Different Response for Different Folks!

Food for thought.....

Since the theme of the day is differential response and treatment, I urge you to read the following and consider what the response might be if the person was an Arab.

"Joseph Egan doesn't think he'll ever board a Greyhound bus again after a passenger threatened to behead him Friday.

"I moved to the middle of the bus and a woman said 'If you go to the bus driver, I'll cut your head off,' " Egan said from a hotel in Winnipeg.

"We said nothing directly to her," Egan said.

A 41-year-old woman has been charged with possession of a weapon and uttering threats, RCMP said."

http://www.canada.com/topics/news/national/story.html?id=aba88ea9-d8a8-4b98-b89c-e5cc85543d74

Citizenship and Due Process

There are multiple Acts that address terrorism, but none that I found provide for the indefinite detention of citizens without due process. Many people facing criminal charges are detained for long periods of time before their trials, but they are charged and given disclosure in a shorter period of time. They also can have lawyers who get to see the evidence and make arguments for them. Each of these processes can be slow, but there are time-limited provisions to guide them. If a judge decides the process was too slow, the charges can be thrown out.

The criminal code contains provisions against terrorism including prohibitions against fund raising, participation, and holding property for terrorist groups. Related to this is the creation of a list of groups deemed terrorist by the federal government, which changes over time. The so-called Toronto 18 were charged under these provisions of the criminal code. The potential sentence is life in jail. Included are the usual due process rules around the right to retain counsel at any time during the proceeding, having to see a judge within a certain amount of time, and the right to be released, unless they think you won’t show up for court or you’re a safety risk. It seems this section applies to both citizens and permanent residents. Permanent residents can be prosecuted either way, presumably at the discretion of those investigating (or perhaps who is investigating). The criminal code process is quite different from the security certificate process which only non-citizens face.

Wesley Wark wrote a paper for the Canadian Human Rights Commission about National Security and Human Rights. The Minister of Public Safety and the Minister of Citizenship and Immigration are supposed to issue a security certificate where there is a threat to Canadian security, a violation of human or international rights, serious criminality, or organized criminality by a non-citizen. The CHRC is very concerned about the broad definition of terrorism combined with the removal of civil rights for those accused of terrorism. The combination of these two things could result in it being used to stifle opposition or target people based on the political and social climate, rather than any real threat. I’m being pretty gentle saying ‘could.’ As described before, the historical detention of people with certificates has focused on certain groups, for example, the detention of Iraqi people during the early 1990s. “The right to liberty and freedom from arbitrary arrest and detention are fundamental human rights to which Canada has subscribed under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in our Charter of Rights and Freedoms.” The rights under these agreements are supposed to apply to everyone within Canada, as well as everyone affected by Canada’s actions.

Depriving certain people of these rights by using a different mechanism to pursue terrorism charges doesn’t appear to meet any reasonable goals. If the goal is to deport ‘criminals’ an application could be made after conviction. If the concern is that spreading knowledge will endanger security, then why is it only terrorism by non-citizens that poses this risk? Either it should apply to all people, or no one. The discretionary powers and the different types of terrorism charges demonstrate how the laws are based in a xenophobic belief system. We obviously not just talking about security here. If there actually is a threat, than a coherent argument needs to be made.

Wark’s paper: http://www.chrc-ccdp.ca/research_program_recherche/ns_sn/toc_tdm-en.asp

Creating the 'Other'

When we created the Indian Act, there was a denial of right to vote, purchase land, and engage in traditional ceremonies. Canada's first peoples were forced to relocate, pushed aside to reserves and were restricted from civil and political rights.

When runaway slaves were migrating from America to Canada with great promises of better land, education and rights, they were again segregated in their schools and communities and had limited property rights.

When Chinese labourers came to Canada, they were paid ¼ the wages of ‘white’ workers. Once again, their civil and polical rights were restricted. They were barred from public office and professional occupations.

Let us not forget Komagata Maru. I bet they didn't teach you this gem of Canadian History in grade 10! In 1914 South Asians were detained on a steamer boat for 2 months on the coast of Vancouver before they were eventually denied entry into Canada. During this time, exclusion laws in Canada were designed to keep Asian immigrants out.

During World War II, a number of Japanese Canadians (75% of which had Canadian citizenship) were incarcerated, forced to work and had their property taken from them. If they did not enter incarceration, they would be deported. After 2 years, they were released and had no compensation until the late 80s. The reason for the government’s action? Security reasons; the Japanese-Canadians may have been a National Threat. Believe it or not, Canadian Parliamentarian Ian Mackenzie said in 1944, "It is the government’s plan to get these people out of B.C. as fast as possible. It is my personal intention, as long as I remain in public life, to see they never come back here. Let our slogan be for British Columbia: ‘No Japs from the Rockies to the seas".

( http://www.crr.ca/divers-files/en/pub/faSh/ePubFaShLegRac.pdf )

The security certificate is our latest instalment of institutionalized discrimination and racism which allows the Canadian Security Intelligence Service to have anyone thrown in jail who might be deemed a national threat, even if the evidence is weak (as we’ve seen in the previous posts). Such institutionalized discrimination leads to racial profiling. When we see our authority figures doing this, it sets an example of ‘what to be aware of’, or what to ‘beware’ of.

We see this institutionalized discrimination at it’s finest in the airport. You will find the lines for ‘random’ checks of suitcases long and populated by Arabs, Muslims, individuals with Muslim sounding names and even Sikhs (from a different part of the world, and of a different religion but
indistinguishable by the untrained security personnel eye).

Family Guy highlighted this issue: http://www.humorscore.com/videos/Family_Guy_Videos/Family_Guy_-_Johnny_Quest

It’s interesting. In this clip, the writers imply that you should not even be yourself, just to avoid security personnel from jumping to conclusions. It’s true. There are many Muslims out there who feel the need to dress in a traditionally non-Islamic manner to avoid the hassle.

