Connect with us

MacDonald Laurier Institute

Weaponizing human rights tribunals

Published

18 minute read

From the Macdonald Laurier Institute

By Stéphane Sérafin for Inside Policy

If adopted, Bill C-63 could unleash a wave of “hate speech” complaints that persecute – and prosecute – citizens, businesses, or organizations while stifling online expression.

Much has already been written on Bill C-63, the Trudeau government’s controversial Bill proposing among other things to give the Canadian Human Rights Tribunal jurisdiction to adjudicate “hate speech” complaints arising from comments made on social media. As opponents have noted, the introduction of these new measures presents a significant risk to free expression on many issues that ought to be open to robust public debate.

Proponents, for their part, have tended to downplay these concerns by pointing to the congruence between these new proposed measures and the existing prohibition contained in the Criminal Code. In their view, the fact that the definition of “hate speech” provided by Bill C-63 is identical to that already found in the Criminal Code means that these proposed measures hardly justify the concerns expressed.

This response to critics of Bill C-63 largely misses the point. Certainly, the existing Criminal Code prohibitions on “hate speech” have and continue to raise difficult issues from the standpoint of free expression. However, the real problem with Bill C-63 is not that it adopts the Criminal Code definition, but that it grants the jurisdiction to adjudicate complaints arising under this definition to the Canadian Human Rights Tribunal.

Established in 1977, the Canadian Human Rights Tribunal is a federal administrative tribunal based on a model first implemented in Ontario in 1962 and since copied in every other Canadian province and territory. There is a Canadian Human Rights Tribunal, just as there is an Ontario Human Rights Tribunal and a British Columbia Human Rights Tribunal, among others. Although these are separate institutions with different jurisdictions, their decisions proceed from similar starting points embedded in nearly identical legislation. In the case of the Canadian Human Rights Tribunal, that legislation is the Canadian Human Rights Act.

Tribunals such as the Canadian Human Rights Tribunal are administrative bodies, not courts. They are part of the executive branch, alongside the prime minister, Cabinet, and the public service. This has at least three implications for the way the Tribunal is likely to approach the “hate speech” measures that Bill C-63 contemplates. Each of these presents significant risks for freedom of expression that do not arise, or do not arise to the same extent, under the existing Criminal Code provisions.

The first implication is procedural. As an administrative body, the Tribunal is not subject to the same stringent requirements for the presentation of evidence that are used before proper courts, and certainly not subject to the evidentiary standard applied in the criminal law context. But more importantly still, the structure of the Canadian Human Rights Act is one that contemplates a form of hybrid public-private prosecution, in which the decision to bring a complaint falls to a given individual, while its prosecution is taken up by another administrative body, called the Human Rights Commission.

This model differs from both the criminal law context, where both the decision to file charges and prosecute them rest with the Crown, and from the civil litigation context, where the plaintiff decides to bring a claim but must personally bear the cost and effort of doing so. With respect to complaints brought before the Tribunal, it is the complainant who chooses to file a complaint, and the Human Rights Commission that then takes up the burden of proof and the costs of prosecution.

In the context of the existing complaints process, which deals mainly with discriminatory practices in employment and the provision of services, this model is intended to alleviate burdens that might deter individuals from bringing otherwise valid discrimination complaints before the Tribunal. Whatever the actual merits of this approach, however, it presents a very real risk of being weaponized under Bill C-63. Notably, the fact that complainants are not expected to prosecute their own complaints means that there is little to discourage individuals (or activist groups acting through individuals) from filing “hate speech” complaints against anyone expressing opinions with which they disagree.

