The Book

 

 

 

 

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Saturday
May132017

Diplomatic Protection of Canadians: Time to Ratify Optional Protocol to the Vienna Convention

The House of Commons Foreign Affairs Committee is reportedly set to study Canadian consular practices and procedures starting this Fall. This has been an important issue since the Arar and Iacobucci commissions of inquiry and remains an issue -- especially for dual national Canadians. It is possible the policy on (not) paying ransom where Canadians are held hostage by terrorist groups may also be part of the study, a matter that has attracted some attention lately.

A decade ago, I wrote a sequence of law review articles on diplomatic protection and consular relations in international and Canadian law. These articles deal with international law and the unusual peril faced by dual nationals [behind paywall], the law of diplomatic protection and antiterror rendition, and the legal status of diplomatic protection in Canadian domestic law.

Nothing much has changed in the last decade to overtake the conclusions reached in these articles, although the Supreme Court's two Khadr decisions clarify the circumstances in which Canadian conduct overseas in relation to a Canadian can transgress the Charter of Rights and Freedoms.

One other thing that has not changed: Canada still has not become party to the Optional Protocol to the Vienna Convention on Consular Relations.

The Vienna Convention establishes the treaty bases of basic consular guarantees.  See in particular Art 36.  For its part, the Optional Protocol allows disputes concerning a state's failure to permit consular access to be taken to the International Court of Justice.

The Vienna Convention has been an issue in several ICJ cases, including ones focused on whether the United States meet its consular relations in terms of death penalty cases.  See LeGrand and Avena.  And very famously, it was an issue in the Tehran hostage-taking case in 1980.

In each instance, the Optional Protocol was (at least one) of the bases for ICJ jurisdiction -- and close observers of international law will know that ICJ jurisdiction is often a huge stumbling block.

But for reasons that I have never understood, while Canada is party to the Vienna Convention, it has not acceded to the Optional Protocol.  That is true even while countries like...Iran... have. 

And so, as has often been the case, when Canadians have been detained (and in at least one case killed) by Iranian authorities, and along the way violated the consular relations treaty, Canada has no recourse to the World Court.

I have no idea why Canada has failed accede to the Protocol. I can't think of any good reason.

And so if I were to have a single recommendation for the Commons Foreign Affairs committee (and for the Canadian government), it would be: time for Canada to accede to the Optional Protocol.

Saturday
May132017

In Memoriam: The Honourable Ron Atkey, PC QC

I learned this week that my friend and colleague Ron Atkey, PC, QC, has died. This is very sudden and sad news, and my thoughts go to his family.

As I process Ron’s passing, I have been reaching for some way to memorialize his accomplishments. One of the few initial avenues open to me is a short essay on this blog.

Ron was the first chair of the Security Intelligence Review Committee (SIRC), between 1984-1989.  Both before and after that, he was a partner at Osler, Hoskin & Harcourt LLP, where he chaired the Arts, Entertainment and Media Law Group.  He was also a law professor – at Western (1967-1970) and Osgoode Hall Law School (1971-1973). There, he authored an array of law review articles and co-authored Canadian Constitutional Law in a Modern Perspective (1970). In the 1990s, he wrote a novel (The Chancellor’s Foot).  And after his retirement from Oslers in 2007, he returned to parttime teaching at both Western and Osgoode, leading classes in national security law. He worked on the Arar commission of inquiry and was a special advocate under the Immigration and Refugee Protection Act.

I know Ron best from his work on national security law – he was a generous mentor and gave of his time and expertise, including by commenting on and then writing the forward to National Security Law in 2008. He also reviewed and commented on the 2015 book that Kent Roach and I authored on Bill C-51, False Security.

And throughout debates on that law, and more recently in discussions of reformed national security review, Ron served as a confident and compass. I valued his wisdom and experience.

As first chair of SIRC, Ron played an invaluable role. As Peter Gill detailed in his study of national security accountability systems, Ron’s chairmanship “symbolise[d] a willingness to extract as much mileage as possible from the review process”.[1] A later study would note SIRC’s review mechanisms “work to the extent that committed and energetic persons staff them. The first Chairman of SIRC, the Hon. Ron Atkey, was such a person…”.[2]

In Ron’s early career, he was an MP and ultimately the Minister of Employment and Immigration in the Joe Clark government (1979-1980). In the latter role, he was instrumental in Canada’s decision to admit large numbers of Vietnamese refugees – the famous “Boat People”. This was Ron’s greatest professional legacy.

