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The Year of Living Dangerously

Canada’s Conservative Government Panders to Fears by Targeting Muslims

The past year has been a very active one for the anti-Islam industry in Canada.  Leading the charge is none other than Prime Stephen Harper who — in gearing up to the elections in October 2015 — has been stoking Islamophobia by pandering to public unease about Muslims.   In addition to going after Muslim charities and organizations (defaming NCCM for instance), and even religious symbols, his jihad against “radical Islam” and search for terrorists under every Muslim bed has profoundly altered the Canadian legal landscape.

Indeed, the bastion of multiculturalism and tolerance witnessed a slew of legislative and policy directives — overtly or covertly — targeting Muslims and Islam.  Sadly, even the justice system has not pulled through in some instances. Given space limitations this article cannot address all developments and decisions of concern, but it highlights about nine legislative initiatives and cases that have impacted or will impact the Muslim population.

1) On May 29, 2015, a controversial provision of the Strengthening Canadian Citizenship Act (which had become law back in June 2014) came in effect. The provision allows the government to revoke Canadian citizenship from anyone who was born outside the country, or born in Canada and holds another nationality or are eligible to obtain another nationality. All of this can be done unilaterally without any involvement by a judge or other independent arbiter.

As the British Columbia Civil Liberties Association notes:

“Currently, citizenship can be taken away mainly on the basis of crimes that are considered threats to Canada’s national security, like terrorism or espionage, or demonstrations of disloyalty to Canada, like treason. But legal experts warn that the list of offences that could lead to the removal of citizenship might be expanded in the future. Additionally, Bill C-24 punishes criminal activity with exile — a practice abandoned hundreds of years ago that has no place in today’s democracy.”

Muslims are already disproportionately represented among those whose citizenships have been revoked.

2) The Anti-terrorism Act, 2015 (known as Bill C51) was enacted on June 18, 2015 amidst major controversy. The legislation raises a plethora of issues and significantly alters the security landscape: It gives the Canadian Security Intelligence Service (CSIS) powers beyond intelligence gathering (to actively target threats and derail plots); creates new offences (criminalizing “terrorist propaganda” and the “promotion of terror”); lowers the legal threshold to trigger detention to those who may carry out an offence from the existing standard of will carry out to may carry out; extends preventive detention for “suspected” terrorists from three days to seven days (inconsistent with the constitutional presumption of innocence); legally entrenches a no fly list; and grants government agencies explicit authority to share private information with domestic and foreign entities.  All of this it does without any independent oversight.

The government has skirted around the issue when asked how these powers would improve the “war on terror” and labelled opponents as “soft on terror”. In fact, the leader of the Official Opposition New Democratic Party (NDP), Thomas Mulcair, pointed out that all of the recent anti-terror busts were achieved under existing legislation.

What does “promote terrorism” mean? This terminology threatens dissent and free speech. In fact, this new offence is too broad and it will capture all kinds of innocent speech. Indeed, without the requirement of an actual terrorist purpose, it can be used against teachers, activists, columnists, etc.

CSIS was created in 1984 as a civilian agency (with oversight and review) to address abuses of power that occurred when the Royal Canadian Mounted Police (RCMP) handled both intelligence and law enforcement.  The legislation blurs the line again.  Why does a secretive security agency need police powers without the attendant accountability? As the Globe and Mail editorialized, the bill enables CSIS and law enforcement to target anything its political masters label behind closed doors as a threat. Indeed, Greenpeace even pointed to a leaked RCMP report that called anti-pipeline activists as “anti-Canadian petroleum movement”. Moreover, CSIS’ own documents reveal that they now deem “sympathisers” as threats as well.

The radical restructuring of CSIS into a “kinetic” service while its oversight has been dissolved or starved of resources is troubling. A core maxim of national security is “trust but verify”. Given the powerful and secretive nature of the entities involved, this is an almost impossible task as it is. As retired former CSIS chief of counterintelligence, Geoffrey O’Brian, noted, “fundamental changes are occurring at a time when Parliament has come under criticism for lax scrutiny of spying”. This is simply irresponsible.

Should law enforcement agencies be trusted with greater access to private information that they can share with others? The Arar Commission findings that faulted Canadian authorities for sharing information with foreign agencies resulting in the torture of Maher Arar have faded from Canadian memory. Now added concerns about information being shared between agencies should give pause for concern.

3) One June 18, 2015, Parliament also passed the Zero Tolerance for Barbaric Cultural Practices Act. The law on close reading appears to mirror the “anti-Sharia” bills introduced (and passed in some states) in the US.   On its face the law appears neutral by raising the age of marriage, criminalizing forced marriages and banning “honor” killings.   As the Bridge Initiative at Georgetown University notes, far from being innocuous:

“…a closer look at the text of the law, and the rhetoric surrounding its creation and passage, leads us to question its intent and consequences… Like the anti-Sharia laws, the “barbaric practices” act offers solutions to problems that don’t exist, and focuses unwarranted attention on Muslims while ignoring concerns posed by other groups.”

