It's
Time to End the Security Certificate
Process
October 2015
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It has taken a long time for awareness to
grow about the serious discriminatory and
rights-denying features of the security
certificate. The process has by now
attracted advice to Canada against its
consequences from several international
human rights treaty bodies.
The security certificate originally mandated
indefinite detention without an ability to
challenge the legality of it. The Supreme
Court of Canada Chartaoui 2007 case
resulted in some improvement in the process
and in the protection of the rights of those
detained. Thanks to the Court of Appeal for
Ontario Chaudary 2015 case,
non-citizens may now use the general Habeas
Corpus recourse for detention that is
available to citizens.
However, problems remain. The law does not
provide a fair procedure to ensure
protection of the person’s rights put at
risk by the mandatory deportation. And the
process still uses secret information that
the person detained, and possibly deported,
cannot fully know in order to question or
challenge it. Then the process has the
effect of setting apart some non-citizens,
which can include permanent residents, on
the basis of this secret information. There
is an alternative way of dealing with
non-citizens accused of serious crimes
because the law already deals with citizens
accused of them.
The Canadian government website makes the
rights-restricting procedure sound almost
reasonable:
“The security certificate
process … is … for removing from Canada
non-Canadians … inadmissible for reasons
of national security, violating human or
international rights, or involvement in
organized or serious crimes.
The Government … issues a
security certificate … where the
information to determine the case cannot
be disclosed without endangering the
safety of a person (for example, by
putting a witness’ life in danger) or
national security (for example, by
revealing investigation techniques).
“Once signed, the certificate is
referred to the Federal Court for
determining if is reasonable or not. If
found reasonable by the Federal Court, it
becomes an enforceable removal order. This
Federal Court determination can be
appealed to the Federal Court of Appeal…”
(Public Safety Canada, Website 27 Oct
2015)
The Inter-American Commission on Human
Rights (the “Commission”) raised concerns in
its 2000 Report on Canadian refugee status
determination procedures. At paragraph 146
the Commission lists international human
rights concerns with the process as it was
then:
(1) the compatibility of the
provisions concerning access to review of
the legality of detention,
(2) the apparent difficulties
presented for a person deemed to be a
security risk to seek protection for his
or her right to non-return due to a risk
to life or physical integrity, and
(3), the compatibility of the
procedures which allow the judge reviewing
the certificate to consider evidence which
may be withheld from the person concerned
on the basis of the need to protect
national security.
The idea of deporting people who don’t
deserve to be in Canada may have origins in
the thinking of the 1951 Convention relating
to the status of refugees. There is a notion
in the Convention that those who committed
serious crimes were not worthy of the status
of refugee and could be “excluded.” In
today’s world there are international human
rights treaties ratified by Canada that do
not provide for anyone to be excluded from
protection of their right to life, or
protection from torture or cruel or
degrading treatment or punishment. As the
Commission put it:
“The fact that a person is
suspected of or deemed to have some
relation to terrorism does not modify the
obligation of the State to refrain from
return where substantial grounds of a real
risk of inhuman treatment are at issue.”
In 2000, the Commission was concerned with
the lack of an appeal on the merits for
refused refugee claimants in general and
with the general inadequacy of judicial
control over deportation to a risk of
torture. An appeal on the merits has been
subsequently added to the refugee status
determination process in the Immigration and
Refugee Protection Act 2002 (IRPA 2002),
but not for the special security certificate
process.
For the security certificate, the due
process protection for deportation is that
described by the Supreme Court in the Suresh
2002 case. Using the discretion provided in
the Act, “the Minister must conform to the
principles of fundamental justice under s.7
[of the Canadian Charter of Rights and
Freedoms].” And “… the Minister’s decision
on whether a refugee faces a substantial
risk of torture upon deportation should be
overturned only if it is not supported on
the evidence or fails to consider the
appropriate factors.” The due process lacks
a full hearing by an independent and
impartial tribunal. The decision is provided
by the minister. There is not adequate
protection for the individual in the
judicial review.
The UN Working Group on Arbitrary Detention
visited Canada in 2005 and issued a report.
The Working Group expressed grave concerns
about the security certificate:
“This procedure allows the
Government to detain aliens for years on
the suspicion that they pose a security
threat, without raising criminal charges.
