==> For recent news on Security Certificates, please visit Security Certificate updates.

Security certificates are a measure of the Immigration and Refugee Protection Act (IRPA) which allow for the preventive arrest and detention of non-citizens, without charge, under secret evidence. They were introduced in their present form in 2002, but have been part of the Immigration Act since 1991. Since that date, 27 people have been subject to this process, the last one in May 2003. This process means that non-citizens are subject to years of indefinite detention under threat of deportation to torture, without a fair trial.

The national Abolish Security Certificates campaign has been organizing specifically in the post 911 climate around the case of 5 men, who constitute the “secret trial five”. These men are Mohammed Mahjoub (country of origin Egypt, detained since June 2000); Mahmoud Jaballah (country of origin Egypt, detained since August 2001); Mohamed Harakat (country of origin Algeria, detained since December 2002); Hasan Almrei (country of origin Syria, detained since October 2001), and Adil Charkoui (country of origin Morocco).

WHAT ARE SECURITY CERTIFICATES?

Under the new Immigration and Refugee Protection Act, there is mandatory detention under § 82(2), which states that “[a] foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.” § 77(1) provides that the Minister of Immigration and the Solicitor General of Canada “sign a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.” The decision that leads to inadmissibility is taken by the executive and not by a judge. A Federal Court Trial judge only has the power to decide if the certificate is reasonable, and based on this decision either upholds or quashes the certificate. The decision of the designated judge has far-reaching implications for a permanent resident like the appellant, who will be deported from the territory, this decision being final and without appeal.

Amnesty International has written, “the security certificate process may very well result in arbitrary detention and thus violate the fundamental right to liberty.” The detainees are not informed of the precise allegations against them. They see only a summary of the evidence and evidence maybe presented in court in the absence of the detainee or their lawyer. The detainee is not afforded a right to examine any of the witnesses. Thus there is no means for the appellant to test the validity and credibility of this information and thus it is difficult if not impossible for him to refute it. The detainees may be detained indefinitely without any charges laid against them. The UN Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment, adopted by the UN General Assembly in 1988 establish that anyone who is detained shall be given an “effective opportunity” to be heard by a judicial or other authority, has the right to defend him or herself, and shall received “prompt and full communication” of any order of detention “together with the reasons therefore.” The Basic Principles on the Role of Lawyers, adopted in 1990, underscore that lawyers must be given access to “appropriate information, files and documents” so that they can provide their clients with “effective legal assistance.”

The security certificate process undoubtedly violates principles of due process and justice and the fundamental principle of innocent until proven guilty. It violates the prohibition against indefinite detention. The standard of evidence adopted by Parliament to justify the issuance of a security certificate is too minimal, since it is enough to have reasonable grounds to believe that the acts have occurred, are occurring or may occur when this standard should have been more stringent and require that the acts be proved according to the standard of the balance of probabilities. The Security Certificate process contravenes the right to a fair trial before an independent and impartial tribunal, when, for example, the designated Federal Court judge must determine the “reasonableness” of the security certificate issued by the ministers and not the merits of the case. Under paragraph 78(j), the designated judge may admit, and base his decision on, any evidence that he considers useful, even if it is inadmissible at trial.

DEPORTATION TO TORTURE

Canada has signed the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 3 states: No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Facilitating torture is never acceptable. In this case, it is made even more shocking by the fact that not one piece of credible evidence has been made public to support the claim that these men in any way pose a threat to Canada. None have been charged with any crime. All have been denied a fair trial.

While the Canadian government has, in these and other cases, sought and obtained “diplomatic assurances” from foreign governments that no harm will come to deportees, this practice has been exposed by a Human Rights Watch report of April 2004 as, at best, lacking credibility: “Some governments … are returning alleged terrorist or national security suspects to countries where they are at risk of torture or ill-treatment. Governments have justified such acts by relying on diplomatic assurances—formal guarantees from the government in the country of return that a person will not be subjected to torture upon return. Some states appear to be returning people based on diplomatic assurances with the knowledge that torture will be used upon return to extract information and confessions regarding terrorist activities and associations. … The dangers of relying on diplomatic assurances as a safeguard against torture are apparent.”

The United Nations Committee against Torture, in 2000, informed Canada that it is a violation of the UN Convention against Torture to deport an individual to face a substantial risk of torture, including when there are security concerns. The Canadian government has already recognized themselves that at least three of the men will face significant risk of torture if deported.

GUANTANAMO NORTH

On April 24th 2006, four of the “secret trial five”, Mohammed Mahjoub (almost 6 years into detention), Mahmoud Jaballah (on his third certificate), Hassan Almrei (4.5 years into detention) and Mohamed Harkat (detained for over three years) – were transferred to Millhaven prison near Bath Ontario. In the midst of this maximum security prison now exists a $3.5 million dollar six-cell facility Kingston Immigration Holding Centre (KIHC), created especially for security certificate detainees and run by the Canadian Border Services Agency (CBSA). This is the prison that is now also known as “Guantanamo North” and is the latest addition to the hardships that the Canadian government has inflicted on the detainees and their families – cutting them off even further from their loved ones and legal counsel.

