This is an analysis by Amnesty International of the Harper Security Certificate Legislation detailing what would be the necessary changes to make them consistent with the protection of human rights.
News Release
25 October 2007
Proposed Security Certificate Legislation Fails to Address Human Rights Shortcomings
Amnesty International Canada
Public Statement
October 25, 2007
In its February 23, 2007 Charkaoui, Almrei, and Harkat judgment, the Supreme Court of Canada struck down the Canadian immigration security certificate system for failing to meet the standards of fundamental justice under the Canadian Charter of Rights. The Court found that the secretive process, which denies full access to evidence for individuals who are subject to the certificates and their lawyers, did not adequately ensure individuals an opportunity to effectively know and meet the case against them. Amnesty International and many other concerned organizations had been raising that very concern with the government for several years and welcomed the Court’s decision.
The Court gave the government one year to come up with a new system that would meet the requirements of the Charter. Eight months later, and without any prior public consultation, the government has released its response to the Court’s ruling. Unfortunately Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate), falls dismally short of what would be required to meet minimal international and constitutional fair trial guarantees.
Amnesty International is deeply disappointed that the government has imported the United Kingdom’s Special Advocate model in responding to the Supreme Court’s concerns. Under the proposed new system, Special Advocates would be appointed to look out for the interests of individuals who are the subject of security certificate proceedings. However, once a Special Advocate is given access to the evidence in government files he or she would be barred, absent court approval, from further communication with the individual whose interests they are expected to represent. When the Special Advocate’s ability to communicate with the person named in the certificate is seriously restricted in this way, the Special Advocate is severely constrained in his or her ability to respond in any meaningful way to the government’s secret evidence. As long as that is the case, the process remains fundamentally flawed. These restrictions and other limitations fall short of fair trial guarantees.
This shortcoming in the UK system has been roundly condemned by a number of Special Advocates themselves, as well as by a UK parliamentary committee. The system has been described as providing a veneer of legality to what remains a deeply unfair process. Amnesty International has repeatedly called for the UK process to be reformed. While the Supreme Court of Canada did point to the UK system as an improvement over the existing Canadian system, it also acknowledged that there were many criticisms of the UK approach.
Public Safety Minister Stockwell Day has argued that the discretionary power of the presiding judge to authorize communication between the Special Advocate and the person named in the certificate will allow them to maintain substantial contact. That assurance, however, runs counter to the government’s consistent insistence that secrecy necessitates excluding the individual concerned from the process. Furthermore, UK experience points to such communication being authorized only rarely.
The legislation also fails to remedy other longstanding shortcomings in Canada’s approach to dealing with immigration cases that involve security concerns. For instance, provisions in Canadian law allowing individuals who are alleged to be security threats to be deported to countries where they face a serious risk of being tortured remain unchanged. Deporting anyone to a situation of likely torture clearly contravenes Canada’s international human rights obligations. UN level expert human rights bodies have repeatedly called on Canada to amend these provisions.
With this Bill the government had an opportunity to demonstrate a commitment to putting respect for international human rights at the heart of Canada’s counter-terrorism and security laws. Instead, the government has chosen to again sacrifice human rights in the name of security, a flawed approach that results only in injustice and insecurity.
Amnesty International has developed a set of human rights of principles which should guide the process of reforming the immigration security system. Amnesty International will press the government to bring Bill C-3 into line with these international legal requirements.
Human Rights Principles to Guide Immigration Security Certificate Reform
1. No complicity in torture or other cruel, inhuman or degrading treatment
In no circumstances should any procedure lead to the removal or transfer of an individual from Canada to a country where there is a serious risk he or she would be tortured or subjected to other cruel, inhuman or degrading treatment.
2. No impunity
In no circumstances should any procedure lead to the removal or transfer of an individual from Canada for whom there are reasonable grounds to believe that he or she may have committed crimes under international law, if he or she would consequently escape facing justice for those crimes.
3. Criminal proceedings in Canada when removal or transfer not possible
In cases where there are reasonable grounds to believe that a person has committed crimes under international law and it is not possible to remove or transfer him or her for any of the reasons outlined in Principles (1) and (2), they should be charged and brought to trial in Canada in proceedings which comply with international human rights law and standards for fair trial.
4. No disguised extradition
Immigration removals should not be disguised extraditions. This is an important measure to ensure that individuals are not returned to jurisdictions that do not respect fair trial rights and other human rights obligations. In no circumstances should immigration removal procedures be used to expedite removal of persons sought by foreign authorities for alleged crimes. Extradition and mutual legal assistance laws, with appropriate human rights safeguards including protection from refoulement, are the appropriate means of addressing these requests.
5. Equal fairness
Immigration-based security procedures should provide the same rigorous standards of procedural fairness and due process as is offered under Canadian criminal law and must be consistent with internationally-recognized fair trial standards.
6. Full answer and defence
The right to full answer and defence must be scrupulously protected in any immigration-based security procedures. In extremely limited circumstances, national security, public safety or the safety concerns of a particular person or persons may justify information being withheld from the individual who is the subject of the proceedings. In these circumstances, states must find some other effective means of ensuring that secrecy does not undermine the right to full answer and defence.
7. Injury to international relations is no excuse
Any restrictions on disclosure of evidence must conform to the limited exceptions that are permissible under international human rights law. In particular, in no circumstances should evidence or information be withheld from the individual who is the subject of the proceedings for the sole reason that to disclose it would be injurious to international relations.
8. Detention is a last resort
In immigration-based security procedures detention must be the last resort. Detention is justified only where the application of other less intrusive measures have been fully considered and rejected by the state. Where affected persons have been detained, that detention must be subject to fair, prompt and regular review by an independent and impartial court. Immigration detention should not be prolonged and can never be indefinite.
9. Immigration detention is not criminal detention
As a general principle, immigration detainees should not be held with criminal detainees. In all instances their detention conditions should reflect that they have not been criminally charged or convicted.
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