Wednesday, August 26, 2020

Pushing Status for All as Ottawa Ramps up Deportations

 


By Matthew Behrens

            When Immigration Minister Marco Mendicino announced last week a possible “one-time” pathway to permanent residence for some non-status workers on the frontlines of Covid-19, Ottawa Roma refugee, seamstress, and mother of five, Celina Urbanowicz, was seated at her sewing machine, churning out hand-sewn masks.

            Since the beginning of the pandemic, Urbanowicz has produced for free countless thousands of the masks for hospitals, daycares, and long-term care homes that have never had enough personal protective equipment. The masks became so popular that health care workers earlier this summer took to social media, both trying to ascertain the identity of this secret angel supplying them with colourful and well-fitting masks, and hoping to order more.

            As rallies across the land this past weekend pointed out, Mendicino’s offer, while welcome, did not go far enough. Indeed, Urbanowicz, a 23-year resident of Canada who has lived here without status because of legal errors and other barriers that were the fault of others, will not have the doorway opened to her.  Instead, she is fighting deportation to the virulently right-wing atmosphere in Poland, where Amnesty International has concluded a woman of her profile faces "multiple risks on account of their intersectional vulnerabilities stemming from their identity as a Roma woman, wife of a Muslim man, and as the mother of a lesbian woman.”

            Indeed, the newly re-elected Polish President Andrzej Duda and his right-wing Law and Justice party have stoked a neofascist movement that has led to the declaration of LGBTQ-free zones throughout the country, pulling out of the Istanbul Convention on ending violence against women, and an increase in anti-Roma violence.

            Urbanowicz’s case is not isolated. She is one of hundreds of thousands of non-status people who live in the shadows of this country, subjected to economic exploitation (especially as migrant farm workers) and often denied the safety and services others enjoy. While Canada recently announced plans to welcome up to 390,000 immigrants annually by 2022, it continues to pursue an intensely cruel policy of surveillance, detention, and deportation of a significant population who pay taxes, contribute to their communities, and have built lives here.

 

Status For All

If Canada’s immigration bureaucrats were to work in a logical fashion, they would realize that the first cohort of hundreds of thousands of potential permanent residents are already here and, in many cases, have been for years. Why spend hundreds of millions annually forcing communities to live in fear, trying to break up families via detention and deportation (often over the kinds of minor procedural errors and systemic issues that are rife throughout the system) when they can grant permanent resident status to everyone now? There is zero evidence that any harm would result from such a blanket offer to come from the shadows; if anything, it would prevent the harm that comes with terrorizing and breaking up families and returning them to persecution.

Mendicino’s Covid-themed offer is problematic on a number of other levels. It was couched in the framework of racist Canadian benevolence that fails to acknowledge that humans caring for one another is a universal trait: “And despite the fact that they themselves were very vulnerable, (they) put themselves at a high risk to help others in their community,” he said. “Even though they don’t possess Canadian papers that give them permanent resident status or immigration status, they demonstrated a uniquely Canadian quality by looking out for one other.”  

The idea that those who have lived lives at risk and undergone often difficult, traumatic journeys to get here as refugees should have to undertake additional risk to win the favour of the Immigration Minister speaks to the heartlessness at the core of the system. Indeed, in a statement that makes Mendicino eligible for the Gaslighter of the Year award, he told the Toronto Star: “What makes this group so unique and so special is the adversity that they had overcome just to get here.”  

But everyone who comes here faces that adversity, both in the journey and, all too often, in the struggle to survive here, with only a patchwork of services and advocates available to help them navigate the system. And the fact that only certain “designated” occupations fit this bill is yet another discriminatory measure. Hady Anne, an asylum seeker from Mauritius and member of Solidarité Sans Frontières, told the Toronto Star: “It’s saying there are people who are ‘essential’ and there are others that aren’t,” noting that the measure does not include undocumented residents, agricultural workers, international students and refugees working as janitors and in other jobs in long-term-care facilities.  “It’s a discriminatory measure that brings us backwards in the defence of human rights.”

 

Refugees as Inventory Items

Mendicino’s surface-only benevolence reflects a deeper problem: those who have come to Canada seeking safety and a better life are rarely viewed by government bureaucracies as human beings. Rather, they are inventory items that need to be shuffled from one file to another. This was made pretty clear in the Auditor General’s (AG) July, 2020 investigation of the Canadian Border Services Agency (CBSA) which, like the brutal American ICE (Immigration and Customs Enforcement, the focus of an excellent Netflix documentary, Immigration Nation), acts as a kind of Gestapo that hunts vulnerable people in an effort to meet deportation quotas.

In 2018/19 fiscal, the CBSA spent $34 million to rip apart families and execute deportations. The AG describes the majority of those found inadmissible to Canada as “failed asylum claimants,” along with a smaller number of visitors who overstay their visas or those with alleged criminality. The latter is a grossly broad term that fails to account for the racial profiling and over-policing of racialized communities that underscores the policing/judicial system. It is also minuscule, 2,800 cases, or less than 1.5% of the total. Those individuals on the list face double punishment, as most have already served either time or probation for their alleged offences.

