Security through Human Rights
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Security through Human Rights Amnesty International Canada’s Submission to the Special Senate Committee on the Anti-Terrorism Act and House of Commons Sub-Committee on Public Safety and National Security as part of the Review of Canada’s Anti-Terrorism Act
Amnesty International Canada Amnistie Internationale English branch Section Canadienne francophone www.amnesty.ca www.amnistie.qc.ca Security and Human Rights: The Global Context … recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world1 Fifty-seven years ago, in the wake of the carnage, devastation and insecurity of the Second World War, the United Nations rightly established that the protection of fundamental human rights must be at the very heart of how we live our lives and govern ourselves. The eloquent opening to the Universal Declaration of Human Rights highlights that “freedom, justice and peace” depend entirely on there being full respect for basic human rights. Freedom, justice and peace are of course in turn the very values that are at stake in the current global debate about security. Security is about freedom, about justice, and certainly about peace. This first crucial universal human rights document was adopted at a time when the world was painfully aware of the depths of depravity to which human beings can descend, and the extent to which it is overwhelmingly civilians who are the primary victims of the violence and insecurity that results. When governments established the global human rights order they knew that they are often forced to confront horrifying events and take decisive action. They agreed however that their actions must always proceed within a binding human rights framework, which would bar them from violating fundamental rights directly and also require them to take steps to protect their citizens from human rights abuses that others might commit. In taking this step, governments were not somehow selling security short. Rather, they expressly noted that it is “disregard and contempt for human rights” that have “resulted in barbarous acts.”2 Security would come by embracing and committing to human rights like never before. As the international human rights system developed, more detailed and comprehensive treaties continued to grapple with these fundamentally intertwined imperatives to protect human rights and ensure security. Some rights were therefore drafted in terms that recognize an inherent balancing which takes into account the need to safeguard national security, public order or the protection of the rights of other people.3 Other rights are not open to balancing, but can be suspended temporarily if necessary “in time of public emergency which threatens the life of the nation.”4 Finally, a number of human rights are specifically identified as being of such importance as to never be subject to restriction or derogation, such as the right to life, the protection against torture and cruel treatment, the prohibition of slavery and freedom of religion.5 Despite the careful crafting of treaties, declarations and resolutions that recognize and accommodate the responsibility of governments to act to ensure the security of their citizens and the obligation of governments to intervene to protect individuals from human rights abuses at the hands of others, governments around the world have consistently used arguments about security as an excuse for violating the full range of universally protected human rights. Throughout more than four decades of investigating, documenting and reporting human rights violations around the world, and long before the events of September 11, 2001 brought the issue to the forefront of global debate, Amnesty International has highlighted this concern in countries on every continent. Faced with widespread armed opposition or sporadic violent protests; with sweeping peaceful opposition or limited underground dissent, governments have used “security” as an excuse for mass arrests of ethnic or religious minorities, for the torture of political opponents, and for launching military action that results in huge numbers of civilian deaths. Invariably the abuses have served only to create further resentment, grievance, opposition, violence and insecurity. In the end, neither human rights nor security have been advanced. Following the September 11th attacks in the United States and in the aftermath of later terrorist attacks in Spain, Russia, Indonesia and elsewhere, Amnesty International has repeatedly underscored the central role that human rights must play in all laws, policies and practices that governments adopt to counter terrorism and enhance security. We have highlighted that the debate about human rights versus security is a false debate. This is a point that has been repeatedly made before the September 11th attacks and has been explicitly endorsed in court rulings in countries such as Israel, faced with serious security concerns: This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the rule of law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties.6 Human rights and security: there is no trade-off. This has been reiterated and affirmed again and again over the past 3 ½ years by other organizations,7 by international8 and national-level9 political leaders, and in important court decisions.10 Human rights will always be precarious if security is not assured, and security will inevitably be tenuous at best if not firmly grounded in human rights. It is from this perspective that Amnesty International makes its contribution to the current review of Canada’s anti-terrorism laws. As would be the case with a review of any country’s approach, Amnesty International is concerned to ensure that those laws, adopted in the name of security, do not cause or facilitate human rights violations. This is of vital importance in ensuring the protection of the basic rights of individuals, be they Canadian citizens or not, who may be impacted by these laws. It is doubly important however in that Canada must