Consider the news media. These terrorists organizations are sometimes called ‘Islamists’. Now what in the world is an ‘Islamist’?! It’s not a word that these groups have used, because it’s not even proper grammar. It’s like saying ‘Christanity’ist’ or ‘Hinduism’ist’. These were terms conjured by either the government or the media. These people are not categorized as terrorists anymore, they’re being defined by their religion, which now applies 1.5 billion people or one-fifth of the world’s population. Their label for the enemy has suddenly expanded from ‘terrorists’ to a term that will be associated with adherents of a religion.

If our authority figures show us that these people cannot be trusted, we will also develop distrust for these groups. As a result these groups feel alienated and will tend to segregate themselves, only widening the gap between what is being created as ‘us’ and ‘the other’. We no longer think of ourselves as ‘black’, ‘white’, ‘Asian’, ‘Spanish’ etc. We’re now Canadian and Arab.

It has happened in the past and it is currently being perpetuated against Muslims and Arabs in Canada. Security certificates are no longer just a security measure, they’ve become a justification for discrimination and racism.

Is Canada ignoring its international obligations?

Canada is a country that prides itself on its beliefs in liberty, equality and democracy. We have a positive reputation internationally and are in good standing with most of the countries in the world. This image of Canada as a just nation is one which we like to propagate to the rest of the world. Canada is a member of the United Nations and has a strong voice when it comes to matters of equality, human rights and liberty. To the outside world we like to make ourselves appear as a benevolent, altruist state yet when it comes to our domestic policies we show another side of our character completely. The Canadian government’s use of security certificates are clearly contradictory to the image we like to spread.

It is evident that security certificates are a gross violation of human rights. As some of the other posts have explained the accused are detained for unknown reasons and are subject to inhuman conditions while being imprisoned. There have also been numerous reports of torture and requests for basic necessities which go ignored.

Recognizing human rights and the reason why we have them are vital for a democratic and just nation. After World War Two, international agreements and covenants were implemented to ensure that everyone was accorded certain inherent rights. The Universal Deceleration of Human Rights was created to achieve this goal. It was adopted by the United Nations General Assembly on December 10, 1948. The current treatment of the detainees in Canada is in clear violation of the declaration. Article 9 states that "no one shall be subject to arbitrary arrest, detention or exile," and Article 10 follows "everyone is entitled in full equity to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." It is evident that by using security certificates, Canada is violating these articles.

Canada is also violating the International Covenant on Civil and Political Rights which was entered into force on March 23, 1976. Article 14 of this covenant says that everyone who is charged with a criminal offence is entitled "to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him." Again, the detainees being held in Canada are not always informed of the reason for their detention. They are often left in the dark.

By agreeing to the Universal Declaration of Human Rights Canada also agreed to the declarations "standard of achievement for all peoples and nations." Following the agreement shows the legitimacy of a government. By not following it, the Canadian government is decreasing its political legitimacy. The ideals of this declaration need to be upheld and it is the responsibility of both the government and the citizens of this country to make sure that Canada fulfills its obligations. We cannot simply theoretically agree to a monumental document and then proceed to do as we please. It is essential that Canada does as it has promised to the international world and uphold the reputation that we have. The reason for upholding it is not because it will make us "look good" to the rest of the world but rather because it is good.

For more information please refer to Universal Human Rights In Theory and Practice, Second Edition by Jack Donnelly

Canada's role in the the American War on Terror

Canada has always had close ties to the United States of America. From the beginning, the two countries had a shared history and as America grew in size and power the relationship between the two countries changed. At times Canada has benefitted from the relationship and at other times it has suffered negative consequences.

It is extremely important to look at the relationship Canada has with the United States due to the fact that this relationship plays a big role in the policies this country makes to deal with security issues. As it has been explained in previous posts, security certificates have long been used in Canada even though they did not gain too much attention until after September 11. After the terrorist attacks in the United States the American government took a new stance on national security. The United States strengthened their security laws and implemented strict rules regarding security. They then instigated the War on Terror in their attempts to make the country a safer place. I’m sure we can all remember when George W. Bush made his speech on November 6, 2001 about protecting America and the American way of life. In the speech he stated that "you are either with us or against us in the fight against terror," clearly distinguishing the only two camps other countries could belong to. This meant that Canada would have to quickly decide which camp it wanted to be a part of. Not surprisingly, the Canadian government quickly tried to align itself with the former camp.

As America’s neighbour, Canada plays a very important role in the American War on Terror. Canada’s proximity to the United States makes it strategically powerful. The border we share with the United States is the longest border in the world and one that allows for numerous people to cross each year. As fears grew in America over who was getting into their country and the entry points they used to gain access, the American government quickly looked to their neighbour to the North. The American media wrongly reported that some of the 9/11 hijackers had entered the country through the Canadian border. Border security was given high priority and was seen as something that needed to be tightened in order to prevent potential terrorists from entering the country in the future.

However, putting more security measures at the 49th parallel could have negative consequences for Canada. If the American government imposed measures that were too strict at the Canadian border, the Canadian economy would suffer. The United States is our largest trading partner and having an open border is part of the reason for this. The Canadian government needed to show the Americans that Canada was not harboring terrorists and that Canada would do its part in making sure our country was terrorist free.

The years after 9/11 were an extremely tense period on an international level where countries all over the world were trying to show the global giant that is America that they were on the "right" side of this war. As the Americans criticized the seemingly lacks security measures in Canada, the Canadian government attempted to rectify the situation by proving that we too were doing our part to fight the terrorists. The United States created the Patriot Act and Canada responded with Bill C-36.

This makes me wonder why Canada feels the need to allows follow suite with the Americans. I understand the role American plays in our economy and how maintaining good relations with our southern neighbour are vital to our continued national prosperity. At the same time however it also seems that we often do what America wants us to do even when it is detrimental to ourselves.

How Reliable Are the “Secret” Keepers?

Given that we don’t even know what the evidence is, how do we know how it is being treated? How do we know information is not being taken out of context and presented? And where does this evidence come from?

