Section 1
The Evolution of National Security Policy in Canada since September 11, 2001, and Its Potential Impact on Human Rights
The Canadian government was slow to fashion a new national security policy a fter the 9/11 attacks. In the immediate wake of the attacks, and for some time thereafter, the government response was reactive. There was an existing policy to draw on, the National Counter-Terrorism Plan. It was not a public document and was virtually unknown to the public at large. The National Counter-Terrorism Plan was not a strategic policy; rather, it was a crisis management tool, essentially devoted to clarifying the lines of authority and mandates of individual federal government departments and agencies. The only public version—an overview summary—suggests that no particular attention was paid to human rights issues in the plan, other than a brief, concluding statement that read: "The Canadian Constitution, including the Charter of Rights and Freedoms, legislation and the common law continue to apply during any terrorist incident."2
The first wave of Canadian policy-making in the aftermath of the 9/11 attacks occurred during the immediate crisis months from September to December 2001. It was in this initial period that the shock of the attacks was greatest and the sense of urgency most acute. A widespread concern existed about the possibility of further terrorist attacks against North America. Canadian government policy focussed on three priority issues: counter-terrorism resources; legal powers; and the Canada-US border.
Canadian resources to meet the existing crisis or to respond to new threats were quickly deemed inadequate in the light of the 9/11 attacks. The federal government, operating at the Cabinet level through a newly established ad hoc Cabinet Committee on Public Security and Anti-Terrorism, chaired by Deputy Prime Minister John Manley, quickly ensured new monies would be available to ramp up capabilities. An initial allocation of $280 million, mostly for improved policing and intelligence activities, was followed by the announcement in December 2001 of a "national security" budget of (initially) $7.7 billion dollars, to be spent over a five-year period on a wide range of measures.3 The budget plan had no particular strategic direction and no strategic statement accompanied it.4
As well as focussing on new resources, the government forged ahead in the fall of 2001 with major new legislation, principally the Anti-Terrorism Act (Bill C-36), described in Section 2 of this report. In addition, the government attempted to implement a new Public Safety Act (Bill C-17). This historically unpopular bill continued to draw significant criticism and was ultimately passed in amended form in May 2004. It is also discussed in Section 2 of my report.
Both bills were responses to emergencies, real and perceived. Driven by human rights concerns, critics of the draft Anti-Terrorism Act (ATA) succeeded in having the Bill significantly revised, especially as regards the definition of terrorism and the "sunsetting" of some of the Bill’s more dramatic powers. The Public Safety Act was forced back to the drafting table as a result of public concerns about the nature of the powers it would unilaterally give Cabinet ministers. In the case of both bills, it could be argued that even in the midst of a perceived crisis and in the aftermath of great political shock, legislative initiatives to expand governmental powers had to give full consideration to the need to sustain democratic rights and norms.
Border security and Canada-US relations were at the forefront of Canadian decision-making from the moment that 9/11 occurred. The enormous, albeit temporary, disruption to cross-border trade and travel that occurred after September 11 was a stark reminder of the importance for Canada of maintaining an open border. On top of concerns that some part of the 9/11 plot might have been hatched in or facilitated from Canada was a fear that underground Al-Qaeda cells might be present in Canada and be intent on launching future strikes. It was a time of fear that drew attention to the need to improve security at the border, increase cooperation with the United States, and reassure both the Canadian public and our American ally that Canada could be relied on as a counter-terrorist partner.5
Canadian border security policy had two objectives: sustain an open border for trade and travel and secure the border against threats. The possible contradictions between the two objectives meant that implementing the policy might not be as simple as it first seemed. The Canadian response was to introduce heightened measures to achieve security while working towards closer integration with the US. The policy’s first public triumph was the signing of the "Smart Border Declaration" between Canada and the United States on December 12, 2001. The Declaration talked about the interrelationship between public security and economic security, a theme that would persist in all subsequent discussions of Canada-US border security. It used the phrase "zone of confidence against terrorist activities " to describe the plan for the strengthened border. The Declaration came with a more detailed action plan for implementation, which originally included 30 points and now has 32.6 With the action plan, the two governments made it clear that future border security measures would be driven by a need for harmonization of policies and integrated efforts. The action plan was based on "four pillars": the secure flow of people; the secure flow of goods; secure infrastructure; and coordination and information sharing. All of these initiatives built on previous efforts, even the one least in the public eye—intelligence sharing.
The impact of a new, post-9/11 border security policy on human rights may be seen in three broad areas: increased sharing of intelligence; increased security enforcement cooperation and integration; and Canada-US harmonization initiatives. In all three areas of concern, because of secrecy and the fact that these are new developments, we are primarily talking about potential abuses of human rights rather than real or documented cases.
Increased cross-border intelligence sharing is, of course, designed to enhance security and ultimately provide greater public safety. While it is meant to have a beneficial impact on rights, it also has the potential to erode rights. Increased intelligence sharing may mean less Canadian control of intelligence data on Canadian persons. It may flood Canadian agencies with intelligence from outside Canada that, while difficult to assess, may affect the rights of Canadians. Increased intelligence sharing may have an impact on Canadian norms and practices with regard to the handling of sensitive intelligence information. These are all generalized fears, but they point in one direction. Greater intelligence sharing may mean giving information to other nations. At the same time, it may mean that more and better information is made available to the Canadian state. Close monitoring of the drawing up of cross-border watch lists, along with their attendant safeguards, should provide information on developments in this area.