set a model for other nations to follow. Canada is frequently recognized and often lauded on the world stage for its commitment to the protection of fundamental human rights, at home and abroad. It is all the more critical therefore to ensure that Canada’s laws and practices demonstrate clearly that security can and must be pursued in a manner wholly consistent with international human rights obligations. Scope of this Brief This brief is submitted to the House of Commons and Senate Committees that are reviewing Canada’s Anti-Terrorism Act, as required by s.145 of the Act, which necessitates a “comprehensive review” three years after its coming into force. Amnesty International is of the view, however, that to fully understand the impact and operation of this law, both committees must review the wider context of Canada’s anti-terrorism laws, policies and practices. Many of the recent “anti-terrorist” actions taken by security agencies such as the Canadian Security Intelligence Service (CSIS) or by law enforcement agencies such as the Royal Canadian Mounted Police (RCMP) have taken place outside the operation of the Anti-Terrorism Act. A review which narrowly focuses only on the Act will fail to properly analyze and assess Canada’s approach to anti-terrorism and the role that the Act does or does not play in that regard. The Senate Committee has, in that spirit, agreed to include a review of the security certificate procedure under Canada’s Immigration and Refugee Protection Act. Amnesty International also urges the Committees to review and take account of instances of possible extralegal initiatives that may have been pursued by Canadian security and/or law enforcement agencies, including outside Canada. This is best typified by the case of Maher Arar, currently the subject of a federal public inquiry, but there are other cases of concern as well. Justice and Accountability: In theory but not in practiceAmnesty International welcomed some aspects of Bill C-36 when it was debated and adopted in the fall of 2001, notably the provisions which focus on ensuring that individuals who may have committed or may be planning to commit “terrorist activities” can be brought to justice. Amnesty International has frequently expressed concern that Canada has traditionally almost exclusively resorted to immigration remedies, such as deportation, rather than criminal law remedies when faced with the presence in Canada of individuals accused of committing serious human rights abuses in other countries, including abuses which would fall within the ambit of “terrorist activities.” Deportation in such cases is almost always problematic and inadequate. First, it often risks the individuals concerned experiencing serious abuses themselves, including extrajudicial execution or torture, contrary to Canada’s unequivocal international obligation not to deport in such circumstances.11 Second, it frequently means that following the deportation the individual will not be arrested or even investigated and that there will be no effort made to hold him or her accountable, thus reinforcing impunity and robbing victims of an opportunity to see justice done. In both cases the critical goals of international justice and universal human rights protection are undermined. Circles of impunity remain unbroken and further abuses only encourage more of the same. Amnesty International is concerned, however, that despite these reforms, Canadian practice continues to prefer deportation over prosecution when there are allegations that an individual who is not a Canadian citizen has been involved in or supported “terrorist activities.” These concerns are described in greater detail in the section below dealing with security certificates. Additionally Amnesty International is concerned that when allegations of involvement in or support for “terrorist activities” are made against Canadian citizens, there may be a pattern or practice of Canadian officials encouraging or allowing those individuals to be dealt with by security agencies in other countries, including Syria and Egypt, where safeguards against human right violations are lacking and where the risk of torture and arbitrary detention is very high. These concerns are detailed in the section below dealing with extraordinary renditions.
The Need for the ActAt the time that the Anti-Terrorism Act was adopted, many organizations, including Amnesty International, as well as legal experts, highlighted that the government had not explained what the gaps were in Canada’s existing statutory framework and why the new legislation was necessary. This was of particular concern given that a number of provisions in the new law either directly violated or had the potential to negatively impact upon basic human rights. Three years later that concern remains paramount. It is amplified by the fact that the legislation has been used very infrequently and that much of Canada’s approach to anti-terrorism has proceeded in other contexts where human rights safeguards have been lacking.
The Need for Comprehensive Reporting Section 83.31 of the Criminal Code obligates the government to report to Parliament annually with respect to the operation of sections 83.28, 83.29 and 83.3 of the Code. These are the provisions that allow investigative hearings and preventative arrests, sections of the Anti-Terrorism Act that were criticized as infringing due process rights at the time the Act was adopted. Similarly, provincial governments must report on their use of these provisions of the Criminal Code. The reports that have been issued by the federal and provincial governments have been of a very basic statistical nature. There is no background or context provided as to use of the provisions. The reports are not compiled in any one location, making it difficult to obtain a nationwide sense of the use of these provisions. Finally, as the reporting obligation is limited to only these three sections of the Code, the reports do not in any way offer a comprehensive picture as to the use of Canada’s anti-terrorism laws.
