Introductory Summary

Security Certificates are documents issued under the Immigration and Refugee Protection Act (the “IRPA”) that enable the deportation of permanent residents, refugees, and temporary visitors from Canada without substantive judicial review. Security Certificates initiate a judicial process bereft of the procedural safeguards that justify the exercise of judicial and executive authority in a democratic state, including the right to disclosure of the case, the right to confront and cross-examine one’s accusers, the right to a public trial, and the right of appeal. Deportees are stripped of the right to reasonable bail and are subject to lengthy terms of pre-trial incarceration during their mostly futile battles to remain in Canada. They may face torture or execution in their destination country upon deportation. The Certificates are in effect a railroad from Canada which subject a deportee to expulsion from this country at the whim of the government executives and with the oversight of a judge presiding over a secret trial.

This paper summarizes the mechanics of Security Certificates, with an emphasis on the procedural shortcomings. It sets out the operation of Security Certificates in concrete cases to expose the absence of executive and judicial accountability at the core of the secret hearings. It finally makes recommendations for remedial action to rehabilitate the deportation proceedings and restore Ministerial and judicial accountability.

The existence of Star Chamber proceedings unfettered by public accountability is anathema to fundamental due process protections and is an embarrassment to the roots of our democratic principles. It is time for the BCCLA to join the many Canadian critics in conspicuous condemnation of these medieval proceedings and in calling for legislative reform.

Background Information on Security Certificates

Security Certificates are intended to be a fast-track process for expelling dangerous persons from Canada. The procedural framework governing Security Certificates is set out in detail in the IRPA and has been the subject of judicial elaboration[1]. Unlike other legislation injurious to civil liberties, Security Certificates are not a result of the attacks on the World Trade Centre in New York. The current provisions under the IRPA are nearly identical to the provisions under its precursor, the Immigration Act.

The first Security Certificate was issued in January of 1991[2], and a total of 29 Certificates had been issued as of August 15, 2003. Out of those Certificates only three have been found not to be reasonable by a Federal Court. The first two Certificates issued were quashed by a Federal Court. A third was quashed a decade later in the case of Mahmoud Jaballah, but a second certificate was issued for Jaballah two years later. The Department of Citizenship and Immigration has been helpful in providing a comprehensive list of Certificates issued to the BCCLA.

The process can be broken down into the following five discrete stages, the details of which are set out below:

1. Investigation and Report by CSIS.

2. The Certificate is Signed and Filed.

3. Review of Detention

4. Application to Minister for Protection from Death and Torture

5. Federal Court Hearing into the Reasonableness of the Certificate.

Stage 1: Report of CSIS Investigation Forwarded to the Minister and Solicitor General

In the first stage of the process, the Canadian Security Intelligence Service (“CSIS”) gathers information on the alleged security risk. The information may be derived from Canadian law enforcement agencies, outside security agencies, the public domain, or from CSIS’s own surveillance and investigation. In the case of the high-profile or notorious person seeking refugee or permanent resident status, CSIS may well have assembled an intelligence brief before the person’s refugee claim is initiated.

Once assembled, the CSIS brief is delivered to the Minister of Citizenship and Immigration and the Solicitor General of Canada for their review.

Stage 2: The Certificate is Issued and Filed with the Federal Trial Court

Stage two of the process involves the issuance and filing of the Security Certificate by the Minister of Citizenship and Immigration and the Solicitor General of Canada[3]. The Minister and the Solicitor General may issue a Certificate if they are both satisfied the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

Factors to be considered in determining whether a person is a threat to national security are set out in s.34 of the IRPA. The factors include past, present or future engagement in espionage or acts of subversion against a democratic government, institution or process, or instigation or the subversion by force of any government, engagement in terrorism, constituting a danger to the security of Canada, engaging in acts of violence or holding membership in a group planning the subversion of a democracy. Factors to be considered in assessing violations of human or international rights, and serious or organized criminality are set out in ss.35-37 of the IRPA.

If the Minister and the Solicitor General believe the relevant national security factors are present, they must both sign a certificate under subsection 77(1) of the IRPA stating that, based on a security intelligence report, they certify that the person is inadmissible on grounds of security. The certificate must set out the general grounds for inadmissibility. Under subsection 77(1) foreign nationals and permanent residents can be issued with a certificate, but not citizens.

