http://www.amnesty.ca/take_action/actions/canada_certificates.php
http://www.ichrdd.ca/english/commdoc/publications/intHRadvocacy/terrorismDemEn1
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WHAT’S WRONG WITH
SECURITY CERTIFICATES?
WHAT YOU CAN DO ABOUT IT
A brief for Members of Parliament
By The Campaign to Stop Secret Trials, 2005
(416) 651-5800 OR (416) 658-5854
www.homesnotbombs.ca
“The real threat to the life of the nation, in the sense of a people living in accordance
with its traditional laws and political values, comes not from terrorism but from laws
such as these. That is the true measure of what terrorism may achieve. It is for
Parliament to decide whether to give the terrorists such a victory.”
– Lord Hoffman, UK Law Lords , December, 2004
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INTRODUCTION
"The fight against terrorism will only be won if in fact the rights of individuals are
respected at the same time….There is going to be constant battle in terms of where
the balance lies. It is my view, and it is the Canadian view, that the balance has got
to be on the side of freedom of the individual."
– Prime Minister Paul Martin, to Russian President Vladimir
Putin, October 11, 2004i
“Canada has recalled its ambassador to Iran to protest that country's refusal to allow
Canadians to attend the trial of an intelligence agent charged in the death of
journalist Zahra Kazemi....a furious Foreign Affairs Minister Bill Graham told
reporters yesterday, ‘This is completely unacceptable behaviour on their part. It is a
complete rejection of the rule of law…Under all human rights codes, under all
international law standards, there should be a public trial with the right
of the family to be present to see and ensure that justice is done,’ he
said. ‘Justice will not be done behind closed doors...’”
– Toronto Star, July 15, 2004ii
When Canadians went to the polls in the spring of 2004, they elected a Liberal
government largely on the strength of its promise to uphold the Canadian Charter of
Rights and Freedoms. It was a promise made for all people who live in Canada, with
particular focus on the rights of minority groups. “I will stand up for the Canadian
Charter of Rights and I will respect the rights of all,” Paul Martin stated on January 21,
2005.
That theme of protecting Charter Rights is first and foremost on the daily Liberal agenda,
yet for some individuals, families, and communities, that promise has yet to see full
fruition. In the case of Canada’s Arabic and Middle Eastern communities, and for
sections of this country’s Muslim community, the notion of Charter Rights has been
obscured by racial profiling, aggressive surveillance by the RCMP and CSIS, the
apparent participation of this country’s intelligence agencies in overseas “extraordinary
renditions” to torture, and by the use of secret trial security certificates.
Security certificates, for over a decade part of immigration law, are perhaps the most
draconian measure available to Canadian authorities. While many Canadians expressed
justifiable concern over civil liberties violations with the hastily passed C-36 (the Anti-
Terrorism Act), few realize that the power to detain someone without charge or bail, on
the basis of secret “evidence” which neither they nor their lawyer is allowed to see, has
long been directed at Canada’s refugee and immigrant population.
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Five Muslim men—the Secret Trial 5–are now being held on security certificates in
Canada, three at Metro West Detention Centre in Toronto, one in Ottawa, and one in
Montreal. They seem to have been swept up at politically expedient times almost at
random: a pizza delivery man and a graduate student, a school principal and a pita
sandwich shop keeper, a convenience store clerk.
Two have been held since long before the tragic events of September 11, 2001; one even
had his case quashed by a Federal Court judge, only to be returned a year later to prison
on a second certificate, with a CSIS agent admitting in the open portion of the secret trial
that there was no new evidence, only a “new interpretation” of the old evidence which
had already been deemed “not credible” by the Federal Court.
A KAFKAESQUE HELL
All they have in common is that they are Muslim men from Middle Eastern and/or
Arabic countries. They have been jailed between 2 and 4.5 years without charges, fair
and open trials, or bail. They live in a Kafkaesque hell, unable to understand what they
possibly could have done to deserve this inhumane treatment, and constantly under threat
of being deported to the countries they had fled in the first place, where they face almost
certain torture and death. Syrian refugee Hassan Almrei has spent almost the entire time
in solitary confinement (since his arrest in October, 2001), and most of the others have
spent extensive periods in segregation, often arbitrarily placed there at the orders of
Immigration officials. Their wives, families, and their 11 eleven children suffer
profoundly.
The Secret Trial 5 are only the tip of a mounting iceberg of victims of Islamophobia and
fear resulting from the so-called “war on terror.” Many immigrants, especially those
from the Middle East or Arabic countries, face frequent harassment, discrimination and
threats by CSIS, humiliation and sometimes outright kidnapping and torture (termed
“rendition”) when they travel abroad.
Indeed, according to In the Shadow of the Law, published by the International Civil
Liberties Monitoring Group. it was reported that in "hundreds" of instances, people in
Canada "are being visited for interviews by security forces without warrants, and taken
away for interrogation. Although the full extent of Bill C-36 [so-called "anti-terror"
legislation hurriedly passed by Parliament in 2001] was not implemented in these cases, it
has been used as a threat to 'encourage' voluntary interviews by citing the risk of
preventative detention allowed under the Act. Victims of such police conduct have been
afraid to come forward publicly for fear of further retaliation." (The ICLMG is composed
of many groups including the Council of Canadians, Canadian Arab Federation,
Greenpeace, David Suzuki Foundation, United Steelworkers of America, and many
others).
That atmosphere of fear and intimidation forms the backdrop against which security
certificates continue to be used. According to a variety of legal associations and human
rights groups, including Amnesty International, the secret trial Security Certificate
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process is deeply flawed and damaging to Canada’s legal integrity, its international
reputation, and especially to those directly and indirectly victimized by it. It has violated
the principles of natural justice and resulted in expensive and inhumane delays.
We urge you to join the growing movement to eliminate security certificates and
provide justice for the Secret Trial 5, Muslim men detained in Canada for years
without due process.
WHAT IS A SECURITY CERTIFICATE?
Under the Immigration and Refugee Protection Act (IRPA) , the Canadian Security
Intelligence Service (CSIS) can initiate a process which leads to the arrest of permanent
residents or refugees who have committed no crime, throw them in jail, and detain them
indefinitely with the aim of deporting them, even in the face of potential torture and
death. Neither they nor their lawyers are allowed to see the “information” upon which
CSIS makes allegations against them.
Here’s how it works.
o Rubber-stamped “justice”? CSIS (the Canadian Security Intelligence Service)
approaches the Minister of Public Safety and Emergency Preparedness and the
Immigration Minister to sign the certificate. It is unclear on what basis, exactly, such
a signature is affixed to the certificate, other than “reasonable grounds to believe”
that the allegations CSIS is bringing forth might be true. There are serious questions
here.
o In the public documents released eventually to the Federal Court, CSIS
usually produces thousands of pages of newspaper articles, internet
postings, and documents from right-wing think tanks (none of which
names the individual in the security certificate). Their flimsy “case” then
alleges the individual named in the certificate is somehow “associated”
with the events and groups described in those thousands of pages, but
fails to provide any solid links. After all, in such a case, the existence of
facts does not need to be proven, only the possibility that certain facts
might be true.
o Do the Ministers actually have the time to read through this mountain of
material and make an informed, independent judgment? Or do they simply
take CSIS at its word? One could easily conclude, with all due respect to
the very busy ministers, that it is the latter case. Indeed, the word of CSIS
is rarely if ever questioned. The Globe and Mail reports that “between
1993 and 2003, CSIS filed warrant applications at a rate of between 200
and 300 a year for a total of 2,544 applications. Only 18 of these requests
were rejected by the Federal Court, the last denial occurring five years
ago.”iii
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o Dangerously low standards of Information Gathering: In the cases of the secret
trial detainees, we have learned that CSIS routinely conducts hours-long interviews
without taking verbatim notes or tape recording interviews, preferring to go back to
the office later and type up their recollections of what took place. What is a fourhour
interview is often reduced to one or two pages of notes, hardly the basis for
throwing someone behind bars for years on end.
o CSIS agents often show up at an individual’s door late at night without a
translator, despite knowing that the individual’s first language is not
English.
o According to court transcripts, detainees report that CSIS agents regularly
fail to inform the individual of their right to have an attorney present.
o In the case of Montreal detainee Adil Charkaoui, CSIS admits to
destroying their notes of an interview with him because such destruction
of notes is “standard practice,” a practice which in a regular criminal
proceeding would be impossible to defend.
o CSIS interview techniques are designed to trick or badger an interviewee
into saying something that fits the CSIS theory about an individual. They
will intentionally mispronounce a name while asking, “Do you know this
person,” drawing a negative response. They will later pronounce the name
properly, eliciting a “yes,” but CSIS notes from such an encounter often
read as if the individual is trying to hide something, only later to
“confess,” thus painting the individual as untruthful or untrustworthy.
Such notes often state that the interviewee becomes “agitated” or
“defensive” but since there are no verbatim notes or tape recordings, it is
difficult to determine exactly what happened, reducing the matter to an
often white CSIS agent’s word against that of an Arab Muslim male who
has already been labeled a security threat. An analysis of notes in security
certificate cases shows that this is often a cookie-cutter approach, with the
same keywords to destroy credibility (i.e., “individual became agitated at
the mention of this name,” “individual first denied knowing, but upon
further questioning, suddenly revealed knowing.”) (from CSIS interview
notes, Mahjoub, 2000)
CSIS’s generally accommodating oversight committee, the Security Intelligence
Review Committee, has annually reported concerns about CSIS practices:
SIRC's 1999-2000 report raises questions "about some beliefs the Service has
about the nature of the threat. We are of the opinion that these beliefs are
sometimes overdrawn."
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· The SIRC report points out one instance, likely illustrative of many
more, in which a CSIS application for warrant powers contained "a
number of overstatements."
· In another case, "information put forward was more than a decade old
and the information adduced was derived from one source's 'feelings.'
· "One source's speculation was quoted. Some assertions that the target
engaged in 'suspicious activities' appeared to us to be misleading or
exaggerated."
· "For another person targeted, [CSIS] failed to include in the affidavit
significant information of which it was aware which contradicts its
own position on the person."
· In yet another case, a hyperactive CSIS treated as a threat activity what
"seemed to be routine diplomatic behaviour," while in another case,
"with little corroborating information, CSIS ascribed intelligence
gathering motives to apparently normal consular contacts."
· Each annual report produced by SIRC stresses the importance of CSIS
getting its facts right. The fact that a 21-year-old spy agency needs
such ongoing prodding is frightening.
SIRC concludes we need the best possible national security advice
"unencumbered by unfounded speculation.” (Security Intelligence Review
Committee Annual Report, 1999-2000)
o Unnecessarily humiliating arrests: The individual named in the certificate is then
arrested, often in a public takedown (even though CSIS often knows the lawyer of
the individual and the individual’s address and could arrange to have the individual
arrested in a low-key manner). None of the individuals arrested has had weapons on
their person nor in their general belongings.
o Violations of normal court-room standards: Once the case comes before a Federal
Court judge (who must have the security clearance of CSIS to sit on the case), the
Act specifically allows the government to introduce material that would normally be
“inadmissible in a court of law”iv In practice, this includes rumors, gossip,
newspaper opinion pieces, testimony obtained from people undergoing torture or
who have been pressured to testify that a particular individual fits a certain profile.
In a number of these cases, individuals named in security certificates note that they
were arrested after repeatedly refusing to spy on their community for CSIS. CSIS
apparently had one Scarborough imam ordered arrested by Egyptian security
officials during a stopover in Cairo, during which he was ordered to stop offering
bail monies for the detainees.
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Among the many problems with the process in the Federal Courts are the following:
1. Complete lack of disclosure: There is none. The government does not adduce
any evidence. The detainee’s lawyer has to defend him without knowing the
allegations or who made them.v The government simply rests its case with a
public summary of allegations which lead CSIS to conclude that it has
“reasonable grounds to believe” a certain individual is inadmissible to Canada
on security grounds. That summary is released to the individual within a week of
arrest. The process states that the designated judge must sift through the
materials (both public and secret) before determining what can be released to the
individual or his lawyer. It is unclear how the judge hearing the case --
especially if the judge has no expertise in the politics, history, and culture of the
area the individual is a refugee from -- has, in such a short time, the ability to go
through all the materials and make a careful consideration of what should be in
the public summary. It appears that the judge simply hands over to the defense
what CSIS has already produced. As with CSIS notes, the public summary is
also a cookie cutter of a few pages of rambling allegations and guilt-byassociation
accusations without any documentary evidence. To release such
evidence, CSIS claims, is to allegedly endanger national security. How national
security would be endangered by such disclosure, we are told, cannot be
revealed, for that would also allegedly endanger national security.
2. Overly broad definition of “terrorism”: The case is heard by the Federal
Court, which has a broader definition of terrorism than the Supreme Court
(which views it as a violation against civilians). The Federal Court’s definition
includes violence against military facilities. This broad interpretation would
allow Canada to imprison on security certificates anti-Nazi partisans during
WWII or Nelson Mandela, whose African National Congress was long
considered a “terrorist” organization. Implicitly it also includes guilt by alleged
association, regardless of the number of degrees of separation. Membership in
an organization (often the basis of an allegation of security threat) is given an
extremely broad, not narrow, scope in judicial decisions. To be someone who
knew someone who knew someone who might have known someone is enough
to peg someone as inadmissible to Canada.
3. Unfairly low standard for upholding a security certificate: At the Federal
Court, the upholding of the certificate is based on "reasonable grounds," which
is a less than 50% possibility. This could mean a 10% or 5% chance that the
case has some credibility. It is the lowest standard of any court in the country.
During the 1980s, security certificate cases did not result in long-term
detentions, and they were heard by the Security Intelligence Review Committee,
which made its decisions based on the higher probability standard, the more
than 50% chance that the allegations might be true. Although the process was
not perfect, under the previous SIRC process, one could cross examine the CSIS
officers who prepared the reports. A third party lawyer could take one's
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questions behind closed doors with the SIRC panel and one would get an
expurgated version of the testimony, so there was at least a sense of how many
witnesses there were, and what some of the answers might have been. Those
questions may simply not occur to the judge behind closed doors.
5. Inconsistency: There is inconsistency between the reasonableness of the
certificate standard and the release standard. Under the Federal Court regime,
release is based on the person proving they are not a danger on the probability
standard, the more than 50% chance, whereas upholding the certificate is based
on the less than 50% standard.
6. Uninformed judges and CSIS agents: Most Security Certificate detainees are
Muslims from the Middle East and/or Arabic countries. Federal Court judges
and CSIS agents have an astounding lack of knowledge of historical, religious,
political, economic, and related subtleties of Middle Eastern and Arabic
peoples. To give one example, a common practice in the Muslim community is
to use the name “Abu Ahmad if one is the father of Ahmad. To CSIS, this
could be the suspicious use of an alias.
7. No appeal: Once a judge has upheld a security certificate, it can’t be appealed,
even if the lawyer can bring overwhelming evidence that the “evidence” was in
error and that the person poses no risk to Canada.vi
o No accountability: Once a certificate is upheld (and they have almost all been
upheld), the individual named is subject to deportation. The individual may undergo
a Pre-Removal Risk Assessment, and even if the individual is determined to be at
substantial risk of torture or worse if deported, a delegate from the Immigration
Minister’s office must then “balance” the risk to the individual versus the perceived
“risk” to Canada if he is kept here. In at least two cases (Jaballah, Mahjoub), the
minister’s delegate has concluded that they are at risk of torture, but that they must
be deported based on the “totality” of the evidence. In December, 2004, it was
learned that the Minister’s delegate does not have access to the secret file, so it is
unclear how they make such a risk evaluation if all they have to go on is what the
individual has to go on, which is essentially nothing.
o Deportation to torture or death: As soon as the certificate is upheld, the
deportation process begins. It becomes, as Sec. 81 (b) states, "a removal order that
may not be appealed against and that is in force without the necessity of holding or
continuing an examination or an admissibility hearing; and (c) the person named in it
may not apply for protection under subsection 112(1)”. The government has been
trying to deport all the Secret Trial 5 even though they would face torture and likely
death (a violation both of the Canadian Charter of Rights and Freedoms and of
International legal protocols to which Canada is signatory. Significantly, IRPA is
designed to “comply” with international law, including the Convention Against
Torture, which places an absolute prohibition on return to torture.).
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o Indefinite detention: The detainees can, and have been, jailed indefinitely. Five
Muslim men have now been jailed between 2 to 4 and a half years, several in solitary
confinement. The International Committee of the Red Cross has condemned such
indefinite incarceration at Guantanamo Bay and elsewhere as cruel and unusual
punishment.
o No way for detainees to clear their names and go free: Once on a security
certificate, the Act provides no opportunity for the accused to clear their names and
go free. Even in the rare case where a security certificate was not upheld, the
accused faced a shocking case of double and triple and quadruple jeopardy. For
example, Justice B. Cullen threw out the security certificate against Mr. Jaballah
when he concluded that it was Jaballah, and not CSIS, who was credible. A year
later, CSIS simply had Mr. Jaballah re-arrested using the same evidence but taking it
to a different judge. Hassan Almrei was arrested largely because of his informal
association with Nabil Al-Marabh, whom the U.S. had arrested on suspicions that he
was a terrorist. No terrorist charges were ever brought against Al-Marabh, who was
simply held and later deported on a minor immigration violation, but Almrei is still
in jail threatened with deportation to torture.
WHAT’S WRONG WITH THIS SECURITY CERTIFICATE PROCESS?
The court is not given the power to decide on the truth of the allegations. Although a
judicial review of the Ministers’ decision to issue a security certificate is allowed, the
court is not given the power to judge the truth of the allegations. The judge can only
decide whether the Minister had “reasonable grounds” to sign the certificate. In the end,
this is a political decision, which is fought in the arena of media sensationalism, public
opinion, party politics, pressure from the United States administration, and behind-thescene
games in the shadowy spy world of CSIS and the RCMP.
Secret evidence makes the court process fundamentally unfair. The normal rules of
a court of law don’t apply. At 78 (c) of IRPA it states "the judge shall deal with all
matters as informally and expeditiously as the circumstances and considerations of
fairness and natural justice permit.” By informal, they don’t mean the judge shows up in
jeans and a T-shirt. It means there are no standard rules that would apply in a criminal or
civil trial setting. Neither the detainee nor his lawyer is informed of the precise
allegations or provided with factual basis for the allegations. Additional information can
be presented at any time to the judge in the absence of the detainee and his lawyer.
Normal standards of evidence are explicitly waived. As lawyer Edward Greenspan wrote
in Maclean’s, “The evidence can be hearsay, double hearsay, triple hearsay”. The
December 16, 2004 Law Lords decision was clear on this point:
“The suspect is not entitled to be told the grounds upon which he has been
suspected. So he may not find it easy to explain that the suspicion is
groundless. In any case, suspicion of being a supporter is one thing and
proof of wrongdoing is another. Someone who has never committed an
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offence and has no intention of doing anything wrong may be reasonably
suspected of being a supporter on the basis of some heated remarks in a
pub. The question is whether thje United Kingdom should be a country in
which the police can come to such a person’s house and take him away to
be detained indefinitely without trial.”
Information based on confessions under torture and plea-bargains, which would
generally be inadmissible, or at least highly questionable on grounds of ethics and
credibility, is apparently used. There is no right to cross-examine witnesses who have
made allegations. The result is that both the original approval of the certificate (by the
Minister), and then the judgment on whether it is “reasonable” (by a Federal Court
judge), are based on one-sided arguments, without access to cross-examination and
context that a defence would normally bring forward. This violates a fundamental rule
of due process: that both sides of the story are heard.
CSIS agents are increasingly “unavailable” to answer questions in court. Following
a number of courtroom cross-examinations during which the credibility of CSIS agents
handling the files of the security certificate detainee has been severely undermined (they
have betrayed an alarming lack of knowledge about the context of the cases and of basic
civil liberties norms), the agency is now refusing to provide agents to testify at the
public portion of the hearing, claiming the development of a security certificate is a
“corporate process” and no one individual is capable of being subpoenaed to answer
questions. Wary of situations such as the first Jaballah hearing, in which CSIS credibility
was deemed unreliable next to Jaballah’s testimony, it is clear CSIS wishes to avoid any
scrutiny of its actions and research whatsoever.
There is no appeal. Once the Federal Court judge decides that there were “reasonable
grounds” to issue the security certificate, there is no appeal. Lawyer Edward Greenspan
in a Maclean’s piece calls this “a glaring violation of a basic tenet of the rule of law.”
Constitutional lawyer Julius Grey argues that it is in fact unconstitutional, along with
other elements of the secret trial process.
The detainee can be imprisoned for years without bail. Refugee detainees are not
given any chance of release on bail either before or during the proceedings. They can be
held for years without charge. In the case of Mohammad Mahjoub, this has meant jail for
over four years. For permanent residents like Adil Charkaoui, the court is required to
conduct a detention review every six months. In Charkaoui’s case, the judge has already
refused release on bail three times, on the basis that the secret evidence he has seen
makes him think that it is possible that a threat exists – before the case has even been
heard! In effect, his decision reverses the fundamental rule of innocent until proven
guilty.
The men can be deported, even if their lives are threatened. Can Canada deport
someone to a country where they will face torture or murder? Legally, no, but in practice,
Canada breaks the law all the time with respect to the rights of refugees and immigrants.
Two previous security certificate detainees disappeared after being deported. Mourad
Ikhlef was deported to Algeria and Mansour Ahani was deported to Iran; in the latter
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case, the United Nations Human Rights Committee requested that Ahani not be deported
until they considered his case, but their appeal was ignored. The Supreme Court ruled in
the Suresh case that no one can be deported to torture “except in exceptional
circumstances” and in that decision left open for future cases the exact nature of what
those circumstances might entail. Increasingly, international case law with respect to
return to torture has concluded that it is a peremptory norm that return to torture is never
permissible. Three cases dealing with the illegality of return to torture are currently
before the courts: Mahjoub, Jaballah, and Almrei.
Deportation entails a substantial risk of torture and even death for all five men – in some
cases, because of the case that has been made against them in Canada. For example,
under Immigration Canada’s own assessment, Adil Charkaoui faces a “risk of torture,”
and a “threat to his life or risk of cruel and unusual punishment” if he is deported to
Morroccovii Both Human Rights Watch (25 March 2004) and Amnesty International (28
July 2003) agree with this assessment and it is further substantiated by a detailed report
on Morocco’s “anti-”terror measures by the Fédération Internationale des Ligues des
Droits de l'Homme (February 2004) and another by Amnesty International (June 2004).
But that is not enough! According to an August 2004 decision by the Ministry of Public
Safety, deportation may still go ahead in Charkaoui’s case, even though torture is a crime
against humanity. Canada has taken the same shocking position in other cases. The UN
Committee against Torture actually had to remind Canada in 2000 that it is, in all
circumstances, a violation of the UN Convention Against Torture to deport someone to a
substantial risk of torture. In seeking to justify its deportations, Canada has sought
“diplomatic assurances” that countries of origin will not harm them. Human Rights
Watch exposes this cynical practice in its report “False Promises: Diplomatic Assurances
no Safeguard against Torture,” viiidemonstrating that the request has sometimes masked
an active intent that torture be used to extract confessions, as in the case of Maher Arar.
Indeed, according to the International Civil Liberties Monitoring Group, the August 2004
decision by the Ministry of Public Safety to deny protection to Adil Charkaoui raises
“serious questions about Canada’s possible complicity with this practice of rendition.”
CSIS has a record of incompetence and corruption. Its word cannot be trusted.
CSIS has no Arabic speakers. Their idea of sensitivity training towards the Muslim
community is to take a one-day seminar taught by fellow "intelligence" experts. The Law
Union of Ontario recently presented a brief challenging the competence, ethics, and
honesty of CSIS. Specifically related to Security Certificate cases, the brief said: “In a
number of cases before the Federal Court and/or SIRC it was the opinion of the Law
Union lawyers involved in those cases that CSIS agents were not well informed, or well
trained, that they relied on dubious and/or unreliable sources of information and that they
did not understand the culture or political dynamics of the community they had under
surveillance. CSIS agents, or their counsel, kept secret matters that did not need to be
kept secret and withheld information that had been disclosed in other proceedings.”ix
Discrimination against non-citizens. Security certificates only apply to permanent
residents and refugees. They thus deny certain classes of people in Canada their
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fundamental rights – an unacceptable discrimination. Human rights are inalienable and do
not depend on citizenship status. As the British Law Lords ruled on Dec. 16, 2004, this
form of discrimination violates basic human rights. If citizens whom CSIS considers
security risks are free, why should non-citizens be jailed indefinitely or deported without
charges or recourse to appeal? (The British government’s attempt to circumvent this
ruling by detaining both citizens and non-citizens without due processx will undoubtedly
be challenged. However it demonstrates how denying non-citizens due process ultimately
threatens all our civil liberties.)
Secret trials for refugees and immigrants are just the beginning. The security
certificate dates back to 1991 and was kept in the Immigration and Refugee Protection
Act in 2002. It is a tool that has been put to use in the post-9/11 climate of racist hysteria
around “national security” to attack the Muslim and Arab communities, immigrants and
civil liberties. “National security” is endangering all of us. It served as a precedent for the
failed Citizenship Act (C-18), which would have introduced the use of secret evidence
against naturalised Canadians (i.e. stripping them of their citizenship and deporting them
on the basis of secret evidence either at the behest of the Minister of anyone designated
by the Minister). With C-36, the Anti-Terrorism Act, similar violations of rights are
extended to all citizens and more arbitrary powers are put in the hands of police and
security forces. The historical parallels are clear: Japanese-Canadians interned and
deported from Canada during World War II; the “red scare” of the McCarthy era; the
suspension of the rule of law in Quebec in 1970; similar civil liberties suspensions in
Quebec City, 2001 and Kananaskis, 2002. These should stand as warnings to us. If
national security is not about safeguarding fundamental freedoms and values, what is it
about?
The timing of arrests suggests that they are politically motivated. Charkaoui, Harkat,
and Almrei were all picked up at politically opportune times to demonstrate Canada’s
compliance with U.S. pressure to support its “war on terror.” Charkaoui, born in
Morocco, had a warrant out for his arrest a good ten days before he was arrested, during
which he was followed constantly by the RCMP; he was ironically arrested just after a
terrorist act in Casablanca, Morocco, conveniently linking him in the papers to an event
with which he had no connection. Harkat was arrested the day before then Solicitor
General Wayne Easter arrived in Washington to update the U.S. on how Canada was
contributing to the “war or terror.” Almrei was arrested after endless carping from the
U.S. about porous Canadian border security and allegations about a Canadian connection
to Sept. 11. Mr. Jaballah was re-arrested in August, 2001, two days before a scheduled
refugee hearing.
Secret trials do nothing to actually protect Canadians from terrorism, and in fact set
precedents which make democracy more fragile. The five Muslim detainees have
never been charged with committing a criminal offence here in Canada or anywhere else
in the world. When the security certificate is upheld, all this tells us is that a judge, who
has not had the benefit of political and social context, nor the benefit of a defense
counsel's cross examination, finds it reasonable to believe that a person "might" be
associated with an organization whose mandate and or activities might make that
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individual inadmissible to Canada. If CSIS has a legitimate case against them, it can
charge them and the Canadian justice system can give them a fair trial.
The security certificate process undermines human rights and international norms.
As a result, secret trials damage Canada’s international reputation and pose a
dangerous precedent for all Canadians. Amnesty International “is of the view that the
security certificate process may very well result in arbitrary detention and thus violate the
fundamental right to liberty.” Amnesty also believes that the Secret Trial Five are
“effectively denied their right to prepare a defence and mount a meaningful challenge to
the lawfulness of their detention,” which puts Canada on the wrong side of articles 9 and
14 of the International Covenant on Civil and Political Rights (Amnesty International, 31
March 2004). Canada’s position on deportation to torture places our country on the
forefront of a frightening international trend towards the legalisation of torture. In all
these respects, Canada’s actions are weakening international protections for fundamental
human rights.
OPPOSITION TO THE SECURITY CERTIFICATES IS GROWING
Both the British Law Lords and the U.S. Supreme Court have issued rulings
criticizing violations of due process and arbitrary detention of people suspected of
having links to terrorism. Time after time, whenever legal opinions or statements
have been issued with respect to the war against terrorism, they have always
contained the strictest warning that we must not sacrifice our rights in the name of
defending freedom.
International rights organizations criticize security certificates. Human Rights
Watch, Amnesty International, the United Nations, the International Civil Liberties
Monitoring Group, and many others have sent submissions to the government of Canada
protesting security certificates.
Over 60 Canadian law professors and legal association representatives protest
Security Certificates: “In October, 2004, a coalition of law professors and defense
lawyers wrote to Public Safety Minister Anne McLellan, setting out the egregious flaws
they say combine to deny due process to those held on security certificates. The
procedure, they wrote, allows for the indefinite detention of foreign nationals based on
secret evidence while holding the government to such a low standard of proof—a judge
must only find the certificate is “reasonable” to trigger a deportation—that it denies
detainees a meaningful chance to win their freedom. “As undeniably serious as these
violations are, they pale in comparison to what, for some, is the eventual outcome of the
process: torture, which is perhaps the ultimate violation of human dignity and
fundamental human rights.” xi
Even Federal Court judges dislike them: Here’s what Judge Hugessen said in March,
2002:
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“I can tell you, because we [all the Federal Court Judges] talked about it [the
security certificate process],”…“We hate hearing only one part. We hate having to
decide what, if any, sensitive material can or should be conveyed to the other
party…We greatly miss, in short, our security blanket which is the adversary
system that we were all brought up with and that, as I said at the outset, is for most
of us the real warranty that the outcome of what we do is to be just and fair.”
