Constitutional canaries and the elusive quest to legitimize security detentions in Canada.

• Author: Duffy, Maureen T.

Canada, like many other countries, has struggled with questions of how to prevent terrorist attacks without undermining human rights. One tool that gained prominence in recent years involves preventive detention under "security certificates." This measure, undertaken through immigration legislation, applies to non-citizens found inadmissible for one of a number of reasons, including a suspicion that they endanger national security. Such detentions have ignited considerable controversy within Canada. In February 2007, the Supreme Court of Canada found the existing scheme unconstitutional While the Court did not find the scheme to be discriminatory, in spite of its application only to non-citizens, it did find that the potential use of secret evidence contravened procedural fairness. Canada subsequently passed legislation, creating a special advocate system. This article argues that continued problems exist with these detentions, including questions of discrimination and concerns about the fairness of the new special advocate system.

1. INTRODUCTION II. BACKGROUND ON THE CASES A. Factual Background B. Security Certificates Under Canadian Law III. THE SUPREME COURT DECISION: CHARKAOUI V. CANADA (CITIZENSHIP AND IMMIGRATION) IV. THE RESPONSE OF THE CANADIAN GOVERNMENT V. ONGOING PROBLEMS WITH CANADIAN SECURITY CERTIFICATES A. The Discrimination Issue B. Secret Evidence C. Additional Shortcomings of Bill C-3 VI. CONCLUSION I. INTRODUCTION

   In the days following the attacks of September 11, 2001, there were rumors that some of the hijackers entered the United States via Canada. (1) The rumors, which proved entirely unfounded, contributed to a sense of urgency in Canada as to the need to radically tighten immigration controls and anti-terrorism measures. (2) In line with new legislation in the United States and a significant number of other countries, Canada enacted statutes that facilitated the preventive detention of individuals suspected of conspiring to commit terrorist attacks. The constitutionality of administrative detention pursuant to "security certificates" in Canada was tested in a February 23, 2007 decision by the Supreme Court of Canada (Supreme Court). In Charkaoui v. Canada (Charkaoui), the Supreme Court issued a historic and unanimous ruling that found the security certificate scheme unconstitutional. (3) The Charkaoui decision was one of several national high court decisions issued around the world that addressed detention practices for those accused of some form of terrorist affiliation. (4)

   As will be explained in greater detail below, a security certificate is an immigration order that is issued in certain cases, clearing the way for a non-citizen to be deported from Canada. Under the security certificate scheme, people can be detained, often for very long periods, particularly in those cases in which deportation cannot be easily accomplished--usually because of a claim that the person faces a risk of torture if deported. The standards and procedures for issuing security certificates vary considerably from those normally applied in criminal cases and also vary from those applied in typical immigration proceedings. Perhaps the biggest and most controversial distinction is that security certificates can, in some circumstances, be issued based on evidence that the named person is never allowed to see. Security certificates may also place significant restrictions on judicial review of the basis of a person's detention. Although various situations can give rise to a security certificate proceeding, security certificates have been used primarily to detain those suspected of some sort of terrorism affiliation since September 11, 2001.

   The Supreme Court considered security certificates in its Charkaoui decision. Charkaoui involved three men--Adil Charkaoui, Hassan Almrei, and Mohamed Harkat--who had been detained under Canada's security certificate provision. (5) This article analyzes the Supreme Court's ruling as well as legislation recently enacted in Canada to respond to that ruling. Section II provides a factual background on the three litigants, as well as an explanation of the legal context in which the Supreme Court ruled. Section III focuses on the Supreme Court's reasoning in Charkaoui. Section IV details the response of the Government of Canada. Finally, Section V analyzes both the decision and the governmental response, explaining ongoing problems with security certificate proceedings.

