COMMISSION
OF INQUIRY INTO THE ACTIONS OF
CANADIAN OFFICIALS IN RELATION TO MAHER ARAR
BRITISH COLUMBIA
CIVIL LIBERTIES ASSOCIATION
APPLICATION FOR STANDING AND FUNDING
AFFIDAVIT
I, John Russell, College Instructor and President of the B.C. Civil Liberties Association ("BCCLA", of 425 - 815 West Hastings St., Vancouver, British Columbia, MAKE OATH AND SAY AS FOLLOWS:
1. I am President of the BCCLA, and accordingly have personal knowledge of the facts and matters hereinafter deposed to, save and except where the same are stated to be on information and belief, and, as to such facts, I verily believe the same to be true.
2. I am employed as an instructor of philosophy at Langara College and as ethics advisor to the University of British Columbia's Clinical Research Ethics Board. I have been an adjunct professor of law at the University of British Columbia and have had a continuing appointment in the department of philosophy at UBC where I taught for 10 years.
3. The BCCLA is a Society duly incorporated on February 27, 1963, pursuant to the Societies Act, with its registered office at 425 - 815 West Hastings Street, Vancouver, British Columbia. The objects of the BCCLA include the promotion, defence, sustainment and extension of civil liberties and human rights.The BCCLA has at present approximately 1100 members and contributors involved in various professions, trades or callings.
4. I have been intimately involved in civil liberties work in Canada for nearly 25 years. In 1980, I was appointed to head the BCCLA's office staff. In 1988, I resigned as Executive Director, and since then I have served as a member of the BCCLA board and executive committee. During this time, I have represented the BCCLA before legislative committees addressing security-intelligence matters, and I have drafted submissions on security-intelligence and policing issues.
5. The BCCLA has demonstrated a long-standing, genuine and continuing concern with the rights of the citizens in British Columbia and in Canada to liberty and freedom. In various fora, we speak out on the principles which promote individual rights and freedoms, including freedom of thought, belief, conscience, religion, opinion and expression, equality rights, and autonomy rights generally.
6. The BCCLA is a provincial organization in name only. It is Canada's oldest active civil liberties organization. It can lay claim to being this country's pre-eminent civil liberties organization. The BCCLA has played an important and prominent role on every significant national civil liberties issue for over 40 years. As the information in this affidavit attests, nowhere is the BCCLA's national presence and expertise more evident than in the roles it has played in the development of policy and in assisting individual complainants on security-intelligence and policing matters.
7. One of the distinguishing features of the BCCLA, and a key reason why it has been able to play such a prominent national role, is that it has a committed volunteer board of directors with a wide range of expertise related to its mandate. Although the BCCLA is one of an extremely small number of civil liberties organizations with a full-time staff devoted exclusively to civil liberties work, it remains very much a board-driven organization. Thus, it has been able to tap the expertise and energies of a wide range of academics, professionals, and lay persons with expertise in civil liberties work. This has given the BCCLA a unique status in this country as the only truly grass-roots citizens' organization with the resources of a full time staff devoted exclusively to civil liberties. As a consequence, the BCCLA has also had a range of resources that has allowed it to play an informed and constructive role on complex and diverse subjects related to civil liberties. Again, this is nowhere more evident than in the BCCLA's contributions on issues and matters related to security-intelligence and policing.