A study of Canada’s immigration policy noted in “June 1979, Ron Atkey, the new Conservative government’s Immigration minister, raised the year’s intake [of Vietnamese newcomers] to 12,000, of whom 4,000 were to be sponsored by private organizations.” Then, in July, “Atkey announced that Canada would increase its intake of refugees to 3,000 a month, with 50,000 to arrive by the end of 1980.”[3] 

Ron was not, of course, singlehandedly responsible for this humanitarian effort – and he would never so claim.  But without Ron, his Cabinet colleague and ally Flora MacDonald, and a supportive Prime Minister, this policy shift would never have happened.  A recent study credits the role of Prime Minister Joe Clark in backing Ron and Flora MacDonald “in the face of skeptical Cabinet colleagues”. It observes: “The courage and leadership of MacDonald and Atkey in fighting for an unprecedented commitment, and in inspiring officials and ordinary Canadians to deliver on it, cannot be overstated.”[4]

With characteristic humility, in a foreword to that same book, Ron attributed much of the success of this humanitarian project to Canadian communities and organizations, and to the public service.

But the details of Ron’s involvement in Canada’s response to the Southeast Asian refugee crisis has almost mythical status in public policy lore. In 1979, Ron read a scholarly manuscript detailing Canada’s appalling conduct in turning away Jewish refugees from the Nazis, authored by Irving Abella and Harold Troper. His response is recorded in those authors’ later book, None is Too Many: Canada and the Jews of Europe, 1933-1948:[5]

Atkey was shocked and dismayed at the seeming historical parallels between the Vietnamese crisis and that of Jewish refugees from Nazis. Already decided on a path of activism on behalf of Vietnamese refugees, he later explained “The article stiffened my resolve to be bold.” True to his word, he convinced the Cabinet that Canada must not turn its back on Vietnamese refugees as it previously had done to Jews. As a result of Atkey’s efforts, Canada’s refugee resettlement program, enriched by unparalleled citizen participation, was second to none among nations of the world.

Ron never abandoned his humanitarian commitments.  Along with other prominent Canadians, he pressed the government to increase its intake of Syrian refugees in 2015. As reported in the Toronto Star:

Ron Atkey believes the 25,000 Syrians Ottawa is promising to re-settle initially is a “noble objective” but he wants Canada to up the ante.

“If Canada can do another 25,000 — that would make a significant contribution in line with Canada’s contribution with the Vietnamese boat people in 1979 to 1980. It will demonstrate to the Americans that they have to do more. We’ll shame them into it, similarly the Australians,” says Atkey, who was immigration minister in the Joe Clark government in 1979 when 50,000 Vietnamese refugees were granted asylum in Canada. By the end of 1980, that number had risen to 60,000.

 “For us to take a dramatic position on the world stage is important. We won a medal from the United Nations High Commission for Human Rights. We gained a lot of prestige as a humanitarian country. I think that’s consistent with Canadian tradition.”

In 1988, Morton Beiser interviewed Ron about his role in opening Canada’s doors to Vietnamese refugees:

Over tea served in elegant porcelain cops, Mr. Atkey talk with obvious pride about the role he and his government had played in admitting refugees. I asked him what prompted a country that had not been notably generous in the past to bring in so many Southeast Asians. The former minister recalled the headiness of being a member of the freshly elected cabinet leading a prosperous nation, and seizing on a global issue like the “Boat People” crisis to show both its UK parents and its US big brother that Canada could do better. …

Speaking more personally, Mr. Atkey mused that one is not often given the chance, as he put it, “to make a difference.” … Atkey told me “I didn’t want my children to have to remember me as somebody who said ‘None is too many.’” [6]

There is no chance of that. Ron’s legacy is found in headlines like this: “Vietnamese boat people of more than 3 decades ago now thriving, proud Canadians”.

Ron was a lawyer who helped build Canada’s national security review system, then persistently advocated correction of its shortcomings; a warm mentor who supported more junior colleagues; a politician who put country before party; and, a humanitarian who acted on his principles.

He will be missed. Rest in peace my friend.

 


[1]           Peter Gill, Policing Politics: Security Intelligence and the Liberal Democratic State (Frank Cass, 1994) at 287.