If it hasn’t been offered yet on this blog, I’m going to give you a quick rundown of how a security certificate is obtained. First The Canadian Security Intelligence Service (CSIS) gathers “secret” evidence from “secret” sources. Sometimes this “secret” evidence might be “secretly” leaked. The Minister of Public Safety and the Minister of Citizenship review and sign the Security Certificates. There are “secret” court proceedings which allow the Feds to consider “secret” information. They claim it is all done in “secret” because disclosing the information would seriously harm the government’s ability to protect Canadians.

As an aside, I find this rather odd, because the hearings of the Toronto 18, who were accused of planning to bomb us and behead the Prime Minister, were completely open to the public. Anyone could go into the courts and view that hearing of evidence in person.

A “special” advocate (of the detained) is exposed to the “secret” evidence but cannot relay that information to the detained or family.

Yes, don’t worry, all this “secret” evidence, “secret” sources, “secret” hearings and “special” advocates sounds like a bunch of 7 year olds’ treehouse game or something from Lord of the Rings to me too.

So let’s move on to what we know about the sources. Who are they and how reliable are they? Let’s look at one of the sources. In 2003 Adil Charkaoui was arrested under the Security Certificate mainly due to a claim from convicted terrorist Ahmed Ressam. 21 months later, Ressam retracted his claims saying that he was “psychologically imbalanced when he was interrogated” and offered the information about Charkaoui. Basically, they made a deal with Ressam that if he throws out some names, he’ll get a lighter sentence. He threw out a few names under pressure, and as a result, Charkaoui was detained for almost 2 years. When this information was retracted, Charkaoui was released, having to be tracked electronically, having an escort all day at work, and subject to have his house invaded by the police if needed any time of day, among other restrictions.

One: The source is unreliable. Who is to say the others are not?


What does CSIS do with the information? How is it handled? Believe it or not, in June the Supreme Court of Canada reprimanded CSIS for destroying evidence. This is the first time CSIS has been told to keep careful check of their steps.

Evidence and information that has been destroyed includes original notes and taped conversations. CSIS has also been reported to document and file information that are just summaries of events and facts, but does not present the context that information is taken in. As we all know, information that is presented without context can be manipulated in any way to give a completely different meaning. It is this non-contexual information that is presented to the Federal judge.

CSIS is violating their own acts. The Supreme Court reported, “The meaning of the word 'intelligence' in Section 12 should not be limited to the summaries prepared by officers. The original operational notes are a better source of information and evidence," and the "destruction of operational notes is a breach of CSIS duty to retain and disclose information".

Two: CSIS breaches their duty to retain and disclose information. They illegally destroy evidence and violated Charkaoui’s charter rights by destroying original records, the basis of the case.


It is all done behind closed doors, where we suspect anything can be done with the information, and that suspicion has now become fact. What we can take away from this, is the source of their information is questionable, and the evidence that they do hold is tampered with.

The fact that this is all masked from beginning to end is a great injustice to the accused, to the justice system and to the Canadian people.

For more information on CSIS and their manipulation of 'evidence': http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20080626/charkaoui_SCC_080626/20080626/

Guantanamo North. The Living Conditions of the Suspected.

Guantanamo Bay. It is known as one of the most inhumane prisons in the Western world.

In Cuba, these inmates have been suspected of being a threat to American National Security and have been held under horrendous conditions. (I remind you they have not officially been charged based on concrete, public evidence) Guantanamo's inmates have been known to be beaten, confined in cold cells, deprived of sleep and experience abuse of religion; having their Holy Book, the Qur’an, thrown in the toilet among other instances. Many of these detainees have been held since 2001, after the attacks on the World Trade Centre.

Far in distance, and close in likeness is Millhaven Penitentiary. It is a high-security prison outside Kingston, Ontario. The location of concern is a small prison within Millhaven that houses six persons.; six detainees suspected of threat to National Security. Parallel to the security certificates and evidence, these men have been detained and their conditions and experiences have been hidden from public scrutiny until the men have the opportunity to disclose their experiences.

Again, these men are held indefinitely, not knowing what evidence is being held against them. Currently, we have remaining a Syrian refugee Hassan Almrei. Would you care to take a shot in the dark how long he’s been there? 8 months? 15? 2 years? The answer is, this month marks his 7th year that he’s been held in detention under the National Security Certificate.

Maybe he is not beaten here. Maybe he is not intentionally robbed of sleep. Maybe the pages from his Holy Book are not torn out. But what we do have is a place where people can be tortured with the prospect of being held between four concrete walls without knowing when you will taste freedom again, just like in Guantanamo Bay.

Almrei said, “I am in jail for seven years in a country where they call themselves a democratic country. They believe in principle of law (but) they have a double standard – one for Canadian citizen, one for non-citizens.” Many human rights activists have fought against the psychological torture of the detainees in Millhaven.

In January of 2007, one of the detainees, Mahmoud Jaballah wrote in an open letter to the Canadian people:

“And now we are faced with the denial of medical care. In one case, shots for Hepatitis C have not been given since September 2, 2006. Surgery for a knee injury and a double hernia have not been scheduled, even though we have been here since April, 2006. Our demands are very simple.
We would like to use phone cards to call family overseas. The KIHC makes us use the most expensive plan available, which our families can't afford because they are on social assistance. Since calls are monitored, it makes no sense why a cheaper calling card cannot be used.
We want the same rights as other federal inmates: access to a library, educational programs, and trailer visits with our families where we can stay together for three days every month.”

He continues to mention they their outdoor area is just three meters away from a large fenced in grassy area that is not in use by other inmates.

I leave you with this quote and wish to hear your reflections on the living conditions of those being detained under the security certificates: “Ultimately, we wish to be treated as human beings, and all human beings have rights. We wish to be reunited with our loved ones, but until that time comes, we want to live with as much dignity as is possible while we are at Guantanamo North. There is no security-related reason why this is not possible.”