Under subsection 82(2) of the IRPA foreign nationals named in a certificate must be detained without a warrant. Permanent residents cannot be detained without warrant on a Certificate; the Minister and Solicitor General must issue an arrest warrant under subsection 82(1) which may be issued when the Ministers have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal. The detention warrant is subject to a judicial review under subsection 83(1) within 48 hours of the initial detention, and is subject to a mandatory review every six months thereafter under subsection 83(2).

Under subsection 77(1) the certificate must then be filed with the Trial Division of the Federal Court for a consideration of the reasonableness of the certificate. The information upon which the Certificate is based must also be delivered to the Federal Court. The effect of the referral of the certificate to the Federal Court is that all refugee or immigration proceedings under IRPA are adjourned and fresh immigration and refugee proceedings cannot be commenced under the Act until the judge makes a determination on the certificate.

Stage 3: Review of Detention

The third stage of the Security Certificate process is a review of the detention of the person named in the Certificate. Section 83(2) provides that not later than 48 hours after the beginning of the detention, the designated judge must commence a review of the reasons for continued detention. Section 83(3) provides that a judge shall order the detention be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.

It is to be noted that the criteria for continued detention are narrower than the criteria for inadmissibility. During the review of the deportee’s detention, the judge may hear evidence in the absence of the deportee, refuse disclosure of information to the deportee[4], deny cross-examination, and rely on evidence that would otherwise not be inadmissible. There is no appeal from a decision extending the detention of the person named in a Security Certificate.

There are no provisions for release comparable to s.515 of the Criminal Code, which allows for the release of even the most dangerous individuals on surety bail or cash deposit. Jaballah’s example is instructive: he was denied interim release notwithstanding 14 individuals were prepared to act as sureties.[5] The right not to be denied reasonable bail without just cause is guaranteed under s.11(e), but applies only to persons charged with an offence; the immigration law finesse of Security Certificates circumvents this protection and permits a detaining judge to disregard the existence of safeguards, such as multiple sureties, which could reduce or eliminate the purported risks of interim release.[6]

Stage 4: Application for Protection under Subsection 112(1) of the IRPA

The fourth stage of the Security Certificate process provides the person subject to a Certificate with the option of initiating an “Application for Protection” with the Minister of Citizenship and Immigration under subsection 112(1) of the IRPA on the basis that he or she is a person in need of protection[7]. A “person in need of protection” is a person who, if returned to their country of nationality or their former habitual residence, would face a substantial risk of death, torture, or cruel and unusual treatment or punishment.

However, even if the Minister finds that the person will face a risk of death or torture, the application for protection can be refused under subsection 113(d) of the IRPA if the nature and severity of acts committed by the applicant or the danger that the applicant constitutes to the security of Canada warrants a refusal. The determinations are at the discretion of the Minister and are subject to a high standard of judicial review and the Minister’s exercise of discretion is given judicial deference[8].

Applications for Protection are often subject to long administrative delays during which the person named in the Certificate languishes in solitary confinement. These delays expose uninformed optimism of the government as it asserts Security Certificates to be a shortcut to deportation. The life of Mahmoud Jaballah, for example, was whittled away by thirteen months in solitary confinement while awaiting a Ministerial decision on whether he would be tortured or killed by the Egyptian government upon his deportation.[9]

Stage 5: Federal Court Hearing into the Reasonableness of the Certificate

The fifth stage of the Security Certificate process involves a mandatory judicial determination by a Federal Court Judge as to whether the Certificate is reasonable. Section 76 of the IRPA provides that the judge presiding at the hearing be either the Chief Justice of the Federal Court or a Federal Court judge designated by the Chief Justice[10].

Along with the Certificate, the Minister and Solicitor General must provide the Court with the information upon which the judge must evaluate the reasonableness of the certificate. Upon filing with the Federal Court, the designated Judge must examine the evidence in private within seven days of the referral. The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.

If a certificate is determined to be reasonable, it is conclusive proof that the permanent resident or foreign national named in it is inadmissible to Canada and the Certificate is deemed to be a removal order that is in force without the necessity of holding or continuing an examination or an admissibility hearing.

On the face of the statute, the person named in the Security Certificate has a right to be involved in the reasonableness hearing. Section 78(i) states that the judge shall provide the person named with an opportunity to be heard regarding their admissibility.[11] However, the evidentiary and procedural limitations on the deportee’s participation make it clear that this is a ‘hearing’ in name only.