RACISM AND THE WAR ON TERROR

Under the guise of the “war on terrorism”, racial profiling and racism against Arab, Muslim and South Asian communities has increased. Racial profiling imposes a double standard on our communities by which we are held collectively responsible, and then demonized and criminalized, for the actions of individual members of our communities.

History should stand as warnings to us with the red scare of the McCarthyist era and the internment of Japanese-Canadians (so-called “enemy aliens”) during WWII. Throughout Canada’s history, “national security” has been used to legitimise a series of exclusionary policies that have targeted racialized “non-citizens”, communists, socialists, anarchists and leftists more generally, as well as First Nations and black activists, lesbians, bisexuals, gay men, and other sexual minorities, along with many others. In particular, “national security” concerns have had a direct impact on Canadian immigration policies and have been used as a tool of immigration control by creating a sense of fear and threat posed by “outsiders” to the Canadian nation and its “legitimate” citizens. Such policies have functioned as a discriminatory social filter that defines who gets to be Canadian and who poses a threat to those who qualify.

For example in 1942, supported by the Canadian public, 22 000 Japanese people in Canada were taken from their homes over a nine month period for “National Security” reasons in the midst of World War II. By October 1942, 8 internment camps had been established in the interior of B.C.. Families were separated and all assets and belongings were seized. As men were sent to road camps in B.C., sugar beet projects in the Prairies or detained in a prisoner of war (POW) camp in Ontario. Women and children were sent to 6 inland B.C. towns. Citizens of Japan sent food shipments via the Red Cross to these towns as living conditions were so poor. Those who refused to be moved faced deportation to Japan.

Similarly, security Certificates process- a form of legislated racism- is the recent manifestation in this historic trend of racism, exclusion, and the ideology of Otherness. Security certificates only apply to permanent residents and refugees. They thus deny certain classes of people in Canada their fundamental rights – an unacceptable discrimination. Human rights are inalienable and do not depend on citizenship status. As the British Law Lords ruled on Dec. 16, 2004, this form of discrimination violates basic human rights. If citizens whom CSIS considers security risks are free, why should non-citizens be jailed indefinitely or deported without charges or recourse to appeal? Secret trials for refugees and immigrants are just the beginning and should stand as warnings to us. If national security is not about safeguarding fundamental freedoms and values, what is it about?

RESISTANCE TO SECURITY CERTIFICATES

International rights organizations criticize security certificates. Human Rights Watch, Amnesty International, the United Nations, the International Civil Liberties Monitoring Group, and many others have sent submissions to the government of Canada protesting security certificates. Over 60 Canadian law professors and legal association representatives protest Security Certificates. In October, 2004, a coalition of law professors and defense lawyers wrote to Public Safety Minister Anne McLellan, setting out the egregious flaws they say combine to deny due process to those held on security certificates. Even Federal Court judges dislike them; Federal Court Judge, Andrew Mackay complained in May of 2003, “In this great city of Toronto, we have our own Guantanamo Bay.”

Despite its existence for over 20 years, public light has rarely fallen on this legal process until a campaign against security certificates was launched in Toronto, Ottawa, and Montreal (cities where the men were originally held). Therefore, much of the effective resistance to the security certificates regimes has come from the detainees, their families, and grassroots supporters, who have tirelessly fought against the fundamentally unjust process.

Over the past several years, for example, the detainees have been on near-fatal hunger strikes. The hunger strikes have often focus on basic, material considerations for the detainees, such as medical treatment in detention, and other services available in other Canadian prisons, but not in the Kingston facility, demonstrating the legal and political limbo that these men are in.

On January 8, 2007 the three detainees released an open letter, part of which states “Like the detainees in Guantanamo Bay, Cuba, we are held indefinitely. This is a kind of psychological torture that is almost unimaginable. We do not know when, or if, we will be released from jail We have been very patient and done our best to deal with a process where it is impossible to defend yourself. And we will remain patient, because we know that ultimately, we will be let out, because we are innocent men. But sometimes there is only so much human beings should be required to accept before they raise their voice in peaceful protest We do not want to be on hunger strike. It is hard on us and our families. But it is the only voice we have.”

SUPREME COURT OF CANADA DECLARES SECURITY CERTIFICATES ARE UNCONSTITUTIONAL

On February 23 2007, the Supreme Court of Canada ruled that the security certificate process is unconstitutional, re-affirming that the right to a fair trial applies to everyone in Canada. This is a victory that is the direct result of the courage demonstrated by the detainees and their families and the grassroots mobilizing that has grown over the years. The Court gave Parliament one year to amend the provisions to bring them in line with the Charter.

It is also important to note that this is not a complete victory as we struggle for Security Certificates to be abolished completely instead of replacement legislation such as that based on the UK ‘special advocate’ system which will continue to operate in secrecy and unjustly. In announcing his resignation as a Special Advocate with the Special Immigration Appeals Commission in the UK, Ian Macdonald said that he felt he was being used to “provide a false legitimacy to indefinite detention without knowledge of the accusations being made and without any kind of criminal charge or trial.

DEMANDS OF THE CAMPAIGN

We demand that the Security Certificate process be completely abolished.

For those currently still imprisoned under security certificates, we demand:
– The immediate closing of the Kingston Immigration Holding Centre
– That they be released immediately; or, if any case against them actually exists, that they be allowed to defend themselves in open, fair and independent trials with full disclosure of the case against them.
– That they not be deported.