8. The BCCLA works to achieve its mandate through four program areas:
1. Public Education: through media work, its website, public presentations, public events and the distribution of publications, the BCCLA educates the public about civil liberties,
2. Complainant Assistance: the BCCLA provides free assistance to individuals who have civil liberties concerns about the laws, policies or actions of government or private sector institutions,
3. Law and Policy Reform: the BCCLA meets with public and private officials and makes formal submissions, written and oral, to all levels of government and private institutions, and
4. Litigation: when other forms of moral suasion do not succeed, the BCCLA will go to court to protect civil liberties. Aside from trial and first appeal courts, the BCCLA is regular intervenor and party before the Supreme Court of Canada regarding cases that have a national scope. More recent examples of these cases include:
1. Reference Re Same-Sex Marriage (hearing pending)
2. R. v. Malmo-Levine, R. v. Caine [2003] 3 S.C.R. 571; R. v. Clay [2003] 3 S.C.R 735 (the Marijuana case)
3. Chamberlain v. Surrey School District No. 36 [2002] 4 S.C.R. 71 (the banning of books depicting same sex couples)
4. Babcock v. Attorney General (Canada) [2002] 3 S.C.R. 3 (challenge to section 39 of the Canada Evidence Act (Crown Privilege provision))
5. Sauve v. Canada (Chief Electoral Officer) [2002] 3 S.C.R. 519 (prisoner voting rights)
6. Trinity Western University v. British Columbia College of Teachers [2001] 1 S.C.R 772 ( extent of religious freedom in private college)
7. R. v. Sharpe [2001] 1 S.C.R. 45 (child pornography)
8. R. v. O.N.E. [2001] 3 S.C.R. 478 (publication ban on operational methods and identity of undercover police officers)
9. Little Sisters Book and Art Emporium v. Canada (Minister of Justice) [2000] 2 S.C.R. 1120 ( customs power to ban expressive material)
10. R. v. Cuerrier [1998] 2 S.C.R. 371 (fraud in failing to disclose HIV status vitiating consent in assault)
9. The BCCLA has a long history and involvement with national security-intelligence, anti-terrorism legislation and police accountability in Canada. The positions taken by the BCCLA are based on the guiding principle that restrictions on basic rights and freedoms can only be justified if they are necessary ultimately for the sake of those very same rights and freedoms.
1. In 1978 and 1979 the BCCLA made submissions to the McDonald Commission on Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police specifically regarding the role of the Secret Service in Canada. The BCCLA argued that security must include security in our basic democratic rights and freedoms. One aspect of the BCCLA submission was that, so far as possible, the security service should be integrated into the regular force of the RCMP. This would put security threats in their proper context in relation to other threats of criminal activity and would negate the accountability problems created by unique lines of authority. A true copy of the 1978 submission is attached as exhibit "A" and of the 1979 submission is attached as exhibit "B"
2. In 1980, the BCCLA made submissions to and was invited to appear before the Joint Senate-Commons Committee reviewing proposals for the Canadian Charter of Rights and Freedoms.
3. In 1983 the BCCLA made submissions on the proposed Canadian Security Intelligence Service Act. The BCCLA was concerned that the Bill gave the Canadian Security Intelligence Service ("CSIS") "a mandate too broad, powers too intrusive, and democratic controls too limited". The government responded to these criticisms with a new Bill in 1984. The BCCLA again made submissions, acknowledging the improvement in the second Bill but raising concerns regarding routine monitoring of "domestic subversion"; the relationship between CSIS as a civilian agency and other intelligence agencies including the RCMP; and the continued breadth of the CSIS mandate. A true copy of the 1983 submission is attached as exhibit "C" and of the 1984 submission is attached as exhibit "D".
4. In 1988, the BCCLA made submissions to the government regarding Bill C-77, a proposed Emergencies Act which would replace the War Measures Act. Though the BCCLA did not oppose in principle the creation of legislation that would temporarily suspend some civil liberties in times of true national emergency, the BCCLA, among other criticisms, expressed concerns that the bill had no clear definition of "emergency" nor provided adequate parliamentary oversight of invocation of extraordinary state powers at the expense of civil liberties. The BCCLA submission, attached as exhibit "E", followed correspondence between the BCCLA and the Minister responsible which is attached as exhibit "F".
5. In 1989 the BCCLA participated in the five year parliamentary review of the Canadian Security Intelligence Service Act. The essence of the BCCLA submission was that there needed to be greater oversight, control and accountability of the security-intelligence activities of CSIS and of other agencies and that the mandate of CSIS should be narrowed and clarified. In this regard the BCCLA made a number of specific recommendations for creating a balance between security-intelligence activities and the fundamental democratic rights and freedoms of Canadians. A true copy of that submission is attached as exhibit "G".
6. In 1991 the BCCLA submitted a complaint to the Security Intelligence Review Committee ("SIRC") regarding CSIS questioning of members of the Arab and Iraqi communities in Canada during the Gulf War. A true copy of a letter to CSIS dated April 15, 1991 is attached as exhibit "H", of a letter of response dated May 27, 1991 is attached as exhibit "I", and of a letter to SIRC dated June 20, 1991 is attached as exhibit "J". To communicate its response to this complaint, and as an example of its trust and confidence in the BCCLA, SIRC took the unusual step of sharing with the BCCLA, on a strictly confidential basis, a draft copy of its Annual Report in 1992. A copy of a letter from SIRC dated November 3, 1992 with attached excerpts from the Annual Report is attached as exhibit "K".
