Time to Close Canada’s Worrying, Growing National Security Review and Oversight Gap

Human rights violations are always most likely to occur when no one is watching over the police, soldiers and guards who have the power and potential to commit abuses. That is certainly even more the case when secrecy is prevalent; which obviously describes the world of national security investigations and operations. That is why human rights organizations, experts and bodies – national and international – have long stressed that effective review and oversight must be central to the imperative of ensuring that human rights protection is not sacrificed in any country’s rush to uphold national security.

We have had ample, tragic reminders in Canada of just how vulnerable human rights are when national security – real or overstated – is at stake. The consequences have been wrenching, including torture, disappearance, arbitrary arrest, unfair trials and discrimination. In all instances the lack of meaningful review and oversight was starkly evident, leaving troubling unanswered questions. Might probing oversight have prevented the abuses? Might stronger review process have led to accountability for what went wrong and deterred similar injustices?

In the absence of accessible and genuine review and oversight, individuals who have suffered national security-related human rights harms have instead turned to expensive, cumbersome and protracted judicial inquiries and lawsuits. That is hardly sustainable and certainly not fair.

Maher Arar was subject to extraordinary rendition from New York City to Syria by US authorities in the middle of the night in September 2002. He disappeared for two weeks, was brutally tortured and was never brought to trial during the year he was held in inhuman prison conditions in Damascus. In the end a judicial inquiry, presided by former Ontario Court of Appeal Justice Dennis O’Connor for over two years, unravelled the sorry chain of events beginning in Canada which led to all of the abuses.

Ahmad Abou-Elmaati, Abdullah Almalki and Muayyed Nureddin all suffered from a Canadian version of extraordinary rendition. Well-timed, selective, inaccurate and inflammatory intelligence was shared by Canadian officials with Syrian counterparts when those men travelled to Syria in 2001, 2002 and 2003 respectively. Again, vicious torture, gruelling prison conditions and unlawful detention followed. And once again it took a thorough judicial inquiry, this time presided by former Supreme Court of Canada Justice Frank Iacobucci, to get to the bottom of the cases and catalogue the long list of deficient Canadian action and inaction that made it all possible.

For Omar Khadr it has meant winding through multiple levels of the Canadian court system, ending up twice at the Supreme Court of Canada (a third SCC appeal is scheduled for May of this year). The Supreme Court has ruled unanimously that Canadian officials have been complicit in the violations Omar Khadr endured in US custody at Guantánamo Bay. But there has been no remedy for those violations.

Other cases are mired in protracted and contentious lawsuits. While Maher Arar has received an apology and redress for the wrongs documented in his judicial inquiry; the government has refused to follow suit for Elmaati, Almalki and Nurredin, despite Justice Iacobucci’s numerous findings of wrongdoing. Instead their case is bogged down in the courts.

Similarly for Abousfian Abdelrazik, seeking answers and compensation for the role CSIS played in his detention and torture in the Sudan; and for Benamar Benatta, who is looking for truth and redress for the unlawful actions of Canadian immigration officials who sent him across the border into the hands of US officials on September 12, 2001, launching a five year nightmare of arbitrary imprisonment and abuse. They are both lost in lawsuits that have stretched on already for several years. The same is the case for Hassan Almrei and Adil Charkaoui, who have sought accountability for years of injustice they endured while subject to immigration security certificates.

All of these men have had nowhere else to turn for answers and action while they were in the midst of experiencing human rights violations in Syria, Egypt, Sudan, the United States, Guantánamo Bay or Canada. And there has been no easy route to accountability and redress after the fact.

Notably, when Justice O’Connor was given his mandate for the Arar Inquiry in 2004, he was specifically asked to make recommendations with respect to reviewing the national security activities of the RCMP. His comprehensive report was released in December 2006 with clear conclusions: national security review in Canada was woefully inadequate.

Justice O’Connor determined that with “enhanced information sharing, new legal powers and responsibilities, and increased integration in national security policing” it was time for an overhaul to the approach taken to review of the RCMP and the numerous other agencies and government departments involved in national security. His model includes ensuring that all agencies and departments are subject to review, review powers have real teeth and integration across all the review bodies to ensure that nothing falls through the cracks in a world where the agencies and departments involved in national security increasingly carry out their work in a seamlessly interconnected fashion.

More than eight years later, the dust on Justice O’Connor’s report grows thick on Ministerial bookshelves in Ottawa.
And now we are faced with the most comprehensive and controversial round of national security law reform in Canada since 2001.

Bills C-44 and C-51 envision unprecedented disruptive and secretive powers for CSIS; a new criminal offence of promoting terrorism, in general, which will unquestionably clash with free expression; enhanced information sharing with foreign intelligence agencies; and a broadened sense of national security which extends beyond acts of terrorism into expansive notions of security which include Canada’s ‘financial and economic stability’.

These proposals take us deep into terrain where the potential for serious human rights violations increases substantially. But other than requiring that a judge authorize any CSIS actions that contravene the Charter of Rights, the Bills do nothing to improve scrutiny. Judicial approval of Charter violations hardly qualifies as a significant advance when it comes to national security review.

Also ignored is the longstanding push for Parliament to be given a proper oversight role with respect to national security. Canada is alone among our closest national security allies – the United States, the United Kingdom, Australia and New Zealand – in not entrusting parliamentarians with that responsibility. In 2004 a proposal for parliamentary oversight was endorsed by all parties. But that proposal and others since have never been taken up and turned into law.
The case made in 2004 by parliamentarians for robust national security oversight and in 2006 by Justice O’Connor for integrated national security review, always pressing, has become urgent. Whether the concern is upholding national security or protecting human rights, it is finally time to close the gap on review and oversight.