This feature alone is likely to create a significant chilling effect on online expression. Whether a complaint is ultimately substantiated or not, the model under which the Tribunal operates dispenses complainants from the burden of prosecution but does not dispense defendants from the burden of defending themselves against the complaint in question. Again, this approach may or may not be sensible under existing anti-discrimination measures, which are primarily aimed at businesses with generally greater means. But it becomes obviously one-sided in relation to the “hate speech” measures contemplated by Bill C-63, which instead target anyone engaging in public commentary using online platforms. Anyone who provides public commentary, no matter how measured or nuanced, will thus have to risk personally bearing the cost and effort of defending against a complaint as a condition of online participation. Meanwhile, no such costs exist for those who might want to file complaints.

A second implication arising from the Tribunal’s status as an administrative body with significant implications for Bill C-63 is that its decisions attract “deference” on appeal. By this, I mean that its decisions are given a certain latitude by reviewing courts that appeal courts do not generally give to decisions from lower tribunals, including in criminal matters. “Deference” of this kind is consistent with the broad discretion that legislation confers upon administrative decision-makers such as the Tribunal. However, it also raises significant concerns in relation to Bill C-63 that its proponents have failed to properly address.

In particular, the deference granted to the Tribunal means that proponents of Bill C-63 have been wrong to argue that the congruence between its proposed definition of “hate speech” and existing provisions of the Criminal Code provides sufficient safeguards against threats to freedom of expression.

Deference means that it is possible, and indeed likely, that the Tribunal will develop an interpretation of “hate speech” that diverges significantly from that applied under the Criminal Code. Even if the language used in Bill C-63 is identical to the language found in the Criminal Code, the Tribunal possesses a wide latitude in interpreting what these provisions mean and is not bound by the interpretation that courts give to the Criminal Code. It may even develop an interpretation that is far more draconian than the Criminal Code standard, and reviewing courts are likely to accept that interpretation despite the fact that it diverges from their own.

This problem is exacerbated by the deferential approach that reviewing courts have lately taken towards the application of the Canadian Charter of Rights and Freedoms to administrative bodies such as the Tribunal. This approach contrasts to the direct application of the Charter that remains characteristic of decisions involving the Criminal Codeincluding its “hate speech” provisions. It also contrasts with the approach previously applied to provincial Human Rights Tribunal decisions dealing with the distribution of print publications that were found to amount to “hate speech” under provincial human rights laws. Decisions such as these have frequently been criticized for not taking sufficiently seriously the Charter right to freedom of expression. However, they at least involve a direct application of the Charter, including a requirement that the government justify any infringement of the Charter right to free expression as a reasonable limit in a “free and democratic society.”

Under the approach now favoured by Canadian courts, these same courts now extend the deference paradigm to administrative decision-makers, such as the Canadian Human Rights Tribunal, even where the Charter is potentially engaged. In practice, this means that instead of asking whether a rights infringement is justified in a “free and democratic society,” courts ask whether administrative-decision makers have properly “balanced” even explicitly enumerated Charter rights such as the right to freedom of expression against competing “Charter values” whenever a particular administrative decision is challenged.

This approach to Charter-compliance has led to a number of highly questionable decisions in which the Charter rights at issue have at best been treated as a secondary concern. Notably, it led the Supreme Court of Canada to affirm the denial of the accreditation of a new law school at a Christian university in British Columbia, on the basis that this university imposed a covenant on students requiring them to not engage in extra-marital sexual relations that was deemed discriminatory against non-heterosexual students. Four of the nine Supreme Court of Canada judges would have applied a similar approach to uphold a finding by the Quebec Human Rights Tribunal that a Quebec comedian had engaged in discriminatory conduct because of a routine in which he made jokes at the expense of a disabled child who had cultivated a public image. (With recent changes to the composition of the court, that minority would now likely be a majority). This approach to Charter-compliance only increases the likelihood that the proposed online hate speech provisions will develop in a manner that is different from, and more repressive than, the existing Criminal Code standard.

