Federal government gives itself unprecedented spying powers

New anti-terror and security legislation grants extraordinary powers for surveillance, secret hearings, and preventative detention in Canada.

Security: Refugees and permanent residents are facing secret trials, deportation or limbo due to tightened security processes. New anti-terror legislation and the secret police bill grant extraordinary powers for surveillance, secret investigative hearings, and preventative detention without charge. Under the vague guise of ‘terrorism,’ citizenship can be revoked from some Canadians.

Hundreds of refugees are facing legal limbo or deportation due to tightened security admissibility processes. One such person is Jose Figueroa, who has been in Canada since 1997 and was approved in principle for permanent residency. Years later, he was declared inadmissible for his prior membership in Farabundo Marti National Liberation Front (FMLN), which Canada claims engages in acts of “terrorism.” The FMLN fought against U.S.-sponsored dictatorships in the 1980s and is the current democratically elected government of El Salvador. As Jose states, “I am not a terrorist. El Salvador is not a country of terrorists. Why is Canada treating us that way? Why is Canada doing this to our family?”

Another example of the impact of security inadmissibility is the case of Sugunanayake Joseph, a widow from Sri Lanka, who was found inadmissible as a member of a terrorist organization, the Liberation Tigers of Tamil Eelam. Joseph was not in fact a member of the Tigers, but she supported the activities of her husband, a Member of Parliament who was assassinated. Joseph’s husband was not actually a member of the Tigers either, but he participated in an alliance that pressed for negotiations between the government and the Tigers.

Jose and Sugunanayake are amongst hundreds of Tamils, Iranians, Kurds, Iraqis, Libyans, Palestinians, Colombians, and Sikhs who were granted political asylum under Canada’s onerous refugee system. But now they are going through years of security inadmissibility hearings and legal limbo, and face incarceration and possible torture if deported because of their involvement in or connection to popular resistance movements.

Anti-Terror and Security Legislation

In 2013, the federal government fast-tracked Bill S-7, granting extraordinary powers for secret investigative hearings and preventative detention without charge.

Investigative hearings under the Act are permitted when an individual is considered by authorities to have knowledge of terrorist activity. The individual can be forced into a secret hearing without any charges being laid. The individual must appear and answer all questions; failure to do so can result in detention for up to one year. A person suspected of involvement in terrorism can be preventatively detained for up to three days, and can be ordered to follow probation-like conditions for up to one year upon release –all without ever being charged.

Civil liberties groups summarized the situation like this: “Individuals could be forced to testify in a court of law, arrested, detained or made subject to bail conditions – all without charges being laid. Individuals have no right to know, and no opportunity to challenge, the basis on which they are being subjected to preventive arrest or required to attend investigate hearings.” People subjected to these anti-terror provisions do not have to be suspected of committing a crime; they can be charged by association, or be suspected of potential future involvement with an alleged offence.

In 2015, the “Secret Police Bill” (Bill C-51, officially known as the Anti-terrorism Act, 2015) became law.

This anti-terrorism law is the first comprehensive anti-terrorism legislation since 2001, and amends over a dozen Canadian laws, permitting increased surveillance and information sharing. Police now have the power to preventatively arrest more people without a warrant. Even though terrorism is not clearly defined, encouraging or promoting ‘terrorism offences’ can lead to five years of jail time, even if the act is never actually committed. CSIS has, for the first time, been given wide powers to disrupt suspected terror plots with minimal oversight and accountability. Border guards, who were given arms by the Tories in 2006 to further militarize the border, have now also been given broader powers to seize items without a warrant.

For those being held under security certificates, the law now makes the process even more secretive, and detainees or their advocates won’t have access to their whole file. This change is not just limited to security certificate cases: it means that all immigration admissibility hearings, detention reviews or appeals before the Immigration Appeal Division will now be subject to immediate and unquestioned government appeal of disclosure decisions. This means the government can introduce secret evidence without actually disclosing it to the person affected.

The Secret Police Bill has been widely condemned as overly broad, vague and unconstitutional. Canada’s leading human rights organizations say, “We believe that the government has never made the case for Bill C-51 beyond the simple assertion that it ‘needs’ additional powers to protect public safety. But it has provided no explanation as to why Canada’s spy agency needs unprecedented and troubling disruption powers. It has not made a credible case for the vast, opaque and unaccountable all-of-government information sharing regime Bill C-51 creates. And, it has provided no evidence for how no-fly lists with appeal provisions that lack due process actually improve aviation security and public safety.”

The Canadian Civil Liberties Association and Canadian Journalists for Free Expression launched a constitutional challenge against the new law in Ontario’s Superior Court of Justice in July 2015.

Not All Canadians are Equal

For racialized immigrants, refugees and citizens, the impact of anti-terror measures is most severely felt: they will be placed on no-fly lists and further harassed by police and intelligence officials. The International Civil Liberties Monitoring Group already reports hundreds of instances of immigrant, Muslim, and Arab communities  being visited for interviews by security forces without warrants, and of people being taken away for interrogation.

Protests by racialized people will most likely be deemed as undermining “the sovereignty, security or territorial integrity of Canada or the lives or the security of the people of Canada.” Canada’s existing terrorist list is an arbitrary one. Fighters of the Kurdistan Workers’ Party (PKK) – Harper’s one-time heroes against ISIS – are on this list. As Israel’s best friend, Canada has included almost every major Palestinian resistance movement such as Hamas and the Popular Front for the Liberation of Palestine to this list.

The International Relief Fund for the Afflicted and Needy that works with Palestinians was added to Canada’s terror list by the federal government in 2014. This is the first wholly Canada-based charity to be placed on the list.

The federal government’s “Stealing Citizenship Act” (Bill C-24, officially known as Strengthening Canadian Citizenship Act) received royal assent in 2014. This law gives immigration officers the power to strip Canadian citizenship from dual nationals, whether naturalized or Canadian-born, if they are found guilty of terrorism or treason inside or outside of Canada. Hiva Alizadeh and Misbahuddin Ahmed are some of the first Canadians targeted under this law.

A citizen who was unfairly convicted abroad could end up stripped of their Canadian citizenship. For example, Canadian journalist Mohamed Fahmy is facing politically motivated and unjust terrorism-related charges in Egypt, which could result in him losing his Canadian citizenship. The message is clear: not all Canadians are equal.