Judicial review of detention occurs at
excessively long intervals and does not go
to the merits of the need to maintain the
individual in detention. The detainee’s
ability to challenge detention is severely
hampered by the fact that – in order to
protect confidential information -- he
receives only a very superficial summary
of the reasons for his detention.”
The recommendation to Canada was clear:
“… the Working Group recommends
that terrorism suspects be detained in the
criminal process, with the attached
safeguards, and not under immigration
laws.”
This implies deleting the security
certificate from IRPA 2002 and
treating non-citizens like citizens. This
approach also reduces the possibility of
discrimination against non-citizens.
The Supreme Court examined issues with the
security certificate in Chartaoui
2007. It found the use of secret evidence at
that time unconstitutional, and gave the
government a year to reform the law. It also
allowed those detained to be treated like
any other non-citizen in detention.
The government retained the security
certificate and legislated the provision of
“Special Advocates” with security clearance
who were to serve as intermediaries between
the individual and the designated judge
reviewing the certificate.
In 2012 the UN Committee against Torture
examined Canada and found the security
certificate procedure as amended after
Chartaoui 2007 raised concerns:
“(a) Special advocates have
very limited ability to conduct
cross-examinations or to seek evidence
independently;
(b) Individuals subject to
security certificates have access to a
summary of confidential materials
concerning them and cannot directly
discuss full content with the special
advocates. Accordingly, the advocates
cannot properly know the case against them
or make full answer or defense in
violation of the fundamental principles of
justice and due process;
(c) The length of this
detention without charge is indeterminate
and some individuals are detained for
prolonged periods; and
(d) Information obtained by
torture has been reportedly used to form
the basis of security certificates, as
evidenced by the case of Hassan Almrei.”
The Committee asked Canada to ensure that
evidence obtained by torture cannot be used.
The Committee recommended Canada follow the
advice of the UN Working Group on Arbitrary
Detention and deal with terrorist suspects
under the criminal law rather than
immigration law.
In Harkat 2014 the Supreme Court
failed to address these concerns, finding
that the designated judge could adjust the
security certificate review process, using
the advice it provided, on a case by case
basis to make it constitutional.
So what remains of the security certificate?
The mandatory detention can no longer be
guaranteed because the individual can now
use Habeas Corpus to seek a remedy.
The purpose, to deport certain non-citizens,
remains. But deportation is not guaranteed.
At present the deportation part of the
process does not meet Canada’s international
human rights treaty obligations. Deportation
should not be done without a fair trial
hearing and appeal that are presently not
available for those in the security
certificate process. That would make the
purpose of the security certificate,
deportation, less certain. Then, as the
Inter-American Commission pointed out in
2000, deportation can also be difficult to
carry out for some individuals, such as
those who would be stateless and refugees.
The IRPA 2002 now provides the
appeal on the merits that in 2000 the
Inter-American Commission said was necessary
in the refugee status determination
procedure. It is provided for all refugee
claimants except for some groups that are
excluded within that law. At the time of
writing a Federal Court in the Y.Z.
2015 case has ruled against excluding from
this appeal on the merits one group of
persons at risk. The Court did so on grounds
of non-discrimination. It is likely that
Canadian courts will increasingly find, as
international human rights bodies have
increasingly done since 2003, that non
citizens and asylum-seekers are a
disadvantaged group that deserves special
attention to protect them from forms of
discrimination. The group falling under the
security certificate qualifies for this
concern.
If the deportation part of the process is
made to conform with Canada’s international
human rights obligations by ensuring a fair
independent hearing and an appeal,
deportation is less something that the
government can claim to deliver. Deportation
can be a possibility, but hardly a purpose
of the security certificate. Moreover, the
wider security certificate process makes any
deportation more difficult. This is because
the process itself draws heightened
attention to the individual in a severe
crime context and increases the likelihood
of any probable torture or cruel or
degrading treatment or punishment in the
receiving state. That in turn makes lawful
deportation far less possible. A process
that aims to deport but then makes
deportation less likely is
counter-productive.
Summing all this up, the time has come to
treat non-citizens and citizens alike for
terrorism and serious international crime
allegations. That should be under the
criminal code with full procedural
guarantees, as the UN Working Group on
Arbitrary Detention and UN Committee against
Torture have advised. The security
certificate process should quietly
disappear.