Finally, the third and potentially most consequential difference to arise from the Tribunal’s status as an administrative rather than judicial body concerns the remedies that the Tribunal can order if a particular complaint is substantiated. Notably, the monetary awards that the Tribunal can impose – currently capped at $20,000 – are often imposed on the basis of standards that are more flexible than those applicable to civil claims brought before judicial bodies. An equivalent monetary remedy is contemplated for the new online “hate speech” provisions. This remedy is in addition to the possibility, also currently contemplated by Bill C-63, of ordering a defendant to pay a non-compensatory penalty (in effect, a fine payable to the complainant, rather than the state) of up to $50,000. This last remedy especially adds to the incentives created by the Commission model for individuals (and activist groups) to file complaints wherever possible.

That said, the monetary remedies contemplated by Bill C-63 are perhaps not the most concerning remedies as far as freedom of expression is concerned. Bill C-63 also provides the Tribunal with the power to issue “an order to cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from recurring.” This remedy brings to mind the Tribunal’s existing power to under the anti-discrimination provisions of the Canadian Human Rights Act.

It is not entirely clear how this kind of directed remedy will be applied in the context of Bill C-63. The Bill provides for a number of exemptions to the application of the new “hate speech” measures, most notably to social media platforms, which may limit their scope of application to some extent. Nonetheless, it is not inconceivable that remedies might be sought against other kinds of online content distributors in an effort to have them engage in proactive censorship or otherwise set general policy with little or no democratic oversight. This possibility is certainly heightened by the way in which the existing directed remedies for anti-discrimination have been used to date.

A prominent example of directed remedies being implemented in a way that circumvents democratic oversight is provided by the Canada Research Chairs (“CRC”) program endowed by the federal government at various Canadian universities. That program has recently come under scrutiny due to the on appointments under the CRC program. In reality, those implementing the quotas are merely proceeding in accordance with a settlement agreement entered into by the federal government following a complaint made by individuals alleging discrimination in CRC appointments. That complaint was brought before the Tribunal and sought precisely the kind of redress to which the government eventually consented.

Whatever the merits of the settlement reached in the CRC case, the results achieved by the complainants through their complaint to the Tribunal were far more politically consequential than the kinds of monetary awards that have been the focus of most discussion in the Bill C-63 context. As with the one-sidedness of the procedural incentives to file complaints and the deference that courts show to Tribunal decisions, the true scope of the Tribunal’s remedial jurisdiction presents significant risks to freedom of expression that simply have no equivalent under the Criminal Code. These issues must be kept in mind when addressing the content of that Bill, which in its current form risks being weaponized by politically motivated individuals and activist groups to stifle online expression with little to no democratic oversight.


Stéphane Sérafin is a senior fellow at the Macdonald-Laurier Institute and assistant professor in the Common Law Section of the Faculty of Law at the University of Ottawa. He holds a Bachelor of Social Science, Juris Doctor, and Licentiate in Law from the University of Ottawa and completed his Master of Laws at the University of Toronto. He is a member of the Law Society of Ontario and the Barreau du Québec.

Todayville is a digital media and technology company. We profile unique stories and events in our community. Register and promote your community event for free.

Follow Author

Crime

Could the UK’s ‘Grooming Gangs’ operate in Canada?

Published on

From the Macdonald Laurier Institute

By Raheel Raza

Fear of being labelled a racist prevented UK officials from stopping the mass abuse of women by “grooming gangs.” Could the same happen in Canada?

If you asked Canadians what they know about the United Kingdom’s “grooming gangs” the majority would be clueless. So far, the issue has been an exclusively UK based scandal, with limited media coverage.

These so-called “grooming gangs” sexually exploited hundreds of vulnerable young women and girls across the UK for many years before their activities came to public attention in the early 2010s. In essence, because the perpetrators are largely groups of British-Pakistani men, the media, law enforcement, and officials failed in their duty to address or publicize the scandal for fear of being accused of racism. This is a truly tragic result of identity politics on a massive scale.

The victims were mostly female and white (although some Asian girls were also targeted). Many victims were underage, some were homeless or living in state children’s homes. Local social services officials knew many of the girls but stood by as the gangs exploited them – sometimes for years.

