Security Certificates: Is this Canada
On 21 May 2003, Montreal resident Adil Charkaoui brought his pregnant wife to her gynaecologist, dropped her at a cousin’s and began to head towards the University of Montreal, where he was taking a Masters degree in teaching. In the middle of the highway, he suddenly found himself surrounded by police and summarily arrested. With great media fanfare, but no evidence, he was declared a threat to national security. He has been imprisoned without charges, on allegations that neither he nor his lawyer are allowed to see, ever since. For almost a year, he and his family have been living under the constant fear of his deportation to Morocco, the country where he was born. There, because of the case that has been made against him in Canada, he is likely to suffer further attacks on his dignity and rights; such as imprisonment without charges, torture, cruel and unusual punishment - and even death.
Mr. Charkaoui describes years of intimidation and harassment by CSIS agents leading up to his arrest. He vehemently denies that he is a “terrorist” and that he represents any danger to the public or to national security. He says his arrest is directly related to his refusal to use his connections to Muslims in Montreal to become an informer for CSIS. He also recognises that the Canadian government is under political pressure to produce high profile cases like his to show the White House that they are doing their part in the “war on terror”, a campaign that, all too often, uses terrorist techniques itself.
Charkaoui is one of Canada’s Secret Trial Five, five Muslim men whose lives have been torn apart by accusations they are not allowed to fight in a fair and independent trial. Three men are imprisoned in Toronto: Mohammad Mahjoub, a refugee from Eygpt who has been in prison since June 2000 (almost four years in prison without charge); Mahmoud Jaballah, a refugee from Egypt who was arrested in August 2001 (three years this summer), and Hassan Almrei, a refugee who has been facing deportation to Syrian torture, just like Maher Arar, since October 2001 (two and a half years in solitary). The fourth man, Algerian refugee Mohamed Harkat, was arrested in Ottawa in December 2002, ironically on Human Rights Day.
All five men were arrested under “security certificates,” a measure of the Immigration and Refugee Protection Act (IRPA) which has been described by Amnesty International as “fundamentally flawed and unfair”. They are imprisoned without charges on secret evidence and face deportation to their countries of origin, even if there is a substantial risk of torture or death.
Some Key Issues
The court is not given the power to decide on the truth of the allegations.
A Security Certificate is issued when two federal ministers - the Minister of Public Safety, Anne McLellan and the Minister of Citizenship and Immigration Joe Volpe - sign off on the certificate that CSIS presents to them. Although a judicial review of their decision is allowed, the court is not given the power to judge the truth of the allegations. The judge can only decide on whether it is possible that the allegations are true; on whether the two Ministers had “reasonable grounds” to sign the certificate. In the end, this is a political decision, which is fought in the arena of media sensationalism, public opinion, party politics, pressure from the United States administration, and behind-the-scene games in the shadowy spy world of CSIS and the RCMP. It is the end result of this political struggle, not facts weighed up in a fair and independent trial, which will determine the fate of the “Secret Trial Five”.
Secret trials are fundamentally unfair. Neither the detainee nor his lawyer are informed of the precise allegations or provided with the full information against him - they are only given a summary. Evidence, which is not included in the summary, can be presented at any time to the judge in the absence of the detainee and his lawyer. Normal standards of evidence are explicitly waived. As lawyer Edward Greenspan wrote, “The evidence can be hearsay, double hearsay, triple hearsay”. Information based on confessions under torture and plea-bargains, which would generally be inadmissable, or at least highly questionable on grounds of ethics and credibility, is apparently used. There is no right to cross-examine witnesses who have made allegations. The result is that both the original approval of the certificate (by the two Ministers), and then the judgement on whether it is “reasonable” (by a Federal Court judge), are based on one-sided arguments, without access to counter-evidence and context that a defense would normally bring forward. This violates a fairly fundamental playground rule: that both sides of the story are heard.
