Human rights accountability in national security practices: presentation to open caucus meeting of Liberal Senators

Thank you for that kind introduction.

And thank you to the Senate Liberal Caucus for inviting me to be part of this discussion today. 

I would like to introduce my colleague: Monette Maillet, Director-General Human Rights Promotion Branch. It was her Branch that produced the work we are going to discuss today.

I am going to share three messages with you.

First, national security organizations cannot prove that they are not discriminating against people based on race, religion or ethnic background. That’s because they do not collect statistics to show that there is no bias in how they operate. 

Second, national security organizations could be at risk of losing public trust, as a result.

And third, Parliament should require national security organizations to track their human rights performance and share the findings with Canadians.

The Canadian Human Rights Commission has a mandate to ensure equality of opportunity and freedom from discrimination. We administer the Canadian Human Rights Act and audit federally regulated employers to ensure compliance with the Employment Equity Act. 

We also receive complaints based on the 11 grounds of discrimination enumerated in the CHRA and promote Parliament’s vision of an inclusive society through research, policy development and outreach.

My remarks today will be confined to a discussion of the Canadian Human Rights Commission’s 2011 Human Rights Impact Assessment for Security Measures and its Special Report to Parliament, entitled: Human Rights Accountability in National Security Practices. 

Both publications are the product of a decade of research on national security and human rights in the Canadian context. 

The Commission studied and analyzed court cases, public inquiries, social science research and the work of Parliamentary Committees.

And it consulted with organizations responsible for national security in Canada.

Four years have passed since this advice to Parliament was tabled.  We are not aware of any national security organization having put our recommendations into practice. I believe our findings and recommendations are just as relevant today. 

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The Commission looked at the practices of organizations that provide national security to Canadians. 

We learned that many security organizations have policies to prevent discriminatory practices.

We also discovered that few can demonstrate with hard numbers that their policies are followed.

This is because there are no hard numbers. 

Let me explain. National security organizations are not required to account publicly for how they meet their human rights obligations. 

For example, many organizations have policies to prevent discriminatory practices, such as profiling. 

But there are no processes in place to collect and analyze data to determine whether they discriminate on the basis of characteristics such as race, ethnic origin or religion.

This brings me to my second point. 

Without monitoring to transparently demonstrate that their human rights policies are effective, national security organizations are vulnerable to criticism and the potential loss of public trust.

Public confidence in an organization depends in part on how well it can demonstrate that policies the public expects them to follow are followed. 

As you know, public confidence is critical. 

It’s easier to enforce laws and other measures that keep us safe when people support them. 

And that support depends on public trust that rules are fairly and consistently applied.

As it stands, most of the legislation that gives Canada’s national security organizations authority to operate on our behalf is silent on human rights issues.  

This brings me to my third point.

Parliament should require national security organizations to track their human rights performance. The findings should be shared with the Canadian public.

The Commission’s Special Report recommended that Parliament put accountability mechanisms for national security organizations into law. 

These mechanisms would require them to collect data about their operations to determine whether, in the field, there is evidence of unjustified bias against people due to things such as race, religion or ethnic origin. 

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Some argue that a government’s responsibility to national security is at odds with its responsibility to uphold human rights. 

• that effective public security comes at the expense of human rights.
• that we have to give up one to have the other.

However, the courts have already clarified that human rights and national security are not an either/or proposition.

One need not trump the other. 

I would like to conclude with a quote.

When the Supreme Court of Canada was asked, specifically, to consider the relationship between national security, human rights and the rule of law, its response was clear, and I quote:

In a democracy, not every response is available to meet the challenge of terrorism. At first blush, this may appear to be a disadvantage, but in reality, it is not. A response to terrorism within the rule of law preserves and enhances the cherished liberties that are essential to democracy.

End of quote.

Thank you for your attention. I look forward to answering your questions.