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.
Showing posts with label Bill C3. Show all posts
Showing posts with label Bill C3. Show all posts
Saturday, October 27, 2007
Friday, October 26, 2007
Special Advocates and Bill C-3
This is from cforcese blog. This is a well-argued critique of the changes to security certificates in Bill C23 including an op-ed piece written with Lorne Waldman in the National Post.
October 25, 2007
Special Advocates and Bill C-3
The Tory government tabled a bill on Monday, October 22 proposing amendments to Canada's immigration "security certificates" (Bill C-3). On top of making other minor adjustments (reflecting changes in practice undertaken anyway in the wake of court rulings), the new bill's core purpose is to create a system of "special advocates" to be deployed in in camera, ex parte portions of the hearings to represent the interest of the affected person. Unfortunately, the government effort seems to draw more inspiration from the UK experience than from Canada's own Security Intelligence Review Committee model. It fails to preclude a repeat of the problems experiences in the UK (leaving avoidance of such problems to the discretion of the judge on a case by case basis). Lorne Waldman and I have questioned the wisdom of this model in a op-ed published on October 25 in the National Post, and reproduced below. Other problems space and complexity prevented being discussed in that piece also exist with the bill.
First, the information disclosure regime in the immigration law will continue to be different from the information disclosure regime under the Canada Evidence Act: in the latter, the court is to balance the national security interest against the fair trial interest. In the immigration law, there is no such statutorily-mandated balancing. (And, incidentally, the bill doesn't create a special advocate system for Canada Evidence Act s.38 proceedings. At least one Federal Court judge has concluded that these persons are constitutionally obligatory in such proceedings).
Second, it would also have been helpful to underscore the inadmissibility of evidence where reasonable grounds exist to believe it was produced via torture or cruel, inhuman or degrading (CID) treatment. The bill does specify that unreliable evidence is excluded, but that reference does not go far enough. Torture evidence is already precluded by s.269.1 of the Criminal Code. CID treatment evidence might also usefully be statutorily proscribed, along with rules on who bears the onus of proof in establishing the conditions in which such evidence was produced. (There have been Federal Court decisions on the latter issue, in relation to torture, but a statutory rules seems sensible).
Third, immigration detentions (of a potentially indefinite length) and removals (to persecution and possibly torture, if the security threat is deemed significant enough) will continue to be done on government suspicions rather than any standard of proof otherwise recongized in the legal system. We acknowledge the need to protect national security. We also appreciate, however, that government suspicions are sometimes -- perhaps often -- misplaced. That is one of the lessons of the Maher Arar inquiry. Unquestionably, if Maher Arar had been a non-citizen, and thus subject to an immigration security certificate, he would have been detained and removed to Syria, without any outing of the deficiencies of the government position.
To this point should be added another observation, anticipating an objection raised in our op-ed: The best special advocate in the world would not have stood in the way of this certainty -- it took a full airing and probing of the information in the government's position. That included access to information the government would rather not have shared. In bill C-3, a special advocate will be hard pressed to persuade a judge to see information the government has chosen not to submit to a judge already. He or she will be reduced to arguing that he or she suspects that there might be further relevant material, but not having access to it, will have difficulty making this case. Notably, the Federal Court has, in the past, fixated on the fact that security certificates are administrative and not criminal proceedings, and have tailored its position on disclosure accordingly. I fear that these judges will rely on this (unpersuasive) distinction in responding to such requests. (Keep in mind that the outcome of security certificate processes may be more serious that anything the criminal code could impose -- indefinite detention without charge and removal to torture). The better model, as we suggest, is that of the Security Intelligence Review Committee, with its full access to security service files. Ironically, if C-3 goes through unamended, special advocates may find it useful to bring collateral challenges in an effort to probe more deeply security service files, by tabling complaints in front of SIRC and calling on that body to conduct proxy investigations. It would be nice if a more elegant system was developed from the very beginning.