[2]           Jean-Paul Brodeur, “The Globalization of Security and Intellience Agencies: A Report on the Canadian Intelligence Community,” in Peter Gill, Democracy, Law and Security: Internal Security Services in Contemporary Europe (Ashgate, 2003).

[3]           Ninette Kelley and M. J. Trebilcock, The Making of the Mosaic, University of Toronto Press, 1998, at 407.

[4]           Michael Molley, Peter Duschinsky, Kurt Jensen and Robert Shalka, Running on Empty: Canada in the Indochinese Refugees, 1975-1980 (McGill-Queens University Press, 2017) at 458.

[5]           University of Toronto Press, 1983.

[6]           Morton Beiser, Strangers at the Gate: The “Boat People’s” First Ten Years in Canada (University of Toronto Press, 1999) at 41.

Tuesday
May022017

A Feast of Commons Reports: National Security Studies by ETHI and SECU Released

This week, two standing committees released their reports on national security law and policy related matters. The Commons Standing Committee on Public Safety and National Security (SECU) released the product of its cross-country Fall 2016 hearings on national security writ large.  The Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI) released its more focused assessment of one aspect of the last Parliament's infamous bill C-51, the Security of Canada Information Sharing Act.

Both reports make for interesting reading. And I am generally sympathetic to many of their recommendations.  A few quick words on each.  But before the dissecting, a general word: MPs should be congratulated in getting into the weeds on many difficult issues.  This is a hard area, and these reports join the government's own Green Paper in putting into circulation thinking on national security law and policy.

SECU Study

The SECU report is the shorter of the two studies, notwithstanding its broader coverage.  It has a fairly succinct summary of issues and evidence, and then a lengthy list of recommendations.  Not all the recommendations are closely anchored in supporting discussion, and so in some cases they are a bit unclear.  Generally, the recommendations range from very specific to very open ended.  I shan't assess on a recommendation-by-recommendation basis, but will address matters that caught my eye.

National Security Accountability

Readers of this blog will know that shortcomings in our national security review system is a recurring preoccupation in Canada. SECU highlights these difficulties in detail, and its report constitutes a welcome addition to the now vast literature on problems with Canadian national security accountability systems.

Its recommendations risk, however, a repeat of the Arar commission of inquiry error: two much bureaucratic complexity. There are basically two solutions to our institutional shortcomings in this area: a move to an all-of-government expert reviewer (sometimes dubbed a "super-SIRC); or the Arar commission proposal of "statutory gateways" between existing bodies, coupled with an expanded remit for some of them to capture agencies not currently subject to review.  The SECU report seems uncertain on which course of action to prefer.  There is some language favourable to a super-SIRC and a lot of language favouring statutory gateways, and then a complex-sounding means of coordination (including possibly the creation of still new bodies).

Too many moving parts in any policy proposal in Ottawa means certain death.  So while the spirit of the SECU recommendations is bang-on, I suspect the detailed recommendations will have limited impact.

CSIS Threat Reduction

SECU proposes abolishing statutory language suggesting CSIS can breach any and all Charter rights in engaging in "threat reduction".  This is welcome, although I think in practice there will still be a need to draft affirmatively what things we wish CSIS to do as threat reduction. Rather than a carte blanche, security legislation should lay out a detailed menu.  For reasons Roach and I discuss in various places (including some linked below), this enumeration approach would help put the regime on a more conventional constitutional footing.

SECU also recognizes the risk that CSIS and RCMP may be driving in the same lane post-C-51, and has some open textured language about, in essence, deconfliction.

This is a nod to the broader issue of intelligence to evidence.  But that is a complex matter deserving some very delicate law-making, and this report probably doesn't have the granularity to move the ball further down the field on that question.  That said, the related recommendation proposing the elimination of the bifurcated court process under the Canada Evidence Act is welcome.

Peace Bonds

SECU proposes a move to a "balance of probabilities" evidentiary standard for peace bonds -- the recommendation is unclear, but I assume this means abandoning the current "fear on reasonable grounds" (a low threshold).  I personally wouldn't support this. Balance of probabilities is a considerable burden of proof.  It will pretty much end the utility of peace bonds as a preemptive tool.  I think there are other safeguards that should be part of the peace bond regime, but this is not one of them. The state needs to have tools -- and this one has the virtue of requiring a proceeding in an open court (as opposed to all the secret administrative things like no fly lists).