Designation of Judges

The inquiry into the reasonableness of a Security Certificate may only be conducted by the Chief Justice of the Federal Court or a Federal Court judge designated by the Chief Justice. Although administrative judges usually retain control over the schedules of other judges, it is unusual for a statute to appoint the Chief Justice of a court to hear cases or appoint cases. Under IRPA and its precursor, the Immigration Act, persons who are a risk to Canada’s national security are precluded from attaining Convention Refugee status, but this determination is usually made by an Immigration Tribunal rather than by two Federal Ministers.

The provision suggests by implication that the legislation intended to distinguish between appropriate and inappropriate judges. Federal Court judges are appointed by the Governor in Council. The legislative designation of a specific judge to sit on review of a Ministerial decision seems to undermine to some extent the appearance of judicial independence[12].

Disclosure of Information

The disclosure of information to a person named in a Security Certificate and their counsel is severely curtailed by the IRPA. Under subsection 78(h) the judge must provide the person named in the certificate with a summary of the information or evidence in advance of the hearing, “that enables them to be reasonably informed of the circumstances giving rise to the certificate”. However, subsections 78(b), (e) and (h) restrict the Judge from providing the person with any information that, in the opinion of the judge, “would be injurious to national security or to the safety of any person if disclosed.” To this end, the designated judge reviews the protected information and holds one or more hearings in which only the representatives of the Ministers and their counsel are present.[13]

The requirement to reasonably inform a person named of the circumstances giving rise to the Certificate falls far below the scrupulous standard of disclosure in criminal cases. Subject to certain exceptions, a person accused of a Criminal Code offence must be informed of the case against them, and must be provided by the prosecutor and investigators with all relevant information, even if the information is exculpatory.

Even on the degraded standard of disclosure in Certificate cases, there is a tension between the statutory imperatives. The requirement that the deportee be ‘reasonably informed of the circumstances giving rise to the certificate’ carries the potential to conflict with the requirement that the judge withhold information believed to be injurious to national security. In some cases at least, the disclosure of some information will be considered necessary to reasonably inform a person named in a Certificate, and the information must be withheld for national security reasons. In those circumstances, which are likely not infrequent, the judge will no doubt err on the side of national security, and the potential deportee will not be reasonably informed of the circumstances giving rise to the Certificate.

Section 78(f) provides the Minister with an extraordinary entitlement to demand the return of information from the designated Judge if the Judge intends to provide the information to the person named in the Certificate. In those circumstances, the judge is precluded from considering that information in determining whether the Certificate is reasonable. The effect of the provision is that the Minister retains editorial discretion over the summary of the evidence provided to the deportee, provided the Minister is prepared to forgo reliance on that information at the hearing.

Several lawyers for persons named in Certificates, including Rocco Galati in the Jaballah case, have argued that the information contained in the summary is so vague that it renders this right meaningless. An opportunity to respond can not be acted upon in a meaningful way if the summary mostly contains allegations but not any of the substantive evidence upon which they are based.

Evidence Taken In Secret

If the Minister of Citizenship and Immigration or the Solicitor General request that all or part of the information or evidence should be heard in the absence of the person named in the Certificate and his/her counsel, subsection 78(e) requires the judge to exclude the person named in the Certificate and his/her counsel if the judge is of the opinion that its disclosure would be injurious to national security or the safety of any person. Members of the public are, of course, also excluded from the hearing.

The Rules of Evidence

There are no effective barriers to the admissibility of evidence. The rules of evidence are intended to prevent consideration of evidence which is irrelevant or unreliable. Under subsection 78(j) the judge does not have to consider the rules of evidence in making a determination as to the reasonableness of the Certificate; the judge is free to consider any evidence that the judge considers to be “appropriate”. The criterion of ‘appropriateness’ is vague and ambiguous, equivalent to an ‘anything goes’ standard for admissibility.

However, at least the judge in the case is able to see and question the evidence presented to support the Certification by the Ministers. The judge is not required to base his or her decision on summaries provided by CSIS and is free to give dubious evidence as much or as little weight as s/he determines is appropriate[14]. The decision must ultimately be based on materials placed in front of the judge even though the person named in the certificate may not be able to see the evidence.