For more information on the UK experience and SIRC, see our August 2007 report.
Our op-ed follows (albeit with the dramatic headline selected by the editors):
Canada doesn't need a Star Chamber
Craig Forcese And Lorne Waldman
National Post
Published: Thursday, October 25, 2007
On Monday, the federal government tabled its amendments to Canada's national security immigration law. There were two options in drafting this bill: Ottawa could have learned from the experience of other countries -- most notably the United Kingdom -- and created a system that avoided problems in those jurisdictions. Or it could table a minimalist proposal that risks repeating those problems here in Canada. The government chose option two.
In response to the Supreme Court's Charkaoui decision in February -- the court held that the manner in which secret evidence was used to detain and deport non-nationals using security certificates was unconstitutional -- the new legislation Ottawa proposes will layer special advocates onto a slightly modified security certificate process. These special advocates will be security-cleared lawyers representing the interests of parties excluded from national security-related hearings where the government presents information deemed secret.
The United Kingdom has employed a system of special advocates for almost a decade, one that has been controversial. Until recently, the U.K.'s special advocates lacked a support office creating anything approximating equality of arms between government and special advocate. Other problems persist. Most notably, U.K. special advocates may not continue to communicate (in any meaningful sense) with the affected person they serve after the advocate has reviewed the secret information. Further, special advocates have reported difficulties in obtaining full disclosure of all relevant (and sometimes exculpatory) information the security services have on this person. In July 2007, the U.K. Parliament Joint Committee on Human Rights issued a strongly worded report describing the U.K. special advocate system as "'Kafkaesque' or like the Star Chamber."
Canada's government is proposing legislation that seems bound to create similar problems here. First, the bill specifically authorizes the special advocate to review secret information provided by the government to the judge in the security certificate process. However, it includes no express procedures for the special advocate to reach beyond this information and seek and obtain government records not already disclosed to the court (other than to ask simply the judge to oblige this disclosure).
Second, while the bill does not close the door on continued contact between the special advocate and the interested party subject to the security certificate, nor does it affirmatively guard this right. Instead, this is a matter left to the discretion of the judge.
Third, the bill is silent of the question of resourcing, failing to create a well-equipped special advocate office able to offer the sort of support now (belatedly) enjoyed by U.K. special advocates.
There are better systems, including ones developed in Canada. One such system is the Security Intelligence Review Committee (SIRC) model, employed successfully in Canada for over 20 years. The SIRC model remedies, at least in part, many of the obvious deficiencies in the UK special advocate system that we seemed destined to repeat. It provides for:
Full Access to Information: Under SIRC procedures, SIRC counsel has access to the entire file in the possession of the Canadian Security Intelligence Service (CSIS). As a result, concerns that the security services might either intentionally or inadvertently fail to disclose relevant (and indeed exculpatory) information to counsel are alleviated.
Continued Contact with Affected Person: In addition, under the SIRC model, SIRC counsel can meet with the affected person even after SIRC counsel has reviewed the secret information. Although counsel must take great care not to reveal secret information, experience over many years at SIRC has established that it is possible to have such meetings without risk of inadvertent disclosure.
Canada's minimalist approach is unnecessary. It has proposed a system that could fall far short of the SIRC model, one that will be employed in security certificate cases where the consequences to interested persons (imposed on the basis of suspicions) may include removal to persecution or prolonged detention without trial. It had an alternative. It could simply have grafted the immigration special advocate function onto the existing SIRC system. Indeed, this is, in essence, the approach that existed for permanent residents prior to 2002.
Given SIRC's successful track record, it is very unlikely that a special advocate model less thorough than the SIRC model will survive constitutional scrutiny. The Charkaoui case turned on the court's conclusion that the government had better options in the design of its security certificate system. That conclusion is not fully reflected in the bill presented by the government on Monday. Parliament should now move promptly to add additional precision and detail to the government's sparse effort.