The ActIn submissions to the government in 2001 Amnesty International made a number of recommendations for amendments to Bill C-36, changes that we considered to be necessary to ensure that the legislation was consistent with international human rights standards. Some changes were made, but many were not. Amnesty International continues to be of the view that these amendments are needed.
In 2001 there was much attention to the issue of defining “terrorist activity.” International and national legal efforts to accurately define terrorism have found it a daunting challenge to craft a definition that has enough precision to be meaningful and yet not encompass a wide array of forms of political dissent, agitation and disobedience. The Special Rapporteur on Terrorism of the UN Sub-Commission on the Promotion and Protection of Human Rights noted in an August 2001 report that the effort to agree to a definition has been “approached from such different perspectives and in such different contexts that it has been impossible for the international community to arrive at a generally acceptable definition to this very day.”12 The recently adopted Inter-American Convention against Terrorism avoids formulating a definition and refers instead to a number of pre-existing international treaties dealing with specific offences such as hijackings of aircraft or unlawful acts which interfere with the safety of marine navigation.13 A draft Convention on the Prevention of Terrorism presently being considered by the Council of Europe, proposes a similar approach.14 The definition proposed in the original draft of Bill C-36 was too far-reaching and included activities carried out in full accord with international human rights standards. In fact, individuals whom Amnesty International would consider to be prisoners of conscience could have very well fallen within the definition’s scope. Some amendments were introduced before the new law was enacted, meant to narrow its scope. Amnesty International remains concerned, however, about the impact of the definition on basic human rights. There are three key elements to the definition: (1) an act motivated by politics, religion or ideology, (2) intended to compel a person, government or organization to do or refrain from doing any act, and (3) also intended to cause harm such as death or serious bodily harm; endangerment to a person’s life; risk to public health or safety; substantial property damage that is likely to cause death, bodily harm, endangerment to a person’s life or risk to public health or safety; or serious interference with an essential service.15 The definition goes on to specify that “the expression of a political, religious or ideological thought, belief or opinion” does not come within the definition unless it constitutes an act or omission that satisfies the criteria laid out in the definition.16 Amnesty International’s particular concern lies with the inclusion of political, religious or ideological motivation as part of the offence. Notably, instances where a definition has been agreed to in international level treaties have generally avoided adding such an element to the definition, such as the following from the UN treaty dealing with financing of terrorism: Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.17 Amnesty International agrees that governments have the obligation to ensure that acts which are intended to cause harm such as death, serious bodily harm, and risk to public health or safety should be investigated and, where appropriate, prosecuted by governments. That should be the case whether the act is motivated by politics, religion or ideology, or is otherwise motivated. Adding a political, religious or ideological element to this offence, however, significantly increases the risk of racial, religious or political profiling and other related discrimination. In a sense it effectively requires Canadian police and security services to investigate the politics, religion and ideology of suspects, witnesses, family members, community groups and others. It sets the ground for the experiences of profiling that Canadian Muslims, Arabs, South Asians and other ethnic and religious minorities have frequently stated they have experienced at the hands of police, security officials, and customs agents, including by means of intrusive questions about their religious beliefs and the details of where they worship.18 It may facilitate and even encourage discrimination in Canadian law enforcement practices. It may also introduce an element to the offence that is very difficult to prove in court and thus make successful prosecutions more difficult. The Canadian government has never demonstrated why it is necessary to include political, religious or ideological motivation in this definition. International treaties do not include it. It may well increase the likelihood of systemic discrimination on the basis of religion, ethnicity and political opinion in Canadian law enforcement and security practices.
Under the Act, the Governor in Council, acting on the recommendation of the Minister of Public Safety, may name any entity as one involved in terrorist activity. Once an entity has been so listed, an application can be made to the Minister arguing that there are reasonable grounds to conclude that the entity should not longer be a listed entity. The Minister’s decision on that application can, upon further application, be judicially reviewed by the Federal Court.19 This listing scheme does not provide entities with an opportunity to make submissions or respond in any way until after the initial decision has been made. It is only once the decision to list has been made public that there is a right to challenge the decision. Given that the decision may have serious criminal law, charitable status and public reputation consequences for the entity, Amnesty International recommends that there be a right to respond before the final decision is made. Even if an entity is successful in a subsequent application to be delisted, the fallout from the initial decision may be effectively irreversible.