(Ottawa Citizen Dec. 12, 2004) xii
Federal Court Judge, Andrew Mackay complained in May of 2003, “In this great city of
Toronto, we have our own Guantanamo Bay.”
WHAT YOU CAN DO
ENDORSE THE FOLLOWING STATEMENT
BY SENDING AN EMAIL TO
tasc@web.ca WITH YOUR NAME, TITLE,
AFFILIATION AND ADDRESS SAYING “I ENDORSE THE STATEMENT”
Statement Against Secret Trial Security Certificates
We, the undersigned, have grave concerns regarding the continued use of sections 9, 76-
87 of the Immigration and Refugee Protection Act, which allow for the imprisonment in
Canada of refugees and permanent residents under the authority of a “Security
Certificate”:
We are particularly concerned that those detained under security certificates are:
· Being imprisoned indefinitely on secret evidence, though no charges have been
laid against them;
· Tried in unfair trials where the evidence is not disclosed to the detainee or their
lawyer;
· Denied the right to appeal when the certificate is upheld in a process that uses the
lowest standard of proof of any court in Canada;
· Subject to deportation even when they face unfair imprisonment, torture or death.
We believe that the Security Certificate process is undemocratic and that it violates
fundamental human rights, which the government of Canada has committed itself to
through the Canadian Charter of Rights and Freedoms, the UN Universal Declaration of
Human Rights, the UN Convention on Refugees, the International Covenant on Civil and
Political Rights (ICCPR) and the UN Convention on Torture.
Accordingly, we demand that the Security Certificate process be abolished.
For those currently imprisoned under security certificates, we demand:
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· That they be released immediately; or, if any case against them actually exists,
that they be allowed to defend themselves in open, fair and independent trials with
full disclosure of the case against them.
· That they not be deported.
RAISE THE FOLLOWING DEMANDS IN PARLIAMENT.
1. That the Secret Trial 5 men be released immediately; or, if any case
against them actually exists, that they be allowed to defend themselves in
open, fair and independent trials with full disclosure of the case against
them.
2. That they not be deported.
3. That the federal government abolish the secret trial security
certificate process.
4. That CSIS and the RCMP end its ongoing harassment and
intimidation of folks of Arabic, Middle Eastern, and South Asian
heritage and/or Muslim faith.
A. Raise this issue in your caucus, and encourage fellow MPs to sign on to
the statement.
B. Speak out against the deportations to torture, and seek a refugee scheme
which is in full compliance with Canada’s international obligations.
C. Meet with the detainees and their families and hear for yourself firsthand
what they have been through and what they face daily. They are
more than happy to share this with you, as they have nothing to hide.
D. Support our call for a full review not only of C-36, the anti-terrorism
legislation, but also of the security provisions of IRPA.
i Toronto Star, October 12, 2004
ii Toronto Star, October 12, 2004
iii Colin Freeze (Nov. 15, 2004) “CSIS has easy time getting warrants, documents reveal”. Globe and Mail.
http://www.theglobeandmail.com/servlet/story/RTGAM.20041115.wxcsis14/tional/
iv Immigration and Refugee Protection Act (IRPA), Division 9, Section 78(j)
v IRPA, Division 9, Section 78(b)
vi IRPA, Division 9, Section 80(3).
vii Opinion on PRRA, 21 August 2003.
viii Human Rights Watch (April 2004)“False Promises: Diplomatic Assurances no Safeguard against
Torture.”,
ix Law Union of Ontario (2004) Opening Submissions to the Arar Inquiry.
x Peter Graff (Jan. 27, 2005) “Britain broadens anti-terrorism powers” Toronto Star.
xi Andrew Duffy (December 12, 2004) “The Fight for the Soul of Canada’s justice system: Terror v.
Torture: Even the judges hate the security certificate process.” The Ottawa Citizen.
xii Andrew Duffy (December 12, 2004) “The Fight for the Soul of Canada’s justice system: Terror v.
Torture: Even the judges hate the security certificate process.” The Ottawa Citizen.
