Canada : Security Certificates -
Time for Reform
Posted: 30 March 2005
Updated: 14 February 2006
Five Muslim men face deportation – to countries where they are at risk of torture – following the issuing of “security certificates” naming them as national security threats in Canada. Four are currently in detention without charge, while another was recently released under stringent bail conditions.
Amnesty International is concerned that the security certificate process violates a number of fundamental human rights.
Security certificates are issued under the Immigration and Refugee Act and apply only to non-citizens (visitors, refugees or permanent residents). They must be signed by both the Minister of Citizenship & Immigration and the Minister of Public Safety & Emergency Preparedness. The “reasonableness” of the certificate is then reviewed by the Federal Court. During this process – which may extend for many months and even several years – any immigration proceedings involving the individual in question are suspended. Foreign nationals are automatically detained. Permanent residents may be also detained if a deemed a danger or likely to fail to attend court proceedings, which, in effect, means that most are also detained.
Much of the evidence in security certificate cases is heard in camera, with only the Federal Court judge and government lawyers and witnesses present. Detainees receive a summary of some of the evidence, however, the precise allegations and the source of the allegations remain unknown. Evidence may be presented in court in the absence of both the detainee and their lawyer, making the cross-examination of key witnesses impossible.
If the Federal Court upholds the security certificate, it becomes a removal order. The Federal Court’s decision is final and cannot be reviewed.
Amnesty International believes that the security certificate process falls far short of international standards for fair trials and may result in arbitrary detention and violation of the right to liberty. Detainees are effectively denied their right to prepare a defence and mount a meaningful challenge to the lawfulness of their detention. The right to appeal is also denied. This lack of due process has further grave consequences given that security certificates are frequently applied in cases where the likely outcome is deportation to a country where the person is at serious risk of torture and other human rights violations.
TAKE ACTION:
There is no room in Canadian law for practices that erode and undermine the same human rights standards that this nation helped build and strengthen on the world stage.
Concerns about security can never justify violating fundamental human rights.
Please write a polite letter to the Prime Minister calling for security certificates to be abolished in their current form and replaced with a process which conforms to international standards for arrest, detention and fair trials. Further call for no one to be deported to face torture or other serious human rights violations. Unless Canadian officials can demonstrate that there is a country to which someone can be safely and lawfully deported, detainees should either be charged with a legitimate criminal offence and brought to trial in fair proceedings or should be released.
WRITE TO:
The Right Honourable Stephen Harper
Prime Minister of Canada
80 Wellington Street
Ottawa, Ontario
K1A 0A2 Canada
Fax: (613) 941-6900
Email: Harper.S@parl.gc.ca
FURTHER BACKGROUND:
The five men currently named under security certificates are:
Mohmoud Jaballah (Toronto): Has been detained on security certificates in 1999 (quashed eight months later by the Federal Court) and again in 2001 (upheld). Faces deportation to Egypt where he is at risk of torture.
Mohamed Zeki Mahjoub (Toronto): Detained since June 2000. The certificate in his case was found to be “reasonable” and he was ordered to be deported in July 2003. In February 2005, the Federal Court granted a stay of removal to Egypt on the grounds that he faced torture.
Hassan Almrei (Toronto): Detained since October 2001. The certificate in his case was found to be “reasonable” in late 2003. In March 2005 he was granted a stay of removal to Syria after it was determined that an initial assessment claiming he was not at risk of torture was full of errors.
Mohamed Harkat (Ottawa). Detained since December 2002. The certificate in his case was found to be “reasonable” in March 2005. He now faces deportation to Algeria where he is at risk of torture.
Adil Charkaoui (Montreal): Detained in May 2003, but released under bail conditions including electronic monitoring in February 2005. The Federal Court continues to review his certificate. If upheld, he faces deportation to Morocco where he is at risk for torture.
More about Security Certificates
The security certificate provision pre-dates the events of September 11, 2001 and has in fact been in place in various forms since 1991. To date, 27 certificates have been issued with only three being quashed by the Federal Court. In one case, a second certificate was later issued against the same person (Mohmoud Jaballah).
A person named in a security certificate is entitled to apply for a “pre-removal risk assessment” (PRRA). This is also done by the Minister of Citizenship & Immigration together with the Minister of Public Safety & Emergency Preparedness. The Federal Court judge will then consider the lawfulness of the Ministers’ PRRA decision together with the reasonableness of the security certificate.
Although assurances may be sought from foreign governments that an individual’s human rights will be respected, this is not an absolute guarantee of their safety. In 2002, the Supreme Court of Canada, while recognizing that international law provides absolute protection against being returned to torture, nonetheless left open the possibility in “extraordinary circumstances”.
The UN Convention Relating to the Status of Refugees acknowledges that there may be claimants who met the criteria of a refugee, but could be deemed inadmissible because they are a risk to national security or have committed serious crimes including war crimes. However, the process used to make this determination must meet international standards for fair trials.
Fair Trial Standards in International Law
International standards, including the International Covenant on Civil and Political Rights, require that any individual who is detained be given an effective opportunity to challenge the lawfulness of his or her detention before a judicial or similar authority which will undertake a thorough review of the specific reasons for the detention. The burden of proof is on the detaining authority. In particular, Article 9(4) of the Covenant provides that:
“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”
This provision applies in all cases where anyone is detained. Article 14 of the Covenant guarantees the right to a fair hearing, and further elaborates that:
“(2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
“(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
a) To be informed promptly and in detail in a language which he understands of the nature and the cause of the charge against him; (...)
d) To be tried in his presence, and to defend himself ... ; (...)
e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him (...).”