The Anti-Terrorism Act included significant revisions to the Canada Evidence Act. In particular the Act established a draconian and highly secretive procedure whereby the government can, in any proceeding, block the public disclosure of “potentially injurious information” or “sensitive information.” Potentially injurious information is “information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.” Sensitive information is defined as “information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.” The hearing as to whether the information should be disclosed is held in camera and in fact, the mere fact that the hearing is even being held cannot be publicly disclosed. Ultimately, if the government disagrees with the court’s ruling it can issue a certificate which simply forbids the disclosure of the information.20 Amnesty International is concerned that including “international relations” in the definition of potentially injurious or sensitive information exceeds the limits on fair trial rights established in international human rights law. It raises the prospect of information being withheld from the public, from the accused in a criminal trial, and the parties to other types of legal proceedings, simply because it might embarrass Canada in its dealings with another government or become an inconvenience in international negotiations dealing with a trade or other issue. Article 14(1) of the International Covenant on Civil and Political Rights establishes the important right to a public trial and envisions the possibility of excluding the public from a criminal proceeding only for reasons of “morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”21 Protecting international relations is not included and does not therefore in itself justify excluding the public.
Amnesty International is also concerned about the undue secrecy involved in this process and the fact that ultimately a government decision to prohibit disclosure, through the issuance of a certificate under s. 38.13 of the Canada Evidence Act, is subject to very little judicial oversight. The provisions bar the public from the court’s review of the potentially injurious or sensitive information and also prohibit disclosure of the mere fact that a court proceeding has been launched. This has recently been sharply criticized by the Chief Justice of the Federal Court, who has asked that the current review of the anti-terrorism legislation reconsider the necessity of these provisions out of concern that they may “unnecessarily fetter the open court principle.”22 Amnesty International is of the view that the process does not conform with the international human rights requirement that court proceedings normally be open to the public.
If the government issues a certificate under s. 38.13, it must be upheld as long as the Federal Court of Appeal is of the view that the information at issue relates to information obtained in confidence from, or in relation to, a foreign entity, or relates to national defence or national security.23 The standard of “relates to” is a very low threshold and risks decisions that do not properly accord with international human rights standards.
Beyond the ActCanada’s law enforcement and security efforts on the anti-terrorism front appear to have primarily proceeded outside the Anti-Terrorism Act. Rather than launch criminal proceedings against individuals under the Act, those who are not citizens of Canada have faced deportation under the procedurally flawed security certificate process to countries where they face a very real risk of being tortured, while those who are citizens of Canada have been arrested and detained by foreign governments and subjected to interrogation under torture in circumstances where it appears Canadian law enforcement or security agencies may have had some degree of involvement or at least knowledge of what was occurring. These worrying developments must be closely considered and reviewed by the committees engaged in the present review.
At the present time four individuals are in detention in Toronto and Ottawa pursuant to security certificates issued under the Immigration and Refugee Protection Act.24 One other individual has recently been released from detention in Montreal but is subject to stringent conditions on his release.25 Amnesty International is of the view that the security certificate process may very well result in arbitrary detention and thus violate the fundamental right to liberty of these individuals, and has been calling on the Canadian government to reform this process for many years. The process does not conform to a number of essential international legal standards, which are meant to safeguard against the very possibility of arbitrary detention. Detainees are not informed of the precise allegations against them. They see only a summary of the evidence that is being used against them. Evidence may be presented in court in the absence of the detainee or his or her counsel. The detainee is not afforded a right to examine any and all witnesses who have been the source of that evidence. Furthermore, the Federal Court considers only the “reasonableness” of the decision to issue a security certificate and does not substantively review it. Amnesty International recognizes that special measures may need to be taken in cases involving security matters, but any such measures must be consistent with international law. We realize, for example, that the government may have concerns about protecting the identity of certain sources or witnesses. If so, specific and targeted measures should be taken to address those particular concerns, rather than through the widesweeping approach of the current legislation. In