Monday, December 1, 2008

Our Policy Recommendation

After reviewing the policy options advocated by MPs, legal scholars, NGOs and activists, we ultimately determined that the use of security certificate is unsalvageable as a policy option. We are calling for the repeal of the provisions of the IRPA that deal with security certificates. We believe that immigration legislation is the wrong framework for addressing the alleged risks posed by terrorist activities by non-citizens and promotes a racist "othering" of all non-Canadians within our borders, particularly those of Arab and/or Muslim descent.

Further, we feel that current provisions of the Criminal Code of Canada are sufficient to address any alleged threat, particularly within the context of the Anti-Terrorism Act. There are already provisions within the Criminal Code addressing violent crimes, conspiracy, property destruction, hate crimes, etc. The Anti-Terrorism Act, enacted in 2001, and reviewed in 2005, provides law enforcement agencies with considerable authority and latitude to investigate suspected terrorists/terrorist activities. For more information about the Act, see:

Here are the differences in the way the current policy treats citizens and non-citizens differently:

Non-citizens alleged to represent a security threat are subjected to the security certificate regime of the IRPA, which includes arrest and detention on the basis of secret allegations and secret evidence; in camera ex parte hearings; indefinite detention in inhumane conditions; and the prospect of deportation, possibly to torture.

A Canadian citizen alleged to represent an identical security threat is subject to the Criminal Code anti-terrorism provisions, which include fair hearing provisions, detention reviews, alternatives to detention, and detention for a fixed term following a trial and sentencing, with access to appeal.

With the repeal of the IRPA provisions, the Criminal Code could be applied equally to citizens and non-citizens alike, providing the same access to a fair and open trial including the right to a full defence, and conviction based on a finding of guilt 'beyond a reasonable doubt', and possible incarceration of those convicted and the unconditional release of those acquitted.

Another protection within this framework is that there are 5-year sunset clauses on many of the most controversial and intrusive elements of the Anti-Terrorism Act. In fact, some provisions (including one regarding preventive arrest) expired in March 2007 and are currently being reintroduced and debated. Further, annually the Attorney General and the Minister of Public Safety and Emergency Preparedness must report about whether the provisions should be maintained and must provide evidence/reasons to justify their position.

The use of the Criminal Code to address threats to national security recognizes that the threat or crime itself is what is relevant and not the identity of the suspect. It is based on a much clearer (although imperfect) integration of individual freedom and collective security, the stated objectives of current security certificate provisions. It provides a more transparent legal process to lessen the likelihood of state coercion of the accused and eliminates the risk of torture posed by deportation. It also provides for the incarceration of those individuals convicted of undertaking or planning violent/terrorist activities in Canada and abroad and prevents further violence.

It is not a perfect policy option as is discussed in the posts laying out pros and cons, however, it is a first step in rejecting the 2-tiered human rights structure in Canada that the use of security certificates currently ensures. It is also a policy option that has considerable support, both within the opposition parties federally and within civil society. This will facilitate mobilizing action around this proposed policy shift.

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