- Craig Forcese teaches national security law at the University of Ottawa. Lorne Waldman is an immigration lawyer in Toronto. They are co-authors of an August, 2007, study on special advocates.
October 25, 2007
Special Advocates and Bill C-3
The Tory government tabled a bill on Monday, October 22 proposing amendments to Canada's immigration "security certificates" (Bill C-3). On top of making other minor adjustments (reflecting changes in practice undertaken anyway in the wake of court rulings), the new bill's core purpose is to create a system of "special advocates" to be deployed in in camera, ex parte portions of the hearings to represent the interest of the affected person. Unfortunately, the government effort seems to draw more inspiration from the UK experience than from Canada's own Security Intelligence Review Committee model. It fails to preclude a repeat of the problems experiences in the UK (leaving avoidance of such problems to the discretion of the judge on a case by case basis). Lorne Waldman and I have questioned the wisdom of this model in a op-ed published on October 25 in the National Post, and reproduced below. Other problems space and complexity prevented being discussed in that piece also exist with the bill.
First, the information disclosure regime in the immigration law will continue to be different from the information disclosure regime under the Canada Evidence Act: in the latter, the court is to balance the national security interest against the fair trial interest. In the immigration law, there is no such statutorily-mandated balancing. (And, incidentally, the bill doesn't create a special advocate system for Canada Evidence Act s.38 proceedings. At least one Federal Court judge has concluded that these persons are constitutionally obligatory in such proceedings).
Second, it would also have been helpful to underscore the inadmissibility of evidence where reasonable grounds exist to believe it was produced via torture or cruel, inhuman or degrading (CID) treatment. The bill does specify that unreliable evidence is excluded, but that reference does not go far enough. Torture evidence is already precluded by s.269.1 of the Criminal Code. CID treatment evidence might also usefully be statutorily proscribed, along with rules on who bears the onus of proof in establishing the conditions in which such evidence was produced. (There have been Federal Court decisions on the latter issue, in relation to torture, but a statutory rules seems sensible).
Third, immigration detentions (of a potentially indefinite length) and removals (to persecution and possibly torture, if the security threat is deemed significant enough) will continue to be done on government suspicions rather than any standard of proof otherwise recongized in the legal system. We acknowledge the need to protect national security. We also appreciate, however, that government suspicions are sometimes -- perhaps often -- misplaced. That is one of the lessons of the Maher Arar inquiry. Unquestionably, if Maher Arar had been a non-citizen, and thus subject to an immigration security certificate, he would have been detained and removed to Syria, without any outing of the deficiencies of the government position.
To this point should be added another observation, anticipating an objection raised in our op-ed: The best special advocate in the world would not have stood in the way of this certainty -- it took a full airing and probing of the information in the government's position. That included access to information the government would rather not have shared. In bill C-3, a special advocate will be hard pressed to persuade a judge to see information the government has chosen not to submit to a judge already. He or she will be reduced to arguing that he or she suspects that there might be further relevant material, but not having access to it, will have difficulty making this case. Notably, the Federal Court has, in the past, fixated on the fact that security certificates are administrative and not criminal proceedings, and have tailored its position on disclosure accordingly. I fear that these judges will rely on this (unpersuasive) distinction in responding to such requests. (Keep in mind that the outcome of security certificate processes may be more serious that anything the criminal code could impose -- indefinite detention without charge and removal to torture). The better model, as we suggest, is that of the Security Intelligence Review Committee, with its full access to security service files. Ironically, if C-3 goes through unamended, special advocates may find it useful to bring collateral challenges in an effort to probe more deeply security service files, by tabling complaints in front of SIRC and calling on that body to conduct proxy investigations. It would be nice if a more elegant system was developed from the very beginning.
For more information on the UK experience and SIRC, see our August 2007 report.