Meanwhile, CBSA tries to deport individuals within a year of a final negative decision, largely because if individuals manage to stay here longer than 365 days, they may access a pre-removal risk assessment (whose success rate is less than 5%). The CBSA hopes to increase deportations to at least 10,000 annually, and received an additional $36 million, beginning in 2019/20, to keep up with its mandate of misery and reach a hoped for 15,500 annual deportations by 2022.

The AG’s report is written in the cold, actuarial language that removes all humanity, insisting that deportation “protects the integrity and fairness of Canada’s immigration system,” even though the system itself is rife with a lack of integrity and fairness that grows not from those who come here but from racism, institutional bias, incompetence, and repeated failure to uphold both its domestic and international law commitments. CBSA also says removal of refugees is “one of the most effective ways to deter those who might otherwise seek to abuse the system.” In other words, like the Trump administration, the goal is not to make it safe for those at risk, but rather to punish those who, for whatever reason, cannot win their cases. Those reasons often range from an inability to find a translator or competent lawyer, missing a checkbox on an application form, not having a “you have been tortured” certificate from the torturers in the country they fled, biased decision makers at the Immigration and Refugee Board, or submitting a document a day late. They are deemed “failed” asylum seekers when in fact, they simply could not win against a system that too often fails them. 

The AG says there are about 50,000 “enforceable cases” in the CBSA inventory, and bemoans an institutional incompetence that, while perhaps good news for those trying to survive here without fear of being deported, simply extends the period of uncertainty and living in the shadows that mark the lives of hundreds of thousands of people. The CBSA is cited for  “poor case management” and failure to complete annual investigations. It is also taken to task for its sloppiness in maintaining a “national removal inventory” (language one would associate with toxic waste, but here it’s meant to describe everyone from women fleeing abusive men and individuals targeted by governments for their ethnic or religious heritage or political affiliation to peasant farmers forced off their land and threatened with death for trying to stop Canadian corporations from building a dangerous mine or megadam in their home community).

 

CBSA’S Poor Data Management

As of April 2019, the CBSA had 197,000 removal orders in its “inventory.” Among them are 132,500 unenforceable removal orders (individuals awaiting word on asylum claims and permanent residence applications) and 14,500 “stayed” cases where deportation is legally prohibited. Under the “enforceable” category, there were 15,300 “working inventory” individuals who CBSA was “required to remove,” and 34,700 where individuals with immigration warrants could not be located. The AG notes the numbers are approximations due to CBSA’s poor “removal data quality.”

One might find that CBSA’s incompetence and inability to find thousands of those who continue seeking safety is a mixed blessing. It means not being immediately returned to dangerous conditions in their homes countries, but it also forces them to continue living in the shadows, where there is more risk of exploitation. CBSA’s inability to work as professionals also has incredibly dangerous consequences. The AG found 3,200 cases in the working inventory that were “actionable, meaning they had no known impediment to advancing to removal. However, because of poor data quality, we found that actionable cases were not reliably identified – some cases were wrongly flagged as actionable, while many more cases were actionable (‘no impediments’ but were not flagged.)” In human terms, what this means is refugees with every right to be here as their case is being determined had been wrongfully labeled as removable, meaning they could be picked up, detained, and possibly deported before anyone realizes the huge error committed. The trauma and potential lethality of such sloppiness is incalculable. The AG found through sampling  that at least 500 cases in the working inventory were not enforceable; those numbers may in fact be far higher. CBSA ultimately does not care whether it removes those with a right to be here because its mandate is to hit its quotas. (Unfortunately, the proroguing of Parliament meant that proposed legislation to introduce oversight of the CBSA was eliminated and must begin anew at a future date).

In the sick evaluation of whether or not such an agency meets its mandate, the AG noted that while the 2018/19 removal year boasted some 9,500 cases, 2,800 had been refused entry at the border, which means “the agency removed 6,700 cases from its working or wanted inventories that fiscal year, making little impact on their levels.” Notably, CBSA confirmed with the AG that “cases in its wanted inventory are generally considered a low risk to public safety and are not an agency priority.” In other words, kids and families who, even though they pose no risk, are nonetheless a juicy target to meet quotas.

 

Trudeau and Trump’s Concentration Camps

Who, exactly, is being turned away by Canada under its various border enforcement mechanisms? Earlier this month, the Federal Court of Canada released a key decision that summarized ten refugee cases while finding that the so-called Safe Third Country Agreement (STCA) with the USA violated the Charter of Rights and Freedoms. The Court said it was clear that Canada is actively turning away individuals seeking asylum here with the full knowledge that those refugees will be immediately detained upon return to the USA, where standards for refugee acceptance continue to decline and conditions for those behind bars are cruel.