Media reports suggested that local law enforcement also knew some of the perpetrators but waited unreasonably long before making arrests and laying charges. Scores of men in different towns have since been arrested, tried and imprisoned for their actions. But hundreds roam free, even today.

Among the worst cases were gangs operating in the northern towns of Rotherham and Rochdale, but many others have been exposed around the country over the last decade-and-a-half: Oldham, Oxford, Telford, Peterborough, and others. Ministers and members of the opposition have acknowledged that similar gangs may still be operating.

The story came to international attention recently, due to intervention by Elon Musk, who tweeted in clear terms about the UK’s problems with racial integration. Prime Minister Keir Starmer is now grappling with the re-emergence of this long-running scandal.

GB News UK produced one of the most comprehensive and detailed exposes through an investigative documentary featuring exclusive interviews with survivors, whistleblowers, and activists. The documentary explains why the police and authorities have allowed such a significant cover up to persist for so long. There is evidence of a massive cover up by people who had infiltrated into social services, councils and law enforcement.

UK Safeguarding Minister Jess Phillips refused a request from Oldham City Council to launch a national inquiry into the issue and instead told the council it should mount a local one itself. But thankfully, UK Home Secretary Yvette Cooper has announced plans for a nationwide review and five government-backed local inquiries.

British academic Alexis Jay, a professor of social work and a child protection expert, concluded a multi-year public inquiry detailing how an organized gang abused girls as young as 11, trafficking them across the country and even picking them up from children’s care homes in taxis without any effort to hide what they were doing.

Jay found that “1,400 children had been sexually exploited, raped by multiple perpetrators, trafficked across other towns, abducted, beaten, and threatened with guns. Children had even been doused in petrol. Girls as young as 11 had been raped. Those reports a decade ago identified a failure to confront Pakistani heritage gangs and a ‘widespread perception’ that they should ‘downplay the ethnic dimensions’ for fear of being seen to be racist.”

Some UK Labour politicians previously said that fear of being labelled racist has created a taboo around saying there is a specific ethnicity of men, of Pakistani heritage, participating in sexual exploitation.

Among them is Sarah Champion, who represents of the areas where grooming gangs operated. She  has campaigned consistently on the issue, and recently called for another national inquiry into grooming gangs, putting more pressure on Prime Minister Starmer.

Champion wrote an op-ed for a tabloid newspaper in which she stated: “Britain has a problem with British Pakistani men raping and exploiting white girls. There. I said it. Does that make me a racist? Or am I just prepared to call out this horrifying problem for what it is?”

Champion’s statement caused such an outrage – the Labour Party responded by shunning her – that she had to retract it from her article.

In 2023, then-Home Secretary Suella Braverman made several comments about the ethnicity of abusers in high-profile gangs. She said, “the perpetrators are groups of men, almost all British Pakistani.” She told the BBC the gangs “overwhelmingly” consisted of British Pakistani males.

Reports first surfaced about the groomer gangs more than a decade earlier. In September 2012, journalist Andrew Norfolk, chief investigative reporter for The Times, published an article based on a police report about the extent of the issue. It revealed that networks of mainly British Pakistani men were abusing children in Rotherham “on an unprecedented scale.”

Law authorities failed to prosecute suspects despite police and child protection agencies in Rotherham having had knowledge of these crimes for decades, the newspaper said.

To show that they were engaged, governments and agencies commissioned various reports, but no action was taken. In these reports, the criminals were referred to as “men of Asian heritage”!

Meanwhile Naz Shah, a Labour MP, retweeted, “Those abused girls in Rotherham and elsewhere just need to shut their mouths. For the good of diversity.” She later deleted her retweet and unliked the post.

In 2018, I was invited to the UK to give testimony in the House of Lords about the Sharia debate in Ontario. At the time, there was a rising number of Sharia Councils operating in the UK that were depriving many Muslim women of their rights.