(Actual open letter: http://www.dominionpaper.ca/articles/924 )

Charter challenge supported by special advocates

In September 2008, two court-appointed special advocates filed affidavits in Federal Court arguing that, under the restrictions imposed by the new security certificate provisions of the IRPA, mounting a proper defence for the detainees they represent is impossible.

In particular, these two special advocates, working on behalf of three of the five men currently held under security certificates, are concerned about s. 85 of the Act which limits communication between the advocates and their clients. (Although I am using the word client here, it is important to remember that a formal lawyer/client relationship does not exist in these cases. It is based in part of the fact that lawyers formally representing security certificate detainees would find themselves in positions of conflict of interest in that in most cases, they cannot fully disclose to their clients the evidence against them. Detainees may have additional counsel who are not on the list of approved special advocates. )

These affidavits were filed in support of a motion by Lorne Waldman, attorney for detainee Hassan Almrei, arguing that the current provisions violate his client's Charter guarantee of fundamental justice (s.7) and the special advocates guarantee of freedom of expression (s.2b). If the court will not strike down the current legislation, the motion calls for the Court to "read down" the law to allow for communication between the special advocate, the detainee and their counsel after the special advocate views the confidential information without requiring a judge's authorization. Special advocates would not be able to disclose confidential information but would have continued access to the detainee.

These two special advocates are arguing that the Special Advocate provisions in the Act make it difficult for them to do their job and that the confidentiality and national security provisions not only limit communication with the detainees once the advocates have seen the confidential 'evidence', but may in fact prevent communication with office staff, other special advocates and even individuals appointed by the Government to support the special advocates, unless expressly granted by a judge. The non-disclosure provisions do not apply to government counsel.

The Canadian Bar Association has criticized the new legislation both in its development stage and since its enactment and a key area of criticism was the blanket non-disclosure provisions contained in the Act.

The government is arguing that the current provisions appropriately balance the need to protect the rights of the detainee and the national security imperative and should be upheld. Further, it suggests that the non-disclosure not only of confidential 'evidence' but also of information regarding the proceedings (e.g. number of witnesses and the agencies they may be affiliated with, etc.) is necessary for the success of the security certificate process.

The Federal Court ruling has not been announced as of this post but will have an enormous impact on the use of these certificates. If this challenge is successful, it may mark the beginning of an entire new round of policy discussions and provide an opportunity for renewed mobilization around the issue.

Canadian Bar Association information
Ctv news story regarding Court challenge

Critiques of Bill C-3 from inside the policy process

So, the Conservative government says that security certificates are a critical tool in the anti-terrorist arsenal of Canadian security services and that the safety of our children, values, way of life, etc, etc, is at stake. This was certainly the tone adopted by Conservative MPS and Senators in order to push through Bill C-3 despite calls for further debate and discussion from all three other parties. If a new law was not in place by the time the Supreme Court’s decision came into effect, the Government argued, the sky would fall, bombs would explode and the terrorists would win. In fact, the threat of sleeper cells that could strike at any time was referenced by a number of MPs in the House of Commons, especially when explaining why they appeared to be supporting the bill despite serious reservations about it. Ultimately, the Bill passed not based on any real degree of consensus about the strength of its provisions, but based on successful fear-mongering.


Some key criticisms of the Act raised within the House of Commons and Senate

Within the debates prior to the Act coming into effect, and subsequently, critiques of the Bill included the following:
1. That, even with the changes proposed, the security certificate provisions in the Act would not survive another Supreme Court challenge. The continued denial of full disclosure of information to individuals detained under the security certificates remained fundamentally unaddressed by the amendments.

2. That the use of “special advocates” had already been tried in other jurisdictions (the UK experience was the most commonly referenced) and had been deemed unsuccessful. More successful, home-grown models were identified by the Supreme Court and experts in security issues as possible replacements for the security certificate process. The Security Intelligence Review Committee, for example, an independent, external review body that monitors CSIS activities, was seen as a possible model that possessed safeguards for protecting individual rights not found under the proposed legislation.

3. That security certificate applications often rely on evidence gathered in other jurisdictions, and, not only can special advocates not access witnesses outside of Canada for cross-examination, but it is impossible for Canadian authorities to guarantee that this ‘evidence’ was not obtained through the use of torture, which violates the UN Convention against Torture, to which Canada is a signatory.

4. That criminal law and not immigration law should be used to handle these cases (raised primarily by NDP MPs within the House of Commons). Their arguments focused on two key concerns:
a. if these individuals posed credible threats to Canada, merely deporting them was not a response that guaranteed our safety and, in fact, may allow for continued anti-Canadian activities from abroad; and

b. if credible threats were discovered involving these individuals, there were already provisions within Canada’s Criminal Code for handling these security concerns. Relying on criminal charges also ensured that the right to due process would be respected.

Despite these criticisms, and alternative proposals presented, the Bill was enacted and implementation of its provisions is underway. Many of the concerns raised through this process appear to be borne out by the experience of the past months. The possibility of another successful Charter challenge appears increasingly likely. This will be explored in future posts.


How did this contested Bill become law?

In my opinion, it's all pretty simple - and awful. Somehow a minority government was able to push through this legislation with little serious resistance from its main opposition or from Canadians because of the current climate of fear, intolerance and ignorance. The all-consuming fear of the ‘other’, particularly an Arab or Muslim ‘other’, so effectively marketed since September 2001, is a clear thread running through the debate about security certificates. It justifies the need to sacrifice the fundamental rights of these ‘others’, these people who are portrayed as having ‘betrayed the kindness and generosity of Canadians’ by coming into ‘our’ country with ‘evil intent’ (remember, no criminal acts need to have been committed, just a perceived risk of future actions).

