Research Program

National Security and Human Rights

Section 8 The Role of the Canadian Human Rights Commission in Fostering Knowledge and Understanding of the Interface Between security and human rights

As has been argued throughout this report, an ongoing, critical monitoring of the evolving practice of national security in Canada and its impact on human rights is essential to the maintenance of democratic norms, good governance, public confidence, and the legality and efficacy of the Canadian security and intelligence community. There are many entities in Canada that might be engaged in such sustained monitoring, including Parliament, federal government review bodies and commissioners, NGOs, private sector watchdogs, the media, and the academic community. Despite the potentially abundant sources of monitoring, the actual work done remains uncoordinated, fragmentary, discontinuous and often highly specialized. For all these reasons, the quality of monitoring, as currently performed, is insufficient.

The key challenge of this section of my report is to suggest ways in which the CHRC, while fulfilling its mandate, could also make an identifiable and unique contribution to critical and sustained monitoring of the nexus between security and rights.

The Canadian Human Rights Commission has been active since 1978, having been established to help give effect to the Canadian Human Rights Act. It seems fair to say that, prior to 9/11, the CHRC was not particularly active in monitoring the implications for rights of national security policy in Canada. The debate over the passage of Canada’s Anti-Terrorism Act, Bill C-36, in the fall of 2001, awakened the CHRC’s concern. The Chief Commissioner of the CHRC appeared before the House of Commons Standing Committee on Justice and Human Rights to express concerns about the proposed definition of terrorism and provisions dealing with preventive detention.⁸⁵

In the CHRC’s annual report for 2001 it was recognized that, while some of the Commission’s concerns had been addressed in the final version of Bill C-36, "the Act still places significant restraints on civil liberties that prior to September 11 were unknown in Canada."⁸⁶

The 2001 annual report applauded the fact that C-36 confirmed the role of the CHRC over discriminatory messages transmitted via the Internet, calling this one of the "positive features" of the Bill. More recently, the question of discriminatory and hate messages in a national security context has become controversial. In the aftermath of the July 2005 transit bombings in London, England, the British government attempted to bring forward new national anti-terrorism legislation, one of the most controversial elements of which was the criminalization of "incitement." The extent to which a hate crime offence might be synonymous with an act of incitement to terrorism and whether and how current Canadian law distinguishes between them is a matter that would seem to require further study. As discriminatory messages transmitted over the Internet fall directly within the CHRC’s mandate, this would seem to be an important area for research, especially with regard to CHRC liaison engagements with Internet service providers and law enforcement agencies. When such messages cross over into what appears to be criminal activity, such matters are referred to the police for further action.

In its annual report for 2001, the CHRC also called attention to the need to "better educate the general public and law enforcement officials about human rights."⁸⁷ This duty, it was suggested, fell primarily to the federal government. The demand also provides an important opening for the CHRC and a potential definition of its future role. While the federal government has identified a need to educate the public on national security matters and has taken some important initiatives, such as the release of the national security strategy document in April 2004, public education cannot be left to the government alone.

In the period since the release of its annual report in 2001, the CHRC has engaged in some forward thinking about broader initiatives in the field of Canadian human rights. A consultation paper, "Looking Ahead," produced in September 2004, included a suggestion for a new emphasis on a research capacity to monitor the human rights landscape in Canada and the production of a "periodic report on the state of human rights in Canada." This might be achieved by "developing human rights indicators to allow assessment of progress."⁸⁸

While it would be a departure from past practice and certainly take the CHRC in new directions, the CHRC should seek to establish itself as an authoritative source for public understanding of national security and human rights issues in a Canadian context.

The key to the success of this initiative would be to ensure that the CHRC uses its research program in such a way that it complements, rather than overlaps or duplicates, the initiatives and reporting undertaken by other agencies in both the public and the private sector. This would require the CHRC to be fully informed about the activities of other stakeholders in the field of national security and rights in Canada. These stakeholders would include

• Amnesty International (Canada)⁸⁹
• Canadian Civil Liberties Association⁹⁰
• Law Reform Commission of Canada⁹¹
• Human Rights Watch⁹²
• Canadian Association of University Teachers⁹³
• Canadian Bar Association⁹⁴
• Rights and Democracy⁹⁵
• Canadian Association for Security and Intelligence Studies⁹⁶

In addition, the CHRC could perform an invaluable service by using its website as a comprehensive portal directing attention not only to its own work but also to the selected work of other governmental and nongovernmental agencies reporting on national security and human rights in Canada. At present, no such portal exists. The principle of "one-stop shopping" for authoritative information on rights and security is an important one, given the current fragmentary nature of expertise in Canada.

Key recommendation: