Section 3
The Application of Pre-September 11 Powers to the New Security Environment, Including the Use of Security Certificates
Canada has responded to the new security environment created by the 9/11 terrorist attacks by augmenting the capacity of existing intelligence and law enforcement agencies, by creating new laws, and by engaging in a significant structural reorganization of the Canadian government. Canada had experienced significant terrorist attacks in the past (above all, the Air India bombing). Terrorism was considered an ongoing potential threat to the security of Canada prior to 9/11. But the extent of the threat revealed by the 9/11 attacks came as a shock to the political system. Canadian responses to security threats post-9/11 were a reflection of the trauma occasioned by that event.
Canadian responses to the new threat environment were built on a bedrock of domestic Canadian values and principles, some enshrined in practice and some in legislation. That bedrock included the Canadian Charter of Rights and Freedoms (1982) and the long-established practices of multiculturalism and democracy. Canada is also an international actor with a reputation to uphold and internal law conventions to abide by. Canada operates on the international stage within a complex web of alliances and multilateral and bilateral treaty arrangements. We exist in a North American geopolitical space and have, of necessity, to adjust when our foremost trading partner and principal ally, the United States, embarks on a dramatically new security course, as it did after September 11.
Pre-September 11 powers could, in this context, be seen to stem from the many historically conditioned circumstances that define Canadian action domestically and internationally. Economic and social policy, military policy and foreign policy are all elements of such a narrative.
But one particular pre-September 11 "power" has come to symbolize some of the challenges of adapting Canadian practice to the new security environment and has emerged from obscurity as one of the most contentious issues in Canada’s conduct of national security. This "power" is the use of "immigration security certificates" under the Immigration and Refugee Protection Act (IRPA).
Security certificates have been in place since 1977 and have been a component of Canada’s immigration laws since 1991.45 They are a protective tool, used sparingly. Only 27 security certificates have been issued since 1991. The government’s batting average before the Federal Court, which adjudicates the security certificate process, has been high. Of the 27 cases, 20 have been found reasonable by the Court. Three have not been upheld. Four remain under review.
Despite the public perception of security certificates as an anti-terrorism instrument, only five have been issued since September 11.46
Why, then, the controversy? The answer is to be found in four aspects of the security certificate system: the reliance on secret intelligence; the nature of the legal process; the conditions of detention; and the question of removal to countries that practice torture. All these aspects seem to raise troubling questions about whether national security prerogatives have been given more importance than human rights protections. These questions are currently under consideration as part of the Parliamentary review of the anti-terrorism legislation. The constitutionality of the security certificate process is also being reviewed by the Supreme Court of Canada.47
The discussion in this section of my report is devoted to understanding the process involved in the issuing of security certificates, not to judging whether this is an appropriate security practice and one that guarantees basic human rights.
Security certificates do depend on secret intelligence. That intelligence can come from a multiplicity of sources, some Canadian, some foreign. There are some checks built into the use of intelligence in building a case against someone in the immigration stream. One is that the Canadian agencies, primarily CSIS, will want to have a strong case, so as to convince the Minister. Reputation is at stake. When a file also contains significant foreign-generated intelligence, CSIS would have another reason for wanting to build a winning hand. Its reputation with foreign agencies, so vital to old or new intelligence partnerships, might, to some degree, be on the line.
Immigration security certificates must be authorized by two Cabinet ministers, the Minister of Public Safety and the Minister of Citizenship and Immigration. That in itself serves to limit the use of the tool and adds further requirements for a strong and convincing intelligence case. The grounds for issuing a security certificate by ministers are threats to Canadian security, violations of human or international rights, serious criminality, or organized criminality as defined by the Act.
The use of secret intelligence in legal proceedings is always a troublesome issue. At the front end of the Canadian security certificate process there is, at least, a double burden of having to protect an intelligence service’s reputation and of ministers’ needing to be confident in the case.
Immigration security certificate cases are decided by a Federal Court judge. While the legal process de-politicizes the matter, it does not allow for ordinary due process. Defendants and legal counsel are placed in the difficult position of not knowing all the evidence against them. Nor does the process allow for any cross-examination of material or witnesses. But the judge in the case is required not just to adjudicate the reasonableness of the evidence but also to place, by way of a summary, as much of the evidence in the case as possible before the individual in question. In other national jurisdictions, such as the UK, the legal procedure allows for a security-cleared impartial adviser (amicus curiae) to review the evidence in full and assist the individual. There may be alternative ways of trying to resolve the dilemma of secrecy versus rights in such cases.
Conditions of detention have been a troubling part of the security certificate process. Some security certificate cases have dragged on for years, leaving individuals in a detention limbo. Some questions have been raised about the facilities provided individuals targeted by security certificates. Questions of release provisions have also generated controversy. The Canadian government has moved to begin transferring individuals involved in security certificate cases from inadequate provincial detention facilities to federal ones. There has been some official musing on controlled release using various means of continuous monitoring. All this suggests that the government believes that detention issues are to some degree fixable and that it is also sensitive to public criticisms on this score.48
In the current five terrorism-related security certificate cases, Mahmoud Jaballah has been detained since 1999, Mohammad Zeki Mahjoub since June 2000, Hassan Almrei since October 2001, Mohamed Harkat since December 2002, and Adil Charkoui since May 2003. Charkoui was released under bail conditions, including electronic monitoring, in February 2005.
All five of these security cases involve allegations that the individuals face torture if returned to their country of origin. This is where the dilemmas of security certificate cases seem less amenable to improvement or less susceptible to some inner process of checks and balances. Canada is bound by international law conventions and norms that forbid the transfer of persons to regimes practicing torture.49 It must also respect international and Canadian Charter rights to a fair trail.
Built into the security certificate process is the "pre-removal risk assessment," conducted by an official from Citizenship and Immigration Canada. The risk assessment is also reviewed by a Federal Court judge. The touchstone case is that of Manickavasagam Suresh, who claimed refugee status in Canada and was granted status in 1991. He was subsequently arrested and detained, pending deportation, for alleged links to the LTTE (Liberation Tigers of Tamil Eelam), or Tamil Tigers. Suresh was released under conditions pending an appeal in March 1998. In January 2002, the Suresh case took another turn when the Supreme Court of Canada issued a ruling in his case which confirmed the principle of non-refoulement, which prohibits the return or expulsion of a refugee to the territory of a State where his or her life, freedom or personal security would be in jeopardy, but qualified it by saying that "barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice." The Government of Canada has taken "extraordinary circumstances" to mean grave threats to national security. The Supreme Court granted Suresh the right to a new deportation hearing, having found the procedural safeguards in his case insufficient.50
The Suresh case takes the security certificate process to its limits in terms of length of detention, the added requirements for the state to share its case with the individual before removal, the concerns about torture should removal be effected, and Canada’s international law obligations. It requires an impossible effort to decide between the extent of a threat posed by an individual to national security and the possibility of subjecting a person to torture.
The Suresh case also pointed to the likelihood that, when the security certificate process was used against suspected terrorists, the process would encounter obstacles on account of all of its potential dilemmas. This indication seems to be borne out by the cases of the five Muslim men currently subject to security certificates and facing removal from Canada.
Key recommendation:
The CHRC should study the immigration security certificate process under three main headings: a) detention and bail conditions; b) the accused individual’s access to evidence against him; and c) safeguards in the conduct of removal orders. This study should seek to determine the extent to which human rights concerns have been properly recognized in the use of security certificates.