BACKGROUND

The resort to security certificates within the immigration law context since September, 2001 has attracted a lot of attention and been the object of much commentary.

Those who oppose this process argue that if there are concerns and evidence that an individual has been involved in terrorist activity, that person should be charged with criminal offences, no matter whether they are foreign nationals, permanent residents or citizens of Canada. They say that security certificates have been used to target Arabs and Muslims, resulting in lengthy detention without charge, and the risk of deportation to torture. Attention is brought by them to the concerns expressed about the security certificate process by the United Nations Working Group on Arbitrary Detention and the United Nations Human Rights Committee.

Those who support the security certificate process argue that it provides for a balanced approach to dealing with situations of possible terrorist activity that protects the rights and freedoms of the person who is the subject of it, safeguards the confidential information possessed by Canadian intelligence authorities that is at times provided by partners in trans-national counter-terrorist activities, and protects society as a whole from potentially dangerous persons. It is argued by them that the intent, which has been found by Canadian courts to be constitutionally acceptable, is to disrupt and prevent terrorist activity, and not to criminally sanction it after the fact when it will be too late and the damage will have been done. They also say that the process has been used with great restraint, and anyone subject to it always has the legal option of leaving Canada.

Although security certificates within the immigration law is not found in, or amended by, the Anti-terrorism Act, both this Subcommittee and its predecessor examined the issues which arose from it because they are inseparable from the more general review itself.

Security certificates within the immigration law context have existed since 1976, and thus pre-date the attack on the United States in September, 2001. Over the years, there have been a number of legislative changes made by Parliament to the security certificate process, with the most recent being found in the Immigration and Refugee Protection Act adopted in 2001.

Section 77 of the Act allows the Ministers of Citizenship and Immigration and Public Safety and Emergency Preparedness to sign a certificate stating that a permanent resident or a foreign national is inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality, and to refer it to the Federal Court.

Section 78 of the Act requires the Federal Court judge to ensure the confidentiality of the information on which the certificate is based, and of any other evidence that may be provided if its disclosure would be injurious to national security or to the safety of any person. All or part of the evidence may be heard by the Federal Court judge to whom the security certificate has been referred in the absence (ex parte, in camera) of the person named in it and their counsel if the judge believes that its disclosure would be injurious to national security or to the safety of any person. A summary of the evidence heard in the absence of the named foreign national or permanent resident and their counsel, allowing them to be reasonably informed of the circumstances giving rise to the certificate, is to be provided to them by the Federal Court judge. The judge is to deal with all matters informally and as expeditiously as is consistent with fairness and natural justice.

Section 80 of the Act requires the Federal Court judge, to whom the certificate has been referred to determine, based on the available evidence and information, whether the certificate is reasonable. The determination of reasonableness by the judge may be neither appealed nor judicially reviewed. Once a security certificate has been determined to be reasonable, the effect under section 81 is to make the named foreign national or permanent resident inadmissible to Canada and ineligible to apply for protection under section 112. The certificate itself, once determined to be reasonable, is a removal order which is not appealable.

Under section 82 of the Act, pending a determination of the reasonableness of the certificate, a warrant may be issued for the arrest and detention of a permanent resident who is named in the certificate. Foreign nationals who are named are subject to detention without the issuance of a warrant. If the security certificate is determined by the Federal Court judge to whom it is referred to be reasonable, detention may continue until the person is deported. Where deportation is not possible due to the risk faced by the person in their home country, detention may continue for a long time.

Section 112 of the Act allows a foreign national or a permanent resident named in a security certificate to apply to the Minister of Citizenship and Immigration for protection if they are at risk of persecution, cruel and unusual treatment or punishment, or torture. Such an application has to be made before the security certificate has been determined to be reasonable. The effect of the application is to suspend the certificate process until the protection issue has been determined by the Minister. If protection is granted, the named person cannot be removed from Canada unless the security certificate is subsequently found to be reasonable and, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature or severity of acts committed or of danger to the security of Canada.

There have been 28 security certificates issued in Canada since 1991, and only six since September 11, 2001, demonstrating that the process is not used often. Nineteen individuals have been removed as a result of a security certificate. The most recent was the deportation of Paul William Hampel to Russia in December, 2006. Three security certificates have been found by the courts to be unreasonable (although one of these was subsequently re-issued). Currently, there are six people in Canada who are the subject of a security certificate, namely Hassan Almrei, Adil Charkaoui, Mohamed Harkat, Mahmoud Jaballah, Mohamed Mahjoub, and Manickavasagam Suresh. Three of these individuals are still in detention (Almrei, Jaballah and Mahjoub), although the release of two of them (Jaballah and Mahjoub) on strict conditions has been authorized by the Federal Court.  Three of the individuals have already been released on strict conditions (Charkaoui, Harkat and Suresh).