During that visit I met a white woman named Toni Bugle. Bugle is founder of MARIAS – Mothers Against Radical Islam and Sharia. Bugle had been a victim of gang rape and abuse as a child (not by grooming gangs) so she paid close attention to the stories of victims of grooming gangs.

Bugle asked me if I would attend a conference that she set up at the UK Parliament where some of the grooming gang victims would tell their stories. She told me she needed a Muslim woman’s voice because when she tried to expose the stories, she was called a racist, bigot, and Islamophobe.

At Bugle’s conference (which had no media presence) I met some of the rape victims, including Caitlin, Samantha, and Torron. They were scared and insecure and spoke in soft voices, looking around constantly. Some of them showed visible signs of trauma and had bruises on their arms and faces. But they were brave enough to share their stories, which were absolutely horrendous. The shock gave me sleepless nights.

Bugle had also organized a rally outside the British Parliament with the victims and I was happy to join her to amplify the victims’ concerns about the authorities’ failure to stop the abuse.

Bugle told me “I realized that there was a massive issue with Muslim men of predominantly Pakistani and Bangladeshi ethnicity targeting predominantly young white working-class girls.” Bugle decided to reach out to the victims to help them and started to hear their stories. She continues to do that to this day:

“I always have my phone near me,” Bugle says, “These young girls can and do call me at anytime… I make myself available. If I had to give a number for how many girls I’ve helped, I would take a guess that via just the phone maybe fifty or sixty and more direct involvement approximately ten or fifteen young women. I have also helped many Muslim women who were facing the trauma of forced marriage and sharia councils – two of which I introduced at the conference.”

Hearing this, I was shocked as to why Muslim organizations in UK (especially women’s groups) did not condemn what was happening to their non-Muslim sisters or take any action? Imagine if this was the reverse and happened to Muslim women? All hell would have broken loose!

Bugle said that she had also been contacted by young girls for support. The first girl who reached out, Caitlin Spencer, eventually wrote a book titled, Please, let me go: the horrific true story of a girl’s life in the hands of sex traffickers.

From the age of 14, traffickers controlled Caitlin, raped her, and repeatedly sold and passed her on to new gangs across the UK. Her abusers were blatant in their attacks, often collecting her from school or home, to be taken to flats they owned, family homes, or hotels booked for the day.

Please, Let Me Go is Caitlin’s shocking story of abuse and survival. She writes, “I was trapped. I’d been raped so many times, abused by hundreds, if not thousands. They could have left every door open, and it would have made no difference. And I always came back – they always brought me back.”

Bugle says, “given that Caitlin still sees her abusers driving their taxis with impunity and that other victims similarly see perpetrators living freely and intimidating them, what will our government do to bring those perpetrators to justice?”

Bugle continues, “I have met girls who have been raped, defecated on, urinated on, had children from their abusers and often those children were taken away from these girls by social services. You can imagine the damage that did was devastating for the whole family.”

Another girl Bugle helped is Sarah, a 15 year old white girl. A journalist for the Daily Mail did a story on Sarah: a grooming gang coerced her to marry a gang member who effectively forced her into sex slavery after abducting her in a Tesco parking lot in an English suburb. Sarah’s captivity lasted for 12 years.

I asked Bugle why they didn’t go to court or the police. She says “sadly they went to the police, who pretty much promised they would deal with what happened – but also made it very clear it would be ‘their word against the men’… The girls were made to feel they were not believed and it led to the girls just giving up… every time they went to the police and nothing was done the girls would often find themselves beaten by the very men they reported.”

Bugle says she saw this same trend, of girls and their families not believed by local authorities, occur over and over. The total failure of social services, law enforcement, teachers, and council officers exacerbated the trauma faced by these victims.

