Op Ed: Right to a Fair Trial is not just for Canadian Citizens

Today, the SCC hears an important case regarding the constitutional rights of immigrants in Canada. Mohamed Harkat will challenge the constitutionality of security certificates. Harkat is an Algerian who came to Canada in 1997. He has been subject to a security certificate since 2002. He was detained until 2006 and has since been under strict bail conditions. While his conditions have relaxed over time, they have included: a GPS monitoring device, curfew, surveillance cameras at the front of his house, interception of mail and phone calls, and no internet access.

Security certificates allow the Canadian government, on the basis of secret evidence, to deport non-citizens who are deemed a security threat to Canada. The regime also allows for detention – with no statutory limitations on the length – so long as the detention is reasonable. Because it is not a criminal proceeding, the standard of proof is much lower than beyond a reasonable doubt. The standard applied is whether there are reasonable grounds to believe that the named person is a security threat. Furthermore, the disclosure of secret evidence in the security certificate proceedings does not require the judge to balance the interests of the named person for disclosure against the interests of national security for non-disclosure, as is required in the Canada Evidence Act. In response to the Supreme Court of Canada’s first ruling on security certificates in 2007, the Canadian government introduced special advocates who are able to challenge the secret evidence. However, procedural safeguards for a fair trial are still not comparable to those given to Canadians in a criminal trial. Yet, both security certificate proceedings and criminal proceedings present the possibility of detention and, in the case of security proceedings, potentially indefinite detention.

The Supreme Court of Canada has previously held in Charkaoui that a deportation scheme will not be discriminatory so long as the detention is linked to the deportation. In cases where the named person faces the risk of torture upon return, deportation is no longer a viable option, and there are no statutory limits to the length of detention. Furthermore, according to the Centre for European Policy Studies Special Report on the Canadian Security Certificate Regime, the average time in custodial detention for those named on a security certificate in 2007 was almost six years (page 5). Immigrants facing allegations of being a threat to national security deserve comparable procedural safeguards to Canadians charged with terrorism activity. The current regime does not provide this and is discriminatory on this basis. Immigrants facing detention in Canada have a right to a fair trial.

The current regime cannot be justified. For one, it is unnecessary. The Canada Evidence Act addresses disclosure of secret evidence, and the Anti-Terrorism Act allows the government to charge individuals for terrorist activity. Even if the security regime is necessary as a tool to protect national security, the security certificate regime is ineffective because it assumes that a person who is a danger to Canada’s security ceases to become a risk once outside of Canada. When declaring the then UK system of detaining and deporting non-UK suspected terrorists, Lord Bingham wrote: [A]llowing a suspected international terrorist to leave our shores and depart to another country, perhaps a country as close as France, there to pursue his criminal designs, is hard to reconcile with a belief in his capacity to inflict serious injury to the people and interests of this country” (para 33). Finally, even if the regime is effective, then it is not appropriate to limit it to immigrants. Immigrants are no more inherently dangerous than citizens and, as such, if preventative detention effectively prevents terrorism, then Canadians should be subject to a similar regime.

Immigration proceedings that allow for indefinite detention cannot be shielded from section 15 scrutiny merely because the scheme also allows for deportation. There is no logical basis to conclude that immigrants suspected of terrorism are any more or less dangerous than suspected terrorists holding Canadian citizenship. Either those subject to security certificates must be afforded comparable procedural safeguards as a Canadian facing terrorism charges or Canadians must be subject to a similar preventative detention scheme. Until then, security certificates are discriminatory.

For more information on the Harkat hearing at the Supreme Court of Canada: http://www.scc-csc.gc.ca/case-dossier/info/sum-som-eng.aspx?cas=34884