Monday, October 13, 2008

So, where do things stand now?

A bit more background - the nuts and bolts of the new legislation
(This section may be a little dry so please bear with me, we'll get to what it all means soon)

As mentioned in previous posts, in February 2007, in a unanimous decision, the Supreme Court of Canada (SCC) determined that certain provisions in the Immigration and Refugee Protection Act (IRPA) dealing with security certificates were unconstitutional. The case was based on the appeals of three of the men subject to these certificates: Adil Charkaoui, Hassan Almrei, and Mohamed Harkat. The Court determined that the IRPA provisions violated s.7 of the Charter. In simple terms, the Court found that it violated the principles of fundamental justice that the accused were not fully informed about the case against them and could therefore not respond effectively in their own defence. However, the Court suspended its judgement for 1 year in order to give the government time to bring legislation fully into line with the Charter.

In recent years, the debate about security certificates has been held in several House and Senate committees examining the broader questions of national security, anti-terrorism, and immigration policies. These committees have heard from a range of experts and received briefs from individuals and organizations from across the country. Therefore, along with the recommendations of the SCC, there were a number of options and recommendations offered by these multi-party committees to inform the development of the new legislation.

In October 2007, the Conservative government introduced Bill C-3, An Act to Amend the Immigration and Refugee Protection Act (Certificate and Special Advocate) into the House of Commons. It passed through the House with only minor revisions, supported by the Conservative and Liberal MPs and opposed by NDP and BQ members. The Senate passed the Bill within a week and it received Royal Assent on February 14th 2008.

Major changes in the legislation
The new legislation continues to allow the use of security certificates for detaining (and deporting) permanent residents and foreign nationals without charge. The major change to the legislation involves the appointment of 'special advocates' for the individuals subject to the certificates. These advocates are able to view the evidence against their clients and to call and cross-examine witnesses in order to challenge the detention/deportation order. The advocates can meet with their clients prior to seeing any classified evidence (an unclassified summary is made available), however, once the advocate has seen the classified material, contact between them and their clients is generally restricted to ensure that this information is not shared. A provision in the new legislation allows for the advocate to challenge the confidentiality of the evidence so that their client can learn the facts of the case against them.

Another key change in the legislation is that whereas previously foreign nationals did not have the same rights as permanent residents to regular reviews of their detention/deportation orders, under the new legislation all those subject to the security certificates have the right to have the order reviewed (within 48 hours of its issue and then at six month intervals).

Other changes are largely procedural and involve, for example, concurrent hearings on the reasonableness of a security certificate (whether a person can be deported) and the Pre-Removal Risk Assessment (PRRA), which determines whether the person subject to the deportation order would face a significant risk of persecution, torture or death if returned to their country of origin. If the security certificate is deemed to be reasonable but the person faces a significant risk of harm if deported, detention may be relied on indefinitely.

So, that's where we are and how we got here. Ultimately, the new legislation is aimed at addressing the specific concerns identified by the Supreme Court without fundamentally altering the way in which security certificates are currently used in Canada. While the government rhetoric suggests that this revised legislation has struck the right balance between protecting Canadians from terrorism and maintaining our core Canadian values of democracy and human rights, critics suggest that these changes are nothing more than (as our American friends might say) 'putting lipstick on a pig'.

Now that we're through the nuts and bolts, my next post moves from "where are we now?" to "what does it all mean?"


Anonymous said...

I was kind of surprised the Supreme Court didn't rule more forcefully on the bill. I guess that's the way these things work though - slow, incremental changes. I imagine there will be another challenge in the next few years once these changes have been put into place. I don't think they went nearly far enough. Can anyone be a special advocate? Why can't their lawyers just be allowed to see the info (or is that what it means)?

Anonymous said...

at this point, the lawyers can see the info, but the accused can see very little.
sometimes i think the gvt is still in the dark ages.

truthtopower said...

Creating a list of possible special advocates was the responsibility of the Department of Justice. Following consultation with organizations such as the Canadian Bar Association and the Federation of Law Societies, the DOJ issued a Request for Expression of Interest (EOI) for the special advocates program on December 20, 2007. By September 2008, 27 lawyers had put their names forward and had been approved to be special advocates (having the right skills, having no 'conflict of interest, etc). As I will be exploring in a future post, some of these special advocates have become highly critical of the new process.

truthtopower said...

I forgot one of the most important points about the Special Advocates - that they have high-level security clearance.