Charter Protections

Legal challenges against Security Certificates have been launched on the basis that they violate fundamental rights protected under the Canadian Charter of Rights and Freedoms and that they do not respect Canada’s international obligations, including those under the International Covenant on Civil and Political Rights.

To date, the courts have upheld the process on the basis that detainees held under the IRPA are entitled to a diminished level of Charter protection. In Ahani v. Canada (T.D.), [1995] 3 F.C. 669, and again in Re Charkaoui, [2003] B.C. 1419, the Court adopted a contextual approach to section 7 of the Charter, stating that the imperatives of immigration policy must govern the context. In particular, the rights of non-citizens who do not have an unqualified right to enter or remain in the country must be balanced against national security issues, such as the prevention of terrorism and the protection of informants, must be balanced in favour of the latter.

Standard of Review

The standard of review imposed on the designated Federal Court judge is not difficult to meet. The Minister must merely show that the decision to issue the Certificate was “reasonable”. Where the Certificate was issued on the basis of national security, the test to meet is not onerous. The Supreme Court of Canada defined in Suresh v. Canada, [2002] 1 S.C.R. 3 at para 90 what constitutes a “danger to the security of Canada”:

… a person constitutes a “danger to the security of Canada” if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be “serious” in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.

Taken together, the designated judge could find a Certificate was reasonably issued if there is an objectively reasonable suspicion that a foreign nation was indirectly threatened. This standard arguably ensnares any vocal political dissident, including such fashionable activists as Nelson Mandela, the Dalai Lama, and Martin Luther King. There is an obvious potential for a chilling effect on political expression or action by non-citizens of Canada.

Right of Appeal

The determination of a judge that the Certificate is reasonable is final and may not be appealed against or judicially removed[15]. Similarly, a Certificate deemed to be a removal order cannot be appealed against[16].

There is no right of appeal from interim decisions, such as temporary detention orders or interlocutory orders. Despite the absence of express statutory provisions preventing such appeals, the Federal Court of Appeal has restricted itself from engaging in a review of a decision of the Federal Trial Court to uphold the continued detention of a permanent resident under the IRPA.[17] Similarly, a determination by a designated judge as to what information should be disclosed in the context of a hearing into the reasonableness of a Security Certificate is not subject to appeal at the Federal Court of Appeal[18].

Protracted Detention

Security Certificates give rise to protracted detentions, often in solitary confinement. Currently, a number of individuals have been in pre-hearing custody for many months: Mohamma Mahjoub has been held since June 2000; Jahmound Jaballah has been detained since August 2001; Adil Charkaoui has been detained since May 2003; Hassan Almrei has been held for more than three years in solitary confinement; Mohamed Harkat, held since December 2002.

The Security Certificate process, designed as an expedited form of deporting inadmissible non-citizens from Canada, would appear to have failed in avoiding lengthy pre-hearing detentions.

Security Certificates as Secret Trials

A review of the procedural framework of Security Certificates lead inexorably to the conclusion that Security Certificates are a form of secret proceeding to deport individuals whose presence in Canada is deemed to be undesirable. While there are other problems with the process, the core civil liberties issue is the issue of unaccountable and secret deportation proceedings.

The BC Civil Liberties Association has long been an opponent of secret trials. Our demand for open and public courtrooms is grounded in the fundamental concept of democracy that the citizens, collectively, exercise the function of sovereign by ruling themselves. This ideal requires citizens to retain the ability to observe, deliberate on, and call into account both elected and unelected representatives of the legislative, judicial, and executive branches of government.

This interest of the democratic citizenry underlying the principle of open courtrooms is elevated to constitutional status by section 2(b) of the Charter. As noted by La Forest, J. in CBC v. New Brunswick:

The principle of open courts is tied inextricably to the rights guaranteed by s.2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings…. The full and fair discussion of public institutions, which is vital to any democracy, is the raison d’etre of the s.2(b) guarantees.[19]

The submission of citizens to the authority of unelected executive and members of the judiciary is not an article of faith or a product of blind trust. Submission is based on an understanding that public and open procedures guarantee the impartiality and reasonableness of the decisions made by those authorities. Absent public scrutiny of the decisions of public officials, and absent the accountability facilitated by publicity, there remains no direct basis for submission to authority.

The claim of national security in the context of Security Certificates tests the mettle of a civil libertarian committed to the open courtroom principle. The civil libertarian must directly contend with the assertion that national security requires that justice can only be found in the shadows of a closed courtroom. It is a discomforting claim, and one that it is not subject to public verification.