Under the agreement, anyone arriving at a land port of entry (POE) from the U.S. cannot make a refugee claim in Canada because of the assumption that the US is “safe” for refugees. Yet, as the Court notes, “claimants arriving from the US by air, by sea or between land POEs, are eligible to have their refugee claims” heard.

Among those who were part of the challenges to the STCA were individuals and families escaping danger in El Salvador, Syria and Ethiopia. Ms Mustefa, for example, was turned away after 30 hours of interrogation in Quebec and immediately jailed for a month, with the first week in solitary confinement.

Mustefa described solitary as a “terrifying, isolating and psychologically traumatic experience,” and, as a Muslim, reports she was served pork even though she informed guards she could not eat it.  As a result, she lost 15 pounds by skipping meals.

A Syrian family who tried to walk across the border at the Roxham Road opening in the New York/Quebec border were told by the CBSA they would be arrested if they tried to enter. When they turned back to New York, they were thrown into separate police cars, questioned, photographed and fingerprinted, with the mother forced to remove her hijab. (They were thankfully able to eventually get temporary resident permits and have since become permanent residents.)

While Canada has disingenuously argued that it has no control over what happens to those it deports or kicks back to the US, the Court found that “CBSA officials are involved in the physical handing over of claimants to US officials. This conduct does not make Canada a ‘passive participant’ and it provides a ‘sufficient connection’ to the offending conduct. I conclude that the actions of Canadian officials in returning ineligible STCA claimants to US officials facilitates a process that results in detention.”

 

Physical and Psychological Suffering

The Court notes that “the accounts of detainees demonstrate both physical and psychological suffering because of detention, and a real risk that they will not be able to assert asylum claims.” The conditions they are forced to ensure are brutal, with the court  finding “all describe the detention centres as abnormally cold. J.K. describes being unable to sleep due to the cold; P.Q. describes asking for extra blankets, but not receiving any until she had a fever and needed to see a doctor, and R.S. stated that when prisoners would huddle together for warmth, the guards would pull the blankets off them. J.K. states that she denied requiring medical attention to avoid being handcuffed. R.S. describes the medical care in her detention facility as being inadequate. R.S. observed the nurse in her detention facility ignore black detainees while going out of her way to address medical issues of white detainees. She states that the nurse would ‘ignore us and simply not address our concerns’.”

The Court’s bottom line was clear: “The evidence establishes that the conduct of Canadian officials in applying the provisions of the STCA will provoke certain, and known, reactions by US officials. In my view, the risk of detention for the sake of ‘administrative’ compliance with the provisions of the STCA cannot be justified. Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the STCA. The evidence clearly demonstrates that those returned to the US by Canadian officials are detained as a penalty.”

Such brutal conditions are wholly consistent with those documented in report after report, including Human Rights Watch’s In The Freezer: Abusive Conditions for Women and Children in US Immigration Holding Cells, as well as the excellent Netflix series Immigration Nation, which follows the plight of many of those detained, those organizing against the American concentration camps, and the casual cruelty of ICE (Immigration and Customs Enforcement) officers who, like their CBSA counterparts, think only in terms of numbers processing and bottom lines.

All of this is publicly available evidence, and yet Canada continues to behave as if the US is a safe destination for refugees. Canadian officials are aware of the fact that, for Salvadorans, being sent back to the US and eventual deportation back home often results in death. Indeed, more than 70 people deported from the US to that country under the Obama administration from 2012-15 were murdered upon their return, numbers that increased under Trump with deteriorating conditions in that Central American country.

While the Federal Court gave Ottawa a six-month period to bring its policies in line with the constitution and the law, the Trudeau Liberals have chosen in favour of the Trump concentration camp system of family separation and racist border walls, deciding last week to appeal the Court decision. In an August 21 statement, Public Safety Minister Bill Blair made himself eligible for the Cognitive Dissonance Award of 2020 by declaring the appeal was being conducted because “Canada remains firmly committed to upholding a compassionate, fair and orderly refugee protection system.”

Whether that commitment will extend to Roma refugee Celina Urbanowicz remains to be seen. She spent a few hours last week dropping off face masks to grateful nurses at Riverside Hospital in Ottawa. As she returned home to continue her one-woman production line, her daughters and supporters continue campaigning to have her accepted as a permanent resident to Canada and to cancel the deportation to Poland. This week, they launched a 23-day chain fast, each day marking one year that she and her family have lived here without status. They are also promoting a petition that has garnered over 7,000 signatures.  

The fact that refugees must risk their lives in a Covid-infected facility or seek the help of advocates to generate petitions, publicity, demonstrations, and chain fasts simply to win their basic right to be safe speaks not to a refugee problem, but to a systemic problem with Canada’s immigration system. As government officials continue to dismiss their legal obligations to asylum seekers, it falls to the rest of us to engage in this work to ensure an end to the cruel warehousing, hunting, and deportation of those who came here because their backs were against the wall in their home countries. Lives hang in the balance, and all of us have choices to make.