2. BACKGROUND ON THE CASES

   1. Factual Background

      Adil Charkaoui is a permanent resident of Canada, (6) originally from Morocco. He has been living in Canada since 1995. Charkaoui was first arrested and detained in 2003 under a security certificate. (7) Charkaoui was released under a condition of bail in 2005, after having been held for approximately two years, and without ever having been charged with any criminal offense. To this day, Charkaoui remains under constant monitoring by way of an electronic device that he must wear at all times, with his ability to travel and to communicate via telephone or internet significantly restricted. (8) Charkaoui maintains that he would be at risk of torture if he was deported to Morocco. (9) Charkaoui has a wife and three children living with him in Montreal, where he teaches French and is working on a Ph.D. part time. (10) Charkaoui has consistently denied any terrorism affiliations. Because much of the evidence being used against Charkaoui is considered classified, he and his attorneys have not been made privy to all of the evidence, instead at times only being presented with summaries of the evidence that has been determined subject to disclosure to Charkaoui. (11)

      Charkaoui has been vigorously protesting the security certificate in his case. For example, in addition to the Supreme Court case discussed herein, Charkaoui filed an additional challenge regarding the evidence the Government is using against him. Charkaoui challenged a late disclosure of allegedly "new" evidence that was submitted as part of the justification for his detention under a security certificate. Charkaoui also raised issues regarding the alleged destruction of some of the original evidence by the Canadian Security Intelligence Service (CSIS). (12) In June 2008, the Supreme Court ruled that CSIS has a duty to maintain such evidence, and that submission of mere summaries of the evidence to the presiding judge does not meet the requirements of Section 7 of the Charter, although the Court left the determination as to any specific prejudice in this case to the judge hearing the matter. (13) It is notable, as well, that Charkaoui has filed a constitutional challenge to the new Bill C-3--the legislation discussed in this article. That challenge is in a very early stage as of the writing of this article. (14)

      The second individual whose security certificate was considered in Charkaoui, Mohamed Harkat, is a Convention refugee originally from Algeria, living in Canada as a foreign national. (15) Harkat was arrested and detained in 2002. (16) In 2005, a judge of the Federal Court ruled that his security certificate was "reasonable." (17) In 2006, he was released on extensive bail conditions, restricting his movements, his ability to use the phone and internet, and even his ability to remain unsupervised in his home, and he remains under those conditions today. (18) Harkat has been advised that he will be deported to Algeria, a decision he is challenging on the basis that he is at risk of torture if deported there. (19) In late January 2008, Harkat was re-arrested on a government allegation that he had violated the terms of the conditions attached to his release, and he subsequently was re-released on conditions as the court considered the allegations. (20)

      The third individual, Hassan Almrei, is also a Convention refugee, originally from Syria, who was living in Canada when he was arrested and detained in 2001. (21) His security certificate was judicially determined to be "reasonable," and he remains in detention to this day. (22) Although initially slated to be deported to Syria, that deportation order was stayed, based on a determination that an original assessment, which had found that he was not at risk of torture, was flawed. (23) The Supreme Court, in referring to Almrei's detention, noted that Almrei does not know "when, if ever, he will be released." (24)

   2. Security Certificates Under Canadian Law

      Canada has followed a trend, seen around the world, of using its immigration legislation to detain non-nationals suspected of terrorism involvement. Security certificates involve a finding that a non-national is inadmissible to Canada. (25) The outcome, if a certificate is deemed reasonable, is generally deportation of the person in question. (26)

      Specifically, security certificates are issued under Canada's Immigration and Refugee Protection Act (IRPA), which was enacted in late 2001 and entered into force in early 2002. (27) Prior to 2002, a special process existed for permanent residents for whom removal was sought on national security grounds. (28) Such cases were held before the Security Intelligence Review Committee (SIRC) and included a number of procedural safeguards, including security-cleared lawyers and specified procedures for evidence claimed to be classified. (29) For foreign nationals who were not permanent residents of Canada, there was a separate security certificate proceeding, held before a federal judge. (30) In 2002, there were significant changes to Canada's immigration legislation including, among other things, elimination of the SIRC process for permanent residents. (31) There have been suggestions that the IRPA improperly eliminated necessary procedural safeguards. (32) Since the September 11th attacks, the Canadian security certificate system has come under considerable criticism. (33)

      The relevant provision of the IRPA, considered by the Supreme Court in Charkaoui...