In the context of Security Certificates, the attack on the open courtroom principle finds a concrete manifestation in the case of Ernst Zundel.[20] Zundel was arrested on February 19, 2003 when making a refugee claim in Canada after being deported from the United States for overstaying his visa. On May 1st, 2003, the Minister of Citizenship and Immigration and the Solicitor General of Canada signed a Certificate alleging that Zundel is a threat to national security. The issuance of the Certificate has halted his refugee claim pending a Federal Court’s review of the reasonableness of the Certificate and Zundel has been in detention since his initial arrest.

The Ministers certified that Zundel was inadmissible on security grounds. Specifically, they certified inadmissibility on the basis of engaging in terrorism, being a danger to the security of Canada, engaging in acts of violence that would or might endanger the lives or safety of persons in Canada, and being a member of an organization that there are reasonable grounds to believe engages, has engaged, or will engage in espionage or subversion of a government by force or terrorism.

The Government is currently alleging that Zundel is a risk to Canada’s national security although he has never openly espoused violence and indeed has encouraged the non-violent dissemination of his opprobrious ideas. He is linked to various groups that have used violence in the past and he is alleged to be the patriarch of the white supremacist movement in Canada. Zundel denies that he advocates violence and denies any participation in violent racist groups.

The challenge to the open courtroom principle, and the challenge to executive and judicial accountability, is the Crown assertion that most of the evidence establishing that Zundel is a threat to national security cannot be disclosed to Zundel or to the general public. The Honourable Judge Blais, designated to preside over the hearing into the reasonableness of the Certificate, put the difficulty as follows in determining whether Zundel’s continued detention was warranted on the basis of national security[21]:

Mr. Zundel’s activities have in large part been public. In the context of these public endeavors, Mr. Zundel has never advocated violence…

However, there are reasonable grounds to believe that Mr. Zundel is a danger to national security or to the safety of any persons. Although Mr. Zundel has virtually no history or direct personal engagement in acts of serious violence, his status within the White Supremacist Movement is such that adherence (sic) are inspired to carry out his acts in pursuance of his ideology. The Ministers believe that by his comportment as leader and ideologue, Mr. Zundel intends serious violence to be a consequence of his influence…

Mr. Zundel was questioned about a number of people who are part of a dangerous and violent movements, here and abroad, and in every instance, he characterized the relationship as basically superficial, transient, without consequence, and with no funding involved.[22] There is too much evidence to ignore what is obvious. What I have seen in camera[23], and what I heard in Court from Mr. Zundel, are completely at odds. Mr. Zundel wields much more power within the right-wing, extremist and violent movement known as the White Supremacist Movement (however, defined, the only concern for me being the danger it represents to society) than he lets on. He would have us believe that he is only interested in ideas, and that others use his ideas as they see fit, a situation for which he cannot be responsible.

The information made available to me paints an entirely different picture… the evidence points to his own direct involvement with groups he pretends to know very little about…

In various decisions dealing with the security certificate or the related detention, this Court has had to grapple with the problem of a person who presents externally the profile of a peaceful citizen, while maintaining contacts with individuals or groups that are known to be terrorists or to advocate violence. As I stated in Re Ikhlef, [2002] F.C.J. No. 352, at para. 57: “Tell me who your friends are, and I will tell you who you are”. Mr. Zundel states that this kind of reasoning is to make him “guilty by association”. I agree that one must be careful to not confuse acquaintance and complicity. But once again, the test here is one of reasonable belief, and I believe the test has been met. In fact, surpassed. Mr. Zundel represents a threat that far exceeds guilt by association…

The Ministers have provided considerable evidence, that cannot be disclosed for reasons of national security, that Mr. Zundel has extensive contacts within the violent racist and extremist movement. Mr. Zundel stated in his testimony that he know the following people slightly, or had professional contacts with them, or had interviewed them as a reporter. Information showed, rather, that he had dealt with them a great deal more, in some cases had funded their activities, and generally had maintained much closer ties than what he had admitted to in his examination or cross-examination. [Blais, J. provides a list of names of racists from Canada and abroad]…

Thus, while overtly condemning the use of violence, he covertly condones it by maintaining his contact and credibility with groups that advocate and engage in violent acts.