The Charter violations are justified by the ‘otherness’ of those subject to them, the flip side of which is the repeated reassurance that “don’t worry, we’d never do this to Canadian citizens”, as if somehow it should matter less if it just happens to “them”, and as if the line between “us” and “them” is clearly and impermeably drawn (this despite an unsuccessful private member’s bill introduced into the House of Commons in 2002 which would permit citizenship to be revoked for those individuals found to be linked to terrorism).

The xenophobia and racism inherent in the security certificate debates reflect the larger discourse around national security, immigration and the ‘war on terror’ and continue to shape policy in this country.

Resistance outside the policy arena

Opposing security certificates is difficult because so much of the information is kept secret that it’s hard to even have a conversation about their merits. The formal processes that are in place for those that are subject to them, as we’ve talked about, are very restrictive. The policy process is also pretty limited, unless you’re part of government or a more formal organization. Even then, change is slow and incremental if it happens at all. Another constitutional challenge has just started, which is great, but for those of us without law degrees, what other avenues are available?

Well since the beginning on this decade, there’s been creative resistance coming from the detainees, the families of the men on security certificates, and other activists. There are 5 men on outstanding security certificates, although only 1 continues to be detained (Hassan Almrei’s 7th year in detention).

While being detained, three of the men went on hunger strikes to protest the detention conditions, and to demand better treatment, such as access to medical care. They were each on hunger strikes for 3-4 months. During this strike, they released an open letter that includes this paragraph:

“We have been very patient and done our best to deal with a process where it is impossible to defend yourself. And we will remain patient, because we know that ultimately, we will be let out, because we are innocent men. But sometimes there is only so much human beings should be required to accept before they raise their voice in peaceful protest. We do not want to be on hunger strike. It is hard on us and our families. But it is the only voice we have.”

The full letter is available here: http://www.dominionpaper.ca/articles/924

Four of the original five men were released at different times on strict conditions while the proceedings continue. For example, Mohammed Harkat is living in a home equipped with video-surveillance and tapped phones, and he was unable to attend his own birthday party, lest it turn into a “political event.” The men continue to speak out about security certificates though, in ways permitted by the courts, such as attending court for the most recent constitutional challenge.

An across-Canada campaign arose in protest of security certificates, centered in the cities where the men were originally detained: Vancouver, Toronto and Montreal. This is the position taken by No One Is Illegal Vancouver:

“We demand that the Security Certificate process be completely abolished.
For those currently still imprisoned under security certificates, we demand:
- The immediate closing of the Kingston Immigration Holding Centre
- That they be released immediately; or, if any case against them actually exists, that they be allowed to defend themselves in open, fair and independent trials with full disclosure of the case against them.
- That they not be deported”

Most of the other anti-security certificate activist groups have similar demands around abolition, rather than revision.

There have been numerous protests, rallies, letter writing campaigns to politicians, sit-ins, street theatre, and press conferences to publicize the conditions of detention, the security certificate process and the contradictions that came up during the processes. The men subject to certificates have been very vocal during and after their detentions, as have the families and other advocates. Existing activist groups supported the campaigns, and new groups arose around the issue specifically. Coordinated days of action served to show resistance across the country to security certificates, such as the weekend of Oct. 22nd/07 when there were protests in a dozen cities across Canada (according to CP – I know of at least one that’s not listed in the article, so I’m sure there were many more that escaped the press’s attention). Also letter writing to the men on security certificates was encouraged to keep spirits up and keep communication open as a show of support. People were trying to do both negative (protest) and positive (support) actions to address security certificate detentions. This appears to have been effective by keeping it in the media and in the public realm, despite the efforts of the government to brush it (and these men) under the rug.

Most of the info here is from No One is Illegal Websites (Montreal & Vancouver) as well as the Campaign to End Secret Trials.
http://nooneisillegal-montreal.blogspot.com
http://noii-van.resist.ca
http://www.homesnotbombs.ca/secrettrials.htm

Changes to Security Certificates 1991 - 2001

The laws surrounding Security Certificates have changed over time to adapt to the different security concerns Canada has had to face. While Security Certificates have been a part of Canadian policy since 1977, they were adapted into Canadian immigration law in 1991. It was at this point that the Security Certificates found their current form. During the ten years between 1991 and 2001, ten Security Certificates were issued against individuals in Canada. During this period the Security Intelligence Review Committee reported concerns about Security Certificates. It reflected on the fact that the manner in which evidence was gather was unprofessional and did not follow adequate standards.

Prior to 1991 it was the Security Intelligence Review Committee that heard the cases about Security Certificates. In this court decisions were made on a high probability standard. This meant that there had to be a more than 50% chance that the allegations were true. After 1991 though it was the Federal Court that began hearing cases about Security Certificates. This court basis its decisions on reasonable grounds which means there can be a less that 50% chance that the allegations are true. So even if it seems quite unlikely that the individual is guilty the security certificate will still be upheld. Apparently credibility is not that important when it comes to these types of cases.

Also prior to 1991 the Canadian Security Intelligence Service officer who made the reports could be questioned. This meant that if there were any questions about the report or investigation, the officer could be brought in for clarification. A third party lawyer would be invited to the proceedings and the Security Intelligence Review Committee could ask for a more detailed report.

The Security Certificates allow officials to treat these individuals in a manner that differs from the way they treat Canadians. These are people who do not have a legal right to be in Canada and the Security Certificates pick up on this point and places great emphasis on it. By doing so, they subject these individuals to certain acts and types of treatment that would be unacceptable on the rest of society. For example, it would be expected that the officer who wrote the investigation report for your case, would be present at the court. That way any ambiguity about the report could be explained. With the changes to Security Certificates after 1991 however, this was no longer the case for these individuals.

The act seems to be saying that it is acceptable to treat people unequally. If you are Canadian then you are allowed to be treated with a certain level of respect and with regard to your personal safety and well being. Unfortunately if you are an individual who is simply visiting the country of living here without citizenship, then you will not be accorded these things.

So, where do things stand now?