 

 

 

 

 

             

 

 

 

Tuesday, August 25, 2020

Megadam Opponents Follow Up on One-Year-Old Ignored Request to Meet with NDP Leader Jagmeet Singh

 

 

August 26, 2020

 

 

Jagmeet Singh, MP

Leader of the NDP

Critic for Indigenous Relations and Services

Re: Following Up on One-Year-Old Request to Meet Over Muskrat Falls, Gull Island and other Megadams Affecting Indigenous Peoples

CC: Niki Ashton, Leah Gazan

 

Dear Mr. Singh,

 

We write during a month of painful anniversaries. August 7 marked the first anniversary of the beginning of the impoundment of the Muskrat Falls megadam’s reservoir in 2019. This $13.7 billion megadam never received the free, prior and informed consent of all Indigenous peoples affected, and now we are dealing with the fearful effects of this dangerous project.

 

The impoundment – undertaken without the necessary clearance of trees, brush, and vegetation – means only one thing: the methylmercury poisoning of an Indigenous country food web that has existed since time immemorial. This is the latest in a centuries’ old Canadian strategy of poisoning or eliminating by other violent means the Indigenous food supply. 

 

This month, we mark another painful anniversary. It has been one year since we wrote an open letter to you requesting a meeting and action from you and the NDP to stand up for the rights of those downstream of Muskrat Falls. In that year, despite our many calls, emails, and personal delivery of this request to NDP headquarters in Ottawa, neither you nor your staff have once responded.

 

This is totally inconsistent with your fine words about reconciliation and Indigenous rights. As a federal leader who appointed himself responsible for the party’s Indigenous rights portfolio, you have unfortunately failed to address this federal issue: indeed, $9.2 billion in federal money is  backing this project, whose development process completely flies in the face of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

 

This fact was recognized in June, 2019 by the United Nations, which called on  "the Federal Government to use its leverage as the largest investor in the [Muskrat Falls] project...to prevent the release of methylmercury,” while noting that the project had not received free, prior and informed consent of all affected Indigenous peoples.

 

Meanwhile, Muskrat Falls Inquiry Commissioner Richard LeBlanc wrote in the inquiry’s conclusions earlier this year that the dam’s proponents “did not act fairly with the Nunatsiavut Government, the NunatuKavut Community Council and the Innu of Ekuanitshit. GNL [Government of Newfoundland and Labrador] and Nalcor created an environment of mistrust and suspicion by not allowing all of the Indigenous Peoples and other concerned citizens to engage in a meaningful and transparent consultation process….Even today, GNL has failed to ensure that its commitments, and those of Nalcor, regarding environmental matters related to the Project are being properly tracked, monitored and acted upon.

 

While the Conservatives and Liberals have long said this is out of their hands and dismissed it is a provincial matter, the federal government is the single largest investor in this project and should have – and could still – use its leverage to limit the damage being done on a daily basis. That is why we are again writing to you as a federal leader who says he cares about Indigenous rights.

 

Our request to meet with you is not simply to discuss past grievances regarding Muskrat Falls. We also wish to speak with you because – even after the disastrous process that has led to Muskrat Falls – plans are now afoot to build a megadam almost three times as large upstream at Gull Island. The harmful impacts of yet another megadam are almost incalculable.

 

Those who tout megadams as green energy have bought into a false panacea to address climate change. From the production of methane to the destruction by flooding of traditional habitats to the contamination of Indigenous food webs, such projects are genocidal in their impact. Heat pollution from these dams as well as silica depletion, loss of sediment and nutrients, and a massive negative effect on fisheries are just a few of the detrimental effects on the marine environment of the St. Lawrence River, the Gulf of Maine and the George’s Banks. We see this same pattern across the land, from Muskrat Falls to the many destructive dams built by Manitoba Hydro to Site C in the Peace River region.  The time for a national reckoning for how these dams have devastated Indigenous nations is long past; the time for discussion with you on how we can stop these disasters in the making (while also addressing the ongoing damage of completed projects) is now.

 

While profoundly disappointed in the refusal of you and your party to even consider communicating in response to our many requests, we still hope that as you continue in your position, you will have a change of heart and discuss this critical issue with us. We have much information to share with you.

 

Please feel free to contact the Ontario Muskrat Solidarity Coalition (tasc@web.ca, 613-300-9536) and Grand Riverkeeper Labrador Inc. (rebnfl@gmail.com) so that we may work with you to end the suffering caused both by current megadams and those still planned.