It is plain that the Honourable Judge Blais detained Zundel on the basis of evidence to which he and the Minister alone were privy. Through his ruling, Judge Blais advises the public that Zundel misrepresents himself, and that the truth, as revealed by the secret evidence, is that Zundel is a threat to national security.

Aside from the secret evidence heard in the closed courtroom, there is evidence that would suggest that Judge Blais’ conduct of the case is not beyond reproach. On October 21, 2004, the Globe and Mail reported that Zundel’s lawyers, Peter Lindsay and Chi-Kun Shi accused the Honourable Judge Blais of running an error-plagued deportation hearing that “cheapens and degrades” the justice system. Lindsay and Shi labelled the judge’s approach as “misguided and unchecked”, and he was derided as unable “to even understand simple submissions” Mr. Lindsay was quoted as saying, “the public case goes far beyond guilt by association… It is guilt by contact. I don’t say this easily, but it makes McCarthyism look reasonable”.[24] Commentary of this type by a lawyer should not be taken lightly – the professional consequences are extreme for lawyers who engage in careless and flamboyant criticism of the judiciary. Further, there have been three unsuccessful applications by Zundel’s lawyers to have Blais recuse himself on the basis of a reasonable apprehension of bias.[25]

On November 5, 2004, the Globe and Mail reported that in 2001, the U.S. Federal Bureau of Investigation closed its file on Zundel after deciding he was not a security threat. The FBI file was released as a result of a US freedom of information request. On its face, it is at odds with the conclusions drawn from the secret evidence by the designated judge.

The disparity between the public record and the secret record in Zundel’s case brings the problems with secret trials into sharp relief. Zundel and his lawyers, and possibly the FBI, ask the public to believe one version of the truth; the Minister and Solicitor General ask the public to believe another version of the truth. The secret hearing conducted pursuant to a Security Certificate does not provide adequate procedural safeguards to ensure accountability and inspire confidence in the judicial result.

Zundel’s case is not alone in raising questions about the integrity of the Security Certificate process. In Re Jaballah, [2003] 4. F.C. 345, the Court was confronted with a second Security Certificate, issued after the first Certificate was quashed. In that case, Mr. Gelati, counsel for Jaballah criticized the proceedings, saying that he was incapable of advising his client as he did not know the case to be met, and stating that that proceedings in Jaballah No. 1 were an investigative, interrogatory, and evidentiary basis for Jaballah No. 2. Gelati withdrew as counsel on the basis that the proceedings were incompatible with his barrister’s oath “not to pervert the law but in all things to conduct myself truly and with integrity”. In that case, the Security Certificate was found reasonable, partly on the basis of an inference that Jaballah must be a senior members of Al-Qaida since there was (untested) information that he had contacted other members of Al-Qaida.

In Re Ikhlef, [2002] F.C.J. No. 352, Justice Blais upheld a Security Certificate on the reported basis of associations between the respondent and members of Al Qaida. The respondent testified that he had been given an unfortunate nickname and the alleged associations and contacts were a case of mistaken identity. Justice Blais ordered the man deported on the basis of evidence that he deemed to be undisclosable on the grounds of national security and safety of persons.

In Re Charkaoui, the person named in the Certificate also filed a motion seeking disqualification of the designated judge, on the basis that the judge ushered the case along at the Minister’s tempo without regard for the need for the defence lawyer to prepare, on the basis that the judge failed to consider evidence tendered by the named person, and on the basis of delayed disclosure of key evidence the dissemination of which presented no danger to security.[26] That application was dismissed.

The Western world has felt repulsion towards secret evidence and one-sided arguments because they subvert the adversarial process that is designed to penetrate into the truth of the matter at issue. The same holds for the rules of evidence, hearsay, involuntary confessions, and other prohibited evidence that has been disallowed in our courts because it is simply unreliable. The fast-track of Security Certificates eliminates these protections, and facilitates judicial reliance on degraded forms of evidence.

Secret trials and secret evidence provoke us, as civil libertarians committed to the idea of judicial and executive accountability, to adopt a critical stance. The Minister and the designated Federal Court justice appeal to our faith in their assessment of the evidence, they ask us to embrace a process almost without procedural safeguards. They ask us to believe that justice is done when justice is not seen to be done. No serious civil libertarian or civil liberties body can, in good conscience, sign on to this “just trust us” approach to protecting our long fought for and fragile freedoms.

