Canadian civil rights under siege

Friday, August 01, 2003

Toronto Star

Riad Saloojee

(Riad Saloojee is the Executive Director of CAIR-CAN)

Solicitor General Wayne Easter recently admitted that he is unable to discount the possibility that elements in the RCMP passed on information to the Americans that led to the deportation of Canadian citizen Maher Arar to Syria and the corresponding deprivation of many of his legal rights.

We are learning the hard way that state power is not benign.

Modern political thought has seen an evolution from Hobbes' leviathan-state, where individuals give over their liberties for social order, to a constitutional state, where certain rights and freedoms are not on the table or up for grabs.

The great balancing act is to keep the state robust enough to protect and serve, but also to keep it from infringing on the rights of its citizens &emdash; to feed it, but not surrender to its gluttony. The state is a greedy beast: "Power concedes nothing without a demand. It never did, and it never will."

And so we are finding out. The RCMP's civilian watchdog, Shirley Heafey, says she has no way of knowing whether the RCMP is misusing its new anti-terrorism powers. Recall that after Sept. 11, 2001, Parliament approved sweeping new powers for the RCMP, allowing officers to search homes without warrants, arrest suspects without charges and gain access to a wider range of personal information.

In the haze of political haste, we were told that there were oversight measures. Ottawa, for example, would produce a report on how it is using its new powers. Justice Canada's tardy report, tabled in early May, provides little discussion of the new law and has the imprimatur of "all is well."

But all's not well. Heafey claims that her office has received five formal complaints about the RCMP's anti-terrorism activities and that many other Canadians have told her they have been harassed but fear the attention of public complaint.

"We can't (investigate) unless there's a complaint, and even if there is a complaint ... we can't see the information," she said. "So for all practical purposes, there's no civilian oversight."

Heafey's certainly correct about reporting problems. Experts in hate crimes, for example, estimate that the incidence of non-reporting &emdash; called the dark figures &emdash; can run as high as 90 per cent. It stands to reason that complaints made against the muscular agents of the state would be similarly under-reported. For a variety of reasons, including issues of confidentiality, safe space, and a previous political culture of non-reporting, individuals will not come forward.

Most of our incidents have come from grassroots reporting at community events or workshops on legal rights. And the tenor of the reports, especially when they concern the RCMP or CSIS, tend to demonstrate a rather troublesome pattern.

Some tactics are violations of the Charter of Rights: individuals told that there are a number of unanswered questions about them and that they "ought to come in" but that officers won't speak to them if they bring a lawyer.

Some tactics are sly and subtle: individuals visited by plainclothes (though clearly perceived by co-workers to be security officers) at work. One individual, for example, was visited at his school; another senior government engineer was visited at his place of work. Yet other tactics are misrepresentations of the law: Individuals hesitant about answering questions are told they can be "hauled in" without a reason or that they can be "forced to speak" under the new legislation.

In all cases, however, the perception, especially among the Canadian Arab and Muslim community, is the existence of a consciously applied double standard of racial profiling. Much that occurs in the shade of the law takes advantage of legal illiteracy, the anxiety of being stigmatized after such a security visitation, or plain old fear. And the fear factor is very real.

Immigrants and refugees are usually petrified that when CSIS gives them a call, it is to become informants or suffer the consequences of an all-too-slow application process or a threat of a contrived problem with their security status.

The warning that sounds is not only that liberties taken are liberties lost, but that such misuse of the law is starting to generate a gnawing civic cynicism among Canadian Arabs and Muslims.

Networks of trust, so intimately constructed by day-to-day dealings, can be easily frayed and irreparably damaged. And, in an environment where security and safety have become basic public goods, trust between the citizenry and those sworn to protect them, is &emdash; and this is our new security/liberty paradox &emdash; becoming more and more essential to good policing.