In support of prisoners and prison justice activism in Canada
Changes Demanded to National Security Certificate Process

Stark Raven News
November 15, 2004

Adil Charkaoui is one of 5 Muslim men being held in prison on a National Security Certificate. He is currently before the courts as a part of a constitutional challenge against the use of the Certificates.

Adil has been in jail over a year and a half.   Authorities want to deport Adil to Morocco, but his supporters said he faces torture there.

The use of National Security Certificates is being harshly criticized by various groups.   These include the Canadian Bar Association, the Canadian Criminal Lawyers' Association, the International Committee of Jurists and Amnesty International. They have all said the certificates violate fundamental rights and fair trial guarantees.

Under one of these Certificates, neither the accused nor their lawyer can see the evidence against them.   National Security Certificates are signed by 2 cabinet ministers.    Adil and the 4 other Muslim men being held on Certficates are being held without trial or charges.

A recent letter to demand changes to the law was endorsed by about 60 law schools and lawyers' associations.   It was recently sent to the Minister of Public Safety Anne McLellan. [See Below]

The letter expressed concerns that   the secret evidence used in Security Certificate cases is often too flimsy to stand up to examination in a real court of law. The defense can't hear it or cross-examine witnesses, meaning judges often have little choice but to accept it.


Lawyers Oppose Security-Certificates in Canada

With the security-certificate procedures, Public Safety Minister Anne McLellan and Citizenship Minister Judy Sgro need only sign their names to send people off to be tortured, warn SHARRYN AIKEN and ANDREW BROUWER on behalf of other legal experts

This pen is too mighty

By SHARRYN AIKEN and ANDREW BROUWER

Thursday, October 14, 2004 - Page A21 Globe and Mail

The stroke of a pen. That's all it takes to launch a procedure that begins
with the arrest and detention of a non-citizen and could ultimately lead to
his or her torture at the hands of a foreign government. The process begins
with the Solicitor-General and the Minister of Citizenship and Immigration
signing a security certificate alleging that a non-citizen presents a risk
to national security. The person may then be immediately arrested and
jailed, often for years, as the government takes steps to seek his or her
removal.

Currently, there are at least five people in Canada who have been subject to
security-certificate procedures on the basis of alleged links to terrorism.
These five men, all Arabs or Muslims, have been jailed, denied the right to
a fair hearing and face the imminent risk that they will be deported to
torture.

While both security certificates and the grounds for continued detention
must be reviewed by the Federal Court, the court may hear the government's
evidence in secret -- in the absence of both the subjects of the certificate
and their counsel. Ottawa isn't even required to disclose the precise nature
of the allegations; normal rules of evidence are dispensed with, including
the right to cross-examine witnesses and to challenge evidence obtained
through normally unacceptable means, such as hearsay or even torture.

Without knowing and being able to challenge the specific allegations and
evidence against a person, it's nearly impossible to mount an accurate,
credible defence. By waiving procedural safeguards that are essential to the
fair administration of justice, the security-certificate process puts all
the power in the hands of the government of the day and effectively strips
the accused of the right to know the case she or he must meet, or to
challenge the grounds of detention.

The state has a legitimate interest in protecting the nature and sources of
its intelligence information. However, under the former Immigration Act, the
Security Intelligence Review Committee had procedures for addressing such
evidence that struck a better balance between the state's interest in
protecting sensitive evidence and the individual's right to a fair hearing.

Without that fair hearing, Canada is failing to protect human rights. In
several existing security-certificate cases, our officials admit there's a
likelihood that subjects will be tortured by their governments if they are
sent back. Deporting to torture simply is not a legitimate response to a
perceived or alleged security threat and is unequivocally prohibited by
international law. While the Supreme Court of Canada, in Suresh v. Canada,
did not shut down the theoretical possibility of exceptional conditions that
might justify deportation to torture, the court emphasized that the minister
should generally not deport if there is substantial evidence of a risk of
torture.

There are other options. For example, on apprehending a non-citizen believed
to have committed terrorist acts, Canada may be able to prosecute the person
under the anti-terrorism provisions of the Criminal Code. Alternatively,
where an extradition request has been made, Canada may extradite the person
to face charges elsewhere, provided the person's fundamental human rights
will not be violated by that country. Both options meet the important goals
of avoiding impunity and protecting the public.

The right to be free from arbitrary detention, the right to a fair hearing,
as well as the absolute prohibition on torture, are pillars of democracy and
the rule of law. As a world community, we have guaranteed these rights, not
on the basis of the accident of our place of birth or social status, but on
the basis of our simple humanity. Only when these rights are respected and
protected for all can we expect to have a truly egalitarian, democratic
society.

