National security docs left on Halifax lawyer's porch
Second incident this year in rights case
OTTAWA • A human rights lawyer says documents that the Canadian government argues contain confidential matters of national security were shoved into his door frame, with no signature or password needed.
Benjamin Perryman, who teaches constitutional law at the University of New Brunswick, represents a Roma Hungarian couple who claim border officials discriminated against them on the basis of ethnicity.
The government argues that no discrimination was involved when Canadian authorities cancelled the “electronic travel authorization” of the couple, Attila and Andrea Kiss, at the Budapest airport in 2019.
In April, the Federal Court of Appeals ordered the immigration minister to send sensitive documents containing screening criteria as an encrypted online file to parties in the case using the Microsoft Sharepoint platform.
Instead, Perryman says the government Fedexed a CD-ROM that was “stuffed” into the door frame of his house in Halifax and needed no encryption, password protection or signature upon receipt of the package. The Canadian Press has seen photos of the envelope lodged in the door.
The process is inconsistent with the government's claim that releasing screening indicators — used to weed out potential illegal immigrants before arrival in Canada, where they could hypothetically claim asylum — would harm the country's safety and security, he said.
“Canada makes the claim that if material got into wrong hands that there would be substantial injury,” Perryman said. “And I arrived at home to find it stuffed into my door on the outside.
“Theft of packages is common in Canada, including in my neighbourhood. This is not a remote possibility,” he said.
The Immigration Department says the government “takes privacy and security issues very seriously.”
“Processes in relation to the transmission of court documents and for the protection of privacy and sensitive information are in place and will be reiterated to all employees in order to prevent any further reoccurrence,” Immigration spokesman Jeffrey Macdonald said in an email.
The package included a cover letter stating the government had permission from court staff to send the package as a CD-ROM, Perryman added, but stressed that it was unencrypted.
The incident marks the second security hiccup related to the couple's case this year.
According to an affidavit from a Canada Border Services Agency manager, the government in February sent Perryman files with “sensitive information” on which CBSA officials had performed “redactions by applying black highlighting” — Microsoft Paint — that could be lifted with the click of a mouse.
A judge ordered that copies sent to Perryman, who had forwarded them on to Gabor Lukacs, president of the Air Passenger Rights advocacy group, be destroyed.
Now those files are back in play following an appeal, resulting in last month's snailmail porch delivery, including to Lukacs, who found his own Fedex package sticking out of his mailbox.
He argues that federal officials are trying to use “national security as a smokescreen to cover up racial discrimination,” an allegation the government rejects.
Lukacs also provided documents from an access-to-information request showing that he had received in unredacted form some of the same text that was blacked out by the CBSA. Other Western countries often publish their screening criteria, which are largely in the public domain, he said.
The Kisses say Roma travellers seeking to visit relatives in Canada face “systemic discrimination” by border officials.
“The humiliation we experienced at the Budapest Airport was exceptional even compared to the prejudice and discrimination that I have experienced all my life in Hungary. A flight to Canada was the last place where I would have expected to be treated this way,” Attila Kiss said in an email.
His wife's sister, Edit, was granted refugee status in Canada several years ago. Andrea Kiss visited her for three months in 2017, and sought a second, two-month visit — still under her fiveyear electronic travel authorization (ETA) — in April 2019 to help care for her sibling following abdominal surgery at a Toronto hospital, according to court filings.
At the airport with roundtrip tickets — Attila also now had an ETA — on April 2, 2019, the couple was referred by authorities to agents with BUD Security, a Hungary-based company that screens passengers on behalf of airlines. The firm receives training from the CBSA.
Shortly after, the Kisses learned a CBSA liaison officer in Vienna had cancelled their ETAS. Asked why, the BUD Security agent told them that “the biggest problem is that the person whom you are travelling to has no status” — as a Canadian citizen or permanent resident — according to an August 2020 court submission from the Kisses, who recorded their interaction with the agent.
The officer's notes also say the couple was “unable to explain how they can take three months off work” and “do not own a home.”
Attila Kiss, who has worked at lighting company Tungsram — owned by GE Hungary — since 1994, got approval for a six-month leave of absence and owns a house, court documents show.
“These alleged indicators are based on ethnic stereotypes depicting the Roma as nomads who neither work nor have a home,” the Kisses state in their filing.
Perryman said asserting national security to justify withholding information, including screening indicators, amounts to opaque governance, with implications for fundamental rights.
“The problem with this as an approach is that it deprives all Canadians of actually being able to see the work of the court and to evaluate Canada's policies, whether or not they discriminate against travellers and whether or not they are defensible on behalf of Canada,” he said.