 

Marjorie Flowers, Happy Valley Goose Bay, Labrador

Roberta Frampton Benefiel, Happy Valley Goose Bay, Labrador

Denise Cole, Happy Valley Goose Bay, Labrador

Erin Saunders, Happy Valley Goose Bay, Labrador

Beatrice Hunter, Happy Valley Goose Bay, Labrador

Bryanna Brown, Happy Valley Goose Bay, Labrador

Rita Monias, Pimicikamak Okimawin

Matthew Behrens, Unceded, Unsurrendered Algonquin Territory (aka Ottawa)

 

 

Tuesday, August 18, 2020

Handwrite for Harkat's Human Rights: Send a Free Snail Mail Letter to Stop His Deportation to Torture

 

Details on how to participate in this FREE snail mail campaign below!
 
WHY ARE WE DOING THIS?
In an age of easily ignored electronic mail, Members of Parliament rarely receive physical mail. When they do, it’s a sign that someone cares enough to sit down and write something out and mail it. During the pandemic, many people have turned to traditional home-based activities like sourdough bread baking and arts and crafts. So why not a handwritten letter to protect someone's human rights? It’s a perfect summertime activity while sitting outside at the socially distanced beach, under a shady tree in the park, or at your kitchen table.

We hope to generate 5,000 personal letters to stop one of the gravest crimes a government can commit: sending someone to torture. Below is a sample letter to MP and Public Safety Minister Bill Blair (feel free to personalize it and explain why this issue is important to you) to stop the deportation to torture of Ottawa refugee Mohamed Harkat, who has lived with this “wrongful conviction” nightmare (even though he was never charged)  for 18 years. Imagine the pain of indefinitely facing a potential death sentence based on allegations from secret accusers you were never allowed to face and cross examine.  Learn more about his case here: https://www.change.org/p/help-stop-my-husband-s-deportation-to-torture

HOW THIS WORKS
1. Get a pen and paper and an envelope.
2. Write a letter (sample below, feel free to personalize it). If handwriting is a problem, you can type a letter and print it out with your signature (if typing, maybe handwrite an additional sentence as well as a PS, like “Canada should never deport anyone to torture. This must end!"
3. Put your return address in the upper left hand corner of the envelope. No postage required! Don't put any slogans or messages on the envelope—we want each one opened!
4. Send the letter for FREE to the following address
Bill Blair, MP
House of Commons
Ottawa, Ontario. K1A 0A6

5. Email tasc@web.ca to let us know you sent a letter so we can keep track of our numbers.
6. If you have a scanner, scan your handwritten letter and send it to tasc@web.ca ; if you are comfortable taking a selfie and holding up your letter and sending it to us, we would love to post it on social media 
7. Share this callout with friends, family and on social media: https://www.facebook.com/events/4813748268651004

Thanks so much!

Matthew Behrens
Stop Canadian Involvement in Torture

SAMPLE LETTER


(Feel free to personalize or edit: why is this issue important to you?)

Dear Bill Blair,

Please grant permanent residency to Ottawa refugee Mohamed (Moe) Harkat and end the threat of deportation to torture. A well-supported application to allow Mr. Harkat to stay in Canada has been on your desk for over four years.

Starting in 2002, Moe spent 43 months in maximum security detention without charge on secret allegations he was not allowed to properly contest. He was released in 2006 on the strictest bail conditions in Canadian history, and while they have lessened, they are still incredibly intrusive and humiliating 14 years later.  The original “evidence” against Mr. Harkat was destroyed by CSIS, and the allegations against him are based on two secret informants – one failed a lie detector test and the other had an affair with his CSIS handler – who were never cross-examined in court. 

If this had been a regular criminal trial, the term “wrongful conviction” would fit perfectly.

This is grossly unfair. Moe is a United Nations Convention refugee who has lived in Canada for 25 years. If deported, he faces the risk of imprisonment, torture, and possibly death in Algeria. Courts in the UK and Ireland have barred their governments from deporting people to Algeria who face a substantial risk of torture. Canada must do the same in Moe’s case.

On October 26, 2017, Prime Minister Trudeau clearly stated: “Nobody ever deserves to be tortured. And when a Canadian government is either complicit in that or was not active enough in preventing it, there needs to be responsibility taken.”

The threat to deport Moe violates Canadian law and the UN Convention Against Torture (which outlaws deportation to torture under any circumstances, without exception).

Under the law, you have the power to allow Mr. Harkat to stay in Canada. I, along with thousands of other people both in Canada and globally, urge you to use this power today to allow Mohamed Harkat to remain in Canada and live his life, safe from fear and torture, with his wife and community.

I look forward to hearing from you about the resolution of this case.

