Tom Clark

Individual Safeguards - Key to Security
June 15 2006

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In its June 14 2006 editorial about the security certificates applied to non citizens, the Globe lightly brushed aside indefinite detention and took the line that justice can be compromised in the name of national security. ("The law is, like most compromises, imperfect ..."). In contrast, I would argue security lies in knowing that justice will not be compromised for short term political needs.

Despite its support for security certificates, the Globe raises some of the real concerns about them. Do you detain people indefinitely when the only alternative is returning them to a home country where there is a substantial probability of death or torture?

Contrary to the Globe’s bold affirmation, the law is not chock a block full of safeguards. The Globe argues that the evidence is mostly around and seems willing to accept al-Queda members "public evidence" at face value. Sorry – evidence must be tested. Knowing the evidence against one and being able to effectively challenge it is a fundamental principle of justice. The Globe itself hints that improvements in this direction are needed when it concedes that the law might be “tweaked.” Testing the evidence is what courts are for. Suppose suspect number one is detained on false testimony from suspect number two. Or suppose someone who left behind radical thoughts long ago once attended a meeting as a student? Both could qualify for jail and expulsion on "reasonable grounds to suspect." Such people must have a way of reclaiming their lives if mistakes are made by authorities – authorities under pressure to be able to tell the public that some terrorists have been found.

Basing indefinite detention on the simple fact that the authorities have "reasonable grounds to suspect … ” is backwards from the norms developed for detention in criminal codes where the default favours release of the individual accused and the onus is on officials who must show grounds not to release.

Note that judicial review can determine only that the law was followed correctly - not whether the outcome for the individual was correct or appropriate. The judge can only determine whether it was “reasonable to suspect.” This makes some sense for short term detention when there is a substantial risk of danger to the public. It makes no sense as a basis for indefinite incarceration that has in some individual cases in Canada amounted to 8-10 years. This is within the range of a life sentence for murder used by some countries.

The Canadian Charter of Rights and Freedoms in theory provides the ancient Magna Carta right of Habeas Corpus - the right to be brought promptly before a judge who will consider the lawfulness of the detention. The Supreme Court determined in the Reza case that this Charter right was not necessary for non-citizens because the review by a Federal Court judge under the then Immigration Act 1976 was deemed equivalent to Habeas Corpus.

The UN Human Rights Committee acting according to Protocol I under the UN Covenant on Civil and Political Rights, accepted that the judicial review of "reasonableness" was in principle acceptable as review by a judge of the lawfulness of detention, but questioned this procedure for the long term. The Committee noted that Canada's procedure must decide "without delay" on the lawfulness of detention when those circumstances evolve. Canada was found to be in violation of the Covenant. (See Human Rights Committee, Ahani v. Canada case, 25 May 2004.)

The Inter-American Commission on Human Rights expressed concern in its report on Canada issued in 2000. This report was based on Canada's obligations under the American Declaration of Rights and Duties of Man, applicable to all OAS members.

"It is a fundamental principle of due process that the parties engaged in the judicial determination of rights and duties must enjoy equality of arms. A person named in a certificate who is the subject of secret evidence will not enjoy a full opportunity to be heard with minimum guarantees, the essence of the right to due process", Report, para. 156, 157.

The Inter-American Commission on Human Rights also commented in its report on admissibility of the complaint before it from Suresh:

“The Commission considers that the petitioner’s complaint refers to facts which, if true, tend to establish a violation of the rights guaranteed by Articles II, XVIII, and XXV of the American Declaration, thus the requirements of Article 47(b) of the Convention have been met.” Admissibility Report, Para. 30.

Permanent residents put under a security certificate cannot use the normal body which would adjudicate a substantial probability of violation of family rights or risk of torture upon expulsion: "No appeal may be made to the Immigration Appeal Division by a foreign national or permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security..."

To sum up, the present law gives only an impression of safeguards. What is needed is a simple effective court remedy which can protect the rights and freedoms of the individual when these are threatened by the suspicions of the authorities. It must be possible to know and test evidence which threatens rights by expulsion. It must be possible to avoid long term imprisonment based on suspicion alone – however reasonable the suspicion appears to the public eye.