The Supreme Court of Canada on February 23, 2007 released its decision in the appeals of Charkaoui, Almrei and Harkat.¹ The Court found in its judgment that the security certificate process was inconsistent with the requirements of the Canadian Charter of Rights and Freedoms. It concluded that those provisions of the Act that allow for the use of in camera, ex parte proceedings, from which the named person and their counsel are excluded, violate the right to life, liberty, and security of the person under section 7 of the Charter. The Court found that the right to a fair hearing includes the right to a hearing before an independent and impartial judge who decides the case on the facts and the law, the right to know the case that has to be met, and the right to meet that case. Since evidence heard in camera and ex parte cannot be tested by the named person and cannot be disclosed by a judicially authorized summary of that evidence, the provisions of the Act violate the Charter section 7 right to liberty. The Court also concluded that the provisions could not be saved by section 1 of the Charter as being demonstrably justified limitations necessary in a free and democratic society.

Based on these findings and others, the Court gave Parliament one year to replace and reform the relevant portions of the Act. In the course of setting out its reasons for judgment, the Court made reference to the existence of special counsel, special advocate or amicus curiae measures used in Canada and the United Kingdom, where there is a requirement to protect sensitive information while still recognizing the right of individuals to meet the case with which they are confronted. It described these measures as “less intrusive alternatives” to the current process, whereby ways have been found to protect sensitive information while treating individuals fairly. The Subcommittee deals with this issue more extensively in Chapter 10 of the report, in which it proposes that a Panel of Special Counsel be established.

ISSUES OF CONCERN

Divergent Views on the Proper Balance

The security certificate process is one that has given rise to great controversy, with views being strongly held and vigorously expressed. The debate captures much of what can be said about many other issues related to strategies, legislation, and agencies that have the goal of preventing, pre-empting, and prohibiting terrorist activity, be it actual or anticipated. It goes to the heart of the level of coercion to be available to the state and its agencies in a democratic society which gives primary importance to constitutionally entrenched rights and freedoms.

Democratic societies have an obligation to protect themselves against efforts to undermine and attack their institutions. The first responsibility of the state in such a society is to ensure the safety and security of its citizens. It must do so in a manner consistent with the rule of law, while imposing only reasonable limits on constitutional rights and freedoms. It is within this general philosophical context that the Subcommittee has reviewed the security certificate process.

As indicated elsewhere in this chapter, the security certificate process has been in place for many years, pre-dating the September 2001 attacks on the United States. As well, resort to it has been restrained, only 28 times since 1991, compared with thousands of removals under other parts of the immigration law. However, this is not the whole story.

It must be admitted that those subjected to the security certificate process do not have all the protections available to those prosecuted for criminal offences. As well, the burden of proof placed on immigration authorities is less than that imposed on the prosecution in a criminal case. Finally, the procedure and disclosure provisions are not of the same kind as those in the criminal justice system. But there are reasons for this.

The security certificate process is preventive, intended to deal with those in Canada who are or have been involved in terrorist activity before they have a chance to do so here or elsewhere. Because they are foreign nationals or permanent residents, they are not entitled under Canadian law to the full array of rights and freedoms available to Canadian citizens under section 6 (mobility rights) and other provisions of the Canadian Charter of Rights and Freedoms. Because the security certificate process is an administrative law one, the burden of proof, hearing procedures, and disclosure rules are different from those in the criminal law.

The Subcommittee believes that the security certificate process now in place represented a serious attempt to balance the rights and freedoms of those subject to it and the obligation of democratic state institutions to protect themselves from being undermined or attacked. However, after reviewing the briefs and submissions on the security certificate process, the Subcommittee believes that more needs to be done to further assure the rights and freedoms of those subject to it.

Rules of Evidence

The first issue to be dealt with relates to the rules of evidence to be applied by a Federal Court judge to whom a security certificate has been referred. Section 78(j) of the Immigration and Refugee Protection Act allows the judge to receive into evidence anything that, in the judge’s opinion, is “appropriate”, even if it is inadmissible in a court of law. The judge may base the decision on the reasonableness of the security certificate on that evidence.

