadians points out, the Canadian government is actually working to increase the flow of personal information from Canada to U.S. government databases.

But as Paul Cavalluzzo, lead counsel for the Arar Commission, told the CBC, “Once you give the name to the Americans, that’s the end of the game.”

And the process for naming, as reported by the CBC, is distressingly faulty:

… as Cavalluzzo points out, the process is secret, with no judicial oversight, and takes place without the knowledge of the individual being “targeted.”

“It certainly doesn’t meet any criteria of due process in the sense that the individual has no representation whatever. Don’t tell me there’s a devil’s advocate. That and a dollar will get you a cup of coffee.”

And nor, does it seem, there be any requirement of evidence that the named individual has actually engaged in criminal conduct or is even suspected of engaging in criminal conduct. As we’ve said before in these pages, the anti-terrorism laws in Canada’s criminal code are breathtakingly broad in scope, and offences run the gamut from “facilitation” and “harbouring” to conspiracy, threats to commit a terrorist act, and to the actual terrorist act itself. Without even a requirement of reasonable suspicion to commit any sort of criminal offence, individuals can be deemed terrorist threats and their names provided to the U.S. government.

As if all this wasn’t troubling enough, the CBC reports today that one of the individuals named in the cables as a potential terrorist is Mubin Shaikh,  a Canadian citizen and CSIS operative whose testimony was critical in securing convictions in the Toronto 18 terrorism trials. As Neil Macdonald points out, Shaikh’s inclusion on this list can only really mean two things.

The first is that the listing process employed by CSIS is seriously flawed, and resulted in the incorrect designation of a Crown agent as a terrorism suspect, exposing him to all of the attendant consequences flowing from being named a potential terrorist.

The second is that Shaikh’s inclusion on the list is not a mistake, and that the Canadian government did legitimately suspect him to be involved in terrorist activities. In which case, the question becomes why this information was not provided to the defendants in the Toronto 18 trials, where Shaikh’s evidence was crucial to the Crown’s case. Indeed, this is the question that counsel for the defendants are asking now, and demanding that the government answer. As reported in the CBC:

“It was his evidence that took them all down,” Alberta lawyer Dennis Edney told CBC Wednesday night. Edney represented Fahim Ahman, a ringleader who eventually pleaded guilty and remains in prison.

“Most of the warrants for wiretaps that were obtained were obtained as a result of conversations he had with the suspects.”

“It takes your breath away,” said Mitchell Chernovsky, a lawyer who represented another of the Toronto 18. “It rings alarm bells all over the place.”

Both Chernovsky and Edney said they would probably make formal demands to the Crown, asking why they were not told of whatever information led CSIS to denounce Shaikh to the Americans. Defence counsel are legally entitled to disclosure of all such information, in order to prepare their cases.

And these cables likely represent just a small sampling of the names provided to the Americans in recent years. The number of names provided is likely to be much higher than the 41 reported in the WikiLeaks cables, so it’s unclear how many more cases like Shaikh’s there are. Given the extreme secrecy of intelligence sharing, it’s also impossible to know whether adequate safeguards are in place to ensure that there are controls over the use of personal information by foreign governments.  What is clear is that some true accountability mechanism must be available to ensure that individuals are not branded as terrorists and their personal information disclosed to foreign governments without any limitations. So far, however, CSIS isn’t responding to CBC’s request for comment on its stories, and it isn’t providing the public with any real answers either, so it remains unclear whether — and how — the rights and security of Canadians are being protected.

ETA: National security expert Wesley Wark provides his views on the implications of Shaikh’s listing in the Ottawa Citizen.

Can we hold you for a while?

Yesterday, BCCLA Counsel Carmen Cheung appeared before the House of Commons Committee on Public Safety and National Security to present the BCCLA’s position on Bill C-17, legislation seeking to resurrect the preventative detention and investigative hearing provisions from the 2001 Anti-terrorism Act.

The 2001 Anti-terrorism Act was made into law in the immediate aftermath of 9/11, and provided for the expiration of its preventative detention and investigative hearing provisions in early 2007. The government is now seeking to put these provisions into law again.

What do these two provisions do?

The preventative detention provision permits law enforcement officials to arrest — without a warrant — any individual, so long as law enforcement has reasonable suspicion that detaining the person is “necessary in order to prevent a terrorist activity.” This individual can be held up to 72 hours, without charge. And as Donald Piragoff, a senior assistant deputy minister from the Department of Justice, informed the Committee, “[t]hat doesn’t mean that the person who’s arrested is the perpetrator. It may be other individuals who are involved.”

Simply put — this piece of legislation would allow for the detention of individuals who are not even suspected of attempting to carry out a terrorist act. To appreciate just how attenuated this justification for detention is, keep in mind that the scope of what constitutes terrorism as currently defined in the Criminal Code is breathtakingly broad. Terrorism offences include everything from “facilitation” and “harbouring” to more traditional inchoate offences of conspiracy, attempts, or threats to commit a terrorist act, and of course, the actual terrorist act itself. This piece of legislation would allow for the warrantless detention of individuals who cannot even be shoehorned into the Criminal Code’s expansive view of terrorism.

The second prong of this bill — investigative hearings — creates an inquisitorial role for judges, permitting them to compel testimony from individuals in situations where no charges have been laid, and no pending controversy before the court at stake. Individuals must answer the judge’s questions, even if doing so would result in self-incrimination. The narrow exception to this mandatory disclosure is with respect to information that is considered privileged or otherwise protected  by law against disclosure. Individuals refusing to testify can be arrested and detained.

Perhaps unsurprisingly, the BCCLA is very concerned about attempts to put these provisions into law again, especially given their dubious efficacy in keeping Canadians safe. From 2001 to 2007, when these provisions were last in force, the preventative detention provision was never invoked, and the investigative hearing provision was used only once during the Air India inquiry (which was arguably not an intended use of that power). And when government witnesses, such as Justice Minister Rob Nicholson, were asked by the Committee whether they knew of any instances from 2007 to the present when law enforcement officials would have required the use of these two provisions in order to protect public safety, no examples were provided. This stands in contrast to the examples how the existing anti-terrorism provisions in the Criminal Code have successfully been used to prosecute past terrorism offences and to prevent future ones from taking place, as the case of the Toronto 18 and other similar prosecutions have shown.

For a rundown of the BCCLA’s arguments against adopting this legislation, please take a look at our submissions, available here: C17 Submissions.