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Individual Safeguards - Key to Security June 15 2006 Click square for index In its June 14 2006 editorial about the security certificates applied to non citizens, the Globe lightly brushed aside indefinite detention and took the line that justice can be compromised in the name of national security. ("The law is, like most compromises, imperfect ..."). In contrast, I would argue security lies in knowing that justice will not be compromised for short term political needs. Despite its support for security certificates, the Globe raises some of the real concerns about them. Do you detain people indefinitely when the only alternative is returning them to a home country where there is a substantial probability of death or torture? Contrary to the Globe’s bold affirmation, the law is not chock a block full of safeguards. The Globe argues that the evidence is mostly around and seems willing to accept al-Queda members "public evidence" at face value. Sorry – evidence must be tested. Knowing the evidence against one and being able to effectively challenge it is a fundamental principle of justice. The Globe itself hints that improvements in this direction are needed when it concedes that the law might be “tweaked.” Testing the evidence is what courts are for. Suppose suspect number one is detained on false testimony from suspect number two. Or suppose someone who left behind radical thoughts long ago once attended a meeting as a student? Both could qualify for jail and expulsion on "reasonable grounds to suspect." Such people must have a way of reclaiming their lives if mistakes are made by authorities – authorities under pressure to be able to tell the public that some terrorists have been found. Basing indefinite detention on the simple fact that the authorities have "reasonable grounds to suspect … ” is backwards from the norms developed for detention in criminal codes where the default favours release of the individual accused and the onus is on officials who must show grounds not to release. Note that judicial review can determine only that the law was followed correctly - not whether the outcome for the individual was correct or appropriate. The judge can only determine whether it was “reasonable to suspect.” This makes some sense for short term detention when there is a substantial risk of danger to the public. It makes no sense as a basis for indefinite incarceration that has in some individual cases in Canada amounted to 8-10 years. This is within the range of a life sentence for murder used by some countries. The Canadian Charter of Rights and Freedoms in theory provides the ancient Magna Carta right of Habeas Corpus - the right to be brought promptly before a judge who will consider the lawfulness of the detention. The Supreme Court determined in the Reza case that this Charter right was not necessary for non-citizens because the review by a Federal Court judge under the then Immigration Act 1976 was deemed equivalent to Habeas Corpus. The UN Human Rights Committee acting according to Protocol I under the UN Covenant on Civil and Political Rights, accepted that the judicial review of "reasonableness" was in principle acceptable as review by a judge of the lawfulness of detention, but questioned this procedure for the long term. The Committee noted that Canada's procedure must decide "without delay" on the lawfulness of detention when those circumstances evolve. Canada was found to be in violation of the Covenant. (See Human Rights Committee, Ahani v. Canada case, 25 May 2004.) The Inter-American Commission on Human Rights expressed concern in its report on Canada issued in 2000. This report was based on Canada's obligations under the American Declaration of Rights and Duties of Man, applicable to all OAS members. "It is a fundamental principle of due process that the parties engaged in the judicial determination of rights and duties must enjoy equality of arms. A person named in a certificate who is the subject of secret evidence will not enjoy a full opportunity to be heard with minimum guarantees, the essence of the right to due process", Report, para. 156, 157. The Inter-American Commission on Human Rights also commented in its report on admissibility of the complaint before it from Suresh: “The Commission considers that the petitioner’s complaint refers to facts which, if true, tend to establish a violation of the rights guaranteed by Articles II, XVIII, and XXV of the American Declaration, thus the requirements of Article 47(b) of the Convention have been met.” Admissibility Report, Para. 30. Permanent residents put under a security certificate cannot use the normal body which would adjudicate a substantial probability of violation of family rights or risk of torture upon expulsion: "No appeal may be made to the Immigration Appeal Division by a foreign national or permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security..." To sum up, the present law gives only an impression of safeguards. What is needed is a simple effective court remedy which can protect the rights and freedoms of the individual when these are threatened by the suspicions of the authorities. It must be possible to know and test evidence which threatens rights by expulsion. It must be possible to avoid long term imprisonment based on suspicion alone – however reasonable the suspicion appears to the public eye. TOP Click:
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