Michael Larsen, Prism Magazine, 26 January 2011

On January 21, 2011, Mohamed Harkat, his wife Sophie, his lawyer Matt Webber, a group of supporters and members of the media converged on the Ottawa offices of the Canada Border Services Agency (CBSA), where Harkat was served with paperwork announcing the commencement of a deportation process against him. The filing of these documents comes in the wake of the Federal Court’s December 2010 decision to uphold the security certificate against Harkat and, in so doing, extend the veneer of legitimacy that covers the secret trial process. Matthew Behrens has unpacked the decision and discussed its implications in two articles for Prism (Part 1 and Part 2).

On the same day that CBSA served him with the initial deportation paperwork, Judge Noel of the Federal Court issued a judgement in response to a series of questions proposed for certification by Harkat’s public counsel in the wake of the December ruling. By certifying a question, the Court recognizes that it is of general importance, transcending the immediate interests of the parties involved, and gives counsel leave to pursue the issue in an appeal process. While Noël – the same judge who declared the certificate in Harkat’s case to be ‘reasonable’ – refused to certify most of the questions, he did recognize two:

First, does the security certificate process breach Section 7 of the Charter by denying the person concerned a right to a fair hearing (by denying them access to the secret intelligence that forms the bulk of the case against them), and, if so, is this breach ‘saved’ by Section 1 of the Charter? This gets at the heart of the secret trial problem, and could form the basis for the next major constitutional challenge to the certificate regime. Certificates have been operating in their current form since a 2008 legislative amendment introduced special advocates to ‘fix’ the regime and respond to the Supreme Court’s 2007 decision in Charkaoui #1 that found the process to be unconstitutional.

Second, do human sources benefit from a class-based privilege exempting them from identification by special advocates save in instances where the advocates can demonstrate a “need to know” exception? This relates to the so-far-successful assertion by the Canadian Security Intelligence Service (CSIS) of the right to categorically refuse to identify its covert human sources – much less produce them for cross-examination – despite the fact that special advocates are security-cleared and sworn to secrecy. Questions around the credibility and motivations of covert human sources are at the core of the secret trial problem, and extend beyond it to other instances of judicial decision-making based on input from secret informants.

It is unlikely that the federal government will take concrete steps to remove him from the country while the appeal process is ongoing, and certainly not without first addressing the risk of removal-to-torture

The next stage in Mohamed Harkat’s Kafkaesque legal saga will involve arguments around these questions, and this could take months or years, depending on how far the appeals process goes. Given this, and given the persistent and well-founded concern that deporting Harkat to his native Algeria could expose him to a risk of torture (he fled Algeria in 1995 and successfully applied for Convention refugee status in Canada in 1997, on grounds of a fear of government persecution), CBSA’s move to initiate deportation proceedings seems premature and decidedly political. It is unlikely that the federal government will take concrete steps to remove him from the country while the appeal process is ongoing, and certainly not without first addressing the risk of removal-to-torture. Serving him with deportation papers at this time appears to be a symbolic act of security theatre – an indication of the government’s continued commitment to the secret trial regime and a gesture to demonstrate that the process still functions.

After all, the Federal Court’s decision to uphold the certificate against Harkat follows on the heels of the collapse of the certificate cases against Adil Charkaoui and Hassan Almrei. The quashing of those certificates led many to speculate that the security certificate regime itself was crumbling, or at the very least unworkable (not to mention inherently unjust), and it is likely that a similar decision in Harkat’s case could have been interpreted as the tipping point. By upholding the certificate against Harkat, the federal court has given the government the opportunity to re-take the initiative and re-assert the legitimacy of the process. Noël’s December decision reflects a remarkable (enthusiastic, even) degree of support for the security certificate regime, indicating the Court’s willingness to uphold a certificate despite clear evidence of bad faith and lack of candour by the Ministers, the mishandling and destruction of crucial information by CSIS (including all original records), the use of unreliable witness testimony, and the probability that third-party intelligence used in the case was obtained through torture.

And so, for now, the government will move to follow through on the security certificate against Mohamed Harkat, while simultaneously pursuing two other certificates against Toronto men Mahmoud Jaballah and Mohammed Mahjoub. On the front stage – the public stage – of the certificate regime, the government’s message is one of commitment  to the current secret trial process.

But is this public commitment reflective of what is going on back stage, behind the scenes? Not necessarily. In the meeting rooms of the Ministers, the Privy Council Office, and the various government departments involved in the security certificate regime, fundamental changes to the mechanism are being contemplated.