A bit more background - the nuts and bolts of the new legislation
(This section may be a little dry so please bear with me, we'll get to what it all means soon)

As mentioned in previous posts, in February 2007, in a unanimous decision, the Supreme Court of Canada (SCC) determined that certain provisions in the Immigration and Refugee Protection Act (IRPA) dealing with security certificates were unconstitutional. The case was based on the appeals of three of the men subject to these certificates: Adil Charkaoui, Hassan Almrei, and Mohamed Harkat. The Court determined that the IRPA provisions violated s.7 of the Charter. In simple terms, the Court found that it violated the principles of fundamental justice that the accused were not fully informed about the case against them and could therefore not respond effectively in their own defence. However, the Court suspended its judgement for 1 year in order to give the government time to bring legislation fully into line with the Charter.

In recent years, the debate about security certificates has been held in several House and Senate committees examining the broader questions of national security, anti-terrorism, and immigration policies. These committees have heard from a range of experts and received briefs from individuals and organizations from across the country. Therefore, along with the recommendations of the SCC, there were a number of options and recommendations offered by these multi-party committees to inform the development of the new legislation.

In October 2007, the Conservative government introduced Bill C-3, An Act to Amend the Immigration and Refugee Protection Act (Certificate and Special Advocate) into the House of Commons. It passed through the House with only minor revisions, supported by the Conservative and Liberal MPs and opposed by NDP and BQ members. The Senate passed the Bill within a week and it received Royal Assent on February 14th 2008.

Major changes in the legislation
The new legislation continues to allow the use of security certificates for detaining (and deporting) permanent residents and foreign nationals without charge. The major change to the legislation involves the appointment of 'special advocates' for the individuals subject to the certificates. These advocates are able to view the evidence against their clients and to call and cross-examine witnesses in order to challenge the detention/deportation order. The advocates can meet with their clients prior to seeing any classified evidence (an unclassified summary is made available), however, once the advocate has seen the classified material, contact between them and their clients is generally restricted to ensure that this information is not shared. A provision in the new legislation allows for the advocate to challenge the confidentiality of the evidence so that their client can learn the facts of the case against them.

Another key change in the legislation is that whereas previously foreign nationals did not have the same rights as permanent residents to regular reviews of their detention/deportation orders, under the new legislation all those subject to the security certificates have the right to have the order reviewed (within 48 hours of its issue and then at six month intervals).

Other changes are largely procedural and involve, for example, concurrent hearings on the reasonableness of a security certificate (whether a person can be deported) and the Pre-Removal Risk Assessment (PRRA), which determines whether the person subject to the deportation order would face a significant risk of persecution, torture or death if returned to their country of origin. If the security certificate is deemed to be reasonable but the person faces a significant risk of harm if deported, detention may be relied on indefinitely.

So, that's where we are and how we got here. Ultimately, the new legislation is aimed at addressing the specific concerns identified by the Supreme Court without fundamentally altering the way in which security certificates are currently used in Canada. While the government rhetoric suggests that this revised legislation has struck the right balance between protecting Canadians from terrorism and maintaining our core Canadian values of democracy and human rights, critics suggest that these changes are nothing more than (as our American friends might say) 'putting lipstick on a pig'.

Now that we're through the nuts and bolts, my next post moves from "where are we now?" to "what does it all mean?"

Canada’s Historical Use of Emergency Security Laws

While the idea of security certificates may be new to many people, the issue which they deal with is by no means a new phenomenon. The issue of course is that of national security. National security is one of the most important things a national has to deal with since countries are responsible for protecting the nation and its citizens from harm. This issue has been in the forefront of so many people’s minds in recent years that is would appear as though Canada has never had to face a security issue in the past. From the way everyone from Paul Martin to The Mackenzie Institute to my high school math teacher goes on about security, you would think it’s the first time Canada has come across this problem.

Yes, Canada is a young nation, and as such it has not had to deal with the same types of problems countries in Europe and Asia have faced. It is true that Canada does not have the same level of experience. Having said that though, throughout its history, short as it might be, Canada has had to deal with a number of security scares. The placement of immigrants from Austria-Hungary into concentration camps in the First World War, the removal of Japanese Canadians during World War Two, and the internment of Jewish refugees from Germany are all examples of how Canada has taken extreme measures to deal with security scares. I use the term “security scare” quite loosely here because I’m not too sure who exactly is “scared” and whose “security” we are protecting. To be honest, in many of these cases I believe that the individuals under scrutiny had more reason to be scared for their own security than the country did as a whole.

If that list of past periods of uncertainty is not enough, there is still another period to add to it. Who can forget the Red Scare? Well unfortunately, too many people. The Red Scare refers to the period after World War Two during which ideological insecurity spread across Canada due to a mistrust of the Soviet Union. The Red Scare is closely related to the Cold War and the fear that the Soviet Union was gaining too much strength and that communism would soon spread throughout the world. The Soviet Union used spies in various countries to gain intelligence and the Canadian government decided to use extreme tactics to combat this. Any individuals who were communists or perceived to be sympathetic to the Soviet Union were met with suspicion and hostility. Ottawa used the War Measures Act to arrest, detain and interrogate suspects without going through the standard channels. As fear and panic increased, legitimate citizen dissent became confused with espionage and any individuals, organizations or groups who were involved with communism were seen as a threat. This led to the screening of thousands of individuals, amendments to the immigration policy and many immigrants were faced with deportation.

There were lesson we learned from this point in history about how to deal with security and the dangers that come from acting out of fear. The Red Scare raised questions about freedom and democracy within Canadian society. Can the use of such extreme tactics really be justified in a democratic nation? The Canadian government has been criticized for the way it handled the situation and its disregard for the basic liberties of the people it chose to pick out. It seems to me that the way the government chose to go about “securing” the country was questionable and based more on seeming ignorance than actual fact.