Our op-ed follows (albeit with the dramatic headline selected by the editors):
Canada doesn't need a Star Chamber
Craig Forcese And Lorne Waldman
National Post
Published: Thursday, October 25, 2007
On Monday, the federal government tabled its amendments to Canada's national security immigration law. There were two options in drafting this bill: Ottawa could have learned from the experience of other countries -- most notably the United Kingdom -- and created a system that avoided problems in those jurisdictions. Or it could table a minimalist proposal that risks repeating those problems here in Canada. The government chose option two.
In response to the Supreme Court's Charkaoui decision in February -- the court held that the manner in which secret evidence was used to detain and deport non-nationals using security certificates was unconstitutional -- the new legislation Ottawa proposes will layer special advocates onto a slightly modified security certificate process. These special advocates will be security-cleared lawyers representing the interests of parties excluded from national security-related hearings where the government presents information deemed secret.
The United Kingdom has employed a system of special advocates for almost a decade, one that has been controversial. Until recently, the U.K.'s special advocates lacked a support office creating anything approximating equality of arms between government and special advocate. Other problems persist. Most notably, U.K. special advocates may not continue to communicate (in any meaningful sense) with the affected person they serve after the advocate has reviewed the secret information. Further, special advocates have reported difficulties in obtaining full disclosure of all relevant (and sometimes exculpatory) information the security services have on this person. In July 2007, the U.K. Parliament Joint Committee on Human Rights issued a strongly worded report describing the U.K. special advocate system as "'Kafkaesque' or like the Star Chamber."
Canada's government is proposing legislation that seems bound to create similar problems here. First, the bill specifically authorizes the special advocate to review secret information provided by the government to the judge in the security certificate process. However, it includes no express procedures for the special advocate to reach beyond this information and seek and obtain government records not already disclosed to the court (other than to ask simply the judge to oblige this disclosure).
Second, while the bill does not close the door on continued contact between the special advocate and the interested party subject to the security certificate, nor does it affirmatively guard this right. Instead, this is a matter left to the discretion of the judge.
Third, the bill is silent of the question of resourcing, failing to create a well-equipped special advocate office able to offer the sort of support now (belatedly) enjoyed by U.K. special advocates.
There are better systems, including ones developed in Canada. One such system is the Security Intelligence Review Committee (SIRC) model, employed successfully in Canada for over 20 years. The SIRC model remedies, at least in part, many of the obvious deficiencies in the UK special advocate system that we seemed destined to repeat. It provides for:
Full Access to Information: Under SIRC procedures, SIRC counsel has access to the entire file in the possession of the Canadian Security Intelligence Service (CSIS). As a result, concerns that the security services might either intentionally or inadvertently fail to disclose relevant (and indeed exculpatory) information to counsel are alleviated.
Continued Contact with Affected Person: In addition, under the SIRC model, SIRC counsel can meet with the affected person even after SIRC counsel has reviewed the secret information. Although counsel must take great care not to reveal secret information, experience over many years at SIRC has established that it is possible to have such meetings without risk of inadvertent disclosure.
Canada's minimalist approach is unnecessary. It has proposed a system that could fall far short of the SIRC model, one that will be employed in security certificate cases where the consequences to interested persons (imposed on the basis of suspicions) may include removal to persecution or prolonged detention without trial. It had an alternative. It could simply have grafted the immigration special advocate function onto the existing SIRC system. Indeed, this is, in essence, the approach that existed for permanent residents prior to 2002.
Given SIRC's successful track record, it is very unlikely that a special advocate model less thorough than the SIRC model will survive constitutional scrutiny. The Charkaoui case turned on the court's conclusion that the government had better options in the design of its security certificate system. That conclusion is not fully reflected in the bill presented by the government on Monday. Parliament should now move promptly to add additional precision and detail to the government's sparse effort.
- Craig Forcese teaches national security law at the University of Ottawa. Lorne Waldman is an immigration lawyer in Toronto. They are co-authors of an August, 2007, study on special advocates.
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