In the past eight years, I’ve observed the changing face of Canada, and the picture is eerily similar to the changes I’ve observed in UK. Every time I returned from a trip to the UK, I worried that with a rise in wokeism, political correctness, and DEI policies, a similar situation of abuse could arise in Canada, and that Canadian leaders would likewise remain silent.

The rise in radical Islamist extremism across Europe and the UK is also happening in Canada, while our politicians and institutions refuse to acknowledge this reality. Radical Islamist extremism is directly connected to the behaviour and attitudes of Islamists. They justify their weaponizing of sexual slavery, disrespect, and dishonouring of non-Muslim women as being in sync with their warped interpretation of the faith. The sexual abuse unleashed by Hamas terrorists against innocent Israeli women is a further indication of the ideological mindset of Islamist radicals. For example, ISIS raped and abused Yazidi women – the irony being that some of the Yazidi women given asylum in the West have seen their captors on the streets.

We now see protestors in Canada rallying in favour of a radical Islamist terror organizations with impunity, a weak judicial system where criminals roam the streets on bail days after committing a crime, an influx of mass immigration with a lack of integration, assimilation, and respect for Canadian values, and a hyper focus on identity politics across our political institutions. A worrying thought: All the ingredients that allowed the “grooming gangs” to operate in the UK are now present in Canada. Canada should learn from the UK’s experience before it is too late.


Raheel Raza is President of The Council for Muslims Against Antisemitism and a senior fellow at the Macdonald-Laurier Institute.

Continue Reading

Immigration

Canada must urgently fix flawed immigration security rules

Published on

Macdonald-Laurier Institute

The Macdonald Laurier Institute

By Sergio R. Karas for Inside Policy

As Canada faces increased threats of terrorist attacks, its lax, anachronistic immigration laws are putting all Canadians in jeopardy. Without urgent reforms to the Immigration and Refugee Protection Act (IRPA), Canada will face grave risks not just from terrorism but also espionage and subversion.

The critical need to tighten screening and secure the border comes as newly elected United States President Donald Trump threatens massive tariffs against Canada for failing to crackdown on the crisis earlier.

Section 34(1) of the IRPA sets out the inadmissibility criteria for individuals engaged in espionage, subversion, terrorism, being a danger to the security of Canada, engaging in acts of violence that would or might endanger the lives or safety of persons in Canada, or membership in an organization involved in such activities. This provision enables authorities to address potential threats to national security.

Canada faces several emerging security challenges, including terrorism, the rise of antisemitic violence, and Islamic radicalism. The trouble is, Section 34(1)’s overly broad definitions and inconsistencies in enforcement make it extremely challenging to address these rising threats.

Emerging threats to national security

Canada has long enjoyed a reputation for providing safe haven to refugees and other immigrants. However, the failure to properly screen newcomers – especially those from conflict zones – could exploit that weakness and allow radicals or terrorists to enter the country.

For instance, the federal government is currently accepting applications from Palestinians from Gaza to enter Canada. As of mid-January 2025, Immigration, Refugees, and Citizenship Canada has accepted 4,245 applications for processing under its temporary resident pathway for Palestinian extended family in Gaza; 733 people have been approved to come to Canada. Hamas’s control of Gaza and Canada’s limited ability to screen applicants pose heightened security risks. Since the October 7, 2023, Hamas terror attacks on Israel, Canada has been plagued by antisemitic violence and disruptive mass pro-Palestinian rallies. Meanwhile, polls indicate significant support for Hamas by Palestinians and its October 7 terrorist attacks. Although Canada has temporarily enhanced its screening protocols for Gazans, the risk of allowing Hamas terrorists or their supporters into Canada raises the risk of increased social tension and even antisemitic violence against Jewish Canadians.

Concerns about Canada’s porous border are not just hypothetical. Recently, authorities arrested a Pakistani national in Canada for allegedly planning an attack on the Jewish community in New York. Muhammad Shahzeb Khan, in Canada on a study permit, told an undercover law enforcement officer that “October 7 and October 11 were the best days to target Jews.”