7. The BCCLA has been influential in the creation of a civilian oversight mechanism for the Canadian Security Establishment ("CSE"). CSE is a part of the Department of National Defence and has a mandate to gather intelligence regarding the capacity of foreign states, corporations or persons in support of Canada's foreign and defence policies. CSE also provides advice to government regarding federal government telecommunications security and data processing. In its work, CSE will intercept communications of Canadian citizens and landed immigrants. A true copy of our submission, dated December 1995, is attached as exhibit "L" and of the response from Hon. D.M. Collenette, then Minister of National Defence dated June 30, 1996 is attached as exhibit "M".
8. The BCCLA was a principal complainant before the Commission for Public Complaints Against the RCMP (the "PCC") during its public hearing into complaints about the RCMP's conduct before, during and after the 1997 Asia-Pacific Economic Cooperation ("APEC") conference. The BCCLA was represented by counsel at every day of the APEC hearings, which took almost two years to complete, including both the initial hearings chaired by Commissioner Gerald Morin (as he then was) and the subsequent hearings conducted by Ted Hughes, Q.C. The BCCLA played an important role in those hearings including cross-examining witnesses, participating in judicial review proceedings arising from preliminary matters, and providing both written and oral final argument. I am advised by our counsel, Michael Doherty, that the final report issued by the PCC closely reflected the recommendations made by the BCCLA, and included numerous direct quotes from the BCCLA argument.
9. Following the events of September 11, 2001, the BCCLA made both oral and written submissions to the House of Commons Standing Committee on Justice and Human Rights on Bill C-36 (the Anti-Terrorism Act). In those submissions, the BCCLA recognized that a re-balancing of security interests with privacy and other civil rights and liberties may be necessary when confronting extraordinary threats. However, we submitted that the guiding principle should be that any restrictions on basic rights and freedoms can only be justified if they are necessary ultimately for the sake of those very same rights and freedoms. In our submission this principle required that the restrictions be as limited as possible and that they be accompanied by a commitment that they would come to an end. We recommended a sunset clause of 5 years, pointing out the possibility of mistakes:
...The likely effect of these proposals on the Canadian Muslim community affords another compelling reason for a sunset clause. For the main burden of this legislation is going to fall almost exclusively on Muslim Canadians, particularly on those of Arab descent.
Only the most naive and uninformed observer could think that exercises of preventive detention, investigative hearings, and prosecutions for financing or abetting terrorism that are contemplated by this legislation will not at times be mistaken, sometimes seriously and with tragic consequences. Thus, as the Muslim Canadian community becomes the main locus of investigation, and as genuine controversies arise and mistakes are made, it is practically inevitable that Muslim Canadians will ask questions about their government's commitment to respect their rights to fundamental freedom and equality alongside their Canadian brothers and sisters. These are social costs that we must do all in our power to avoid...
A true copy of my speaking notes dated October 30, 2001 is attached as exhibit "N" and of the BCCLA written submissions is attached as exhibit "O".
10. On November 22, 2001, the BCCLA wrote to Prime Minister Jean Chrétien to express its concerns about the breadth of the definition of terrorist activity contained in the Anti-Terrorism Act. In that letter we expressed our concern that failure to find the appropriate balance between the proposed security measures and respect for fundamental rights and freedoms would threaten and undermine the legitimacy of the fight against terrorism. A true copy of that letter is attached as exhibit "P".
11. The BCCLA has a positive and constructive relationship with the SIRC. The BCCLA meets and corresponds regularly with SIRC, often at SIRC's invitation, to discuss matters of general and specific concern regarding the conduct, oversight and accountability of CSIS. Meetings between the BCCLA and SIRC have occurred in 1989, 1991, 1993, 1998, and 2002. SIRC has expressed its appreciation of the BCCLA's expertise in the area of security-intelligence and the utility of these meetings for SIRC. A true copy of a letter of appreciation from SIRC dated August 24, 1998 is attached as exhibit "Q".