Thank you  
 
Name
Town

Sunday, July 26, 2020

Federal Court Furious With CSIS Illegality and Lies



By Matthew Behrens

Since the 1984 creation of Canada’s spy agency, the Canadian Security Intelligence Service (CSIS), headlines have documented a history of abuse of power, racial and religious profiling, surveillance and disruption of Indigenous, labour, environmental, anti-war and student organizing, exaggerated threat assessments meant to promote bigger budgets, and complicity in torture.
Targeted communities – Indigenous people, refugees, and Muslims, to name only a few – can testify to such illegality But their voices are always discounted by systemic white supremacy and state security paranoia underlying weak-kneed institutions tasked with keeping a limited rein on CSIS. Indeed, Parliamentary committees, review agencies, academic “experts”, and the Federal Court have always provided CSIS with the tender care and benefit of the doubt more fitting to a senior trying to negotiate a crosswalk than an agency whose actions cause considerable harm and generate widespread fear.
But a starkly worded, formerly “Top Secret” decision released by Federal Court Judge Patrick Gleeson last week reveals that even the denizens of the nominally CSIS-rubber-stamping Court have had enough with being lied to in secret warrant application hearings as part of investigations into “Islamist Terrorism” and “OTHER ENTITIES AND NAMES REDACTED FOR REASONS OF NATIONAL SECURITY.”
In angry language, Gleeson attacked both the Justice Department and CSIS for “a degree of institutional disregard for—or, at the very least, a cavalier institutional approach to—the duty of candour and regrettably the rule of law.” The decision notes that CSIS – in the name of fighting alleged “terrorism” – has engaged in illegal activities, including “provision of money” and “provision of personal property” to a person “known to be facilitating or carrying out terrorist activity.”
Gleesen asked that “a comprehensive external review be initiated to fully identify systemic, governance and cultural shortcomings and failures that resulted in the Canadian Security Intelligence Service engaging in operational activity that it has conceded was illegal and the resultant breach of candour.” The latter phrase references the fact that CSIS lawyers lied in closed hearings, venues where they have an extra special “duty of utmost good faith in the representations it makes to the court.” As Judge Richard Mosely wrote in a prior state security case, the Court should not “be kept in the dark about matters it may have reason to be concerned about if it was made aware of them.”

A History of Illegality
CSIS is not the only organization under fire. Gleeson is equally displeased with Justice Department lawyers, noting “Service advisors had known for years that the Service was gathering information used for warrant applications through activities that were on their face illegal.” Despite years of legal opinions and discussions going back and forth between the two bodies, “experienced [Justice Department] counsel was apparently unaware that illegality was an issue in April 2018. This demonstrates not only a lack of individual awareness but also a severe institutional failing.”
The first half of Gleeson’s 150-page decision outlines a byzantine bureaucratic odyssey encompassing the Justice Department, its National Security Litigation and Advisory Group (NSLAG), various ministers and deputy ministers, and the scandal-plagued CSIS. It’s an important history lesson that invokes the 1981 McDonald Commission Report that documented endless years of illegal activity undertaken by the RCMP Security Service and concluded: “Members of the security organization must not be permitted to break the law in the name of national security.”
State security culture has always reeked of entitlement and contempt both for democracy and the laws of the state it is allegedly “protecting” from “danger.” Over three decades’ worth of annual reports from the Security Intelligence Review Committee (SIRC, the former CSIS review body), as well as Federal Court decisions, are full of repeated cautions, styled almost like grade-four report card speak, that CSIS must try really, really, really, hard to act within the confines of the law.
The Federal Court’s frustration with CSIS illegality has been building for over a decade. Changes in judicial outlook began as a result of years of grass roots political organizing and outstanding legal work by a small, dedicated team of lawyers to expose the dishonesty and illegality behind CSIS operations. This context included security certificate proceedings (aka the Secret Trial Five), ongoing security inadmissibility proceedings relying on overly broad interpretations of what allegedly constituted state security threats, judicial inquiries into Canadian complicity in the torture of four Canadian citizens, and the Supreme Court finding that CSIS was complicit in the torture of Omar Khadr at Guantanamo Bay.
Indeed, it reached a point where, in the Federal Court’s Associated Data case (which dealt with CSIS’s illegal retention of massive amounts of data and lying about it to the Court), an exasperated judge asked what it would take for CSIS to seriously address concerns about CSIS dishonesty: “I wonder what it will take to ensure that such findings are taken seriously. Must a contempt of Court proceeding, with all its related consequences, be necessary in the future?”
In last week’s decision, Judge Gleeson sighs: “I am left with the same question.”
                 