We are gravely concerned that the security-certificate process denies to
non-citizens the due-process rights to which they are entitled as equal
human beings. Also of great concern is the denial of non-citizens' rights to
be free from arbitrary detention -- especially non-permanent residents, who
can be detained without even a warrant.

As undeniably serious as these violations are, they pale in comparison to
what for some is the eventual outcome: torture, perhaps the ultimate
violation of human dignity and fundamental human rights.

We recognize that there may be occasions where special measures need to be
taken to protect the public from grave security threats. However, such
measures should be carefully tailored to directly address serious threats,
and must do so in a way that respects essential human dignity, 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. While the number of people currently affected
is relatively small, the stakes for these individuals are extremely serious
-- as is the price we all pay when human rights are undermined. The
procedure should be immediately overhauled, so that it conforms to
international human-rights standards, standards that Canada has pledged to
honour.

Sharryn J. Aiken is assistant professor of law at Queen's University. Andrew
Brouwer is co-chair of the Legal Affairs Committee of the Canadian Council
for Refugees. This article is based on a letter sent today to Anne McLellan
and Judy Sgro by more than 40 law professors and national and provincial
legal networks, including the Canadian Bar Association.

++++++++++++++

October 14, 2004

Hon. Anne McLellan, M.P., P.C.,
Minister of Public Safety and Emergency Preparedness
House of Commons
Ottawa, ON
K1A 0A6
Canada

Dear Minister McLellan,

We are writing this letter to express our grave and urgent concern about
both the arbitrary detention and the removal to torture of non-citizens in
Canada pursuant to the Security Certificate procedure. We are aware that
there are at least five persons in Canada currently subject to Security
Certificate procedures who have been denied the right to a fair hearing and
face the imminent risk that they will be returned to torture, in violation
of universal norms of international law.

As you know, the rights to life, liberty and security of the person, the
right to be free from discrimination, as well as the prohibition on torture
are pillars of democracy and the rule of law. They are guaranteed not only
by our own Charter of Rights and Freedoms, but also by the Universal
Declaration of Human Rights, the International Covenant on Civil and
Political Rights, and numerous other international and regional human rights
treaties to which Canada is a party. As a world community we have guaranteed
these rights not on the basis of the accident of our place of birth or
social status, but on the basis of the simple fact of our humanity. In this
regard, section 3 (3) of the Immigration and Refugee Protection Act
explicitly confirms that the Act is to be construed and applied in a manner
that complies with international human rights instruments to which Canada
is signatory.

A number of further rights flow from core human rights principles. These
include the right to be free from arbitrary detention, the right to a fair
trial, and the principle of natural justice that an accused must be informed
of the charges against her and must be given an opportunity to respond to
the charges. It is only when these rights are respected and protected for
all that we can expect to have a truly egalitarian and democratic society.
The Security Certificate process violates these fundamental principles in
several crucial ways:

The Security Certificate process allows the arrest and detention of
non-citizens on the basis of secret evidence.

Under the amended provisions of the Immigration and Refugee Protection Act,
the Solicitor General and the Minister of Citizenship and Immigration may
sign a Security Certificate alleging a non-citizen to be inadmissible to
Canada on grounds of security or serious criminality. Upon being named in
such a Certificate, unless the individual is a permanent resident, the
subject is automatically detained, without a warrant. If the subject is a
permanent resident a warrant is required, but there must only be reasonable
grounds to believe the subject is a danger to national security or the
safety of any person, or is unlikely to appear for removal.

While both the Security Certificate and the grounds for continued detention
must be reviewed by the Federal Court, the Court may hear the government's
evidence in secret, i.e. in the absence of both the subject of the
Certificate and his or her counsel. Indeed, the government is not even
required to inform the detainee of the precise nature of the allegations at
issue. Normal rules of evidence are dispensed with, including the right to
cross-examine witnesses and to challenge evidence obtained through normally
unacceptable means such as hearsay, plea-bargains or even torture.

Minister McLellan, without knowing and being able to challenge the specific
allegations and the evidence against a person, it is in practice nearly
impossible to mount an accurate and credible defense. By waiving procedural
safeguards that are essential to the fair administration of justice, the
Security Certificate process puts all the power in the hands of the
government of the day and effectively strips individuals of their right to
defend themselves and to challenge the grounds of their detention. While we
appreciate the state's legitimate interest in protecting the nature and
sources of its intelligence information, under the former Immigration Act,
the Security Intelligence Review Committee had developed procedures for
addressing such evidence that struck a much better balance between the state's
interests in protecting sensitive evidence on the one hand and the
individual's right to a fair hearing on the other.

