Security certificates are perhaps the most draconian measure available in Canadian law.
Under the Immigration and Refugee Protection Act, the Canadian government can arrest and indefinitely detain non-citizens without charge based on secret information that is heard in secret, quasi-judicial hearings.
There are three men who are currently subject to security certificates: Mahmoud Jaballah, Mohammad Mahjoub and Mohamed Harkat.
First implemented in 1978, security certificates are co-signed by the Minister of Immigration and the Minister of Public Safety on the recommendation of the Canadian Security Intelligence Service (CSIS). Individuals named on a security certificate are deemed inadmissible to Canada on grounds of “security, violating human or international rights, serious criminality or organized criminality” and immediately subject to a removal order.
Named foreign nationals are automatically detained. Permanent residents may be detained if there are reasonable grounds to believe the individual is a danger to national security, to the safety of any person, or is unlikely to participate in any court proceedings.
A Federal Court judge reviews the secret information and then determines whether the certificate is “reasonable”—a threshold that effectively turns the presumption of innocence into a presumption of guilt.
According to the act, “information” is defined as “security or criminal intelligence…obtained in confidence from a source in Canada, the government of a foreign state, [or] an international organization of states.” Intelligence collected by CSIS is not intended to be used in court as evidence.
The named person is never shown this information—only a summary decided upon by the judge. The judge is required by the law to withhold anything that “would be injurious to national security or endanger the safety of any person if disclosed.” That determination is made in a secret legal proceeding.
CSIS has admitted some of the information it uses to justify the current security certificates was obtained through torture. In a 2007 letter, then-CSIS director Jim Judd expressed concern that if the amended security certificate legislation excluded information linked to torture, it “could render unsustainable the current security certificate proceedings” and “significantly hinder the service’s collection and analysis functions.”
If the Federal Court finds the certificate “unreasonable,” it is quashed. If it is found to be “reasonable,” the certificate automatically becomes a deportation order. When the named person is likely to be tortured if deported (as is the case with the three men currently held on security certificates), they are detained or put under house arrest for an indefinite period.
Since the detainee only receives a summary of the allegations, they effectively have no way of defending themselves. Grounds for appeal are extremely limited.
In a unanimous 2007 ruling, the Supreme Court struck down security certificate as unconstitutional and gave the government one year to craft new legislation.
An amended security certificate process was passed in February 2008. It relies upon a “special advocate” appointed by the Minister and cleared by CSIS to “protect the interests” of the named person in closed hearings. The special advocate has access to the information given to the judge but is prevented from disclosing it to the named person or the public.
This reform neither addresses the secret nature of the security certificate process nor a broad range of other concerns including the use of illegal evidence, low evidentiary thresholds, indefinite detention without charge and the unequal treatment of non-citizens.
The security certificate process has been widely condemned by human rights defenders, civil society organizations and international bodies. Individuals who have called for an end to this practice include Alexandre Trudeau, Warren Allmand (former Solicitor-General of Canada), Flora MacDonald (former Foreign Affairs Minister of Canada), Denys Arcand, Bruce Cockburn, Naomi Klein and Maude Barlow.
Human rights organizations and international bodies condemning the practice include the Canadian Bar Association, Amnesty International Canada, Human Rights Watch, and the Canadian Council for Refugees.
Mohammed Harkat has been held on a security certificate since December 2002, spending more than four years in jail (one year in solitary confinement) and released under conditions for almost seven years. He has been given leave to challenge the constitutionality of the amended security certificate legislation in the Supreme Court.
Mohammad Mahjoub has been held since May 2000, spending nearly seven years in prison (two and a half years in solitary confinement) and released under conditions for six years.
Mahmoud Jaballah has been the subject of two security certificates—the first in 1999 dismissed for lack of evidence by a Federal Court judge; the second since August 2001. He was imprisoned for almost six years (a year and a half in solitary confinement) and released under conditions for almost six years).
Two other Muslim men were also held on security certificates, Hassan Almrei (2001-2009) and Adil Charkaoui (2003-2009). Neither man was ever charged. The government withdrew the security certificates after the court ordered the government to disclose part of its case. Neither have received an apology or citizenship.