Speech Crime

The SECU recommendations limiting the scope of Bill C-51's speech crime are important. That is a horribly overbroad crime at present.  It simply does not need to be so broad -- and reach so much speech only distantly linked to violence -- in order to meet the government's stated objectives. 

(I note that the dissenting Tory report expresses particular enthusiasm for the speech offence. I also note that a number of very serious lawyers had to debate at length in 2015 whether some Tory fundraising letters reproducing terrorism propaganda violated the speech crime. This is not a good offence if some very bright legal minds think there might be a real issue there. 

The Tories also argue that the offence has not injured free speech. Still, it has meant less privacy: RCMP documents suggest that the police are using the offence to seed investigations, including obtaining wiretap warrants. So to be clear: the police can wiretap speech in an effort to find the wrong kind of speech. This is not a happy situation).

The SECU recommendations cut away much of the excess of the speech crime, without undermining the stated purpose of this offence (which I happen to believe is already meet by existing crimes, but that is another debate. Personally, on this specific issue, I am with the NDP "supplementary opinion" to the report: the speech crime is unnecessary; repeal.)

No Fly List etc

There are many recommendations on improving the no fly list.  A redress system for false positives would be very welcome -- and we await action on this by government.  And use of special advocates during the secret appeal hearings would also be welcome.  Generally, there are a number of quite sensible recommendations on this topic. 

Likewise, the oblique reference to rolling back constraints on special advocate access to information in immigration security certificate matters created by C-51 is also welcome.

Lawful Access

SECU basically ducks the issue of lawful access, encryption and CSE collection of metadata and private communication.  The report does propose an appropriate warrant where CSE shares with other agencies -- a very vague recommendation.  But interpolating from what is intended, this is actually an issue, since I understand that some sharing may be occurring without warrant.  That is, CSE may be sharing information (incidentally) collected under its Mandate A with CSIS and police. In some instances, this may be information that the latter agencies could only collect had they obtained a warrant.  Since administrative end-runs around Charter rights are unconstitutional (says the Supreme Court), it would be nice to have a handle on this.  Likewise, however incidentally collected, the fact that CSE is acquiring Canadian personal information without judicial authorization raises its own constitutional problems.  I have discussed these issues before.  They are still unresolved.

Final observations

I suppose, not surprisingly, the report continues to be coloured by C-51 and the (disproportionate) focus on terrorism.  There are allusions to other national security threats.  But not a lot of detail on espionage, insider-threats, influence activities, cyber-security, etc.  Hopefully, there will be future opportunity to forward think on these and other national security challenges.

Overall, the report is a welcome benchmark on many of today's key (primarily anti-terror) issues.  Worth a read.

ETHI Report

ETHI's study is a deep dive into the obscure Security of Canada Information Sharing Act (SCISA).  I have less to say on this because the study is particularly comprehensive in its narrative. Covered both the criticism and defence of SCISA fairly, I thought.  And informative on government positions. 

SCISA's problems have always, in my view, been ones of drafting, and less conception.  I think the most of the ETHI report SCISA recommendations are sensible, justifiable and sound.  For the most part, implementing them (or reasonable variants on them) would not degrade the government's objectives with SCISA.  (I think there are technical issues involved in getting SCISA and the Privacy Act to work properly together, but I would be less concerned about subordinating the Privacy Act to SCISA if SCISA was more reasonable.  On the other hand, I still think the best solution would actually be a careful process of amendment and pruning of the multitudinous laws on security and information sharing to make them more coherent, adding where necessary; clarifying in other instances. SCISA was wallpaper over a fissured wall.)

ETHI also has recommendations on reformed accountability review. ETHI doesn't opt for either a super-SIRC or statutory gateways but does press for action of some sort.

And ETHI too raises the intelligence-to-evidence issue (I am so happy!) by recycling the Air India commission recommendations.  I confess that my own thinking on how to address intelligence to evidence has moved beyond the Air India recommendations, but keeping this issue alive in the public policy mind is critical.

Overall, a thorough study on highly technical issues.

If you have a couple of hours, these two studies are worth a read.

If you have even more time: Kent Roach and I discuss many of the issues at play in more detail here and here and here and here.  For the long version, still available, still current, still affordable, consider picking up our book False Security: The Radicalization of Canadian Anti-terrorism, written with verve and élan.

 

 

 

 

 

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