By Richard S. Rosenberg

"Five Muslim men face deportation-to countries where they are at risk
of torture- following the issuing of 'security certificates' naming
them as national security threats in Canada. Four are currently in
detention without charge, while another was recently released under
stringent bail conditions." [1]

The war against terrorism launched by the United States in response
to the terrible attacks on September 11, 2001 has had a devastating
impact on many people around the world and has influenced the
implementation of government security policies in many countries. How
effective these policies have been will not be discussed here, but
the impact in Canada of security certificates will be addressed,
particularly the assault on basic civil liberties.
Security certificates originated prior to the 9/11 events, but their
application is clearly motivated by the need to confront possible
terrorist actions. The Immigration and Refugee Protection Act (IRPA),
which came into force on June 28, 2002, had its origins many years
earlier in a series of extensive amendments beginning in 1992. Its
final form supposedly reflects perceived needs to deal with refugees
and immigrants to Canada in an age of terrorism. In concert with
other nations, Canada had the responsibility to enact legislation to
deal with possible terrorist activities, but the question is whether
or not certain sections of the legislation pose a significant
challenge to Charter rights.
The issue of concern here is the security certificate, a procedure
for dealing with cases for which the associated information poses a
security risk. Security certificates have been part of immigration
legislation for many years. In their current form, their use is
motivated by Section 34 of the IRPA, which provides the following
reasons for a permanent resident or foreign national to be
"inadmissible on security grounds:" [2]
(a) engaging in an act of espionage or an act of subversion against a
democratic government, institution or process as they are understood
in Canada;
(b) engaging in or instigating the subversion by force of any government;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the
lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable
grounds to believe engages, has engaged or will engage in acts
referred to in paragraph (a), (b) or (c).
Security certificates are issued by the Solicitor General and the
Minister of Citizenship and Immigration and referred to the Federal
Court for review. On December 12, 2003 the signing authority was
transferred to the new Minister of Public Safety and Emergency
Preparedness but a year later, the requirement again included the
Minister of Citizenship and Immigration. In 1996, the
constitutionality of the security certificate procedure was upheld by
the Federal Court of Appeal, in the case of Ahani v. Canada. [3]
"The applicant in that case sought a declaration that the process
violates section 7 of the Charter, which provides: 'Everyone has the
right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of
fundamental justice.' The Court held that the procedure is a
reasonable balance between the competing interests of the individual
and the state. An independent member of the judiciary is able to
review the certificate and the supporting evidence, and the person
concerned is provided a summary and an opportunity to be heard."
What of the current cases? Five Muslim men have been held under
security certificates, beginning with the first one in June 2000,
actually before 9/11. In more detail, the following men were arrested
on the dates shown: [4]
"Three men are imprisoned in Toronto: Mohammad Mahjoub, a refugee
from Egypt who has been in prison since June 2000; Mahmoud Jaballah,
a refugee from Egypt who was arrested in August 2001, and Hassan
Almrei, a refugee who has been facing deportation to Syrian torture,
just like Maher Arar, since October 2001. The fourth man, Algerian
refugee Mohamed Harkat, was arrested in Ottawa in December 2002,
ironically on Human Rights Day. The fifth, Adil Charkaoui from
Morocco, was arrested in Montreal in May 2003."
The arrests of these five Muslim men has aroused considerable
interest and concern from a rather small segment of the Canadian
community. Surely, the apparent assault on Charter rights should have
stimulated a cross-country debate about the supposed exchange of
security versus civil liberties. The usual civil liberties defense
has been made, but has not resulted in a public demand for charges to
be presented in open court. Various Islamic groups have expressed
their concern about the basic inequities in the use of security
certificates, especially the obvious risks if these men are deported.
Sympathetic lawyers have volunteered their time to appeal, but
success has been quite limited. For example, on December 10, 2004, in
the case of Adil Charkaoui, who had been accused of being an al-Qaeda
operative, a three-judge panel of the Federal Court of Appeal ruled
that, "Security certificates used to detain suspected terrorists
indefinitely for months without charge are constitutional.
Furthermore, the Court ruled that, 'The appellant has been unable to
demonstrate that the procedure for reviewing the reasonableness of
the security certificate issued against him ... do not meet the
requirements of the Charter,' The court ruled that non-citizens and
permanent residents can be subjected to a different standard of legal
treatment than citizens." [5] This claim must be challenged unless we
are willing to accept this proposition that in a democratic society
rights do not apply uniformly to all.
As of March 23 of this year, the status of these five men is as follows:
* Mahmoud Jaballah Wins Judicial Review on Deportation to Torture;
* Security Certificate Upheld in case of Secret Trial Detainee
Mohamed Harkat;
* Bail Hearing Continues for Secret Trial Detainee Mohammad Mahjoub;
* Security Certificate Hearing for Secret Trial Detainee (now
under house arrest) Adil Charkaoui Suspended Pending new Protection
Decision;
* Hassan Almrei marks 41 Months, Six Days in Solitary
Confinement in Toronto Detention Facility. [6)
Concerns expressed by their families and supporters have focused on
the following four demands: [7]
1. That the five men 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.
2. That they not be deported.
3. That the federal government abolish the secret trial security
certificate process.
4. That CSIS, RCMP, and CIC end its ongoing harassment and
intimidation of individuals and communities of Arab, Middle Eastern,
and South Asian heritage and/or Muslim faith.
Surely these demands make sense and represent a view of Canada in
which all are treated equally and equitably before the courts and in
society at large.
In a letter sent to Anne McLellan, Minister of Public Safety and
Preparedness, on October 14, 2004 by the Co-Chairs, Legal Affairs
Committee, Canadian Council for Refugees, and endorsed by more than
sixty law professors across Canada, the following three concerns are
presented: [8]
1. The Security Certificate process allows the arrest and
detention of non-citizens on the basis of secret evidence.
2. The Security Certificate process holds the State to a lower
standard of proof for the detention of non-citizens than for citizens.
3. The Security Certificate process allows for the removal to
persecution and torture of non-citizens.
The final paragraph of this letter expresses the basic civil
liberties concerns of most individuals and organizations with respect
to the current use of security certificates: [9]
"Minister McLellan, we recognize that there may be occasions where
special measures need to be taken to protect the public from grave
threats to their security. However, such measures must be very
carefully tailored to directly address serious threats, and must do
so in a way that respects the essential human dignity of all persons,
complies with universal norms of human rights, and upholds the rule
of law. The Security Certificate process, at least in its current
form, fails to meet these basic requirements. We therefore urge you
to immediately stay the removal of any person to a country where they
face a serious possibility of persecution or torture, and to overhaul
the Security Certificate process to bring it into conformity with
international human rights standards."
Distinguishing between the rights of citizens and non-citizens is in
general a mistake for a democratic society. Granted that in difficult
times, it may be necessary to temporarily abridge basic rights,
nevertheless such an action must not fall mainly on non-citizens.
Furthermore, the use of security certificates is a seriously flawed
process, rife with potential dangers, involving life-and-death
consequences.
It should be noted that the recent concern about security
certificates tends to overlook the fact that Ernst Zundel was
arrested on May 1, 2003 and held in solitary confinement under a
security certificate, after being deported from the U.S. Zundel's
lawyers appealed his imprisonment and impending deportation to
Germany and in February 2005 Mr. Justice Pierre Blais of the Federal
Court denied this appeal. Since his decision cannot be challenged,
Mr. Zundel was quickly returned to Germany, where he "faces an arrest
warrant on a charge of inciting hatred." [9] Among Justice Blais'
reasons for his decision are the following: [10]
* [He] labelled Mr. Zundel a racist hypocrite who has nurtured a
pacifist image to conceal his support of right-wing extremism and his
global propagation of anti-Semitic material. "Mr. Zundel seems to
thrive in this troubled sea, surrounded by ambiguity and hypocrisy."
* "Mr. Zundel's activities are not only a threat to Canada's
national security, but also a threat to the international community
of nations."
* Judge Blais said Mr. Zundel's Toronto home was "a revolving door"
for every member of a global white supremacist movement.
* He said Mr. Zundel deftly exploited Canada as a "safe haven," and
used his skills as a communicator and Internet pioneer to give new
life to the white supremacy movement.
Of course, the Canadian Jewish establishment and probably most Jews
were pleased with the decision, and called for quick action to deport
Mr. Zundel. Thus, the use of a security certificate and its attendant
civil liberties concerns was not at issue for them. Apparently, in
their opinion, his crimes are so egregious that basic civil liberties
need not apply in his case.
We conclude with the following suggestions for reforming the current
system, made by Jason Gratl, president of the BC Civil Liberties
Association, in an excellent analysis of security certificates: [11]
* Abandoning the Security Certificate programme altogether, by
placing the onus on the Minister to bring an originating motion to
the Federal Court or the Superior Court of a Province for a removal
order on national security grounds.
* Reversing the onus for state secrecy, by placing the
obligation on the government to apply for an Order and establish that
the information should be kept secret from (a) the public and (b) the
accused and (c) counsel for the accused.
* Permitting a security-cleared lawyer acting on behalf of the
person named in the Certificate to have access to the evidence and
participate in the in camera hearing.
* Reinstating basic rules of evidence in National Security
matters, or formulating legislative requirements to ensure judicial
decisions are grounded in reliable evidence.
* Establishing a right of appeal for deportees.
* Abolishing the designation of the Chief Justice to preside at
the hearing.
These are eminently reasonable, and reflect many of the points made
earlier. Because good results rarely follow the use of bad
procedures, to say the least, we echo Gratl's call to abolish the use
of security certificates. Other measures can achieve intended
outcomes without the wholesale compromise of basic civil liberties.

References
1. Amnesty International Canada <http://www.amnesty.ca/take_action/
actCertificates_300305.php>
2. Immigration and Refugee Protection Act, 2001, C. 27.
<http://laws.justice.gc.ca/en/
I-2.5/text.html>
3. [1996] F.C.J. No. 937 (FCA), affirming the more detailed reasons
of McGillis J. of the Trial Division at [1995] 3 F.C. 669.
4. (No One Is Illegal Campaign
<noii-van.resist.ca/security_
certificates/>)
5. "Security Certificates Constitutional, CBC News, December 10,
2004. <http://www.cbc.ca/story/canada/
national/2004/12/10/
scurity-certificate-041210.html>
6. Op. cit. No One Is Illegal Campaign.
7. Ibid.
8. Canadian Council for Refugees, October 14, 2004,
<http://www.web.net/~ccr/secretariat/>
9. Adrian Humphreys. "Zundel Accused of Trying to Destabilize German
Government." National Post, February 26, 2005, p. A6.
10. Kirk Makin, "Canada Court Finds Zundel Can Be Deported." The
Globe and Mail, February 25, 2005.
11. Jason Gratl. "Security Certificates." British Columbia Civil
Liberties Association, January 2005. <http://www.bccla.org/positions/
antiterror/05Security/Certificates/>