any case, in view of the potential for a wide interpretation by the detaining authorities of security information which may be the basis for a decision to detain, and because decisions to detain in such cases are often based on a prediction about an individual’s future actions, it is imperative that there be full and effective judicial scrutiny of such decisions, beyond the test of “reasonableness” that is the present standard. Amnesty International has repeatedly drawn attention, worldwide, to instances where the failure to comply with international human rights standards regarding fair trials has led to wrongful detention and other human rights violations. In the present circumstances Amnesty International considers that individuals detained pursuant to a security certificate are effectively denied their right to prepare a defence and mount a meaningful challenge to the lawfulness of their detention. This is in contravention of Canada’s obligations under articles 9 and 14 of the International Covenant on Civil and Political Rights.26 While some of the provisions in articles 9 and 14 apply specifically to individuals who have been formally charged with a criminal offence, which is not the case in the issuance of a security certificate, they are nevertheless widely recognized as reflecting general principles of law and are relevant in so far as they set out the basic essential elements of a fair hearing. Furthermore some of the provisions apply to all detainees, such as those guaranteeing the right to challenge the lawfulness of their detention. That right to challenge must be in accord with recognized international fair trial standards. Other international standards highlight the importance of ensuring that all detainees enjoy the same level of fairness. The UN Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment27 establish that anyone who is detained shall be given an “effective opportunity” to be heard by a judicial or other authority, has the right to defend him or herself, and shall received “prompt and full communication” of any order of detention “together with the reasons therefore.” The Basic Principles on the Role of Lawyers28 underscore that lawyers must be given access to “appropriate information, files and documents” so that they can provide their clients with “effective legal assistance.” Amnesty International considers that these standards require that the detainee be given detailed reasons as to why he or she is detained, access to the full evidence that is being used against them, and a substantive hearing to examine the lawfulness of the detention.
Amnesty International is doubly concerned about the fundamentally flawed and unfair security certificate process because it is frequently applied in cases where the likely outcome is deportation to a country where the individual concerned is at serious risk of torture or other grave human rights violations. Given such potentially severe consequences, it is all the more critical that the security certificate process fully comply with international human rights standards governing arrest and detention. International law is absolute, no one should be deported to a country “where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.”29 The United Nations Committee against Torture, in 2000 informed Canada that it is a violation of the UN Convention against Torture to deport an individual to face a substantial risk of torture, including when there are security concerns.30 That Committee has just completed a further review of Canada’s record of compliance with the provisions of the UN Convention against Torture. During the review, the Committee’s Rapporteur for the reports of Canada, Committee Expert Andreas Mavrommatis, again highlighted the importance of Canada living up to its obligation under article 3 of the Convention not to deport anyone to torture: Canada should find a way to ensure that article 3 of the Convention was fully complied to with regard to expelling, returning or extraditing a person to another State where there were substantial grounds for believing that he or she would be in danger of being subjected to torture. The process of balancing between the risk and the national security was not acceptable. Mr. Mavrommatis emphasized the need for full compliance of article 3 in its entirety.31 In 2002 the Supreme Court of Canada, in the Suresh case, recognized that international law provides absolute protection against being returned to torture, but left open a possibility that such returns might be allowed under the Canadian Charter of Rights, in extraordinary circumstances which the Court did not define.32 The ban on torture is an essential international human rights norm. But sadly, torture is still a widespread practice committed around the world. Canada’s contribution to the crucial global campaign to eradicate torture is undermined if Canada does not itself scrupulously comply with international law regarding the prohibition against torture.