The Canadian Historical Association printed an information booklet entitled “Canada’s Red Scare 1945 – 1957” in early 2001 in an attempt to educate the public about this period in Canada’s history. This was just before 9/11 and the widespread, almost manic, public fear that soon spread. The historical booklet brought up the question of whether something such as the Red Scare could ever happen again. It leaned more towards the notion that while it is possible, its rather unlikely that a Red Scare would reoccur. Well as we all know, shortly after this publication two airplanes flew into the World Trade Centre and the rules of the game changed. I believe that it is all too likely that Canada will not learn from its past and based on its current use of Security Certificates, Canada will quite possibly make the same mistakes yet again.

Security Certificates 1970's-1991

After a series of restrictive policies specifically directed at various racial and ethnic groups, the Canadian government submitted to pressure to remove the overtly racist sections from the newest version of the laws on immigration in the 1970s. They also formalized the process for refugee claims although it wasn’t until the 1980s that oral hearings were created under the federal Immigration and Refugee Board. It seems the system was not well funded and became increasingly backlogged with hearings and processing of applications. A number of restrictive immigration bills which included provisions for security certificates were passed during the late 1980s and early 1990s including the Refugee Deterrents and Detention Bill. What a name. This Bill came about after an emergency recall of Parliament due to the arrival of a group of Sikhs claiming refugee status in Nova Scotia (?!?!?!?!). The immigration and refugee system continued to be very restrictive and slow moving, but the actual security certificate provision was rarely used. In 1984, the security aspects of this process were transferred from the RCMP to the control of CSIS (Canadian Council for Refugees, 1999).

The most well known account of the 1980s is that of Salvadoran journalist Victor Regalado, who was detained on a security certificate in 1982. The provision at the time said “that ‘inadmissible persons’ can include those ‘who there are reasonable grounds to believe will, while in Canada, engage in or instigate the subversion by force of any government.’” (The Globe and Mail: Jan 30, 1987. pg. A.3)

After a public outcry, Mr. Regalado was released on strict conditions but was eventually sentenced to deportation in 1987. He was allowed to stay in Canada while they found a country that would accept him, since the federal government apparently accepted that he could not be deported to his country of origin. The certificate was issued by Federal Solicitor-General Robert Kaplan and Immigration Minister Lloyd Axworthy, who could not be questioned about it in Court, because any answers would be a violation of the Immigration Act! The courts did not (and do not) have the right to examine the certificates, the information relied upon, or the Ministers who issued them. The federal court upheld the process, saying that the Ministers were not obligated to disclose any information pertaining to the detention, deportation, or risks posed by Mr. Regalado.

An article in the Gazette (Apr 28, 1987. pg. A.5) a couple months afterward is quite telling – “Despite public "misapprehension" about newcomers to Canada, junior Immigration Minister Gerry Weiner said yesterday he wants to see 1984's immigration level doubled before the end of the Conservative government's current mandate.” It later mentions “While Canadians are neither "bigots, nor xenophobic," there are fears expressed in public opinion polls that immigrants grab jobs while unemployment is still high.” Much of the literature at the time seems focused on ‘false’ refugee claims and “abuses of the system,” as well as getting the ‘right’ kinds of immigrants. These restrictive policies were being revised repeatedly by conservative governments in the context of an economic recession and frustrations being funneled towards certain newcomers to the country.

There were several detentions of Iraqi citizens on security certificates in 1991. The certificates seem to be used against blanket groups deemed risky, without much focus on the particular risks individuals present. And remember, they can never be used against a citizen of Canada, only people without Canadian citizenship status. The development of the certificates in the broader context of refugee and immigration policies is clearly mired in racist, xenophobic, and protectionist ideologies.

Constructing 'Terrorism' Historically

I set out to write a post on the history of terrorism in Canada. Instead, I’ve written why it’s not possible to really write about that. There is no list of incidents because it all comes down to ideology - how you define a terrorist act is not something that everyone can agree on.

The dictionary tells me that terrorism is the systematic use of terror, especially as a means of coercion. Many states would fall into that definition, but I don’t think the authors meant to include, for example Canada, when they wrote that. As with many terms, its definition is created by the person using the word. A few groups are happy to call what they do terrorism – their intent is to inflict terror – but many others have the term imposed on them by outside parties or governments who deem their actions unlawful. Was the FLQ an independence movement or was it a terrorist organization? What about the Minute Men? The Mohawk community from Kanesatake (who in 1990 attempted to protect sacred land near Oka, Quebec from development)?

The first use of terrorism has been traced to the French Revolution and the ‘Reign of Terror.’ Its first recorded use in Canada is just after Confederation. The institution of Canada was created and imposed on Turtle Island in 1867 after several hundred years of colonization and brutality. This period, of course, is not usually defined as terrorist in nature by mainstream writers. Instead they pinpoint the assassination of D’Arcy McGee, a federal minister, in 1868 as the first act of domestic terrorism to occur. But what could be more systematically terrorizing than the attempted annihilation and more coercive than the forced assimilation of the indigenous peoples of this land?!

Depending on your viewpoint, you could examine terrorism in Canada as

1. directed by the state against indigenous peoples and lands;
2. state terrorism by Canada in other parts of the world;
3. attacks directed against provincial, federal and private institutions in Canada; or
4. the activities of organizations within Canada in support of conflicts in other parts of the world.

Any others? These are the ones I came up with when thinking about the idea. Much of the mainstream focus in Canada is on groups deemed to be terrorist that are operating within its borders, or on possible attacks from some vaguely defined outside threat from ‘others.’

There’s a great t-shirt from Native Press in the US with the slogan “Homeland Security: Fighting terrorism since 1492” and a picture of several Native American folks with rifles. That’s not usually what we see in the media when talking about terrorism and security, though is it? There is some lit that talks about how the public’s attention is diverted from the history of oppression of indigenous people by the media characterizing attempts to resist (such as land reclamations or protests against environmental destruction) as ‘terrorist.’

I think it's important that we continue to examine and deconstruct how terrorism has been historically defined and by who, as well as how it's being used in the present context. You probably already have an idea of my politics, but to be clear, I’ll say I define myself as anarcho-feminist, and working from an anti-oppressive standpoint is important to me.

