Evidence of meeting #92 for Public Safety and National Security in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-59.
A video is available from Parliament.
Liberal
The Chair Liberal John McKay
I'm going to call the meeting to order while the witnesses assemble. We have one routine thing to do and that is to pass the budget in front of you.
Liberal
The Chair Liberal John McKay
Now we don't have to reserve time at the end of the meeting to be able to do that very thing.
Now that most of the witnesses are assembled we'll call on them.
This is the 92nd meeting of the public safety and national security committee. We have, as our first panel of witnesses, the National Council of Canadian Muslims with Ihsaan Gardee, executive director, and Faisal Bhabha, legal adviser. Then for the No Fly List Kids, Zamir Khan, and we're awaiting Khalid Elgazzar.
Liberal
The Chair Liberal John McKay
Why don't we call upon the National Council of Canadian Muslims to make their 10-minute presentation? I'll leave you, Mr. Gardee, to introduce your organization.
Ihsaan Gardee Executive Director, National Council of Canadian Muslims
Good morning, members.
Thank you very much for your attention and time today.
My name is Ihsaan Gardee, as mentioned, and I serve as executive director of the National Council of Canadian Muslims. I am joined today by my colleague, Professor Faisal Bhabha, NCCM's legal counsel and the chair of our national security policy committee.
The NCCM was founded in 2000 as an independent, non-partisan, and non-profit grassroots organization that for over 17 years has been a leading voice for Muslim civic engagement and the promotion of human rights. The NCCM's mandate is to protect the human rights and civil liberties of Canadian Muslims, advocate for their public interests, build mutual understanding, and challenge discrimination and Islamophobia.
We work to achieve this mission through our work in four primary areas: community education and outreach, media engagement, anti-discrimination action, and public advocacy. The NCCM has a long-standing and robust public record of participating in major public inquiries, intervening in landmark cases before the Supreme Court of Canada, and providing advice to security agencies on engaging communities and promoting public safety.
In terms of our position, the NCCM has always supported the government's responsibility to ensure national security. We commend the current government for fulfilling its election promise to review Bill C-51 as its condition for supporting the bill in the first place, and to consult with Canadians. While we welcome, for instance, that Bill C-59 proposes to create a national security review agency with more oversight and review than we currently have, our general objection remains constant. This law goes too far. It virtually guarantees constitutional breach, and it offers inadequate justification. It strengthens the security establishment when the evidence available gives every indication that the institutions carrying out national security intelligence gathering and enforcement mandates are in disarray, rife with bias and bullying from the top down. Oversight of those agencies is not sufficient. Real reform is necessary.
While we share the concerns of others you have heard from, including Amnesty International and others, for the purposes of our opening statement today I'll be focusing our testimony on two major substantive concerns we have with Bill C-59. Number one is the powers given to CSIS, and number two, the failure to address systemic problems with the no-fly list.
In terms of our reasons, Canadian Muslims are just as concerned about security as other Canadians. We face the same risk of untimely death or injury at the hands of terrorists as any Canadian. In fact, globally the overwhelming majority of victims of political violence, including ideological extremist violence, have been Muslims. Being a population with global connections, Canadian Muslims are threatened and impacted by global terrorism as much, if not more, than other Canadians. We thus have a high interest in Canada developing a strong and sound national security policy with robust oversight, accountability, and redress mechanisms to guard against abuses and mistakes.
At the same time, members of Canadian Muslim communities have been victims of Canadian national security policy. Over the last 15 years we have seen three separate judicial inquiries, numerous court rulings, out-of-court settlements, and apologies that acknowledged the constitutional violations committed against innocent Muslims by national security intelligence and enforcement. Canadian Muslims are not only disproportionately affected by these errors and abuses, but we also bear the brunt of social impact when xenophobic and anti-Muslim sentiment surges.
NCCM agrees with the plurality of experts who state that more power to security agencies does not necessarily mean more security for Canadians. National security mistakes not only put innocent people at risk of suspicion and stigma, but also divert attention away from actual threats and obstruct effective action to promote safety and security. At the same time that Alexandre Bissonnette was dreaming up his murderous plot to attack a Quebec City mosque, the RCMP were “manufacturing crime”, according to the B.C. Superior Court judge in the case against John Nuttall and Amanda Korody. They were Muslim converts and recovering heroin addicts living on social assistance, whose terrorism charges were stayed last year after a court found they had been entrapped by police.
Bill C-59 strengthens the security establishment but does not address the security needs of Canadian Muslims. While the idea of prevention is laudable, any potential benefit from this approach will be negated by the incursions on charter rights that disproportionately affect members of our community, and which will continue to happen under the guise of threat reduction, information sharing, and no-fly listing.