While the government maintained its public position of support for security certificates throughout 2009 and 2010, a number of unpublicized internal reviews of the regime were initiated. For over a year, I have been attempting [1] to learn more about these reviews, and about the planned future for security certificates, using access to information law. Unfortunately, but not unexpectedly, the cloak of secrecy that characterizes the security certificate regime has extended to my requests for information, resulting in redaction, excluded documents, and delays in violation of the Access to Information Act. Despite this obstructionism, it has been possible to obtain some partial records that hint at what the government has been doing with ‘the security certificate question’. In the interest of facilitating the most informed public debate possible, I have compiled a summary of some of this information below.

On Tuesday, March 24, 2009, a number of government agencies began meeting as part of an “Interdepartmental Working Group on Alternatives to Removal”. Members of this working group include representatives from the Department of Justice (the co-chair), Public Safety Canada (Co-chair), the Canadian Border Services Agency, the Canadian Security Intelligence Service, Citizenship and Immigration Canada, the Department of Foreign Affairs and International Trade (DFAIT), the Privy Council Office, and the Royal Canadian Mounted Police. The mandate for this working group is unclear, as their terms of reference have been redacted. The “Scope” of the working group “should be broader than security certificates”, according to documents obtained from DFAIT. The Working Group was tasked with completing its work within a 9-10 month window, and with providing analysis regarding a number of options for “alternatives to removal” that were presented during the initial meetings.

As part of its work with the Interdepartmental Working Group on Alternatives to Removal (and its work with the Special ADM Steering Committee on Diplomatic Assurances”, which was already meeting in April 2009), DFAIT produced a report outlining Policy Recommendations on “Pursuing Diplomatic Assurances”.[2] Their report, which includes a redacted recommendation, begins by noting that:

“Canada is under positive obligation, both in international and domestic law, not to return a foreign national to a country where there is a substantial risk that they will be subject to torture (the prohibition against refoulement). The prohibition creates the dilemma of how to deal with a person who poses a serious threat to the security of Canada, yet who cannot be returned to their country of origin because there is a substantial risk of torture. One possible solution to this dilemma is to seek assurances from the receiving state that the individual will not be tortured.

In this context, assurances against torture provide a mechanism which may be used to facilitate the deportation of certain inadmissible foreign nationals who allege they will be tortured upon removal. The goal of such assurances is to mitigate the risk of torture a foreign national might otherwise face upon removal and thereby ensure a level of protection sufficient to permit deportation in compliance with international law and without resort to the Suresh exception.

To date, Canada has not been able to rely on such assurances to deport individuals to countries where they might otherwise face a substantial risk of torture

As they are the product of diplomatic negotiations, the content of assurances against torture can vary. The scope and level of specificity ultimately may affect the assessment of their reliability. Some assurances may simply reaffirm existing obligations under international law. Canada has obtained such assurances from a number of countries in the past, including Egypt, China, and Sri Lanka. To date, Canada has not been able to rely on such assurances to deport individuals to countries where they might otherwise face a substantial risk of torture.

Other assurances may provide for access to counsel or to an independent medical exam, guarantee certain fair trial rights or establish monitoring mechanisms. The Federal Court in Lai (2007) held that it as patently unreasonable for a PRRA [pre-removal risk assessment] officer to rely on assurances against torture in China, as, among other things, the PRRA officer failed to consider whether it was appropriate to rely on the assurances in the absence of any effective monitoring mechanism. Similarly, the UK House of Lords confirmed that, where there is a widespread pattern of human rights abuses in the country of return, assurances must be carefully scrutinized to determine whether they provide reliable and sufficient protection against a substantial risk to the individuals to be returned. In doing so, the UK House of Lords upheld a series of decisions relying on assurances from Algeria and Jordan to justify deportation. The individuals in these cases were covered under framework agreements or memoranda of understanding for removals negotiated by the UK with Algeria and Jordan. The MOUs provide for independent or other monitoring mechanisms.

The decision by the House of Lords, even if subject to review by the European Court of Human Rights, has recognized that, in at least some cases, reliable assurances against torture can sufficiently minimize risk to permit removal to countries with poor human rights records. The legal debate has shifted from broad arguments of principle about whether assurances can ever be appropriate, to fact-based arguments about whether assurances should be considered sufficient and reliable in the particular circumstances of a specific case.”

The remainder of the position paper, including sections on “Implementation”, “Resource Implications”, and “Considerations”, was redacted.