The Dawn of Justification for the Compromise of Human Rights

The History of Security Certificates from 2001-2008:

Security Certificates used to be used towards suspected spies, but now they are being used on suspected terrorists. Do they need to have enough information before they detain you? No, but they’ll hold you down while they’re in the months-long process of searching for more information to decide whether you are truly a threat or not.

Naturally, once the 2001 attacks happened in New York City, Security Certificates came into the forefront of the Canadian public’s attention; which is odd that we would need such a thing, given that we do not often hear of any pending attacks from Anti-Canadian foreigners.

After the attacks on The World Trade Centre, Bush has quoted, “America will never seek a permission slip to defend the security of our people” (i.e. we don’t care for your opinion), “I will never relent in defending America - whatever it takes” and “I believe the most solemn duty of the American president is to protect the American people. If America shows uncertainty and weakness in this decade, the world will drift toward tragedy. This will not happen on my watch.” Clearly he thinks American citizens are feeble minded and helpless. According to him, we need to surrender our protection and security to ‘daddy’ and have him make decisions on our behalf, even if we’re forcibly handing over our rights under the guise of ‘National Security’.

Why quote what Bush says? Well it’s no surprise that Canada is following in America’s footsteps. They invade Afghanistan, we send troops. They feel their security is threatened and they need to take measures without boundaries, the same happens over here.

So what does Harper say about suspected terrorists and Security Certificates? “Whether the best thing is to send them right out of the country or simply detain them until we get full information, we can look at either; but know this is a problem that does need to be fixed. Particularly post 9/11, we can’t take these kinds of security risks." (Feb 2004). And I once again quote "SIMPLY" detain them UNTIL WE GET FULL INFO. To them it is simple to take someone out of their home and family life and throw them in a cell for months on end. Let's take this quote to heart.

Once again, just like Bush, “by any means necessary”. If it means detaining you for months with lack of sufficient information, then that’s what has to be done.

Question: what happened to the whole ‘warrant’ idea… having enough proof in order to obtain a warrant before searching someone’s personal space and arresting them? In this case it’s more like, “We have an inkling…but will arrest you until sufficient information may or may not be found”.

The quote by Harper above about Security Certificates was in 2004. Let’s fast forward to 2007. They've decided they can't just decide to send a 'National Threat' 'back home' IF that person will face death or torture. So instead, they'll SIMPLY be detained.

Whereas before the detained did not have a right to a lawyer, The Supreme Court decided (more like suddenly became enlightened with a dose of common sense) that detaining individuals without allowing someone to advocate on their behalf is a violation of human rights. Yet still, while the lawyers are exposed to the ‘evidence’ – the detained, their family nor the public can know what that terrorist-related ‘evidence’ is.

A summary is given to the individual, but the “summary must include sufficient information to enable the individual to be reasonably informed of the circumstances giving rise to the certificate, but it does not include anything, in the opinion of the judge, that would be dangerous to national security or the safety of any person if disclosed”. Adil C. claimed that his 400 page report that he was given while detained, cited nothing in relation to him and Al-Qaeda.

Source for more info: http://www.publicsafety.gc.ca/prg/ns/seccert-eng.aspx

Localized Human Rights

What’s this new fad in national security? What’s that recent hype about detaining people without providing a reason? Have you heard about this up and coming hot topic about security certificates?

Well here’s the thing. It’s nothing new! Security Certificates have been part of the Immigration and Refugee Protection Act since the late 70’s. What’s it all about? Security Certificates are a sheet of paper the Canadian Security Intelligence Service (CSIS) obtains to detain non-Canadian citizens as long as they want or deport them based on information that they need not release to anyone. (my co-bloggers will give you some more info about the history)

Okay, so they’re non-Canadian citizens…no biggie, they’re not official Canadian’s anyways. So what if they hold ‘em between four empty walls for weeks and months on end and then send ‘em packing without explanation? Well it doesn’t stop there. In 2002 these Security Certificates have been extended to include permanent residents in Canada. (Forget what you learned in Grade 2 though. The term ‘permanent’ is flexible in this case)

So basically, if the Canadian Security Intelligence Service (CSIS) feels that you have been, are, or will be a threat to National Security, then, my friend…you are going back to wherever it is you came from. It really doesn’t matter to us what happens to you after; doesn’t matter if you’re going to be tortured and killed ‘back home’….as long as you’re out of our hair.

You’re thinking, maybe they did something wrong. Maybe they have evidence against these people. My response is, ‘who knows!’. Really. I want to know. Who knows? Because I don’t know. You don’t know. The accused doesn’t know. Their family doesn’t know. The public doesn’t know. Frankly, we may never know!

For example, you have Adil Charkaoui, one of the accused… He claims that while he was detained, he was presented with a 400 page report. 14 of those pages included direct information about him including that 1. He was Muslim, 2. He was Arab, 3. He studied martial arts, 4. He is married, 5. He has children, 6. He has certain academic degrees and 7. He went to Pakistan. Nothing in their information against him cited him in relation to terrorist acts.

Now before rambling on, we must remember that the major issue is basic human rights: The right to not be thrown between four walls without awareness of the justification. The right to not be stolen from your family, your friends, your job and the comforts you worked towards. Whatever happened to innocent until proven guilty? What happened to due process? Whatever happened to the same human rights as even ‘proven rapists’. They get visits. These accused fellows didn’t even have permission to see their family.

This is an issue that affects every one of us. First non-citizens, then permanent residents….next… YOU! Can you imagine sitting at work and all of a sudden you get rushed by CSIS and thrown in a jail with murderers, felons, racists, gangsters and rapists?
This issue is presented to us as: ‘human rights’ only applies to us born on this piece of land. Is this justice? Is this the freedom Canada brags about? Are human rights localized, or universal?
But shhhhhh don’t say anything that might sound the least bit critical of your government, you never know what they’ll hold against you. Really….you’ll never know.