The recent addition of special advocates to the security certificate process does little to protect the accused by Janet Cleveland, Sharryn J. Aiken and François Crépeau. Ottawa Citizen Special. Wednesday, October 31, 2007

Underlying much of the debate on security certificates, including the proposed new law, is the unspoken assumption that non-citizens are more dangerous than citizens, and this justifies subjecting them to procedures that we would immediately condemn as unjust if done to citizens. Yet non-citizens are our neighbours and co-workers, who live, work and raise their families in Canada while in the process of obtaining citizenship. Under the Canadian Charter of Rights and Freedoms, non-citizens are guaranteed most of the same rights as citizens, notably the right to equality and the right to fair and just treatment if their life, liberty or personal security are at stake. The new security certificate law is virtually identical to the old one, declared invalid by the Supreme Court.

Non-citizens suspected of being a risk to national security may be detained indefinitely on the basis of secret evidence or deported even if they risk torture. These decisions are based on “evidence” constituted largely of unverifiable reports from foreign intelligence agencies based on often unreliable informers, and also declarations made under torture — the same kind of “evidence” that sent Maher Arar to torture in Syria. The judge must uphold the certificate unless convinced that it is not reasonable (a very low standard of proof for the government).

The novel feature in the new law is a “special advocate” modelled on the United Kingdom’s system. Once the special advocate has seen the secret evidence, he or she may not communicate with anyone about the proceedings except with the judge’s authorization. For example, if an informer has allegedly seen the person named in the security certificate in a training camp in Afghanistan on a certain date, the special advocate will not be permitted to ask the person where he was on that date, whether other people can confirm his whereabouts, and so on. Yet this kind of fact-checking is crucial to test the accuracy of such allegations.

The government would have us believe that the Supreme Court gave its advance stamp of approval to U.K.-style special advocates. This is simply not true. In fact, the court noted that the U.K. regime has been criticized for not providing sufficient guarantees of due process, and pointed to alternative Canadian models in the national security arena, including the procedures used before the Security Intelligence Review Committee (SIRC) that oversees CSIS activities, the Maher Arar inquiry and the Air India trial. In the first two cases, special counsel may communicate with the person involved after having seen the secret evidence, while in the third case, a defendant’s counsel was allowed access to such evidence. In all these cases, counsel must avoid disclosing the secret evidence to the person concerned, but can ask the person questions aimed at testing its accuracy.

In July 2007, the Joint Committee on Human Rights of the U.K. House of Commons and House of Lords concluded that the British special advocate process was “very far removed from what we would consider to be anything like a fair procedure.” To make the system minimally fair, it recommended that special advocates be allowed to communicate with the person concerned after having seen the secret evidence; that the government be obliged to inform the person of the gist of its case against him; and that the government be held to a higher standard of proof, preferably a balance of probabilities standard.

The new security certificate regime proposed by the Canadian government falls far below these recommendations. Yet even if all these safeguards were added to the security certificate regime, it would remain unjust. Contrary to the claims of its proponents, the law is not an instrument of border control that serves to turn away potentially dangerous foreigners on the basis of acts committed overseas. Security certificates are used against people who have been living in Canada, often for years, as refugees or permanent residents. If such resident non-citizens have committed a crime, they should be charged and tried, in the same way as citizens, under the criminal justice system.

This is not only a matter of fairness to non-citizens residing in Canada, important though that is. It’s a matter of effectively protecting the Canadian public by accurately identifying real threats to our security on the basis of reliable evidence that stands up to scrutiny.

As former U.K. special advocate Ian MacDonald has explained, cross-examining intelligence officers is often of little use to test accuracy because the officers have no first-hand knowledge of the facts, largely gleaned from reports from foreign intelligence services, which in turn are based on unchecked statements made by informers, including statements made under torture. Mr. MacDonald contrasted this with good police investigation, based on gathering first-hand evidence that must be sufficiently reliable and pertinent to convince an independent judge that the person committed a crime.

Security certificates — with or without special advocates — are based on blind faith in the reliability of “intelligence” provided by CSIS. How many more Air India and Arar cases will it take before we realize that this is a really, really bad idea?

Determining individual guilt is the job of the criminal justice system, for citizens and non-citizens alike.

Janet Cleveland is a researcher for the Canada Research Chair on International Migration Law at the Université de Montréal, Sharryn J. Aiken is a law professor at Queen’s University, and François Crépeau is a professor of law and Canada Research Chair on International Migration Law at the Université de Montréal.