If the government wishes to collaborate with communities on prevention, it needs to build trust and confidence first. For many young Canadian Muslims, the documented and admitted involvement of intelligence and enforcement agencies in rendition and other human rights abuses, and the complete lack of accountability and perceived impunity that have been created as a result, have bred a lack of confidence in the Canadian security establishment.
This past summer, a group of CSIS employees filed a civil claim against the service, alleging discrimination, harassment, bullying, and abuse of authority. They described a workplace environment within the service that is racist, Islamophobic, sexist, and homophobic, where the culture is like an old boys' club and where minority representation in management is abysmally low. The day after the claim was filed, two senior former CSIS employees were quoted in the media saying they were not surprised by the allegations.
In October 2017, CSIS released the report of an independent, third-party investigation into allegations of harassment in the Toronto region office. The findings noted an “old boys' culture”, demeaning treatment, swearing and discriminatory statements, distrust among employees towards management, and a lack of diversity among the staff.
If these kinds of reports are indicative of the overall culture that exists within these organizations toward their own employees, it does little to assuage concerns within Canadian Muslim communities about unfair profiling and error.
The Canadian Human Rights Commission conducted employment equity audits of CSIS in 2011 and 2014, and the findings are shocking for a powerful public institution operating in a 21st-century, multicultural, democratic society.
There were zero per cent visible minorities in senior management positions at a time when visible minorities were about 20% of the Canadian population. We have to infer from that not just a glass ceiling but an actual bar. The CHRC also noted an institutional culture that undervalued minorities and reproduced attitudinal barriers, which resulted in fewer hiring and advancement opportunities for minorities.
The security agency's loss of trust within Canadian Muslim communities has been exacerbated by the lack of accountability for past wrongs committed against innocent Muslims. While the government has concluded significant settlements and made apologies, no one from within those agencies has been held to account.
To the best of our knowledge, there has been no disciplinary action and no public acknowledgements. Instead of accountability, some of those involved in the well-known torture case of Maher Arar have even been promoted within the agencies.
At best, there was individual and institutional incompetence in the security agencies. At worst, it was gross negligence or bad faith. Neither is acceptable and the taxpaying Canadians who fund these agencies deserve better.
The lack of accountability projects a culture of impunity within the Canadian security agencies that reinforces the insecurity Canadian Muslims experience. The problems with CSIS will not be mitigated by Bill C-59. No amount of administrative oversight can cure the systemic ills. These agencies need reform.
We do not see any attention given in this proposed legislation to the real impact that bias in national security has in producing insecurity and harm within our communities. Without a clear statutory mandate and direction from our government, we do not believe that civil society alone can change the culture within CSIS and other security agencies.
We are willing to help, but that burden cannot fall only upon us.
I'll now pass it over to my colleague, Professor Bhabha, to conclude with our recommendations.
Faisal Bhabha Legal Adviser, National Council of Canadian Muslims
Let me use these last remaining moments to take you to our recommendations. We have two.
First, we are asking that the no-fly list, formerly known as the passenger protect program, be ended. We found that it continues to cause serious damage to Canadian families and fails to provide effective remedy or recourse, as you're going to hear from our colleague beside me.
The NCCM continues to receive reports from individuals affected by the no-fly list, people who have had difficulty travelling for months or years, both domestically and internationally. While immediate relief is necessary for those currently listed for erroneous or invalid reasons, we expressly endorse the recommendations that the No Fly List Kids coalition is going to bring.
Our view remains that no amount of tinkering can solve the underlying problem, which is that the no-fly list is one of the most damaging instruments of racial and religious profiling currently in place in this country. It is the national security analogue to carding in the urban policing context. Since its implementation, it has caused so much damage without any proven or demonstrable benefit that we simply cannot justify it in our rule of law democracy. It was an interesting experiment, but its time has come to an end.
What Canada needs is not a list of banned flyers, but rather stronger investigative and intelligence work so that people who present actual risks or who have committed actual crimes are dealt with through the criminal justice system. Anything beyond that is dangerous profiling with proven harm to members of our community and others.
The second recommendation is to reform CSIS. With respect to CSIS, we hold that it cannot be given additional powers, given the current lack of faith and trust in the institution on the part of many Canadians. There's simply too much evidence of systemic bias and discrimination to ask Canadian Muslims and our fellow citizens to trust that any new powers will not be exercised improperly and discriminatorily. In fact, all of the evidence suggests that any new powers will be exercised improperly and discriminatorily.
As has been mentioned, abuses in national security disproportionately affect Canadian Muslims, though not only Canadian Muslims, and this is not a coincidence. What is needed is a thorough culture shift within the national security agencies before Canadians can trust that bias and stereotypes are not driving investigations and will not shape the way the proposed new powers to disrupt are deployed.