Antisemitism has risen sharply in Canada since the October 7 attacks. The Canadian Security Intelligence Service (CSIS) warns that the Israel-Hamas war has led to a spike in “violent rhetoric” from “extremist actors” that could prompt some in Canada to turn to violence. According to the latest Global 100 survey conducted by the Anti-Defamation League (ADL), nearly half of people worldwide hold antisemitic views. The study found that 46 per cent of adults, an estimated 2.2 billion people, have strong antisemitic attitudes. This is more than double the level recorded in ADL’s first global survey a decade ago and the highest ever reported.

At the same time, Canada has long struggled in its efforts to identify and deport potential threats to national security. For example, in Mugesera v. Canada (Minister of Citizenship and Immigration), a former Rwandan politician accused of inciting violence against Tutsis during the Rwandan genocide, remained in Canada for over sixteen years before his deportation in 2012. His case highlights the extended timelines involved in the removal process. Former Immigration Minister Jason Kenney said that Mugesera’s case showed that Canada was too generous with suspected foreign war criminals. He also said, “At some point, it turns into a mockery of Canada’s generosity, eventually we have to remove war criminals and stop talking about it.”

In another case, Mahmoud Mohammad Issa Mohammad v. Canada, a convicted terrorist managed to drag out his deportation battle 26 years. Mohammad – a member of the Popular Front for the Liberation of Palestine (PFLP) convicted of taking part in a deadly attack on an Israeli plane at Athens airport in the 1960s – lied about his identity, his criminal past, as well as his ties to terrorist organizations. Kenney told reporters at the time “This case is almost a comedy of errors, with delays, with a system that was so bogged down in redundant process and endless appeals that it seemed to some that we would never be able to enforce the integrity of Canada’s immigration system and deport this terrorist killer.” Authorities cited Mohammad for misrepresentation on multiple grounds, yet he still managed to remain in Canada for decades. The threat of misrepresentation is a significant security concern. Thorough screening is crucial to ensure that those admitted do not pose security risks, given their possible affiliation with groups involved in violence or other activities that threaten national safety.

The recent arrest of multiple suspects on terrorism-related charges is a wake-up call for Canada, highlighting an urgent need to overhaul immigration screening processes to safeguard national security.

On July 31, 2024, the RCMP announced the arrests of Ahmed Eldidi and his son, Mostafa Eldidi, on multiple terrorism-related chargesGlobal News reported that the two men, originally Egyptian nationals, were allegedly involved in terrorist activity connected to the Islamic State of Iraq and Syria (ISIS). The article also revealed that in June 2015, the father allegedly took part in an ISIS propaganda video where he was seen dismembering a prisoner with a sword. On August 28, 2024, the Globe and Mail reported that the father, who became a Canadian citizen just two months before his arrest, had initially been denied a visitor visa in 2017. However, after supplying additional documents, he obtained a visitor visa in 2018 and became a permanent resident in 2021. The fact that Ahmed Eldidi was able to become a naturalized citizen, despite his violent ties to ISIS is bewildering.

Furthermore, according to Global News, Canadian Hezbollah members have taken part in several attacks overseas. They include a Vancouver man wanted for a bus bombing in Bulgaria that killed five Israeli tourists and a local driver, as well as a former Toronto grocer, Fawzi Ayub, who was a hijacker and member of Hezbollah’s Islamic Jihad unit. He was killed while fighting in Syria in 2014.

These arrests and the presence of such elements in Canada highlight the urgent need to revamp the system to prevent these security failures.

Reforming s. 34(1)

The Supreme Court of Canada in Mason v. Canada (Citizenship and Immigration)  ruled that people can only be found inadmissible under section 34(1)(e) of the IRPA if they engaged in violent conduct linked to national security or the security of Canada. Since neither Mason nor his co-appellant were alleged to have engaged in acts of violence linked to national security or the security of Canada, section 34(1)(e) did not provide a basis for the inadmissibility of either person. This decision limits the ability of authorities to implement measures aimed at removing individuals from the country as it narrows the scope of grounds for inadmissibility.