Another document released pursuant to an ATIA request to DFAIT appears to be a Department of Justice “Inventory of Alternatives to Removal Options in the Criminal Law”, with the caveat that “this document is not an inventory of all possible relevant measures that pertain to the ATR issue and should also not be considered to be a legal opinion”. This report is interesting, particularly in light of the sustained calls from human rights groups that security certificate cases could and should be prosecuted under criminal law, and not the IRPA. These calls have always been met with official insistence that certificates are not intended to be a parallel quasi-criminal procedure (though they certainly operate as such) or means of working around criminal law, but rather an entirely different process with different goals and objective. The Inventory report begins by noting that “There is a wide range of offences that may criminalize the behaviour of those who pose a security threat to Canada”, and proceeds to outline terrorism-related offences under the Criminal Code, offences under the Security of Information Act, and a wide range of non-terrorism Criminal Code offences. It also highlights the “preventative measures” available under the Anti-terrorism Act.

Alongside the Interdepartmental Working Group on Alternatives to Removal, the government has also undertaken an “Evaluation of the Security Certificate Initiative”, which has focused on the “protection/disclosure of classified information in immigration processes”, as well as the costs associated with the current security certificate regime.

By now, both the Evaluation and the Interdepartmental Working Group will have produced a number of interim and final reports and recommendations. We know that some of these reports have considered the viability of diplomatic assurances, whereas others have looked at criminal code alternatives to security certificates. We do not know the full terms of reference for the Working Group, as these were withheld. And we do not know what additional ‘alternatives to removal’ have been considered, or what concerns the working group members raised about these options.

What is clear is that the back-stage discussions about the future of security certificates – and alternatives to the security certificate regime – are not intersecting with a broader public debate

What is clear is that the back-stage discussions about the future of security certificates – and alternatives to the security certificate regime – are not intersecting with a broader public debate.

Since the passage of the Immigration and Refugee Protection Act (IRPA) in 2002, the trend has been for the government of the day to tenaciously cling to the existing security certificate regime, proclaim its legitimacy and constitutionality, describe it as a vital tool for “protecting Canadians”, and make only the most incremental of changes in response to Supreme and Federal Court decisions.

Moving forward, I think it is vitally important for us to connect the dots between the front and back stages of the security certificate regime: between the government’s aggressive public pursuit of the cases against the Secret Trial Five and internal discussions about the viability of the mechanism. It is in the vested interests of the current government – which is committed to the politics of insecurity, the centralization of power and the maintenance and expansion of secrecy – to keep close control of the products of the Interdepartmental Working Group on Alternatives to Removal and the Evaluation of the Security Certificate Initiative, as well as other internal discussions about the future of the certificate regime. Gaining access to these back-stage records is important for opponents of secret trials and those who value open, public, and democratic debate about the issues. This is especially true for the Harkats, their public counsel, and their supporters, as Mohamed Harkat’s case represents the first instance of the government taking steps to initiate a removal process in a security certificate proceeding since the various reviews of the certificate mechanism got underway.

In closing, here are a few questions that arise from what we have seen of these reviews so far. I hope that activists, journalists, and concerned citizens will join me in pressing the government for the answers.

1.  Has the Department of Foreign Affairs and International Trade engaged in discussions with foreign governments about ‘diplomatic assurances’ in relation to the current security certificate cases? In particular, have there been efforts to negotiate a diplomatic assurance framework with the Algerian government with respect to Mohamed Harkat?

2.  What were the terms of reference for the Working Group on Alternatives to Removal? The records released so far show four redacted bullet points.

3.  What are the contents of the final reports and recommendations that were produced by the Working Group, and by the Evaluation? Do the recommendations support a law reform agenda, and have steps been taken to draft ‘alternative to removal’ amendments to the IRPA or criminal law?

Mike Larsen is a PhD Candidate in Sociology at York University, and a Researcher at the York Centre for International and Security Studies.

Notes

[1] For additional commentary on the tensions between Access to Information processes and government secrecy claims in this context, see National Security Accountability and the Right to Know.

[2] Sections of this report and related records were released by DFAIT under the Access to Information Act. Copies of these records can be obtained by contacting DFAIT’s Access to Information and Privacy office and requesting a copy of the release package for ATI request A-2009-01668. The request was received by DFAIT on January 13, 2010. The small release package was sent to me on November 2, 2010, almost ten months later. The ATIA sets out a target of 30 days for the processing of an ATI request.