Security Certificates

By Elizabeth Liu, University of Alberta LL.B. student

Security certificates have become a major topic of interest for those concerned with Canadian constitutional law. Under theImmigration and Refugee Protection Act (IRPA), the federal government, acting through the Canada Border Services Agency (CBSA), may issue a security certificate to detain or remove a person who poses a danger to Canada's national security or poses a risk to the safety of any individual.[1] Examples of threatening activities include: espionage, terrorism, and human rights abuses.[2] Security certificates may only be issued against permanent residents or foreign nationals. They cannot be issued against Canadian Citizens. 27 security certificates have been issued since 1978.[3] Currently, there are 4 individuals being held under security certificates in Canada.[4]

Canadian immigration legislation and customary international law deny the deportation of individuals where there is the possibility of torture. Both the courts and the federal government have held that deporting an individual into a situation where they will be subject to torture or execution is not permissible. The Supreme Court of Canada affirmed this in the case of Suresh v. Canada (Minister of Citizenship and Immigration)[5]. Accordingly, the CBSA only issues security certificates in exceptional circumstances where there is a serious security threat. Current debate focuses primarily on the constitutionality of these certificates.

The Process and Grounds for Issuing a Security Certificate

When a certificate is to be issued, it is first prepared and signed by the Minister of Public Safety and Emergency Preparedness (PSEP) and the Minister of Citizenship and Immigration (CIC). A certificate is only issued where sensitive information requires protection on the basis of national security or where the safety of an individual person is at risk.[6] Permanent residents or foreign nationals who are deemed inadmissible to Canada on the grounds of espionage, security, violating human rights, serious or organized criminality may have security certificates issued against them.[7]

Once a certificate has been signed, any immigration proceedings against the subject are suspended while the certificate is referred to the Federal Court. The Federal Court judge, who must pass a Canadian Security Intelligence Service (CSIS) security clearance, hears evidence in secret (in the absence of the subject). The judge then provides a summary of the evidence to the subject, omitting any information that would pose a risk to security or to any individual person. The subject has an opportunity to respond by presenting their own evidence in an open hearing. If the certificate is viewed as unreasonable by the judge, it is quashed (overturned); if is deemed reasonable, it becomes a removal order and the subject may be removed from Canada. The decision made by the Federal Court judge is final and cannot be appealed.[8]

Adil Charkaoui

In May 2003, a security certificate was issued against Moroccan-born Adil Charkaoui on the suspicion that he was part of an Al-Qaeda network headed by Osama bin Laden. Mr. Charkaoui had been a permanent resident of Canada since 1995 and was awaiting his Canadian citizenship.[9] He was apprehended by CSIS in Montreal and subsequently detained under section 77 of IRPA.

Mr. Charkaoui brought his case before the trial division of the Federal Court, arguing that his detention contravened both the Charter[10] and the IRPA.[11] In its decision, the court agreed with evidence suggesting that Mr. Charkaoui was an Al-Qaeda operative and held that continuing Mr. Charkaoui's detention was justified and therefore constitutional.

Mr. Charkaoui also applied to the Federal Court Trial Division to have sections 33 and 77 to 85 of IRPA declared unconstitutional and in violation of the Charter.[12] He was unsuccessful, and sought an appeal which was dismissed ultimately dismissed. [13] The Federal Court of Appeal also reiterated the distinction between citizens and non-citizens recognized by the Charter, noting that section 6(1) of the Charter guarantees that "every citizen of Canada has the right to enter, remain in and leave Canada"[14] and that this guarantee did not extend to non-citizens.[15] The Supreme Court of Canada heard an appeal in June, 2006 as to whether the security certificate procedure violates the Charter. The judgment will likely be handed down later this year.

Critique of Security Certificates

Critics of Security Certificates argue that they violate civil liberties and due process by allowing individuals to be indefinitely detained, without being charged, on the basis of secret evidence.[16] Organizations such as the Canadian Bar Association, Amnesty International Canada, Human Rights Watch, and the Canadian Council for Refugees are among many who publicly disagree with the Security Certificate process.[17] Three UN Committees (the UN Committee against Torture, the UN Working Group on Arbitrary Detention, and the UN Human Rights Committee) have condemned the Security Certificate system and have called on Canada to use criminal law instead of immigration law to deal with its security concerns.[18]

Balancing Security Certificates and the Charter

It is obvious that the Charter guarantees certain rights and freedoms to citizens and non-citizens of Canada. However, after viewing the developments arising from cases like Charkaoui, the guarantees afforded by the Charter become less clear. While security certificates directly affect only a tiny percentage of people within Canada, their sum effect impacts a much broader group. When national security or individual safety is at stake, it is clear that the role of the law is to protect those at risk. This risk, however, must be balanced against the liberty of those affected. The difficult and controversial job for the courts and Parliament is to assess both the risk and balance in order to find a resolution that works in accordance with the rule of law .