Arrested in an airport, abducted in a foreign country, detained at a border crossing – and then bundled off to jail cells in foreign countries where torture is the norm and where the rule of law quite simply does not apply. One very significant human rights concern that has emerged post-September is a practice that has existed for some time in the shadows of law enforcement and security operations, but is now becoming more commonplace and well-documented: extraordinary rendition. Most international attention to date has focused on the U.S. practice of extraordinary rendition. 33 There are growing numbers of reports of individuals against whom allegations of involvement in or support for terrorist activities have been made, being arrested or detained directly by U.S. officials or with their tacit involvement, sometimes in the United States and sometimes abroad. These individuals then find themselves dealt with outside existing legal frameworks, certainly denied due process and other essential human rights protections. They ultimately end up being furtively sent to countries with abysmal human rights records, where they are subjected to extensive interrogation frequently marked by torture and cruel treatment. The inevitable conclusion in such cases is that U.S. officials may have turned to other regimes to commit torture on their behalf. One such case which has received considerable attention in Canada is that of Canadian citizen Maher Arar, who was stopped by U.S. officials while transiting through New York’s John F. Kennedy Airport on his way home to Canada on September 26, 2002. However, rather than allow him to return to Canada or even deport him back to Canada, after nearly two weeks of detention in the United States, Mr. Arar was taken out of his prison cell in the middle of the night and flown halfway around the world on a private jet, leading to one year of detention without charge or trial in Syria, where he was subjected to extensive interrogations, severe torture and inhumane prison conditions. Amnesty International is concerned that Mr. Arar’s case, along with at least three other cases involving the arrest, detention and torture of Canadian citizens in Syria, raise troubling, yet-unanswered questions as to whether Canadian law enforcement and security agencies may have conducted their own version of extraordinary renditions.34 In all four of these cases there are allegations of contact between Canadian officials and Syrian authorities before and/or during the detention. The allegations raise the prospect that Canadian officials may have provided information that directly led to their arrests and may have even done so with the expectation or with wilful blindness to the likelihood that it would result in their arrests. It also appears that information provided by Canadian sources likely served as the basis for the interrogation sessions in Syria during which these individuals were subjected to torture. There are further concerns that information coming out of these interrogations was then transferred back to Canada and may have been used by Canadian officials in the course of ongoing investigations of these four men and other individuals. International law makes it very clear that information obtained under torture should not be relied upon and that it is illegal to make use of such information in the course of legal proceedings.35 All of this leads to the worrying possibility that Canadian officials may have intentionally or with wilful blindness turned to Syrian security agencies to take action in these cases rather than doing so within Canada’s own legal framework, despite the well-documented practice of torture and arbitrary detention in similar cases in Syria. There is a public inquiry underway looking at the question of what role Canadian officials may have played in what happened to Maher Arar. It is not yet clear whether that inquiry will look at the wider pattern suggested by these other cases. Amnesty International and other organizations have encouraged the Commissioner to do so.36
This present review of Canada’s anti-terrorism legislation provides an important opportunity to take account of these systemic concerns and ensure that any such practice is explicitly prohibited in Canadian law.
SUMMARY OF RECOMMENDATIONS
1 Universal Declaration of Human Rights, adopted by the United Nations General Assembly, 10 December 1948, first preambular paragraph. 2 Ibid., second preambular paragraph. 3 International Covenant on Civil and Political Rights (ICCPR), adopted by the United Nations General Assembly, 16 December 1966, acceded to by Canada, May 1976. The ICCPR allows restrictions of this nature on the exercise of such rights as freedom of expression (article 19), peaceful assembly (article 21) and association (article 22) on such grounds, as long as the restrictions are prescribed by law and are strictly necessary in a democratic society. 4 Ibid., article 4(1). The public emergency must be one which threatens the life of the nation and it must be officially proclaimed. The resulting suspension of or derogation from rights can only be to the extent strictly required by the exigencies of the situation, must be consistent with other international legal obligations and cannot be applied in a discriminatory manner. This would apply to rights such as the protection against arbitrary arrest and detention (article 9) and the right to a fair trial (article 14). 5 Ibid., article 4. 6 The Honourable President A Barak of the Supreme Court of Israel, Public Committee Against Torture in Israel v The State of Israel, HCJ 5100/94, at para. 39. 7 The Berlin Declaration, The International Commission of Jurists’ Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism, adopted 28 August, 2004, fifth preambular paragraph: “There is no conflict between the duty of states to protect the rights of persons threatened by terrorism and their responsibility to ensure that protecting security does not undermine other rights. On the contrary, safeguarding persons from terrorist acts and respecting human rights both form part of a seamless web of protection incumbent upon the state.” 8 UN High Commissioner for Human Rights, Louise Arbour, Biennial Conference of the International Commission of Jurists, 27 August 2004: “For even though it may be painted as an obstacle to efficient law enforcement, support for human rights and the rule of law actually works to improve human security.” 