Secret trials, including secret hearings conducted into the reasonableness of Security Certificates, are unacceptable for civil libertarians. Even when national security is purportedly at stake, judicial processes must retain a set of procedural safeguards adequate to satisfy a reasonable sceptic that judicial authority is not being misused. Similarly, the exercise of executive powers must be accountable to the public and subject to forms of judicial review and public disclosure.

Remedies

It is my suggestion that the BCCLA move in a timely fashion to advocate for reforms to the Security Certificate procedure. We should take steps to ensure that our objections to secret trials, deportations with attendant risk of torture or execution, and protracted detention are a matter of public record, by press release, letters to the appropriate ministers, and by joining forces with our allies on this critical civil liberties issue.

Legislative reform may well carry the potential to strike a fresh and healthy balance between the interests of national security and government secrecy on one hand, and due process and democratic accountability of public institutions on the other hand. However, the issue of government secrecy during the reign of terror is too broad an issue to address in the narrow context of Security Certificates[27]. I propose that the BCCLA strike a subcommittee to address issues of national security, state secrecy, due process and institutional accountability. Such a committee may be timely in light of the much anticipated legislative review of intelligence and anti-terrorism.

This paper does not propose a complete alternative legislative framework for appropriately dealing with national security threats presented by non-citizens. Alternatives to Security Certificates that adequately balance the interests at stake should properly be assessed by the subcommittee along with the panoply of remedies available to the government to protect national security. However, potential avenues for reform of the Security Certificate regime could include the following:

Ø Abandoning the Security Certificate programme altogether, by placing the onus on the Minister to bring an originating motion to the Federal Court or the Superior Court of a Province for a removal order on national security grounds.

Ø Reversing the onus for state secrecy, by placing the obligation on the government to apply for an Order and establish that the information should be kept secret from (a) the public and (b) the accused and (c) counsel for the accused.

Ø Permitting a security-cleared lawyer acting on behalf of the person named in the Certificate to have access to the evidence and participate in the in camera hearing.

Ø Reinstating basic rules of evidence in National Security matters, or formulating legislative requirements to ensure judicial decisions are grounded in reliable evidence.

Ø Establishing a right of appeal for deportees.

Ø Abolishing the designation of the Chief Justice to preside at the hearing.

[1] The process is discussed at length in Jaballah v. Canada (Ministerof Citizenship and Immigration) [2003 FCT 640. Aspects of the rights to appeal and other procedural obligations of the Minister of Citizenship and Immigration were dictated by the Supreme Court of Canada in Suresh v . Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3.

[2] Security Certificates existed in a different incarnation before 1991. See, for example, Paul Copeland’s article in the Ontario Criminal Lawyers’ Association Newsletter, Vol.3, No.9, p.18, May 1979, in which he accuses the then-Minister’s executive assistant, Zavie Lavine, of threatening to use the awesome powers of the Security Certificate to stifle the academic freedom of a visiting Marxist professor, Istvan Meszaros.

[3] An Order in Council passed on December 12, 2004 transferred the responsibility for issuing Certificates to the Deputy Prime Minister, who is also the Solicitor General, which eliminated the protection of having two individuals endorse the Certificate. Since that time, the Government recanted and promised to reinstate the requirement to have the Minister and Solicitor General endorse the Certificate. Prior to 1995, Security Certificates were issued by the Security and Intelligence Review Committee: see No Right of Appeal: Bill C-11, Criminality and the Human Rights of Permanent Residents Facing Deportation, John A. Dent, Queen’s Law Journal (2002) 27 Queen’s L.J. 749-784.

[4] Jaballah v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 420

[5] Jaballah v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 420.

[6] Throughout this paper, I have deliberately refrained from describing the Certificate procedure as “Kafkaesque”. The phrase is simply too charitable to be used in this context: at least in “The Trial”, the main character Josef K. was released on pending trial.

[7] An application for protection can be launched at any point prior to a finding by a Federal Court judge that the security certificate is reasonable. On the request of the person listed in the certificate, a judge, or on the request of the Minister of Citizenship and Immigration, the presiding judge must suspend the proceedings in respect to the proceedings under subsection 79(1) of the IRPA. Once the Judge has found that the certificate is reasonable subsection 81(c) dictates that the person can no longer apply for protection, although any existing application may continue.

