At the request of the Canadian Security Intelligence Service (CSIS), the government of Canada can declare any permanent resident or refugee inadmissible to this country based on undisclosed grounds. CSIS can then arrest and hold the person indefinitely, for years, without charge. This is done under the power of a security certificate.

A security certificate detainee is given only a summary of allegations against him, and is denied access to anything CSIS wants kept secret. The CSIS-approved judge is shown some of the evidence behind closed doors, without a defence lawyer present.

The judge’s mandate is to rule on whether there were “reasonable grounds” to issue the security certificate. This conclusion is reached without cross examination. CSIS need only prove that there is a possibility, or a belief, that a person might do something that threatens national security, based on the individual’s actual, past or potential activities or associations. No actual crime need have been committed. The court can rule only on whether it is possible that the allegations are true.

The men are not permitted to answer to the accusations in a fair trial because, unlike a criminal trial, the evidence in a security certificate case remains secret "for reasons of national security".

If the judge upholds the Certificate, the detainee faces immediate deportation. The decision is final and no appeal is permitted. All five detainees are under threat of jail, torture or death if deported.

Bill C-3 and the Supreme Court decision

On February 23, 2007, the Supreme Court of Canada ruled unanimously that Security Certificates are unconstitutional in three respects:

The use of secret evidence, with no access or recourse by the detained or their lawyers, is a violation of the Canadian Charter of Rights and Freedoms;

The differential treatment of refugees from that of immigrants is unfair under the Charter;

The detention could be considered arbitrary under the Charter if no regular review is conducted.

The finding was welcomed by human rights advocates. However, instead of fixing the real problem of secret evidence, the government chose to make only cosmetic changes to the previous law, creating a system of so-called “special advocates” to review the secret evidence and cross-examine it, without consultation with the detainee. The same situation continues: a CSIS-approved judge, no access to the evidence, indefinite detention without charge, and threat of deportation to jail, torture or death.

What is a Special Advocate?

A “special advocate” is a person appointed by a court or a government, whose job is to represent the interests of the detained in the review of secret evidence and in closed evidentiary hearings to which the detained and their lawyers do not have access. This process has come under criticism by human rights groups. Ian McDonald, a former Special Advocate in the UK, resigned over the unfairness of the process:

Isn’t a special advocate better than nothing?

Special advocate processes are fundamentally flawed. The special advocates created under bill C-3 are not allowed to consult with detainees after viewing secret evidence. They are appointed, approved, and must seek permission to conduct interviews from the same CSIS-approved judge that rules on the security certificate.

The process still prevents the detained from directly facing their accusers. This restriction is the key problem with security certificates, as recognized by the Supreme Court of Canada in their 2007 ruling.

The special advocate process merely allows Government to claim it has complied with human rights requirements while actually allowing the problems to continue unabated.

The detainees

Currently, Mohamed Harkat, Mohammad Mahjoub, and Mahmoud Jaballah are still detained under release conditions. Previously, certificates against Hassan Almrei and Adil Charkaoui were quashed, but not before all five Muslim men had their lives torn apart by allegations that they are connected to Islamic terrorist groups. These are allegations only and not criminal charges.

Mahjoub, Jaballah and Harkat still face the threat of deportation to torture or death if their security certificates are upheld.

Who is Mohamed Harkat?

Mohamed Harkat arrived in Canada in 1995. In 1997, he was granted status as a Convention refugee after successfully claiming government persecution if he were to return to Algeria.

On December 10, 2002, Mohamed Harkat was arrested by undercover police outside his home in Ottawa. Mohamed spent one year of his 3 ½ year detention in solitary confinement. He was released on bail on June 21, 2006, with the strictest bail conditions in Canadian history.

All five men detained under security certificates faced brutal release conditions. One even voluntarily returned to jail rather than put his family through the torment. Courts relaxed all of the conditions of detention significantly in 2009.

THE INJUSTICE CONTINUES

The security certificate remains unjust, and an affront to the basic human rights of the detainees. Those in jail or under house arrest or on bail start essentially from scratch. This new law amounts to an additional sentence of years of detention - still with no charges or convictions against the five men.

If there is any evidence against these men, they should be given fair and independent trials under the criminal code.

Meanwhile, the human rights violations inherent in the security certificate process, now recognized in part by the Supreme Court of Canada, also continue in other aspects of Canadian law. In particular human rights advocates are concerned that sections of the Immigration Act and sections of the Anti-Terrorism Act also contain provisions for secret proceedings.

OUR DEMANDS

The Justice for Mohamed Harkat Committee urgently calls upon parliament for:

the abolition of the Security Certificate process;

an immediate unconditional release of the detainees currently in jail and under house arrest, or a fair trial if any evidence actually exists against them;

the cessation of any and all practises of deporting, or seeking to deport, people to countries where they will be, or may reasonably expect to be, submitted to imprisonment, torture or death; and,

the dismantling of the Kingston Immigration Holding Centre.

The Minister of Public Safety Vic Toews and The Minister of Immigration Jason Kenney are the ministers now responsible for signing security certificates. Prime-Minister Stephen Harper is ultimately responsible for continuing to allow this undemocratic process. Their contact info is HERE.

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