12. In 2002 the BCCLA wrote to then Solicitor General Lawrence MacAulay in regards to the powers granted to SIRC under the Security of Information Act in relation to the "public interest defence". It is an offence under that Act for a person permanently bound to secrecy to communicate or confirm "special operational information", or information that would be "special operational information" if it were true. However, it is a defence if a person establishes that he or she acted in the "public interest". The BCCLA was concerned that the legislation did not give SIRC the explicit power to authorize an individual to divulge information in the "public interest". A true copy of the letter to the Honourable Minister MacAuley dated August 27, 2002 is attached as exhibit "R" and of the response, dated November 8, 2002, as exhibit "S".
13. In December 2002 the BCCLA made submissions to the Department of Justice in response to its consultation document on access by law enforcement and national security agencies to information and communications in the face of new technologies. The consultation document proposed an expansion of the government's ability to carry out electronic surveillance. The BCCLA raised a number of privacy concerns as well as raising doubts as to whether the proposed measures would actually be effective in preventing organized crime or terrorism. A true copy of those submissions is attached as exhibit "T".
14. On January 30, 2003, the BCCLA made both oral and written submissions to the House of Commons Legislative Committee on Bill C-17 (the Public Safety Act, 2002). The BCCLA made a number of specific recommendations in accord with the guiding principle that restrictions to established basic rights and freedoms can be justified only if they are necessary ultimately for the sake of those very same rights and freedoms. A true copy of the written submissions is attached as exhibit "U". Bill C-17 was reintroduced as Bill C-7 essentially unchanged and is now before the Senate of Parliament . The BCCLA made a further submission to the Senate essentially repeating our concerns in our prior submission to the House of Commons Committee. A true copy of that letter, dated April 19, 2004, is attached as exhibit "V".
10. In addition to a specific focus on security-intelligence work of the RCMP, CSIS and CSE regarding matters of national security, the BCCLA is perhaps Canada's foremost public advocate for police accountability generally. The BCCLA has continually played an instrumental role in the creation and reform of police civilian oversight agencies including the Office of the Police Complaint Commissioner of British Columbia (municipal police forces in B.C.) and the Commission for Public Complaints Against the RCMP (CPC), formerly the RCMP Public Complaints Commission. In this work, the BCCLA regularly meets with and makes submissions to government, including special legislative committees reviewing legislation, the Police Complaint Commissioner of B.C and the Chair of the CPC, Chiefs and Superintendents of Police, representatives of rank and file police officers and special bodies charged with reviewing mechanism for police accountability (Oppal Commission of Inquiry into Policing in B.C.).
11. As one of its core programs, the BCCLA will provide assistance to individuals who have concerns and complaints about police, including the RCMP, and CSIS. Over the BCCLA's history, the BCCLA has assisted hundreds of individuals to file complaints regarding these agencies. As a specific example relevant to the Arar Commission, in 1991, the BCCLA filed a complaint with CSIS and SIRC regarding CSIS's interrogation of members of the Canadian Arab and Iraqi communities, as described above at para. 9(f) of this affidavit. The BCCLA's assistance to complainants is important because of the various cultural, linguistic and political barriers to members of minority communities making complaints about the police and security-intelligence agencies.
12. The BCCLA has recently initiated meetings with leaders of the Muslim community in British Columbia to seek their guidance and assistance in assessing the impact of changes in law enforcement and security-intelligence law and policy on members of their community. The BCCLA is currently working with these Muslim leaders to form a task force that would work alongside the BCCLA in gathering this information and in addressing individual complaints and the policy issues that these investigations raise. A true copy of my email communication with leaders of the Muslim community, beginning this process, is attached as exhibit "W".
13. The BCCLA has expertise and experience in matters relating to the issue of disclosure of documents where objections to disclosure are made by government based on national security. For example, in addition to the BCCLA's direct participation at the APEC PCC hearings, the BCCLA was also a party to an action in the Federal Court of Canada (Singh et al. v. Canada (Attorney General) (23 June 2000), Ottawa DES-2-99, DES-3-99, DES-4-99, DES-5-99 Federal Court of Canada, Trial Division) to obtain documents relevant to the APEC hearing over which privilege was claimed by the federal government under then sections 37 and 38 of the Canada Evidence Act which dealt with objections to the disclosure of documents on the grounds of harm to international relations and national defence or security. The BCCLA was also an intervenor in Babcock v. Attorney General (Canada) [2002] 3 S.C.R. 3 before the Supreme Court of Canada which considered the proper interpretation and application of section 39 of the Canada Evidence Act, the section that deals with claims for absolute Crown privilege over confidences of the Queen's Privy Council for Canada.