Indeed, as Toronto Star columnist Thomas Walkom, opines, its provisions on “honor” killings, polygamy and the focus on immigrant “Muslim” practices clearly point to political pandering.   It is all the more absurd given that forced marriages, “honor” killings and polygamy are already illegal under existing laws.

4) On June 19, 2015, the Conservatives also tabled another bill known as the Oath of Citizenship Act which mandates that citizenship applicants must show their face during the Oath of Citizenship ceremony.  The legislation came a few days after the province of Quebec introduced Bill 62 known as the Religious Neutrality Bill which seeks to ban face-covering religious garments for public servants and citizens who wish to use government services.  Though the real impetus for the federal legislation was the Federal Court of Canada decision ruling that it was “unlawful” for Ottawa to order new citizens to remove their face-covering veil or niqab when taking the oath of citizenship.  

The Federal Court decision came in the case filed by Mississauga resident Zunera Ishaq, who came to Canada from Pakistan in 2008 and successfully passed the citizenship test in 2013.  She brought the Constitutional challenge upon learning that she had to unveil (under a new policy directive introduced in 2011) during the actual ceremony.  She was prepared to unveil in private for identification purposes but this was not enough for the government.

The Bill has not passed yet, but a government spokesperson told the Toronto Star: “It is one of a series of bills being introduced now, which will together form a substantial legislative agenda after the election.”

5) Earlier this year, the province of Quebec was in the news when Rania El-Alloul was told by a Montreal judge that her case would not be heard until she removed her hijab.  According to an audio recording made public by CBC News, Judge Eliana Marengo told Rania that the courtroom was a secular place and that she is not suitably dressed.  “Hats and sunglasses for example, are not allowed.  And I don’t see why scarves on the head would be either,” said the Judge.  

Annie-Claude Bergeron, spokesperson for the chief judge of the Quebec Court, said she was aware of the case, but that it’s “up to the judge to apply or interpret the law the way they see it.”  Rania has filed a legal action seeking clarity on religious freedom in Quebec Courts.

The foregoing incomplete picture makes it abundantly clear that the legal landscape with respect to issues affecting Muslims and human rights in The Great White North leaves much to be desired. Fortunately, there were a few glimmers of hope as well.  

First, earlier this year Canadian citizen Benamar Benatta quietly settled his lawsuit against the government for turning him over to U.S. officials without any due process in the immediate aftermath of 9/11.  He spent nearly five years in U.S. custody until a US. Judge ordered (in a harshly worded decision) that all charges against him be dropped.  Canada refused to apologize or compensate him for his ordeal until he sued and forced this resolution.

Second, in May 2015, an Alberta Court of Appeal granted bail to Canadian Omar Khadr while he appeals his conviction in the United States.  Khadr was detained in Afghanistan at the age of 15 and held in detention for more than 13 years, most of it in Guantanamo Bay.  Human Rights groups had long criticized his detention and conviction. He was transferred to a Canadian jail from Guantanamo Bay while he appealed his conviction for throwing a grenade and killing a US soldier during a firefight.

Third, in July 2015, the Supreme Court of Canada also rendered its decision in the case of Javed Latif v. Bombardier Inc.  Bombardier had refused specialized flight training to Mr. Latif because of a false security designation by U.S. authorities.  Though Javed was unsuccessful on his appeal to the SCC for other reasons, the SCC did clarify in a unanimous decision that under human rights law a company cannot “blindly comply with a discriminatory decision of a foreign authority without exposing itself to liability.”

Fourth, the Royal Canadian Mounted Police (RCMP) also came though on September 1, 2015 and laid a charge in absentia against a Syrian intelligence officer accused of torturing Maher Arar.  This is indeed a good development, but raises the question, whether they will also investigate and go after those within the Canadian government, intelligence and law enforcement establishments responsible for colluding with the Americans to send him to Syria in the first place.   

Many of the new initiatives will initially affect Muslims (as noted by leading former jurists) disproportionately but they will eventually impact all Canadians.

This government must understand that the majority of Muslims, who are neither secular nor ultra-orthodox, hold the key to any serious and productive bridge-building. If government agencies believe they can win the “war on terror” by undermining front-line soldiers, they had better think again.

Rushed and poorly conceived responses to terrorism and radicalization — real or imagined — can be counterproductive and may alter the fabric of Canadian society.  Indeed, sometimes such initiatives play into the hands of Islamophobes and extremists alike, by fueling resentment, marginalization and by perpetuating the conditions to bring about the self-fulfilling prophecy.   

Faisal Kutty is an associate professor and director of the International LL.M. Program at Valparaiso University Law School in Indiana and an adjunct professor at Osgoode Hall Law School of York University in Toronto. He is also counsel to the Toronto-based KSM Law firm.

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