The British Columbia Civil Liberties Association (BCCLA) has commented on a similar provision in the Canada Evidence Act (section 38.06(3.1)) as well as section 78(j) of the Immigration and Refugee Protection Act. In reference to the Canada Evidence Act provision, the BCCLA says that the words “reliable and appropriate” should be replaced by “relevant and reliable”. With respect to the Immigration and Refugee Protection Act, it proposes that these same words replace “appropriate” in section 78 (j). In support of this recommendation, the BCCLA says that although it accepts that the standard of evidence in the national security context may have to be relaxed, its proposal will make it clear that information obtained by torture or similar means is inadmissible.

Although the Subcommittee agrees with the intent of the BCCLA proposal and with the suggested use of the word “reliable”, it does not agree that the suggested use of the word “relevant” will achieve the policy goal identified in the BCCLA’s brief, that is, to make information obtained by torture or similar means inadmissible. Information received by the use of torture or similar means is considered by many not to be the best source of truthful, accurate facts. It is often misleading or incomplete, intended by the person providing it to cause the torture or mistreatment to cease. Such information is thus often unreliable because of the means used to obtain it. The better test for admitting such information is therefore its reliability.

Provisions similar to section 78 (j) of the Immigration and Refugee Protection Act can be found in evidentiary contexts in several Acts included within the Anti-terrorism Act. They are at section 83.05(6.1) of the Criminal Code, sections 37(6.1), 38.06(3.1), and 38.131(5) of the Canada Evidence Act, and section 6 (j) of the Charities Registration (Security Information) Act. The words “reliable and appropriate” are used in each of these provisions.

The Subcommittee believes, therefore, that the word “reliable” should be added to section 78 (j) of the Immigration and Refugee Protection Act. This addition would reflect the type and effect of the information to which the Federal Court judge’s attention should be brought for the special consideration it merits when issues of admissibility into evidence may arise. This is especially important when it is considered that the decision on the reasonableness of the security certificate may be based in part on such evidence. Amending the Act in this way will harmonize section 78(j) with similar provisions found in several component Acts forming part of the Anti-terrorism Act.

RECOMMENDATION 51

The Subcommittee recommends that section 78(j) of the Immigration and Refugee Protection Act be amended by adding the words “reliable and” before the word “appropriate”.

Applications for Protection

As described earlier in this chapter, section 112 of the Immigration and Refugee Protection Act allows a foreign national or a permanent resident who is the subject of a security certificate to apply to the Minister of Citizenship and Immigration for protection. The effect of such an application for protection is, under section 79 of the Act, to require the Federal Court judge to whom the security certificate has been referred to suspend the proceedings at the request of the Minister, or the foreign national or permanent resident. The proceedings only resume when the Minister has dealt with the application for protection. Once a security certificate has been determined to be reasonable, section 81 states that there can no longer be an application to the Minister for protection.

There are problems with the sequence in which the reasonableness of the security certificate and the application for protection are addressed. First of all, if an application for protection is made and there is no request that the security certificate proceedings themselves be suspended, the two processes will unfold at the same time. Secondly, if such a request for suspension of the security certificate proceedings is made, the judge has no discretion and must grant it. The consequence is that the security certificate process itself is in abeyance until the application for protection is addressed. Consequently, there is a built-in delay in the determination of the reasonableness of the security certificate.

Both the security certificate process and the application for protection are important for the foreign national or the permanent resident. The Subcommittee believes they must be dealt with more expeditiously and through a simpler process. The primary issue here is whether a person should be declared inadmissible to Canada through the process that has as its purpose the determination of the reasonableness of the security certificate. It is only at the moment that a person becomes removable from Canada that the danger of such a removal becomes important. The Subcommittee thus believes that a simpler, more expeditious process has to be put into place whereby an application to the Minister for protection can only be made once the Federal Court has determined the reasonableness of the security certificate. If the certificate is determined not to be reasonable, there will be no need for an application for protection.  Conversely, if the certificate is determined to be reasonable, the named person should remain entitled to apply for protection.

RECOMMENDATION 52

The Subcommittee recommends that sections 79, 81, 112, and other provisions of the Immigration and Refugee Protection Act be amended so as to allow for an application to the Minister of Citizenship and Immigration for protection only after a security certificate has been found by a Federal Court judge to be reasonable.

The provisions allowing for ex parte, in camera proceedings under the Immigration and Refugee Protection Act are set out earlier in this chapter. Similar procedures are in place within the contexts of the terrorist entity listing process in the Criminal Code, the charities de-registration process, and the Canada Evidence Act. Each of these processes is discussed separately elsewhere in our report.

A number of briefs considered by the Subcommittee have proposed that a special advocate or amicus curiae scheme be put in place in relation to each of these processes. Rather than addressing this issue within each of these contexts, the Subcommittee deals comprehensively with this subject in the next chapter of the report.