Executive Summary

Since September 11, 2001, the security-consciousness of governments and citizens has intensified and national security institutions have been given increased powers. Critics have highlighted the potential of rights-infringements in this climate of security awareness. The Canadian Human Rights Commission commissioned this research to examine the extent to which national security agencies and their monitoring entities are directed to consider human rights issues in fulfilling their obligations, have publicly stated that they have considered such issues, or have reported on human rights issues in their activities.

This report concludes that all of the national security agencies and their respective monitoring agencies examined (with the exception of the Auditor General) have recognized that there is an obligation to identify and protect human rights in the context of protecting national security. In particular, general pledges to respect human rights issues arise in the context of reports to Parliament. Human rights issues also arise in relation to questions that are posed on an ad hoc basis before parliamentary committees.

However, this recognition of the importance of taking human rights into account does not arise out of any obligations found in the enabling legislation or associated regulations of national security agencies or their monitors. Further, despite some general legislation that ensures that human rights must be respected by all federal organizations, there is no legislation that imposes an obligation on national security agencies or their monitors to report on human rights issues in the context of national security in practice.

Without a systematic, legislative obligation to take human rights issues into account and a corresponding systematic, legislative obligation to report on human rights issues, it cannot be said whether the human rights that are identified as being at risk are effectively protected within the context of national security.

Introduction

Since the events of September 11, 2001, the security awareness of governments and citizens around the world has increased. The Canadian Parliament granted security agencies a number of new powers through legislation and increased funding. This changed environment elicited concern. Upon an invitation to appear before a parliamentary committee prior to the passing of the Anti-terrorism Act, the CHRC noted that "there is … the risk that in the application of the definition [of terrorism] certain groups will be targeted unfairly for the sole reason of their race, ethnic origin, or religion."¹

In 2006, the CHRC commissioned research by Wesley K. Wark. His report, National Security and Human Rights Concerns in Canada: A Survey of Eight Critical Issues in the Post-9/11 Environment, examined the application and evolution of national security policy since September 11, 2001 and the key accountability and responsibility mechanisms for those policies.² The report recommended that the CHRC consider monitoring legislative changes in the mandate of national security agencies and develop a database of human rights concerns from the public reports issued by the review agencies responsible for national security and intelligence.

Stemming from these recommendations, this report examines the extent to which national security agencies and their monitors are directed by legislation to consider and report on human rights issues, as defined by the Canadian Human Rights Act. It also explores any statements that consider human rights made by these agencies in reports or parliamentary appearances.³

The research process was initiated by examining the legislation and regulations that generally apply to national security agencies. This legislation and associated regulations were examined for any reference to human rights, whether direct or indirect, including those portions that outline the agencies’ reporting mechanisms. Only those statutes that relate to national security were reviewed rather than those that assign general enforcement power. These findings are outlined in the first section of the report.

In the second section, each of the agencies is reviewed in turn. Each review begins with the legislation and regulations that create or recognize national security agencies or their monitors. The legislation and regulations are reviewed for any general reference to human rights, whether direct or indirect including those portions that outline any reporting mechanisms.

The findings from the agencies’ public reports and parliamentary committee appearances are subsequently analyzed. All of the reports submitted to Parliament in the last 10 years by national security institutions were examined to determine their consideration and reporting of human rights issues. Appearances before some parliamentary committees by representatives of national security agencies over the last 10 years were reviewed for human rights issues. The committees reviewed were those responsible for national security and those that monitor national security agencies. While the committee names changed over time, they were predominantly responsible for justice, national defence, national security or specifically created to review the Anti-terrorism Act.

Furthermore, references to human rights considerations in the work of these organizations, solutions suggested, and strategies adopted to prevent or respond to such issues were examined.