In its 2000 Report on the Canadian Refugee Determination System, the Inter
American Commission on Human Rights noted specific concerns with the
inequality of arms inherent in the Security Certificate process before the
Federal Court and urged Canada to enact additional safeguards to ensure that
the person named in the certificate has the ability to know the case he or
she must meet, and to enjoy the minimum procedural guarantees necessary to
ensure the reliability of the evidence taken into account.

The Security Certificate process holds the State to a lower standard of
proof for the detention of non-citizens than for citizens.

The standard of proof for detention of persons pursuant to a criminal
conviction in Canada is always the highest criminal standard of proof beyond
a reasonable doubt. This high standard has been deemed to be appropriate by
our Courts because of the fundamental importance of the interest at stake in
detention -- i.e. liberty.

Unlike the criminal law regime, when it comes to detaining non-citizens
alleged to represent threats to Canadian security, the reviewing Court is
restricted to assessing the "reasonableness' of the government's
allegations. That means that even where a Court comes to the conclusion,
based on one-sided, secret evidence, that the government's allegations are
incorrect, as long as the government's allegations aren't so obviously
incorrect that they are unreasonable, the Court is required to uphold them.
Once a Security Certificate has been found to be reasonable the matter is
closed: there is no appeal from such a finding. This differential treatment
is inherently discriminatory and fails to safeguard the rights of the
accused.

The Security Certificate process allows for the removal to persecution and
torture of non-citizens.

Canada has been invoking the Security Certificate process in cases where the
subjects face a serious risk of torture if they are deported. Torture and
sending a person to where s/he will be tortured (refoulement) are prohibited
by international law. The Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment and the International Covenant
on Civil and Political Rights, to both of which Canada is a party, as well
as customary international law, include an absolute prohibition on torture
and refoulement to torture. International law recognizes no circumstances
that would justify torture or refoulement to torture.

In a number of the cases currently going through the Security Certificate
process, Canadian officials have acknowledged that it is more likely than
not that the subjects will be tortured by their governments if they are sent
back. Nevertheless, Canada continues to seek their removal to torture, in
contravention of international law.

Minister McLellan, there are other options. For example, upon apprehending a
non-citizen believed to have committed terrorist acts, Canada may be able to
prosecute the person under the anti-terrorism provisions of the Criminal
Code. Alternatively, where an extradition request has been made, Canada may
extradite the person to face charges elsewhere, provided the person's
fundamental human rights will not be violated by that country. Both of these
options meet the goal of avoiding impunity and protecting the public, and
have been repeatedly advocated by the UN General Assembly, the UN Security
Council, and international legal scholars. At its recent conference in
Berlin, the International Commission of Jurists adopted the Declaration on
Upholding Human Rights and the Rule of Law in Combating Terrorism. The
Declaration specifically affirms the principle that states should apply and
where necessary adapt existing criminal laws rather than resort to extreme
administrative measures in efforts to combat terrorism.

Refoulement to torture simply is not a legitimate response to a perceived or
alleged security threat at international law. With respect to Canadian law,
while the Supreme Court of Canada, in Suresh v. Canada (MCI), did not
completely foreclose the theoretical possibility of exceptional conditions
that might justify refoulement, the Court emphasized that the Minister
should generally not deport in circumstances where there is substantial
evidence of a risk of torture.

We are gravely concerned that the Security Certificate process denies to
non-citizens the due process rights to which they are entitled as equal
human beings. Likewise of great concern is the denial of non-citizens' right
to be free from arbitrary detention -- especially in the case of those who
are not permanent residents, who can be detained without even a warrant. As
undeniably serious as these violations are, however, they pale in comparison
to what for some is the eventual outcome of the process: torture, which is
perhaps the ultimate violation of human dignity and fundamental human
rights.

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.

Sincerely yours,

Sharryn J. Aiken, Assistant Professor of Law, Queen's University and Andrew J. Brouwer, Co-Chair, Legal Affairs Committee, Canadian Council for Refugees

c.c. Hon. Judy Sgro, P.C., M.P., Minister of Citizenship and Immigration
Rt. Hon. Paul Martin, P.C., M.P., Prime Minister of Canada
Hon. Irwin Cotler, P.C., M.P., Minister of Justice
Gilles Duceppe, Bloc Quebecois Leader
Jack Layton, New Democratic Party Leader
Hon. Stephen Harper, Conservative Party Leader and Leader of the Opposition

Endorsed by:

