By Bill Siksay
With court cases challenging their constitutionality and evidence mounting that they have been abused, it is time for Canada to eliminate the ill-conceived security certificate process.
Over the past 10 years, the government has used security certificates to imprison people for years without charge, trial, or conviction. Those jailed and their lawyers don’t know the evidence against them. Engaging this process, the government has twisted the very foundations of Canada’s legal traditions.
The ministers responsible for administering these certificates and the Canadian Security Intelligence Service have abused the system by failing to review and withholding crucial information.
These were the findings of Federal Court justice Richard Mosley on December 14, when he quashed the security certificate against Hassan Almrei.
Almrei, an alleged terrorist suspect, had been detained in prison for eight years without charge, trial, or conviction under the security certificate provisions of the Immigration and Refugee Protection Act. The quashed certificate was issued in February 2008 by Minister of Citizenship and Immigration Jason Kenney and the minister of public safety at that time, Peter Van Loan.
Justice Mosley said in his judgment that “the Ministers were in breach of their duty of candour to the Court”. He made the same finding with regard to CSIS.
While the quashing of the certificate made the news of the day, the criticism of the ministers and CSIS was not well reported.
Security certificates are arguably the most draconian mechanism in Canadian law. Intended to expedite the deportation of noncitizens engaged in espionage, organized crime, or threats to national security, security certificates have instead been used for indefinite detention.
In 2007, the Supreme Court of Canada ruled security certificates unconstitutional. It gave the government one year to revise the process, suggesting that the addition of special advocates would address their concerns. The government introduced these changes in Bill C-3 making provisions for special advocates—lawyers who do get to see all the evidence, but who remain unable to discuss that evidence with the accused. The new law came into effect in 2008.
But for such a system to be successful, full disclosure to the courts of all information by CSIS and the ministers is required. And this is exactly what did not happen.
Justice Mosley stated that the “duties of utmost good faith and candour imply that the party relying upon the presentation of ex parte evidence will conduct a thorough review of the information in its possession and make representations based on all the information including that which is unfavourable to their case”.
He ruled that this was not done when the ministers signed the security certificate against Almrei in 2008, noting that the certificate was “assembled with information that could only be construed as unfavourable to Almrei without any serious attempt include information to the contrary, or to update their assessment”.
The Almrei decision provides a blatant example of what is wrong with this law. Holding someone in jail for eight years without charge, trial, or conviction is bad enough. Holding someone in prison for eight years as a suspected terrorist, when Justice Mosley has now found that he was “not engaged in terrorism and is not and was not a member of an organization that there were reasonable grounds to believe [made him] a danger to the security of Canada”, is serious indeed.
What’s worse is that the ministers failed in their responsibility and duty when issuing a security certificate.
The existence of such a law requires the highest standard of accountability for those who exercise its provisions.
The prime minister has since moved Van Loan out of Public Safety. Kenney remains at Citizenship and Immigration. Both deserve to be removed from their cabinet positions because of their failure to do due diligence in this situation. Similar action is required at CSIS.
The government should immediately suspend the use of security certificates and launch a public inquiry.
New Democrats voted against security certificates because we believe the Criminal Code and our existing justice system are fully capable of dealing with terrorism. We feared exactly the kind of abuse that has now taken place. Our advocacy for the repeal of the security certificate process will continue.
Little attention has been paid to the Almrei decision. Hopefully it will soon get the attention it deserves. Nothing less than Canada’s commitment to due process, fairness, and justice is at stake.
Bill Siksay is the MP for Burnaby-Douglas and the New Democrat access to information, privacy, and ethics critic.