Open Contempt of the Law
                  Gleeson outlines a years-long series of Ministerial Directions gently nudging CSIS about respect for the rule of law. One such direction was even issued by Stephen Harper’s last Public Safety Minister in 2015, singling out as a fundamental operational principle that “the rule of law must be observed.”
                  This followed on years of back-and-forth correspondence between the Justice Department and CSIS after the Chretien regime’s implementation of the 2001 Anti-terrorism Act. At the time, Gleeson notes, a series of sketchy legal opinions from the Justice Department concluded that “Crown immunity shields the Service’s human sources and their handlers from criminal responsibility.” But they also cautioned that “Crown immunity should not be seen as a panacea for potentially illegal actions in furtherance of the Service’s mandate.” Indeed, a 2005 opinion said there was little academic or judicial support for Crown immunity. The issue continued to be discussed, and a 2013 opinion again concluded that CSIS should not rely on Crown immunity, recommending legislative changes if CSIS had a problem with that.
                  In 2016, the Security Intelligence Review Committee (SIRC) recommended that CSIS seek clarification “on whether Crown immunity afforded CSIS employees and human sources protection from the Criminal Code’s anti-terrorism offences.” Gleeson notes that during the development of the 2015 Ministerial Direction on rule of law, CSIS “sought the inclusion of language that would recognize a Crown immunity exception to the requirement that the Service and its human sources comply with the law.” In response to this request, another opinion from the Justice Department unequivocally  found that “The CSIS Act now refutes any possible argument that activities contravening Canadian law can legitimately be contemplated as ‘effecting’ Crown purposes whether they are carried out by sources or by CSIS officials or employees.”
                  Gleeson notes his frustration that neither CSIS nor NSLAG bothered to provide the SIRC (which earlier sought clarification on this issue) with a copy of the unequivocal opinion. In October, 2015, the NSLAG provided further advice that contradicted its own Department’s earlier “unequivocal opinion,” telling CSIS it “may rely” on crown immunity in its acts of law-breaking and dishonesty. Even though the NSLAG’s senior lawyer felt this opinion was problematic, that advice was directly delivered to CSIS.
                  In 2016, the Justice Department hired high-profile lawyer Murray Segal to produce a report on best practices for these “ex parte” hearings (where only one side is heard). After identifying numerous instances where CSIS lied, he concluded: “in no other context is counsel’s compliance with the duty of candour more critical to upholding the rule of law.” As Gleeson notes later in the decision, it’s not just CSIS, but also senior members of the Justice Department who must comply with the rule of law. “These individuals must do more than recognize the duty of candour’s importance: they must identify and implement the institutional structures and processes necessary to ensure individual and institutional compliance with the duty.”

Corrosive Effects
                  Caught once again with their pants down, it appears that government officials went before the Court with mealy-mouthed justifications. Gleeson says the Attorney General of Canada acknowledged the dishonesty, but claimed that lawyers and CSIS “acted in good faith and tried to uphold the duty.” While the Attorney General argued that institutional failures prevented CSIS  and Justice Department lawyers “from recognizing the issue of illegality and raising it with the Court,” Gleeson has none of it, declaring, “This explanation does not lessen the corrosive effect of the breach on the Court’s confidence in the Service’s ability to be candid.”
                  Gleeson’s decision also outlines a series of events that “reveal the Service’s troubling willingness to undertake operations in the face of advice to the effect that the CSIS Act did not authorize the operation. The events also reveal the Department of Justice’s equally-troubling reluctance to clearly and unequivocally communicate that certain proposed operational activity was illegal and that the Service lacked the authority to undertake the activity.”
                  In 2017, a new Justice Department opinion was delivered to CSIS, again clearly stating they did not enjoy Crown immunity. Following a series of high-level meetings, the head of CSIS, while awaiting yet another opinion on Crown immunity for CSIS law-breaking, ceased operations that broke the law.  Ultimately, the Justice Department drafted yet another opinion that again concluded CSIS did not enjoy Crown immunity, but it was never finalized or delivered to CSIS. Judge Gleeson notes that approvals for law-breaking operations recommenced in March, “operations that the [January 2017] opinion had concluded were illegal.” CSIS failed to notify the Justice Department that it was again undertaking illegal operations. Perhaps CSIS was feeling emboldened with the knowledge that the days of fretting over such matters of illegality and lying to courts would soon be coming to an end with new legislation, Bill C-59. Known as the National Security Act, 2017 (which received royal assent in 2019), it explicitly authorized CSIS to break the law.
            Indeed, right there in the law is the language CSIS sought for years: the rubber stamping of illegal activities. For example, Section 100 of the Act finds that, “No employee is guilty of an offence under section 368.1 of the Criminal Code if the acts alleged to constitute the offence were committed by the employee in the course of their duties and functions and for the sole purpose of establishing or maintaining a covert identity.” More significantly, in a paragraph that would make George Orwell blush, section 101 states that, “It is in the public interest to ensure that employees effectively carry out the Service’s information and intelligence collection duties and functions, including by engaging in covert activities, in accordance with the rule of law and, to that end, to expressly recognize in law a limited justification for designated employees acting in good faith and persons acting under their direction to commit acts or omissions that would otherwise constitute offences.”
            Meanwhile, under C-59, the Minister of Public Safety is allowed, at least once a year, to come up with a fresh list of “acts or omissions that would otherwise constitute offences and that designated employees may be justified in committing or directing an-other person to commit if the Minister concludes that the commission of those acts or omissions is reasonable.”

