AMR 20/C04/2007
23 February 2007
Supreme Court of Canada Strikes Down Security Certificate Process
Amnesty International welcomes today’s unanimous decision by the Supreme Court of Canada, which struck down the security certificate process as deeply flawed and in need of reform.
The court undertook a comprehensive review, taking into account the unfairness of process, ongoing detention and release conditions. All of the concerns raised by Amnesty International were addressed within the wide-ranging decision.
The court acknowledged that under the current process the government has an unfair advantage over the individual named in the security certificate, such that the evidence presented to support the certificate is overwhelmingly left unchallenged before the judge. Judges are being asked to come to a decision without all the relevant facts, and without all of the full and independent powers to gather evidence normally present in the adversarial process.
The court clearly highlighted that the principles of fundamental justice require that individuals named in a security certificate must be given an effective opportunity to answer the case against them and the ability to challenge the evidence, both of which are absent from the current process.
The decision stressed the need to provide a meaningful ongoing review of detention, as well as a meaningful opportunity to challenge both the ongoing detention and any release conditions. Specifically, the court struck down the provision which allows a foreign national to be detained without review for 120 days after the certificate has been confirmed as valid, calling it arbitrary detention. In acknowledging the long-term nature of detention in the current cases, the court stated that the government will face an increasing burden to prove the need for continued detention as time passes.
“It is clear that there may be a need for some flexibility regarding the period for which a suspected terrorist may be detained. …However, this cannot justify the complete denial of a timely detention review.”
The decision affirms that counter terrorism measures can never be used to undermine human rights. The court made clear that the security certificate process and detention regime are unacceptably flawed and thus violate the Charter of Rights, violations that cannot in any way be excused or justified. In the words of Chief Justice McLachlin, “security concerns cannot be used to excuse procedures that do not conform to fundamental justice”.
The court acknowledged the serious impact of ongoing detention without charge, and its potential to result in cruel and unusual treatment. “[I]ndefinite detention in circumstances where the detainee has no hope of release or recourse to a legal process to procure his or her
release may cause psychological stress and therefore constitute cruel and unusual treatment.”
The decision does not put forth any particular alternative to the current system. However, the court noted that other systems developed in Canada and abroad, in particular the use of special counsel, have succeeded in protecting individual rights while addressing the government’s legitimate national security concerns.
The court has given the government one year to reform the security certificate process, during which time the six men currently named in certificates continue to live under a flawed regime.
Given the force of the unanimous Supreme Court decision, Amnesty International calls on the government to urgently reform the security certificate process. Adil Charkaoui, Mohamed Harkat and Hassan Almrei, along with Mohammad Mahjoub, Mahmoud Jaballah, and Manickavasagam Suresh have lived with the impact of ongoing detention, restrictive release conditions, and the uncertainty of their ultimate fate for too long.
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John Tackaberry
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