Tom Clark

Harkat, Security Certificates and Human Rights
October 2014

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The Supreme Court’s Harkat case is part of a longer story about a process in Canada which allows indefinite detention and deportation because officials issue a security certificate. They have “reasonable grounds to believe” the person poses a security risk to Canada. A federal court judge tests whether they have “reasonable grounds to believe.”

The Court said the right things in Chartaoui v Canada 2007 and the decision made the government rewrite the arrangements. The Court found Canadian Charter of Rights and Freedoms section 7 rights to life liberty and security of the person were engaged by the detention and that Charter s.7 could be engaged by the deportation. Charter s.7 rights can be restricted by a process which, in the words of Charter s.7 “conforms with the fundamental principles of justice.” The Court found that such a fair hearing has key elements:

“The right to a fair hearing comprises the right to a hearing before an independent and impartial magistrate who must decide on the facts and the law, the right to know the case put against one, and the right to answer that case.”

“… if s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found…”

“The infringement of s. 7 is not saved by s. 1 of the Charter. While the

protection of Canada’s national security and related intelligence sources constitutes a pressing and substantial objective, and the non-disclosure of evidence at certificate hearings is rationally connected to this objective, the IRPA does not minimally impair the rights of persons named in certificates. Less intrusive alternatives developed in Canada and abroad, notably the use of special counsel to act on behalf of the named persons, illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA.”

It is worth noting that Canada had come under mounting pressure. Several international human rights treaty bodies which issued reports on rights in Canada had pointed out the problems of the security certificate process – going back to 2000 and before. The Court gave the government time to come up with something better. But there were problems with the UK arrangements to which the Court alluded when mentioning "special counsel" as a less intrusive alternative.

The government revised IRPA to provide for special advocates. This revised arrangement is the one under which Harkat went before the Court.

As I wrote in February 2007, after the Chartaoui judgment, it remains a concern that the judge only decides that there are reasonable grounds to believe – and the person is detained. This is essentially incarceration by suspicion by the authorities. That should be controlled by the ancient Habeas Corpus safeguard. My understanding of the international human rights treaty equivalent is that a judge must establish the lawfulness of the incarceration. And in the regime of international human rights that goes beyond whether Canadian law prescribes something. The question is: did the authorities get it right? Is this person a risk to Canada’s national security?

I continue to find it remarkable that the Court can fail to mention the right to no return when there is a serious probability of torture in almost all its cases involving expulsion of non-citizens. That is an international treaty right under active use by the European Court of Human Rights and the UN Committee against Torture - and it is a right echoed in the Canadian Charter of Rights and Freedoms.

In 2012, the UN Committee against Torture advised Canada in its response to Canada’s required report under the Convention against Torture treaty that the new arrangement still raised concerns:

“… the Committee remains concerned that: …

Special advocates have very limited ability to conduct cross-examinations or to seek evidence independently;

Individuals subject to the security certificates have access to a summary of confidential materials concerning them and cannot directly discuss full content with the special advocates. Accordingly they cannot properly know the case against them or make full answer or defence in violation of the fundamental principles of justice and due process;

The length of this detention without charges is indeterminate and some individuals are detained for prolonged periods;and

Information obtained by torture has been reportedly used to form the basis of security certificates, as evidenced by the case of Hassan Almrei.”

These comments appear to refer to the very concerns about enough information which the Supreme Court itself had raised in Chartaoui v Canada in 2007.

In 2013 Harkat was before the Supreme Court to challenge the new arrangements.

The Harkat v Canada 2014 judgment was issued 14 May 2014. The Court essentially said that the new IRPA security certificate arrangements were not inherently unconstitutional. It was up to the judge in the process to make the arrangements constitutional by acting flexibly in the particular circumstances of the case – for example deciding what was acceptable as evidence and what sources could be named to special advocates.

“… (1) the designated judge is intended to play a gatekeeper role, is vested with broad discretion and must ensure not only that the record supports the reasonableness of the ministers’ finding of inadmissibility but also that the overall process is fair; and (2) participation of the special advocates in closed hearings is intended to be a substantial substitute for personal participation by the named person in those hearings.”

“A named person is “reasonably informed” if he or she has personally received sufficient disclosure to be able to give meaningful instructions to his public counsel and meaningful guidance and information to his or her special advocates which will allow them to challenge the information and evidence presented in the closed hearings. The level of disclosure required for a named person to be reasonably informed is case-specific, depending on the allegations and evidence against him or her…”

This approach is ingenious – the law can be made constitutional if the judge wiggles around with it to make it so. But that is a cop out for the Court responsible for shaping Canadian law. This is the Court which as an organ of Canada has a special responsibility to ensure the rights in the UN Covenant on Civil and Political Rights. Instead, the Court decided to be confident that judges could fix the problems while applying the law. That ignored international treaty rights and the explicit concerns of the Committee against Torture, the treaty body responsible for overseeing the Convention against Torture.