Concerns about increasing Islamic radical activity in Canada have led the authorities to scrutinize events that may pose potential harm to the public. After Islamic radicals promoted a Hizb ut-Tahrir (HuT) Khilafah Conference 2025, authorities stated that “Reports of the upcoming conference, which was scheduled for January 18, 2025, in Hamilton, Ontario, were deeply concerning. Hizb ut-Tahrir has a documented history of glorifying violence and promoting antisemitism and extremist ideology.” The conference organizers ultimately cancelled the meeting, but critics are still calling for Hizb ut-Tahrir to be designated a terrorist entity under the Anti-Terrorism Act.

Narrowing legislative definitions and enhancing oversight could address security challenges. In Canada (Citizenship and Immigration) v. Harkatwhich deals with inadmissibility on security grounds, the Supreme Court of Canada noted the lack of clear definitions for critical terms such as “terrorism,” “danger to the security of Canada,” and “member of an organization” in Section 34(1) of the Immigration Act.

Further, in Suresh v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada provided a functional definition of “terrorism,” drawing from international conventions. However, membership in a terrorist organization remains difficult to define. This absence of precise language has created challenges in interpreting and applying the provisions fairly and consistently.

In Charkaoui v. Canada, the Supreme Court of Canada dealt with the constitutionality of security certificates, the court noted the tension that exists between rights and security. In this complex security landscape, the responsibility to protect both national security and individual rights remains a challenge.

The overly broad definitions and terms in this section have meant that the courts have been reluctant to apply it. To address these issues, Parliament should bring forward amendments to render terms like “terrorism” and “member of an organization” more concrete by tying them to specific acts, so the courts will not have to guess what was meant in the legislation.

An internal audit of the Immigration National Security Screening Program, covering the period between 2014 and 2019, revealed that out of the 7,141 cases that were flagged due to security concerns, including war crimes, espionage, and terrorism, 3,314 were approved for temporary, permanent, and refugee status. That is nearly half (46 per cent) of the foreign nationals flagged by security agencies who have been allowed to become permanent residents despite those concerns.

In order to improve the system, Canada should conduct stricter background checks incorporating international intelligence, increase the scrutiny of applicants, and impose restrictions on individuals with links to regions dominated by extremist groups or nations known to sponsor terrorism.

Canada should also consider implementing policies and legislative initiatives such as the No Visas for Anti-Semitic Students Act introduced in the U.S. Congress to combat university encampments and antisemitic harassment, which aim to revoke visas for international students of pro-terrorist protesters, enabling immigration officials to remove foreign students engaged in illegal activities.

The federal government should also amend Section 34(1) of the IRPA to provide more flexibility to visa officers and to CBSA Port of Entry officers to deny visas and entry to individuals where there are reasonable grounds to believe that they will engage in activities that will promote hate against an identifiable group, or whose rhetoric in public will be inflammatory. Further, authorities should also deny entry to individuals suspected directly or indirectly of ties to groups providing material support of terrorist organizations. The legislation must be updated so it can be used against modern-day public threats, and to ensure that the courts can rely on a clear legislative framework and policy to deal with judicial review of visa or entry denials.


Sergio R. Karas, principal of Karas Immigration Law Professional Corporation, is a certified specialist in Canadian Citizenship and Immigration Law by the Law Society of Ontario. He is co-chair of the ABA International Law Section Immigration and Naturalization Committee, past chair of the Ontario Bar Association Citizenship and Immigration Section, past chair of the International Bar Association Immigration and Nationality Committee, and a fellow of the American Bar Foundation. He can be reached at [email protected]. The author is grateful for the contribution to this article by Jhanvi Katariya, student-at-law.

Continue Reading

Trending

X