9 Minister of Foreign Affairs Bill Graham, Speech to the Canadian Bar Association, 12 August 2002: AOur most compelling challenge in responding to terrorism, apart from containing it, is to uphold the values and norms we cherish - democracy, respect for the rule of law and human rights.@ 10 Such as in the recent decision of the House of Lords with respect to provisions of the United Kingdom’s anti-terrorism legislation, A and others v Secretary of State for the Home Department [2004] UKHL 56, 16 December 2004, per Lord Hoffman at para 97: “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for parliament to decide whether to give the terrorists such a victory.” 11 A number of United Nations instruments establish the obligation on states to refrain from expelling a person to a country where they would face a substantial risk of serious human right violations: UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, article 3, adopted by the UN General Assembly, December 10, 1984, ratified by Canada June, 1987; Declaration on the Protection of all Persons from Enforced Disappearances, article 8, adopted by the UN General Assembly, 18 December 1992; and Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, principle 5, adopted by the UN Economic and Social Council, May 24, 1989. 12 UN Doc. E/CN.4/Sub.2/2001/31. 13 Inter-American Convention against Terrorism, article 2(1), adopted by the OAS General Assembly, June 2002, ratified by Canada, December 2, 2002. 14 Amnesty International’s Preliminary Observations on the December 2004 Draft European Convention on the Prevention of Terrorism, AI Doc. IOR 61/002/2005, January 2005. 15 Interference with an essential service that comes about through advocacy, protest, dissent or stoppage of work that is not intended to cause death or serious bodily harm, endanger a person’s life, or cause a serious risk to the health or safety of the public is not covered by the definition. Criminal Code of Canada, section 83.01(1). 16 Criminal Code, s. 83.01(1.1). 17 International Convention for the Suppression of Financing of Terrorism, article 2(1)(b), adopted by the UN General Assembly, 9 December 1999, ratified by Canada, February, 2002. 18 Presumption of Guilt: A National Survey on Security Visitations with Canadian Muslims, upcoming report from Council on American-Islamic Relations (Canada); Reem Bahdi, "No Exit: Racial Profiling and Canada's War Against Terrorism" (2003), 41 Osgoode Hall L.J. 293; John Ibitson, “Police said to be cool to racial profiling report,” Globe and Mail, 17 March, 2005; Threat and Humiliation: Racial Profiling, Domestic Security and Human Rights in the United States, Amnesty International USA, September 2004. 19 Criminal Code, s. 83.05. 20 Canada Evidence Act, ss. 38-38.15. 21 ICCPR, Supra, footnote 3. 22 Ottawa Citizen Group v. Canada (A-G), [2004] F.C. 1052, para. 45. Lutfy C.J. raises serious concerns about the s. 38 scheme in a portion of his judgement entitled “Post scriptum: too much secrecy??” 23 Canada Evidence Act, s. 38.131 24 Hassan Almrei, Syrian, held since October 20, 2001; Mohamed Harkat, Algerian, held since December 10, 2002; Mahmoud Jaballah, Egyptian, held for 9 months in 1999, cleared of allegations, held again since August 2001; and Mohammad Mahjoub, Egyptian, held since June, 2000. 25 Adil Charkaoui, Moroccan, arrested May, 2003, released on bail February, 2005. 26 ICCPR, Supra, footnote 3. 27 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the U.N. General Assembly, 1988, U.N. Doc. A/43/49. 28 Basic Principles on the Role of Lawyers, adopted at the Eighth U.N. Congress on the Prevention of Crime and the Treatment of Offenders, September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118. 29 Convention against Torture, Supra, footnote 11, article 3(1). 30 Concluding observations of the Committee against Torture: Canada, UN Doc. A/56/44, 22 November, 2000, para. 59(a): “The Committee recommends that [Canada]: (a) Comply fully with article 3, paragraph 1, of the Convention prohibiting return of a person to another State where there are substantial grounds for believing that the individual would be subjected to torture, whether or not the individual is a serious criminal or security risk.”31 Committee against Torture Begins Review of Reports of Canada, United Nations Press Release, Committee against Torture, 4 May 2005. 32 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, paragraphs 76, 78. 33 Amnesty International, United States of America: The threat of a bad example – Undermining international standards as “war on terror” detentions continue, AI Index AMR 51/114/2003, 19 August 2003. 34 Ahmad Abou El Maati, arrested in Syria November 12, 2001, transferred to Egypt early 2002, released January 2003. Abdullah Almalki, arrested in Syria May 3, 2002, released March 2004. Muayyed Nureddin, arrested in Syria December 11, 2003, released January 11, 2004. 35 Convention against Torture, Supra, footnote 11, article 15: “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” 36 Joint submissions of the Intervening Organizations in respect of the Notice of Hearing – May 3, 2005, Submitted to the Commission of Inquiry into the Action of Canadian Officials in relation to Maher Arar, April 28, 2005. Directory: downloads downloads -> Building vibrant and sustainable co-operative enterprises that stimulate the social economy of the province downloads -> Middle Secondary – a democracy Destroyed – Focus question 4: What are the key features of a democracy and how did the Nazis take them away? How is democracy in Australia protected? downloads -> To Leave or to Take? 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