When one considers increased security enforcement cooperation and integration between Canada and the United States, the fears are virtually identical. One instrument of this cooperation has been the Integrated Border Enforcement Teams (IBETs). The IBET program, which brings together law enforcement, customs and immigration representatives from both countries, has expanded rapidly since 9/11. As of the end of 2004, there were 23 IBETs operating in 15 "strategic" border areas. According to an official release, in 2003-2004, a total of 45 national security cases were unearthed as a result of IBET operations.7 Some IBET teams now have intelligence units with members from both countries working at a single location. An International Joint Management team has been created to oversee the program.
According to one author, the Smart Border policy should be viewed as a deliberately incremental strategy. Reg Whitaker sees the policy as "the concrete model for the wisest Canadian approach to post-9/11 security cooperation."8 In Whitaker’s assessment, the Smart Border policy is working (and evolving), offers concrete results to both sides, and serves "to limit the damage to Canadian sovereignty to manageable levels."9 Whitaker may be right. His argument makes it clear that the threats to human rights arising from Canadian border security policy are best understood as by-products of the erosion of Canadian sovereignty.
The most contentious matter to arise out of harmonization efforts on bilateral security has been the Safe Third Country Agreement. The Safe Third Country Agreement was built into the Smart Border Action Plan and changes the system for handling refugee claims at the Canada-US land border. The Agreement amends the Immigration and Refugee Protection Act (IRPA) and came into force on December 29, 2004.10 It stipulates new procedures for handling asylum seekers at the Canada-US border. With certain exceptions, asylum seekers arriving at the Canadian land border from the US lose eligibility to have their refugee claim determined in Canada. The agreement similarly allows the US to return to Canada asylum seekers attempting to enter the US from Canada. In popular parlance, the Safe Third Country Agreement was meant to stop "asylum shopping."
Critics have charged that the Safe Third Country Agreement, although not in conflict with Canadian human rights law, breaches international norms providing protection for migrants. According to one recent study sponsored by the Institute for Research on Public Policy, "as a result of the recent multiplication of restrictive migration policies, the vulnerability of migrants has increased and their rights have unquestionably been reduced at all stages of the migration process."11 An Ecumenical Canadian Church group has reflected the concerns of some observers of the Agreement by arguing that the United States, for various reasons to do with law and policy, cannot be considered a "safe" country for asylum seekers.12 The Canadian Council for Refugees has called the Safe Third Country Agreement a "bad deal" and offered 10 reasons why, some related to the argument that the US cannot be considered a safe country for refugees and others related to the loss of Canadian sovereignty.13
While controversy over aspects of Canadian national security policy-making did not subside, the first wave of such policy initiatives ended abruptly in December 2001. It would be two years before national security policy re-emerged as a political priority in Canada. When it did, the political environment for national security policy had changed substantially.
In December 2003, the new Liberal Prime Minister, Paul Martin, began a process of significantly overhauling the government machinery for managing national security. These developments, which are surveyed in Section 4, had the effect of creating new leadership nodes in the Canadian government, in the newly formed Department of Public Safety and Emergency Preparedness Canada, and in the office of the National Security Advisor to the Prime Minister.
These major institutional changes preceded, and made imperative, the preparation of a major strategic policy statement. In April 2004, the government issued what it described as Canada’s "first-ever comprehensive statement of our National Security Policy."14 The policy arrived two-and-a-half years after the 9/11 attacks (and 147 years after Confederation). In a written preface to the document, Prime Minister Martin stated:
Securing an Open Society articulates core national security interests and proposes a framework for addressing threats to Canadians. It does so in a way that fully reflects and supports key Canadian values of democracy, human rights, respect for the rule of law, and pluralism.15
In many ways the National Security Policy was an audacious document. It clearly laid out the objectives of Canadian national security policy: keeping Canadians safe; preventing Canada from being used as a launch pad for attacks on neighbours and allies; and making a valuable contribution to international security. It identified a host of possible current threats and established an innovative "all hazards" approach to national security policy. This "all hazards" approach recognized the danger posed by transnational terrorism to Canada but did not consider it more important than other concerns. Terrorism was but one element in a broader model of a "complex " threat environment featuring dire challenges posed by:
- the proliferation of weapons of mass destruction
- failed and failing states
- foreign espionage
- natural disasters
- critical infrastructure vulnerability
- organized crime
- pandemics
Despite the rhetoric of Paul Martin’s foreword to the document, the National Security Policy contains little in the way of reference to human rights protection or advocacy. The emphasis in the document is on "securing"; the "open society" is more or less taken for granted.16 Paradoxically, unlike a strategy statement fixated on terrorist threats and responses, an "all hazards" approach, so much in tune with Canadian experience and outlook, may have reduced the visibility of human rights concerns.
What is missing in the National Security Policy is a sustained analysis of how the open society that Canadians cherish can be advanced by aligning security objectives and human rights protection and advocacy. Failure to see the need for this may have resulted from a lack of continuity between first- and second-wave national security decision-making, or from post-Anti-Terrorism Act policy fatigue.
Key recommendations:
The CHRC should commission a study of the human rights implications of the Smart Border Agreement and Action Plan.
The CHRC should engage in a study of Canadian federal agency "watch lists," to monitor their compliance with human rights legislation and to make recommendations with regard to safeguards and appeals mechanisms.