There is no appeal. Once the Federal Court judge decides that there are “reasonable grounds” to issue the security certificate, there is no appeal. Similarly, once the judge reviews the decision on whether to grant protection there is no appeal. Lawyer Greenspan calls this “a glaring violation of a basic tenet of the rule of law.” Constitutional lawyer Julius Gray argues that it is in fact unconstitutional, along with other elements of the secret trial process.
The detainee can be imprisoned indefinitely. Refugees are not given any chance of release on bail during the proceedings. They can be held indefinitely: years of prison without charge. In the case of Mohammad Mahjoub, this has meant jail for almost four years! For permanent residents like Adil Charkaoui, the court is required to conduct a detention review every six months. In Charkaoui’s case, the judge has already refused release on bail twice, on the basis that the secret evidence he has seen makes him think that it is possible that a threat exists - before the case has even been heard! In effect, his decision reverses the fundamental rule of innocent until proven guilty.
The men can be deported, even if their lives are threatened. A substantial risk of torture and even death exists for all five men - in some cases, because of the case that has been made against them in Canada. For example, under Immigration Canada’s own assessment, Adil Charkaoui faces a “risk of torture,” and a “threat to his life or risk of cruel and unusual punishment” if he is deported to Morrocco (ERAR, 21 August 2003). Both Human Rights Watch (25 March 2004) and Amnesty International (28 July 2003) agree with this assessment and it is further substantiated by a detailed report on Morocco’s “anti-”terror measures, released in February 2004 by the Fédération Internationale des Ligues des Droits de l'Homme (FIDH). But this is not enough! Deportation may still go ahead, even though torture is a crime against humanity. The UN Committee against Torture actually had to remind Canada in 2000 that it is a violation of the UN Convention against Torture to deport someone to a substantial risk of torture, including when there are security concerns. Where security concerns actually do exist, other solutions can and must be sought. Nothing justifies knowingly sending someone to torture, cruel and unusual punishment, and death.
The security certificate process undermines the Charter of Rights and violates Canada’s international obligations. Amnesty International “is of the view that the security certificate process may very well result in arbitrary detention and thus violate the fundamental right to liberty.” Amnesty also believes that the Secret Trial Five are “effectively denied their right to prepare a defense and mount a meaningful challenge to the lawfulness of their detention.” According to Amnesty, this puts Canada on the wrong side of articles 9 and 14 of the International Covenant on Civil and Political Rights (Amnesty International, 31 March 2004).
This is a discriminatory measure. Security certificates only apply to Permanent Residents and Refugees. They thus deny certain classes of people in Canada their fundamental rights - a completely unacceptable discrimination. Human rights are inalienable and do not depend on legal status.
Secret trials for refugees and immigrants are just the beginning. Muslim and Arab communities and civil liberties more generally are being threatened by hysteria around national security. The Security Certificate, which dates back to 1991 and was reintroduced in the Immigration and Refugee Protection Act in 2002, is one of the roots of the attack that has been mounted, with frightening rapidity, on civil liberties and international norms since 11 September 2001. Now, “national security” is endangering all of us. It is being used to justify Bill C-18, which would amend the Citizenship of Canada Act to subject naturalized citizens to indefinite detention, secret trials, and deportation. With C-36, the Anti-Terrorism Act, similar violations of rights are extended to all citizens. The historical parallels are clear: Japanese interned in Canada during World War II; the “red scare” of the McCarthy era; even the rise of fascism in Germany in the 40s. These should stand as warnings to us. If national security is not about safeguarding our fundamental freedoms and values, then what is it about?
We must not let fears about terrorist attacks blind us to some very obvious questions:
Why are these men not permitted to argue against precise charges in a free and fair trial?
Why don’t ordinary standards of evidence apply?
Why is there no appeal?
Why can’t the Minister’s security concerns be satisfied by less abusive measures than a secret trial, indefinite imprisonment and deportation to torture or death?
We demand the following of our Federal government: 1) that the Security Certificate process be abolished; 2) that those currently imprisoned under security certificates 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.
FOR MORE INFORMATION: http://www.adilinfo.org