[8] Suresh

[9] Canada (Minister of Citizenship and Immigration) v. Jaballah, [2003] F.C.J. No. 1274 (F.C.A.)

[10] In R. v. Zundel, [2004] O.J. No. 2087, the Ontario Court of Appeal held that a person named in a Security Certificate cannot transfer jurisdiction from the designated Federal Court Judge to a judge of the Superior Court of a Province by resorting to an application for a writ of habeas corpus. The OCA found that Zundel did not demonstrate that there was no adequate alternative forum to hear his constitutional challenge to the Security Certificate regime. Zundel’s complaints about undue delay and pre-hearing detention in solitary confinement did not persuade the OCA.

[11] In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, the Supreme Court of Canada held that the predecessor Security Certificate regime, which did not provide the deportee with an opportunity to be heard, comports with the principles of fundamental justice under s.7 of the Charter. Sopinka, J. wrote that Parliament was not required to hold any hearing into the matter whatsoever, and that the process adequately balanced the competing interests of the State and individuals. The decision has been criticized: see No Right of Appeal: Bill C-11, Criminality and the Human Rights of Permanent Residents Facing Deportation, John A. Dent, Queen’s Law Journal (2002) 27 Queen’s L.J. 749-784 at para.39. As Chiarelli involved a Certificate issued on the basis of prior conviction for serious criminal offence (with due process attending the conviction), it is arguable that it has no application to an inadmissibility certificate for which there is no underlying due process protection.

[12] The argument that legislative designation of judges signals at least a perceived loss of judicial independence was rejected in Jaballah v. Canada, [2004] F.C.J. No. 420.

[13] SeeRe Charkaoui, [2003] F.C.J. No. 1815, in which the designated judge refused to disclose even the dates on which he and the Ministers’ representatives and counsel had met in secret to deal with the case, on the basis that it was conceivable that the information could be turned to subversive ends. The ruling is in keeping with the Federal Court’s propensity to err on the side of secrecy.

[14] Indeed, in the Zundel case, according to the designated judge, “a great deal of the Crown evidence is hearsay”: Zundel v. Canada, [2004] F.C.J. No. 1581 (F.T.C.) at para.24

[15] IRPA, s.80(3)

[16] IRPA, s.81(b)

[17] Re Charkaoui, [2003] F.C.J. No. 1593, 2003 FCA 407.

[18] Zundel v. Canada, [2004] B.C.J. No. 608 (F.C.A.)

[19] Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 at para.23

[20] Zundel is reviled for his anti-Semitic comments, for publicly lauding Hitler, and for his denials of the Jewish Holocaust. He has never been convicted under Canada’s hate speech legislation, but he has been successfully sued for contravening Human Rights legislation. The BCCLA believes that the wilful attempt to promote hatred against an identifiable group is immoral, but we also argue that the expressions that form such attempts must be protected from legal sanction or obstruction. See The Keegstra Case: Freedom of Speech and the Prosecution of Harmful Ideas, 1985 at http://www.bccla.org/positions/freespeech/85keegstra.html and Censorship: Hate Literature, 1969 at http://www.bccla.org/positions/freespeech/69hatelit.html.

[21] Re Zundel, [2004] F.C.J. No. 60

[22] The procedure underlying Zundel’s testimony ensured that he was unable to view or directly respond to the evidence brought forward against him. That is not to say that he would have had a satisfactory response if given an opportunity to speak directly to that evidence – but under the Certificate regime, the public could never know.

[23] “In camera” is legal jargon for a closed courtroom. In this context, it refers to a courtroom that is closed to both the public and to the person named in the Security Certificate.

[24] Globe and Mail, Thursday October 21, 2004, Kirk Makin

[25] The last of these applications for recusal was appealed to the Federal Court of Appeal. A three member panel of the Court of Appeal determined that an appeal based on a reasonable apprehension of bias is an exception to the privative clause precluding an appeal from a determination that a security certificate is reasonable, found that the trial judge’s refusal to recuse himself was reasonable, and dismissed the appeal: Re Zundel, [2004] F.C.J. No. 1982

[26] Re Charkaoui, [2004] F.C.J. No. 757 (F.T.C.)

[27] The democratic limits of state secrecy and secret trials also arises in the context of Anti-Terrorism legislation preventative detentions and investigative hearings, the Canada Evidence Act, Extradition Act matters, Access to Information requests, complaints against CSIS, publication bans, and so on.