14. The BCCLA has been involved with the Maher Arar case from the very beginning, including the following:
1. I wrote an Op-Ed piece calling for a public inquiry that appeared in the Vancouver Sun on November 25, 2003. A true copy of that article is attached as exhibit "X".
2. Throughout the fall of 2003 and January 2004, the BCCLA worked closely with Amnesty International to coordinate pressure for a public inquiry into the Maher Arar case.
3. The BCCLA worked with Mr. Arar's lawyer, Lorne Waldman, to prepare Proposed Terms of Reference for a Public Inquiry into Canadian Officials Activities respecting the Imprisonment and Torture of Maher Arar. A true copy of the Proposed Terms of Reference, revised December 16, 2003, is attached as exhibit "Y".
4. On December 10, 2003 I wrote an open letter to Paul Martin, which was published nationally in the Globe and Mail, attaching the Proposed Terms of Reference and urging him to call a full public inquiry into the involvement of Canadian officials in Mr. Arar's deportation from the United States and his subsequent detention and torture in Syria. Attached as exhibit "Z" is a true copy of that letter.
5. The BCCLA organized a public demonstration on January 17, 2004 at the Vancouver Art Gallery and created a petition to press for a public inquiry.
15. The BCCLA receives funding from three primary sources: an operating grant from the Law Foundation of British Columbia, a small but always uncertain grant from gaming revenues from the province, and private financial support from members and supporters. The Association perpetually struggles to find adequate finances to cover its modest costs including funding a small staff of four FTEs. 2004 and beyond poses a significant challenge to the Association as revenues have remained relatively stagnant while expenses have modestly increased over the years. At this time, the BCCLA anticipates a deficit in fiscal year 2004 of $20,000 to $40,000 to cover basic office and associated expenses. The Association would not be able to properly participate in the Arar Inquiry without financial assistance. The BCCLA has limited resources for fundraising. Currently, all of those limited resources are being deployed to raise funds to cover the basic operating costs of the BCCLA to offset the anticipated deficit in 2004 and beyond. The BCCLA does not have further resources to fundraise specifically for the Arar Commission. A true copy of the Association's audited financial statements for 2003 are attached as exhibit "AA".
16. The BCCLA will apply any funding received to pay for the legal fees and disbursements incurred by legal counsel. Our present intention and hope is that the law firm of Arvay Finlay will be our solicitor of record for this Inquiry and that Joseph Arvay Q.C. and one of his associates will be our counsel at the proceedings. We respectfully request that funding be made available for one senior and one junior counsel, to participate in the Factual hearing. Given that Mr Arvay and his junior counsel do reside in British Columbia I do ask that the Commission make every effort to ensure that their travel and accommodation and other expenses be covered as much as is reasonably possible.
17. I am advised by Mr Arvay that he fully understands that the BCCLA's role in this Inquiry should we be granted leave to be added as a party, will be to fully assist the Commission in its important task and that he will endeavour to work cooperatively with all other counsel to ensure that the hearing proceeds efficiently, harmoniously and without any unnecessary repetition or delay.
18. I make this affidavit in support of the BCCLA's application for full party status and funding and for no other purpose.
SWORN BEFORE ME
at the City )
of Vancouver, in the Province of British )
Columbia, this day of April, )
2004. )
)
)
__________________________________ ) __________________________________
A Commissioner for taking Affidavits ) John Russell
in and for the Province of British Columbia )
British
Columbia Civil Liberties Association
550 - 1188 W. Georgia Street
Vancouver, BC
V6E 4A2
E-mail:
info@bccla.org
Web: www.bccla.org
Tel: 604-687-2919
Fax: 604-687-3045
The
BCCLA is a non-partisan, autonomous charitable society that is member/donor
based.
Please call 604-687-2919 to inquire about supporting the BCCLA.