Commissioners: President James Cavallaro; First Vice-President Francisco Jose Eguiguren; Second Vice-President Margarette May Macaulay; Enrique Gil Botero; Jose De Jesus Orozco Henriquez; Paolo Vannuchi; Executive Secretary Paulo Abrao; Special Rapporteur for Freedom of Expression Edison Lanza Petitioners: Canadian Journalists for Free Expression (CJFE) State: Canada On December 9, 2016, during the 160th Extraordinary Period of Session, the Inter-American Commission on Human Rights (IACHR) conducted a thematic hearing regarding the human rights implication of the Canadian national security framework. Petitioner Duncan Pike began by focusing on the Anti-Terrorism Act (ATA) of June 2015 and touched primarily on freedom of expression. He stated that the ATA significantly expanded Canada’s national security network without including commensurate legal safeguards, thereby violating the Canadian Constitution, the Inter-American Democratic Charter, and the American Convention on Human Rights. First, Mr. Pike analyzed the amendment to the Canadian Security Intelligence Service (CSIS) act (CSIS Act) in Part 4 of the ATA. The amendment created a new federal court warrant process authorizing the CSIS to obtain a warrant through an in camera, ex parte hearing, without notifying the target individual that a warrant has been issued against him. Mr. Pike argued that the ATA violates the separation of powers by removing Parliament’s duty to define constitutional rights and granted that responsibility to the judiciary, which should only protect citizens against the violation of those rights. Second, Part 2 of the ATA, the Secure Air Travel Act, allows for anyone to be added to the no-fly list on the mere suspicion that the individual may engage in an act of terror or threaten public safety. Because Canada already has an opaque no-fly list process, Mr. Pike claimed that the ATA will burden innocent people by severely reducing their ability to travel and denying any significant way to appeal the determination. Then, Mr. Pike challenged Part 3 of the ATA, which criminalizes the “knowing or reckless communication of statements promoting the commission of terrorism offenses that may result in actual commission of such offense.” Mr. Pike argued that because the clause does not define “terrorism offenses,” the provision is unconstitutional because it neither (1) allows citizens to anticipate what constitutes speech and what type of speech might be criminal, nor (2) sufficiently limits state agents charged with enforcing the provision. Accordingly, Mr. Pike argued that the statute violates Article 15 of the International Covenant on Civil and Political Rights, requiring individuals only be held guilty for specifically defined criminal conduct. Part 1 of the ATA authorizes information sharing among Canadian government institutions on any “activities that undermine the security of Canada.” Mr. Pike argued that this provision will chill freedom of speech and association because the collection could occur in secret and would not be subject to judicial review. Mr. Pike then challenged the operations of the Communications Security Establishment (CSE). Mr. Pike stated that CSE reads emails and texts, and listens to phone calls when a Canadian communicates with someone outside of the country. Mr. Pike made arguments similar to those in his first point—that no judicial oversight and an inability to challenge actions limits freedoms of Canadians. The Canadian Ambassador to the OAS, Jennifer May Loten, spoke next, informing the IACHR that Canada had already taken steps to address the concerns Mr. Pike raised in response to similar concerns that arose during the ATA’s passage in Parliament. Ambassador Loten began by addressing Part 1, authorizing information sharing. In response to the concern that it would restrict free speech, the ATA was amended to expressly prohibit information sharing on advocacy, protest, dissent, and artistic expression. She then explained that the Secure Air Travel Act only designates someone as no-fly if there are reasonable grounds to suspect the person will (1) threaten public safety or (2) travel by air to commit an act of terror. Additionally, she stipulated that there is an appeals process through which an individual can remove his name from the list. Ambassador Loten clarified Part 3 of the ATA, informing the Commission that the Act now contains more specificity than it had prior to the ATA. By clarifying that “counseling” individuals to commit terrorist acts encompasses a general urging to commit an act of terror, as well as directions to commit a specific act, the ATA actually provides more notice to citizens and state agents about what constitutes criminal conduct. In addition, starting September 2016 the Canadian government began national security consultations to improve the ATA and the national security framework as a whole. The government also released Our Security, Our Rights, a Green Paper, which also acts as an informational guide prompting discussion and debate before policy changes occur. Ambassador Loten noted that CSE is actually prohibited from targeting Canadians and that it cannot request any of its partner agencies, domestically or internationally, take actions that CSE cannot. However, CSE is not prohibited from monitoring on the notion it may intercept Canadian communications. However, when an agency does intercept such communications, officials must safeguard the person’s privacy. In addition to the several independent agencies that monitor CSE, Parliament recently created the National Security and Intelligence Committee of Parliament to monitor all of Canada’s national security agencies. IACHR Commission President Cavallaro then raised three concerns. First, he inquired how the judicial warrant process reconciles with international human rights norms when the process effectively pre-authorizes warrants against those who recklessly endorse terrorism. Second, he questioned the no-fly list and the efficacy of its appeal procedure, citing one individual who remains on the list, despite acknowledgement from the government that he is innocent. Third, on information sharing, President Cavallaro asked how Canada could justify sharing information with a state that might lead to torturing individuals. Mr. Pike began his closing remarks by addressing how “promoting” terrorism is interpreted by the government. He cited the case of VICE News journalist Ben Makuch, who was ordered to turn over messaging records with an Islamic State Fighter following publication of an interview between the two. Mr. Pike argued that turning the press into an arm of the police establishes a dangerous precedent. Next, he argued that, in practice, CSE regularly intercepts citizens’ communications and shares that information with intelligence agencies outside Canada. Ambassador Loten informed the Commission that Canada would respond to questions in writing to provide a more complete overview of the policy changes taking place to safeguard citizens and promote accountability within national security framework. She reiterated Canada’s commitment to exchanges like those that take place through the IACHR. Author’s Legal Analysis: Petitioner’s case appears to be based primarily on a previous administration’s formulation of its national security goals, as evidenced by the changes that have already taken place since November 2015. While Canada appears to recognize the American Convention on Human Rights, it has not signed or ratified the Convention. However, while the Commission cannot sanction Canada for non-compliance, it can still identify certain violations under the American Declaration of the Rights and Duties of Man for preventing the Right to residence and movement under Article VIII and the Right to the inviolability and transmission of correspondence under Article X.