Legal Adviser, National Council of Canadian Muslims
Yes. The last point is simply diversity—
Liberal
The Chair Liberal John McKay
You will have to work your other point in. It's over time.
I encourage witnesses to take a look at the chair towards the end of their time. Otherwise, I'm making all kinds of hand gestures and getting no response.
Legal Adviser, National Council of Canadian Muslims
I'm used to being interrupted by judges.
Liberal
The Chair Liberal John McKay
Yes. Any lawyer worth his salt has been interrupted many times.
Mr. Khan.
Parent, No Fly List Kids
Thank you.
Before I start, I want to apologize to the committee that my colleague, Khalid, can't be here. I'm going to be wearing two hats today, one as a parent and one as a makeshift legal adviser.
Thank you for the opportunity to testify before you today on Bill C-59. My name is Zamir Khan and I am one of the parent founders of No Fly List Kids. We represent the hundreds of families and thousands of citizens adversely affected by Canada's passenger protect program. The scope of our knowledge, and accordingly our testimony, is limited to the passenger protect program, such as amendments the Secure Air Travel Act.
I am not a legislative expert or a security expert. I am simply a Canadian citizen and a father, here to testify to the harmful impact that can be enabled by gaps in legislation and when intelligence gathered by our own security agencies is applied in a haphazard manner. As you are likely aware, the passenger protect program, also known as Canada's no-fly list, was implemented in 2007 with a design that included, in the words of our current Minister of Public Safety and Emergency Preparedness, “a fundamental mistake.”
That flaw, which persists today, is that verifying whether passengers are potentially listed persons is delegated to airlines and done solely based on their name, and this is despite both booking information and the Secure Air Travel Act watch-list containing additional identifiers such as date of birth. Any innocent traveller caught in this web is subjected, at a minimum, to extra delays and additional security scrutiny to prove their identity. They are then stuck in a perpetually revolving door to repeat the process every time they fly.
We are often asked how many Canadians are affected by this problem. Statistics about the program and its effectiveness have not been shared since its inception in 2007 when the transport minister disclosed that there were up to 2,000 names on the list. Our group has been contacted by over 100 affected families, representing the tip of the iceberg. The vast majority of encumbered travellers are unaware of the source of their difficulties by virtue of the Secure Air Travel Act explicitly prohibiting the disclosing of any information related to a listed person. However, based on the names of the falsely flagged individuals we know of, and the number of Canadians who share those names, we conservatively estimate that over 100,000 Canadians are potential false positives when they fly. The methodology and rationale behind this estimate will be detailed in our upcoming written submission.
I am personally involved in this issue. My three-year-old son, Sebastian, has been treated as a potentially listed person since his birth. That means, for the first two years of his life, Sebastian was young enough, in the eyes of travel regulations, to be considered a “lap-held infant” who didn't require a seat on the flight, but old enough to be flagged as a possible security threat.
For families with flagged infants, the associated delays further complicate an already challenging travel schedule. As these children grow older, they become aware that they are the reason for the ever-present waiting and security scrutiny. That stigmatization has been described by the minister as a traumatizing experience for them and their families. When the children grow into teenagers and young adults, particularly young men, their innocence becomes less obvious. As our group has heard, their delays become longer and the scrutiny more intense. This has meant that some families have missed flights and the kids shy away from air travel for fear of stigmatization. This is not a future I want for my son.
The Secure Air Travel Act permits the minister to enter into agreements with foreign nations to disclose our watch-list to them. For example, a working group was established in 2016 to share our no-fly list with the United States. The prospect of this data being shared internationally is troubling to our families, who have experienced frightening ordeals of being detained and questioned or having passports confiscated while travelling abroad. Indeed, my wife and I are concerned about the treatment that awaits our family should we travel outside of Canada, given what already happens domestically. A watch-list that places undue suspicion on us is being shared internationally by our government, yet the burden to prove our innocence is being placed entirely on our shoulders.
All of this is to illustrate that the impact here runs much deeper than mere inconvenience. It is stigmatizing, inescapable, arguably a violation of charter rights, and as this committee has previously recommended, it is eminently solvable.
No Fly List Kids has been advocating for a fix to this flawed system for two years, and thus far the government has responded in two ways. In January 2016, the minister emphasized to airlines that children under the age of 18 did not require additional screening. However, as was reported by CBC, the result was Air Canada reiterating to their employees that all matches to the list must have their identities verified in person regardless of age.
In June 2016, the government announced the passenger protect inquiries office, or PPIO, designed to assist travellers who have experienced difficulties related to aviation security lists. Our group is not aware of a single family for whom the PPIO has been able to resolve their case. To the average Canadian, a resolution would mean permanently clearing someone who is falsely flagged. The PPIO considers recommending signing up your child for an airline rewards program or applying to the U.S. Department of Homeland Security's redress system as a resolution.