Raj Anand, Chair, Minority Advocacy and Rights Council
Reem Bahdi, Assistant Professor of Law, University of Windsor
William Black, Professor of Law, University of British Columbia
Michael Bossin, Adjunct Professor, Faculty of Law (Common Law Section), University of Ottawa
Raoul Boulakia, President, Refugee Lawyers Association
Kim Brooks, Assistant Professor of Law, University of British Columbia
Bruce Broomhall, Professeur, Departement des sciences juridiques,
Universite du Quebec à Montreal
Patrice M. Brunet, president, AQAADI (Quebec Immigration Lawyers Association)
Karen Busby, Professor of Law, University of Manitoba
Emily F. Carasco, Professor of Law, University of Windsor
Peter Carver, Assistant Professor of Law, University of Alberta
Janet Cleveland, Research Associate, Faculty of Law, Universite de Montreal
Paul Copeland & Barbara Jackman, Law Union of Ontario
Stan Corbett, Adjunct Assistant Professor of Law, Queen's University
Francois Crepeau, Canada Research Chair on International Migration Law, Scientific Director, Centre for International Studies and Professor of International Law, Universite de Montreal
Catherine Dauvergne, Canada Research Chair in Migration Law and Associate
Professor of Law, University of British Columbia
Isabelle Doray, President, Association des avocats de la Défense de Montreal
Susan Drummond, Associate Professor of Law, Osgoode Hall Law School, York University
David G. Duff, Associate Professor of Law, University of Toronto
David Dyzenhaus, Associate Dean (Graduate), Faculty of Law, University of Toronto
Don Galloway, Professor of Law, University of Victoria
Mitchell Goldberg, Co-Chair, Legal Affairs Committee, Canadian Council for Refugees
Mendel Green, Founding Chair, Canadian Bar Association, Immigration Section
France Houle, Professeure de droit, Universite de Montreal
Shin Imai, Associate Professor of Law, Osgoode Hall Law School, York University
Martha Jackman, Professor of Law (Common Law Section), University of Ottawa
Rebecca Johnson, Associate Professor of Law, University of Victoria
Nicole LaViolette, Associate Professor, University of Ottawa
Sonia Lawrence, Assistant Professor of Law, Osgoode Hall Law School, York University
Douglas Lehrer, Legal Committee, Canadian Centre for Victims of Torture
Jennifer Llewellyn, Assistant Professor of Law, Dalhousie University
Michael Lynk, Assistant Professor of Law, University of Western Ontario
Patrick Macklem, Professor of Law, University of Toronto
Audrey Macklin, Associate Professor of Law, University of Toronto
Allan Manson, Professor of Law, Queen's University
Louis-Philippe Marineau, Lawyer and Member of the Board of Directors, Amnesty International, Canadian Section (francophone)
David Matas, Steering Committee, Amnesty International Legal Network, Canada (English Speaking)
Anne McGillivray, Professor of Law, University of Manitoba
Susan T. McGrath, President, Canadian Bar Association
Sheila McIntyre, Director, Human Rights Centre, Faculty of Law (Common Law Section) University of Ottawa
Richard Moon, Professor of Law, University of Windsor
Janet Mosher, Associate Professor, Osgoode Hall Law School, York University
David Mullan, Professor of Law, Queen's University
Delphine Nakache, Research Associate, Universite de Montreal
Ken Norman, Professor of Law, University of Saskatchewan
Debra Parkes, Assistant Professor of Law, University of Manitoba
Diane Pask, Professor Emerita of Law, University of Calgary
Steven Penney, Associate Professor of Law, University of New Brunswick
Patricia Peppin, Associate Professor of Law, Queen's University
Sukanya Pillay, Assistant Professor of Law, University of Windsor
Helene Piquet, Professor, Universite du Quebec à Montreal, Faculties of Political Science and Law
W. Wesley Pue, Associate Dean, Graduate Studies & Research, Faculty of Law, University of British Columbia
Ed Ratushny, Professor of Law, University of Ottawa, and President, International Commission of Jurists (Canadian Section)
Sanda Rodgers, Professor of Law (Common Law Section), University of Ottawa
Elizabeth Sheehy, Professor of Law (Common Law Section), University of Ottawa
Palbinder K. Shergill, General Counsel, World Sikh Organization
Ralph Steinberg, President, Criminal Lawyers' Association
Joanne St. Lewis, Assistant Professor of Law (Common Law Section), University of Ottawa
Lorne Sossin, Associate Dean, Faculty of Law, University of Toronto
Don Stuart, Professor of Law, Queen's University
David M. Tanovich, Assistant Professor of Law, University of Windsor
Chantal Tie, Adjunct Professor, Faculty of Law (Common Law Section),University of Ottawa
Rose Voyvodic, Associate Professor of Law, University of Windsor
David Wiseman, Assistant Professor of Law, University of Windsor


More Info:
www.homesnotbombs.ca
www.zerra.net/freemohamed/
www.adilinfo.org

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