The Court as Jilted Lover
            At times, Gleeson’s decision reads like a jilted lover’s letter, wondering where the love and trust has gone (and for those interested in psycho-sexual interpretation, it is worth noting his approvingly quoting from a decision that worries about any process that might so threaten the Court that it finds itself “emasculated, and is not really a court at all.”) Gleeson points out that CSIS continued approving legally questionable operations, even as the CSIS Director acknowledged that doing so could be perceived as dismissing the cautions about law-breaking that had already been issued by the Federal Court.  Gleeson notes: “Having approved operations that were on their face illegal, the Service then collected information which in turn was put before this Court in support of warrant applications, without notifying the Court of the likely illegality.”
                  Again, Gleeson is troubled when he remarks: It is difficult to overstate how disturbing these circumstances are. Operational activity was undertaken in the face of legal advice to the effect that the activity was not authorized by the CSIS Act. Reliance was placed on the Crown immunity doctrine despite the Service having been advised by senior counsel in the context of a revision to the Ministerial Direction that ‘[b]estowing of Crown immunity on CSIS is not consistent with the CSIS Act.’ Nonetheless, the Service continued to rely on Crown immunity, doing so in the face of unambiguous direction from the Minister of Public Safety and Emergency Preparedness that the ‘Service must observe the rule of law in discharging its responsibilities.’ And this was done with the apparent acquiescence of the Department of Justice.”
Of course, anyone familiar with the serious abuses committed by state agencies (often rubber stamped by the Justice Department and Federal Court judges) in the years following the 2001 attacks in New York would recall that such practices are not new. Indeed, finding ways to violate the law have long been institutionalized by CSIS and the Justice Department A 2011 secret memo outlined how CSIS and the Justice Department had set up a torture approvals team, using the more hug-like moniker of the Information Sharing Evaluation Committee. Their task is to decide whether to act on the fruits of torture and whether to share information that could lead to the torture of someone else.
While Gleesen’s findings need to be addressed, there is ultimately a pitiful sense of naivete underlying his decision. Completely missing from it is an acknowledgement  of all the solid documentation that real human beings suffer because of this institutional disregard for the truth and the law. Also missing is an understanding that no matter how many times CSIS gets called on the carpet, no one is ever held accountable. Indeed, because, as Gleeson says, “these reasons focus on institutional shortcomings …. I have purposely avoided the identification of individuals by name in these reasons.”

The Mop-Up Begins
As someone who does not hear or see the daily violence visited upon so many vulnerable communities and individuals by CSIS, Gleeson can only take offence that judges of the Federal Court—overwhelmingly white and privileged – were lied to by the spies and their lawyers. Unheard are the concerns of a first-year Muslim student confronted by CSIS agents on campus, the refugee claimant told he will not win his case unless he spies on his community, or an Indigenous woman labeled a “security threat” because she resists pipelines that never received her people’s consent. Instead, like a gatekeeper trying to preserve the system with some pleasant window dressing, Gleeson concludes that, “To not seek out and address the systemic problems that resulted in this breach of candour will negatively impact upon public confidence and trust in the Service.”
Unfortunately, the Court’s belief that such a result is paramount is not surprising. That is the exact language CSIS uses. After it was called on the carpet in 2016 for illegal spying and retention of Canadians’ data, the head of CSIS issued a statement to employees. Rather than urging them to support the rule of law and not commit crimes, he said, “we needed to maintain and enhance the confidence of Canadians and the Court in our institution.”
Again, this is not surprising. When Gleeson hopes to see that “confidence and trust in the Service as a key national institution is restored and enhanced,” he fails to question why CSIS is needed, much less explore the wider context of its abuses. Instead, he buys into the unsubstantiated myth that “The security intelligence function is vital to the nation’s security.” Ultimately, this forces the question back into the hands of those of us in the broader community who see the damage done by CSIS, the RCMP, and other repressive bodies worthy of defunding and dismantling.  
But if we want to see real change, we must first take on the loyal servants to the system who have already begun working to help clean up the latest CSIS mess. Indeed, the largely secret infrastructure set up to allegedly monitor CSIS (including a state security committee of Parliamentarians and academics who also buy into the myths) has already begun a review that, in the words of NDP MP Murray Rankin, will  get to the bottom of this and to make a report that’s fair and balanced…. What I hope comes out of our review is a thorough understanding of just what happened.”
But fair and balanced to whom? Certainly not to those victimized by Canada’s spy agency, who have not been called into this process. It’s also unclear what a new report will reveal that Gleeson has not already documented in his lengthy decision, especially in light of the new legislative immunity that has been granted for CSIS to break the law. Instead of an external review, a full public inquiry into the crimes of CSIS is a far more fitting approach, one that should be designed by those who have felt the full consequences of the agency’s illegal and dishonest practices, as well as one that questions the assumptions that justify the existence of this dangerous body in the first place. Anything short of that will leave us stuck where we are today, with frustrated judges spending years on hearings, wringing their hands, writing scathing decisions, asking what more can be done, while the victims of CSIS practices continue to add up.