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Security Certificate Ruling Fails to Uphold Canada’s Human Rights Obligations

    May 14, 2014

    Amnesty International is deeply disappointed in today’s Supreme Court of Canada’s judgment in Canada (Citizenship and Immigration) v. Harkat. This decision, which fundamentally engages Canada’s binding international obligations, contained no reference to any relevant international legal sources, and the court ruled that Canada’s security certificate regime is both constitutional and fair.

    The security certificate system is a process that allows non-citizens to be detained without charge, potentially indefinitely, based on evidence that they might never see and which would otherwise be inadmissible in a court of law – such as intelligence from foreign countries, which could be derived from torture. A person who is subject to a security certificate might eventually face deportation to a country where he or she will be at risk of torture or death.

    The previous security certificate regime had been found unconstitutional by the Supreme Court of Canada in 2007, and Parliament amended the system principally by adding “special advocates” – lawyers who participate in all the proceedings but whose powers and communications with affected individuals are severely restricted.

    In the judgment released 14 May 2014, the Supreme Court of Canada rightly acknowledged that the amended security certificate regime “does not provide a perfect process” and has “inherent limitations.” However, the court concluded that the special advocates and judges involved can mitigate the unfairness inherent in this process.

    Regardless of special advocates’ skill, experience or diligence, the statutory structure prevents them from fulfilling their statutory duties; the limitations they are subject to are simply too serious and numerous.

    Likewise, the judge cannot ensure the fairness of the proceedings. In the Canadian legal system, judges are obliged to be neutral, and cannot adopt an active, inquisitorial role. Moreover, in security certificate proceedings, the government is tremendously advantaged with respect to the affected individual. The latter, for instance, is excluded from parts of the proceedings and is not given all the evidence and information relied upon by the government; the government, by contrast, is never excluded and has access to all the materials submitted by the individual. The security certificate regime thus places judges in an impossible position; they must remain neutral and yet at the same time act as gatekeepers – in an extremely difficult context – to ensure that affected individuals receive sufficient disclosure of the information and evidence against them.

    Although it is helpful that the Supreme Court of Canada asserted that the process must be fair, and provided judges with more robust guidance on how to exercise their discretion in order to achieve fairness, relying on judges’ discretion to ensure a fair process is insufficient. When it comes to the protection of internationally enshrined human rights, discretion is simply never enough.

    Today’s ruling leaves the structure of the security certificate regime unchanged, in contravention of Canada’s international obligations. Numerous UN human rights bodies have urged Canada to make changes to the system. Amnesty International continues to call for the elimination of the flawed security certificate regime. Until that happens, fundamental fair trial rights will continue to be violated in this country.

     

    For further information contact John Tackaberry, Media Relations
    (613)744-7667 #236 jtackaberry@amnesty.ca

     

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