For those flagged by the Canadian list like my son, a U.S. redress number does not help. Airline rewards programs are an inconsistent and flawed band-aid that the minister has called a stopgap measure. It's not good enough.
Earlier this year, the committee authored the report entitled “Protecting Canadians and their Rights: A New Road Map for Canada's National Security”. No Fly List Kids agrees with your recommendation 35 that the only solution for Canadians is an expeditious redress system to assist travellers erroneously identified as a person on the specified persons list.
In lieu of our legal adviser Khalid, I will now articulate our views on Bill C-59 and how, while it provides some initial framing, it falls short of ensuring a timely implementation of a redress system.
I will briefly touch on the following points: one, that the pressing need for a redress system has been established; two, that Bill C-59 does not go far enough in the establishment of a redress system; and three, time permitting, that the technology required for a redress system already exists and is being employed by our allies.
Let's start with the good news. Over the past few years, law-abiding Canadians from coast to coast have recounted their personal stories of delay, frustration, humiliation, and frankly, consternation in their encounters with the no-fly list regime. Those stories took on a new urgency when the No Fly List Kids group came together a little less than two years ago to bring to light how the list was affecting their children, including infants.
It appears that the message has gotten through. The group has secured letters from 202 members of Parliament, constituting two-thirds of the House of Commons, all calling for the swift establishment of a redress system. There appears to be all-party support for getting this done, but that brings me to the bad news.
On reading the proposed amendments to the Secure Air Travel Act contained in Bill C-59 it is apparent that, although the bill takes a small step toward the establishment of a redress system, it falls short of actually establishing the system. Bill C-59 includes a section that permits the minister to collect personal information for the purpose of issuing a unique identifier to travellers. It's a small step forward, but it's not where we need to go.
To illustrate by way of example, section 16 of the act currently provides an appeal mechanism for individuals who are denied boarding. There's also a section for administrative recourse.
Contrast that with Bill C-59, which does not come close to setting out the details of a redress system for people who are falsely flagged by the list.
My final point is that we are not asking the government to reinvent the wheel. We need to look no further than our closest neighbour, the United States. We have attached screenshots of booking information for the same passenger travelling from Canada to Halifax and New York, with a Canadian airline, Air Canada. As you can see, the technology is already there for the passenger to input their redress number when travelling to the United States and be cleared at the time of booking.
Thank you to the committee.
Liberal
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Thank you, Chair.
Thank you to all the witnesses for being here. It's nice to see you again, Mr. Khan.
I'm going to start with the no-fly list. I questioned officials quite extensively when they were here. I shared it with No Fly List Kids, so I hope you saw it. If you didn't, you can watch it.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
As you know, I have a constituent whose son's name matches a name on the no-fly list. Just to clarify, it's not just Muslims who are on the no-fly list. They're not. They may be predominantly, I don't know, but certainly it affects many Canadians, regardless of religion.
Some of the concerns that I know are addressed in Bill C-59, and I think you probably share them.... Maybe you can clarify. One was that she had no capacity to find out if, in fact, her son was on the no-fly list. Bill C-59 will give a parent or guardian the ability to find out if that name is on the list. That didn't exist before. I'm not sure if you were aware of that or not.
Parent, No Fly List Kids
I am aware of that. I wonder about that amendment because while it gives the minister permission to let families know that their child is on the no-fly list, it's not clear to me how the family would know to ask the minister because it's still prohibited under the act for airlines to disclose any information related to a listed person to families who are travelling.
I experienced this personally. It was only on the fifth flight with my son that we were told the true reason for our delays. Before that, we were always blamed as having made a booking error with regard to my son. I didn't know until somebody, I guess—I just found out—possibly committed a federal offence to tell me that my son was on the list.
I would then go to the minister to get that confirmation, but I don't know how families are supposed to know that.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
That's another change that's being made. The list is going to be maintained by the government and not by the airlines. The officials also told us that this is a Canadian list. It's not one that's shared with other countries, so each country maintains its own list.
I know she has had success with the American redress system in terms of getting a number. I think you said that as well, that the American system actually is working for people whose names are a match.
Parent, No Fly List Kids
He's a match on the American list. I have a letter right here from the U.S. redress system for my son. It does not help, and furthermore, I can't input that number when I travel with my son in Canada.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
But it helps if you're travelling in the States. That's what she told me. If you were flying from New York City to Los Angeles on American Airlines, it would help in the United States, just not with the Canadian airlines.
Liberal
Pam Damoff Liberal Oakville North—Burlington, ON
Okay, fair enough. I'm sure it's very difficult to travel with a young one.