Before the Committee against Torture advised in 2012, the problems with secret evidence and special advocats in the UK were documented by the UK organization "Justice" in its 2009 report Secret Evidence. It calls secret evidence “unreliable unfair undemocratic unnecessary and damaging …” It sought strengthened disclosure procedures, increased transparency of court procedures and ending reliance on “reasonable suspicion” in such procedures.

To my mind telling the judge to fix the process on a case-by-case basis as the Supreme Court does in the Harkat ruling is not a good enough solution to the kinds of problems the Court faced, which were described in the 2009 report by Justice for the UK. Moreover, it is unjust to have loosely defined procedures for adjudicating fundamental rights. Not only is the highest level of due process required, but flexible procedures do not ensure equal treatment of similarly situated cases. Tellingly, the 2009 Justice report about the special advocate procedure in the UK notes: “Unless the criminal justice system is seen as the primary weapon against terrorism, the government’s desire to resort to secret and unfair methods is unlikely to abate.” (para. 456)

Some of the evidence put before the Court by interveners in the Harkat case shows the Supreme Court was made aware of the problems.

Amnesty International points out that designated judges are not capable of rendering the security certificate proceedings fair. (As noted above, the Supreme Court chose to instruct the judge to make the proceedings fair.)

“Amnesty International … submit[s] that the Immigration and Refugee Protection Act (IRPA)' s security certificate regime fails to respect named persons' due process rights, as required under binding international human rights law. … … neither Special Advocates (SAs) nor designated judges are capable of rendering security certificate proceedings fair.” (para. 3)

The BC Civil Liberties Association (& Attorney General of Ontario) Factum challenged the court to stick to the principles set out in its Chartaoui judgment noting that there are alternatives to the Canadian security advocates model which would infringe fundamental rights less.

“… The greater the jeopardy the individual faces, the greater the procedure required. … … This proportionality principle underpins much of our s. 7 Charter case law, including this Court's two prior decisions on security certificates, Charkaoui I and Charkaoui II. It also informs the Oakes test under s. 1. The current security certificate regime fails to satisfy this principle. … … The Canadian security certificate regime, in some respects, is the worst of both worlds [UK and US]. It carries the possibility of indefinite detention but it lacks basic procedural protections afforded even to Guantanamo Bay detainees. … As the U.K. and U.S. models show, there are less rights-impairing ways of achieving national security.” (para. 2,3,8)

As well as underscoring that the security certificate regime is inherently discriminatory, the Canadian Council for Refugees & International Civil Liberties Monitoring Group Factum also describes the wider dangers of movement towards secret evidence. Importantly, the Factum notes that the elimination of the security certificate regime would simply require things to be put before a court where relevant information can be produced as is now done under criminal law. Using criminal law techniques for everyone would resolve the equality issue and the due process issues. Such an option is implicit in the 2009 Justice report in the UK. On equality the CCR & ICLMG say:

“Substantive equality is a principle of fundamental justice and is the “animating norm” of the [Charter] s. 15 analysis. … A discriminatory process, therefore, cannot be considered a fair process. Further, a law that, by offending [Charter] section 7, also contravenes another right cannot be consistent with fundamental justice.” (para. 14)

In my view the Court’s Harkat judgment exacerbates the equal treatment/ non-discrimination problems. It is discriminatory to have a separate inferior process for fundamental rights of a group now internationally recognized as disadvantaged - non-citizens, and the more so, migrants and refugees. There should be a better Habeas Corpus process with fuller judicial guarantees for non-citizens' rights to liberty as compared with the process for citizens. In its Reza judgment the Court assumed the legislated non-citizen process was equivalent. But it needs to be better. The discretionary security certificate regime lowers the bar from this presently legislated supposedly equivalent Habeas Corpus for non-citizens.

Not only does the Supreme Court Harkat decision preserve the internationally criticized security certificate procedure, but within that procedure it calls for flexibility from judges which can only bring further levels of unequal treatment to those within this regime.

There are not many security certificates. Some may be tempted to say not many humans have their human rights violated. However, human rights of the majority are seldom violated. It is minorities and disenfranchised individuals like Harkat who need human rights in their time of need. The Supreme Court Harkat judgment must therefore be seen as a huge failure to ensure promised rights.

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